Kevin Sexton Archives - The Provincetown Independent

Kevin Sexton

DEVELOPMENT

Sexton Asks to Delay Review on Two Wellfleet Subdivisions

Developer has appealed Land Court decisions against him on deed and clearcutting cases

By Christine Legere Nov 20, 2024

WELLFLEET — Kevin Sexton’s plans for two new subdivisions on lots he owns on Old King’s Highway have been awaiting planning board review since they were submitted in early April.

Sexton asked the board on Nov. 6 for a second extension of the hearing dates. The time was needed, he said, to meet the board’s requirement that the properties undergo surveys by a wildlife biologist under Mass. Wildlife’s National Heritage and Endangered Species Program.

Sexton has proposed a nine-lot subdivision on 10.3 acres at 230 and 270 Old King’s Highway — two adjacent lots along Duck Pond Road — and a 10-lot subdivision on 8.6 acres at 538 and 548 Old King’s Highway — two adjacent narrow lots between Somerset Avenue and Dow Drive.

Edward Pesce of Pesce Engineering & Associates in Plymouth, Sexton’s engineer for both projects, said the state will soon wrap up its habitat review of the 10-lot plan. The planning board set a hearing on that project for Feb. 5, 2025.

The state’s review of the nine-lot subdivision is taking longer. “Almost all of that site is habitat area, so we have to show how we are going to minimize disturbance as best we can,” Pesce said. The planning board continued the hearing for 120 days, until March 5, 2025, nearly a year after the definitive subdivision plans were submitted.

In addition to the habitat review, the planning board required title searches of both properties to clarify any easements they may contain, based on advice from town counsel. Residents have used a path on 230 and 270 Old King’s Highway property to access Duck Pond for more than 20 years.

Vice chair David Mead-Fox is conducting the meetings on the projects in place of chair Gerry Parent, who has recused himself because he lives near the sites. In a letter sent to Sexton on Oct. 31, Mead-Fox said the path to Duck Pond may be a “prescriptive easement” based on the length of time it has been used. “The location of the easement and the prescriptive rights therein must be confirmed,” Mead-Fox said.

Sexton handed the title search documents to board members at the Nov. 6 meeting. The documents failed to say who searched the titles. A note at the end of the search on the property near Duck Pond stated “there is no recorded evidence of a taking or an express easement shown on any recorded plan.”

At its June meeting, the planning board voted to issue a request for proposals from engineering firms to conduct a review of the subdivision plans. Mead-Fox suggested using the formal RFP process, even though it is not generally used when hiring a consulting engineer, “given the complexity of these projects.”

Pesce argued that there was no need for the RFP process, characterizing the plans as “very simple.”

At its November meeting, the planning board picked engineers at Beals and Thomas, a firm headquartered in Southborough, to do a peer review of the subdivision once any revisions required to meet habitat restrictions have been completed. The review, which will cost Sexton $15,000, will confirm that the plans meet the town’s subdivision regulations, comply with the state’s stormwater management standards, and address traffic, emergency access, and pedestrian safety.

As Sexton pursues approval for the two projects, he and his mother, Chellise Sexton, continue their legal claim that they own the land nearby on which the Fred Bell Way affordable apartments were built in 2002.

Claims Against the Town

The Sextons claim they own the 8.6-acre property off 324 Old King’s Highway, which the town took from Ralph Witcher in 1967 for unpaid taxes. The town voted in 1993 to turn the property over to the Wellfleet Housing Authority. After several years of planning, the housing authority signed a 60-year lease with the Community Development Partnership (CDP), the nonprofit that spent $1.5 million to build a 12-unit affordable housing complex that it continues to manage on the site at Fred Bell Way.

In 2017, 15 years after the complex was built, the Sextons filed suit in state Land Court claiming they owned the property based on a 1922 deed. Defendants included the housing authority, the CDP, utility companies, and state and federal agencies that had provided funding for the project. The Sextons also asked the court to revoke easements the town had granted to nearby residents for their utility lines. The Sextons’ contention was that the town built the housing on the wrong property, based on their deeds.

The town prevailed in the suit last December after a six-year court battle, with the judge ruling that the town had the superior claim based on an examination of the deeds. But while the town hoped the ruling would put the matter to rest, the Sextons appealed the judgment in the Mass. Appeals Court a few months later. The case is still pending.

When the appeal was filed earlier this year, attorney Zachary Berk, representing the CDP, said the process generally takes about 12 to 18 months.

Kevin Sexton has a separate appeal against Wellfleet’s then-building commissioner Robert Fowler and the town’s zoning board related to a Land Court suit over clearcutting he did in 2021 on his family’s land in the National Seashore next to LeCount Hollow Beach.

The building commissioner issued a cease-and-desist order when he learned of the clearing. Sexton appealed the commissioner’s order to the zoning board, which upheld it. He then took the case to court, where the judge in June affirmed the town’s actions, saying Sexton had done the clearing without a required permit.

In late September, Sexton asked the Mass. Appeals Court to overturn the Land Court decision. He was recently granted a continuance to February 2025 for filing a formal brief and backup material.

CLEAR CUT

Judge Rules Against Sextons in Clearcutting Case

Trees are timber after all, a Land Court judge finds

By Christine Legere Jul 17, 2024

WELLFLEET — A Land Court judge has settled a dispute between the town and Kevin Sexton over the June 2021 clearcutting of a swath of woods on his family’s land next to the Lecount Hollow Beach parking lot. The property is in the Cape Cod National Seashore.

The town’s position was that cutting timber in the Seashore district may be done only to control brush or to maintain pastures or a right-of-way.

Sexton argued that the scrub pine he cleared did not qualify as “timber” and was therefore unregulated under local bylaws. He further argued that he did not need to get a permit before clearing more trees.

Sexton runs Cooks by the Sea, a cottage colony on 24.6 acres just south of the beach. It was one of the few businesses in operation on the shore before the 1961 establishment of the National Seashore. Cooks is thus classified as a preexisting nonconforming use, exempt from zoning provisions unless the use changes or is expanded. Sexton has argued that clearing areas to add parking and enlarge his driveway is not expanding the use of the land.

Sexton began cutting trees on the property on June 14, 2021. He did not have a permit, but his brother Kristian had that same day informed Paul Fowler, the town’s building commissioner, of the planned tree-cutting. It continued into the next day, when Fowler issued a cease-and-desist order.

A week later, Fowler issued a second notice saying that if Sexton planned to do any further cutting he would need to submit a plan for the proposed use of the cleared land.

Sexton appealed both orders to the zoning board of appeals. He argued that scrub pines could not be characterized as timber, which he defined as wood that could be used in construction or that had an economic value.

Sexton further argued that because private parking is allowed by right in the Seashore district as an accessory use, his plans did not represent an expansion of a nonconforming use and did not require a permit.

Both appeals were denied by the ZBA, and Sexton went to Land Court in September 2021.

In a ruling issued late last month, Land Court Judge Kevin Smith upheld the town’s cease-and-desist order as well as its interpretation of the word “timber.”

“The use of the word ‘timber’ in the bylaw was not intended to focus on a narrow category of trees that might be available for use in the construction of buildings or other structures,” Smith wrote. “The interpretation urged by Sexton would allow all scrub pine to be clear cut over the entire NSP District — which Sexton argues he has the right to do — solely because that type of tree may not be suitable for commercial use.” Such an interpretation would undermine the objectives of the National Seashore District, the judge said.

Judge Smith also agreed with the town’s building commissioner and zoning board that cutting down trees for additional parking and a driveway would be an expansion of the nonconforming use. He therefore supported the ZBA’s determination that a special permit is required before Sexton does any further clearing.

Judge Smith annulled a portion of the zoning board’s decision where it determined that Sexton’s cottage colony already has adequate parking and that his effort to create additional parking and a driveway is forbidden because it is incompatible with the National Seashore’s federal standards.

The zoning board was given only the task of reviewing the propriety of the building commissioner’s decision that a building permit and special permit were necessary before Sexton could cut more trees to expand parking. “Instead of limiting its ruling to those issues, the board jumped the gun and ruled that Sexton’s tree cutting is an improper extension of cottage colony use,” Smith said. The board also based its determination on the federal standards rather than local bylaws, which the judge called “a mistake of law.”

Neither the town’s nor Sexton’s attorneys responded to calls and emails seeking comment on the judgment. Sexton also did not respond to an email. Sharon Inger, who chairs the ZBA, said her panel had not yet been told about the judge’s ruling.

MISDEEDS

Sextons Appeal Land Court Decision on Fred Bell Way

The family’s appeal of a clearcutting cease-and-desist order is still pending

By Christine Legere Jan 31, 2024

WELLFLEET — The Sexton family’s failed bid to claim ownership of property on Old King’s Highway where the town built affordable housing more than 20 years ago isn’t over.

A state Land Court judge rejected the Sextons’ argument, ruling in December that the town had the stronger title. But the relief brought by that decision was short-lived.

Chellise Sexton, 76, of Eastham and her son Kevin, 49, of Wellfleet notified the court on Jan. 22 that they are asking the Mass. Appeals Court to reverse the decision. The appeals court will formally open the case in the next few weeks, and the Sextons will have 40 days to file their appellate brief.

The 8.6-acre property at 324 Old King’s Highway, now called Fred Bell Way, was taken by the town in 1967 from owner Ralph Witcher for failure to pay $96.54 in property taxes. In 1993, town meeting turned the land over to the Wellfleet Housing Authority. And in 2001, the nonprofit Community Development Partnership (CDP) signed a 60-year lease on the property and built 12 units of affordable rental housing. The CDP continues to manage the $1.5-million complex.

In their lawsuit, the Sextons went after several entities in addition to the housing authority and the CDP, including utility companies, the state (because of the involvement of the Dept. of Housing and Community Development), and the federal government, in connection with subsidies provided for the housing development.

A handful of owners who built homes on Delphi Way also face potential fallout from the case, because the sole access to their properties is by way of an easement over the town-owned land. The Sextons asked the court to void those easements.

“We are disappointed that the Sextons have decided to appeal the Court’s strong opinion,” wrote Jay Coburn, CEO of the CDP, in a statement. Their decision, he wrote, would “prolong the anxiety experienced by the 12 families who call Fred Bell Way home.”

The Timber Appeal

Kevin Sexton has a separate case against Wellfleet pending in Land Court. He appealed a cease-and-desist order issued in 2021 by then-Building Commissioner Robert Fowler and the zoning board’s decision to uphold that order. Sexton had clearcut a large wooded area on his family’s 25-acre property in the National Seashore next to Lecount Hollow Beach.

Sexton’s brother Kristian told Fowler that the purpose of the tree cutting was to create a private parking lot and driveway for the family’s cottage colony, Cooks by the Ocean. Neighbors, however, reported they had seen the Sextons charging beachgoers to park at the stripped site.

Under zoning laws adopted by all the towns in the National Seashore, the cutting of timber is strictly limited and requires permits from town authorities. The appeal in that case is still pending.

Wellfleet’s special town meeting this past September approved amendments to the town bylaw, including one that defines “timber,” which is at the center of the court debate. The Sextons claim that the change was made to bolster the town’s position in Land Court.

In October, Kendall Sexton, another of Kevin’s brothers, filed an objection to the bylaw amendment with the state attorney general’s office, which must approve general and zoning bylaws enacted by towns before they become part of the local code.

“The prohibition of the cutting of nearly all trees on private land within a district is illegal, effects an unconstitutional taking, violates due process guarantees and cannot be a function of zoning,” argued Kendall Sexton. The National Seashore District includes about half of Wellfleet, he said.

The filing also pointed out that the public hearing on seven zoning bylaw changes last September had not been properly advertised. Legal notices must precede the public hearing by 14 days. The town’s notice was published in the Independent 13 days before the hearing.

The attorney general’s office has required the town to post another legal notice, which appeared in the Jan. 18 Independent, saying that its previous notice of the public hearing had been inadequate. Anyone who believed the defect in the notice was misleading or prejudicial was given 21 days to submit a written statement to the town clerk’s office.

During a discussion with the planning board on Jan. 25, Town Counsel Carolyn Murray said the attorney general’s office may be inclined to disapprove a bylaw change when an objection is lodged. The only bylaw that had drawn an objection, Murray said, was the timber bylaw that the Sextons objected to.

Sexton Subdivisions

Meanwhile, Kevin Sexton is working on plans for two new subdivisions on his family’s land at 230 and 270 Old King’s Highway and 538 and 548 Old King’s Highway. To date, the planning board has held one informal discussion with Sexton, who is in the process of submitting preliminary plans. But neighbors are already expressing concern.

Residents of Somerset Avenue, which abuts 538 and 548 Old King’s Highway, wrote to say the 10-lot subdivision plan “appears to favor intensity of use over sound design.” While an informal plan from Sexton identified Somerset Avenue as an emergency access easement for his development, residents said they “do not intend or desire” to grant the easement.

The residents added that the project should meet the requirements of the Mass. Endangered Species Act because, they say, part of the parcel is within a priority habitat for rare species.

Planning board members have decided to send a letter to Sexton asking for full title searches on both properties to clarify any easements they might contain and how their presence might affect subdivision layout. Residents have used a path on one of the target sites to access a pond for more than 20 years.

The board also decided to ask Sexton for surveys of the properties to see whether the proposals will affect the habitats of any endangered species.

Planning board chair Gerry Parent lives next door to one of the proposed locations and told the Independent he has decided to recuse himself from decision-making on both.

UNENTITLED

Court Rejects Sextons’ Latest Land Gambit

Wellfleet’s deed prevails in case that threatened affordable housing

By Christine Legere Jan 10, 2024

WELLFLEET — Chellise Sexton and her son Kevin are known for repeatedly trying to wrest properties away from their current owners using 100-year-old deeds to back their claims. They have succeeded in some cases, but their latest attempt has failed.

The entrance to Fred Bell Way. The court thwarted an attempt by the Sextons to claim ownership of land where affordable housing was built in 2002. (Photo by Teresa Parker)

Their lawsuit aiming to take 8.6 acres at 324 Old King’s Highway from the Wellfleet Housing Authority has been denied by a state Land Court judge.

Unless an appeal is filed by Jan. 27, the decision puts to rest a challenge from Chellise Sexton of Eastham and Kevin Sexton of Wellfleet, who claimed that the land belonged to their family based on a 1922 deed.

The stakes were high, not just for the town, but for the dozen tenants of an affordable housing complex that was built on the site in 2002 on a road now named Fred Bell Way.

In addition, if the court had agreed with the Sextons and invalidated the easements granted by the town, some homeowners on Delphi Path would have lost access to their properties.

The Sextons sued the town in Land Court in 2017, asking the court to award them title to the land, order the town off the property, invalidate a handful of utility easements, and award them damages for rents and profits connected with the town’s use of the land.

In their complaint, the Sextons went after several entities in addition to the Wellfleet Housing Authority, including the Community Development Partnership, some utility companies, the state (because of the involvement of the Dept. of Housing and Community Development), and even the United States of America, in connection with federal subsidies and affordability restrictions on the housing development.

When Deeds Diverge

The town initially acquired the land listed at 324 Old King’s Highway in 1967, when it took the 8.6-acre lot from Ralph Witcher for failure to pay $96.54 in real estate taxes.

In 1993, residents voted at town meeting to turn the land over to the Wellfleet Housing Authority to be used for affordable housing. After years of planning, the housing authority signed a 60-year lease for the property in 2001 with the Community Development Partnership (CDP), the Orleans-based nonprofit that built the 12 units of affordable housing now on the site. The CDP continues to manage the $1.5 million complex.

The Sextons asserted their claim to the property 15 years after the complex was built.

The Sextons’ lawyer in this case, Albert Schulz of Osterville, argued that the property the town took from Ralph Witcher was not the same as the property where the town and CDP built the housing complex. The land the town owns, the Sextons claimed, was a different parcel whose current owner is listed as the Cape Cod National Seashore.

Title examiners for the town and the Sextons agreed on the chain of ownership for the Old King’s Highway property from 1829 until 1922. At that point, the Sextons argued, the property passed through generations of Cooks to Chellise Sexton, a Cook descendant, in 1985. In 2009, it was recorded on the deed as belonging to Chellise and Kevin Sexton as tenants in common, they claimed.

The trial was divided into two parts. In the first phase, the judge would decide whose deed to the land off Old King’s Highway had the superior claim. If the town’s deed was found to prevail, that would end the matter — and that is what happened on Dec. 28.

If the Sextons had been found to have the stronger claim, a second phase in court would have addressed whether they lost their rights to it because of adverse possession or failure to assert their rights in a timely manner. It would also have addressed whether the Sextons would need to pay for improvements made to the property — including the housing complex.

Six Years to Judgment

After several Covid-related delays, the trial before Mass. Land Court Judge Robert Foster took place in March 2022. Closing arguments were made in late September 2022, and Judge Foster took the matter under advisement. He deliberated for more than a year before issuing his ruling in late December.

In his decision, Foster noted that the property at issue is described using properties owned by abutters as its bounds. The deed used by the Sextons had Covell’s Way and Old King’s Highway as the boundaries on the east and west, which would match the property at issue. But the north and south boundaries were listed as properties owned by Edwin Cook “and others,” that were not directly adjacent to the site.

“In order for the 1922 Deed to convey the locus, it would be necessary to disregard its abutter calls in favor of some description that is not in the deed,” wrote Judge Foster in his decision.

“Abutter calls serve as monuments when interpreting a deed, and monuments control over other forms of description,” Foster continued. “However, these abutter calls manifestly do not describe the conveyed parcel in a manner that is sufficient to locate it on the ground.”

Jay Coburn, executive director of the CDP, made the following statement: “The CDP is very relieved by the Court’s decision, but not nearly as relieved as the 12 families who call the affordable apartments on Fred Bell Way home.”

A History of Sexton Claims

The Sextons have tried to lay claim to other properties in town, causing the owners to spend considerable sums on legal fees. The Paine family eventually won their case following an attempt by Chellise Sexton to wrest ownership of their longtime campground on Old King’s Highway from them. It took 21 years and more than a million dollars in legal fees to fend off her claim, according to Robert Paine.

Joe and Richard Healey and their sister Dorothy Gotreau lost their land at 120 Sapokonish Way, where their family had spent summers since the 1950s. They were notified by the Land Court in 2004 that Chellise Sexton was claiming she owned the property based on old deeds. For the next six years, they fought Sexton in court but ultimately lost the case, along with the cabin built on the property by their father and brother. Gotreau told the Independent in 2022 that she had to turn in a life insurance policy to pay legal expenses. “What we went through was awful,” she told a reporter at that time.

The Sextons built a house at 120 Sapokonish Way in 2012. The town currently values the property at $1.9 million.

In 2003, the Sextons attempted to claim ownership of some undeveloped land at 521 Old King’s Highway owned by Alfred Pickard Jr. After a costly three-year court battle, Pickard won the case and retained ownership of the land.

Two New Subdivisions?

Regarding Judge Foster’s recent decision on Fred Bell Way, Pickard said he was glad the town has prevailed. “I was bewildered how someone could go after land with housing on it,” Pickard said on Monday.

Pickard declined to say more because he is a member of the Wellfleet Planning Board, which recently had a preliminary discussion with Kevin Sexton about two subdivisions he plans to propose for 230 and 270 Old King’s Highway and 538 and 548 Old King’s Highway.

Gerald Parent is chair of the planning board and an abutter of properties owned by the Sextons. He plans to recuse himself when the board considers the two Sexton proposals. Regarding the town’s recent court success against the Sextons, Parent said, “I’m glad it’s settled and everybody can move on, and hopefully it won’t get appealed. I think a lot of the neighbors will be happy as well.”

Elaine McIlroy, chair of the Wellfleet Housing Authority, did not respond to a request for comment.

Chellise Sexton has previously said she will make no comment on any of her family’s lawsuits. Attorney Albert Schulz did not respond to a request for comment.

Kevin Sexton has another case pending in state Land Court, in which he has appealed a 2021 cease-and-desist order issued by Wellfleet’s then building commissioner, Robert Fowler, and the zoning board’s decision to uphold the order. That case is about Sexton’s clearing of a large wooded area on his family’s property in the Cape Cod National Seashore next to Lecount Hollow Beach.

In that case, Sexton’s appeal rests on whether the trees are “timber” — the word used in the town bylaw — or scrub pine with no value, which the Sextons argue is not protected.

CLAIMS

Final Arguments Heard in Sextons’ Claim to Fred Bell Way

Defense attorney argues that the town’s deed is ‘unambiguous’

By Christine Legere Oct 5, 2022

WELLFLEET — To decide who owns the land off Old King’s Highway where 12 units of affordable housing were built in 2002, the state Land Court judge doesn’t have to look any further than the 1922 deed Chellise and Kevin Sexton have used to challenge the town’s ownership of it. That was the gist of the case made by the lawyer from the state attorney general’s office during post-trial arguments on Friday.

The property’s description is clear and the boundaries named in the Sextons’ deed are “unambiguous,” said attorney Kendra Kinscherf — and they don’t describe the land now being claimed by the Sextons.

Chellise Sexton of Eastham and her son Kevin of Wellfleet sued the town in Land Court in 2017, claiming they owned the property off Old King’s Highway now called Fred Bell Way. The Sextons asked the court to award them title to the land, order the town off the property, and award damages for rents and profits connected to use of the land to them.

The town took the property at 324 Old King’s Highway from Ralph Witcher in 1967 for taxes owed. In 1993, town meeting voters turned ownership over to the Wellfleet Housing Authority for it to be used for affordable housing. In 2001, the housing authority leased the property for 60 years to the Lower Cape Community Development Corp., now called the Community Development Partnership (CDP). The nonprofit built 12 units of affordable housing on the site in 2002 and continues to manage it.

When the Sextons filed their suit claiming ownership of the land, they argued the town doesn’t own the property where the affordable housing was built and that its deed is to another parcel now listed as being owned by the National Seashore.

The 1922 deed the Sextons cited lists Laura Lamson conveying land to Edwin Cook. The Sextons trace deeds over the years conveying the property to Cook’s descendants and ultimately to Chellise Sexton, whose mother was a Cook.

The court has split the trial into two phases. In the first, the judge will determine whether the Sextons have a claim to 324 Old King’s Highway that is superior to the town’s claim. That phase wrapped up on Friday with post-trial arguments.

Kinscherf argued on behalf of the long list of defendants in the suit, which includes the town, the Wellfleet Housing Authority, the state Dept. of Housing and Community Development (which helped finance the $1.5-million affordable housing project), the CDP, and various others.

The 1922 deed described the land being conveyed as bordered by properties on two sides that were owned by Cook. Both sides have agreed, however, that Cook never owned the properties directly abutting the land being disputed. Cook’s property was further away.

“So whatever land they intended to convey by the 1922 deed, it was not the disputed property,” Kinscherf said.

Attorney Albert Schulz, representing the Sextons, argued that it was not unusual to use generalized bounds on deeds conveying land. “That happens every day,” said Schulz, who added that the land in dispute was within the boundaries of the larger tract being described in the 1922 deed.

The numerous deeds connected to Edwin Cook reflect “his speculative interest in parcels all over the area,” Kinscherf said, so he was no novice at buying and selling land. He would not have accepted and recorded a deed that described the parcel being conveyed as abutting his, she argued, since it would not have been accurate.

“The plaintiffs’ theory, taken to its logical extreme, would mean that an unambiguous deed description could be rendered meaningless 100 years after it is recorded,” Kinscherf said. “It would eviscerate the purpose of laws governing real estate transactions.”

As part of their legal effort to take ownership of the land, the Sextons have asked the court to revoke easements the town had granted to allow an access road to be built to a nearby neighborhood of homes to which the road now provides the sole access.

On Friday, attorney Giles Krill, representing some abutters, said the easement had been registered in court, and the Sextons were attempting to invalidate the registration based on some procedural defects.

Judge Robert Foster is expected to make his ruling in three to six months. If the judge rules that the Sextons don’t have superior title to the land, their case is over.

If the ruling favors the Sextons, however, the trial will move to the second phase, dealing with possession of the property. The town would then mount its opposition. To win an ownership claim under the legal doctrine of adverse possession, a party must have actively and continuously used the property for 20 years. The town didn’t start actively using the site until 2001, and the Sextons filed their court case in 2017, 16 years later.

There are statutes that may allow the CDP and the town to ask that the Sextons pay a minimum of $1.5 million for the housing built on the property should they win their case.

ON TRIAL

Sextons’ Suit Against Town Enters Final Phase

Their claim to own Fred Bell Way would affect 17 homes

By Christine Legere Sep 14, 2022

WELLFLEET — If Chellise and Kevin Sexton win their case against the Wellfleet Housing Authority, now in its final stage in Land Court, not only will 12 units of affordable housing be lost to the town but the owners of five houses on Delphi Path will lose the right to access their properties.

Final filings have been made in the four-year-old suit, brought by Chellise Sexton of Eastham and her son Kevin of Wellfleet, in which the pair claim they own the property now called Fred Bell Way, where 12 units of affordable housing were built 18 years ago. They have asked the court to order the town off the property, invalidate the utility easements, and award them title to the land as well as damages for rents and profits connected to its use.

The Sextons also seek to nullify easements across the land, granted by the town in 1999, that provide Delphi Path residents with the sole access to their homes. The road branches off Fred Bell Way.

The property in dispute is an 8.6-acre tract at 324 Old Kings Highway that was taken by the town from Ralph Whitcher for unpaid taxes in 1967.

In 1993, town meeting turned ownership over to the housing authority, which signed a 60-year lease in 2001 with the Lower Cape Community Development Corp., now the Community Development Partnership (CDP). The Eastham-based nonprofit built 12 units of affordable housing there and continues to manage them.

The Sextons trace their claim to ownership of 324 Old King’s Highway back to 1829. Title experts for the Sextons and the town agree on the chain of ownership as far as 1922. They then diverge. The Sextons claim the property was conveyed to Edwin Cook and passed down to Chellise Cook Cardinal, who conveyed it to her daughter, Chellise Sexton, in 1985. The defendants argue that the supposed deeds actually refer to a different parcel of land.

The first phase of the trial will decide whether the Sextons have title to the land. If they prevail, they will pursue possession of the property in the second phase. If the town is found to have a superior title, the case will end.

Land Court Judge Robert Foster will listen to final arguments at a post-trial hearing in Boston on Sept. 30.

According to attorney Zachary Berk, representing the CDP and other entities connected to the mortgages held on the property, the judge will likely make his decision on the first phase in the next three to six months.

Wendy Drobnyk and Stephen Soumerai, who own a house at 135 Delphi Path, signed on as intervenors to defend their easement rights. The Sextons have asked the court to invalidate those rights, which would affect all the property owners on Delphi Path.

Drobnyk and Soumerai, who live in Brookline, purchased their lot in 2004 for $300,000 and built a second home.

“Nobody would have ever bought their property if they had known it wouldn’t have access to their house,” said Soumarai on Sunday. He feels confident in the outcome of the court case. “We have solid legal title, and it includes the right to use the easement, and that’s key,” he said.

The Fred Bell Way case is one in a string of suits the Sextons have filed over the years to take title to other people’s properties.

In 2003, Chellise Sexton claimed in Barnstable Superior Court that she held the title to 521 Old King’s Highway. The court denied that claim.

It took 20 years for Robert Paine Jr., owner of a campground on Old King’s Highway, to secure his rights following a challenge by the Sextons. He then sold the campground to the state Dept. of Conservation and Recreation.

The Healey family lost their property at 120 Sapokonish Way, which had been in their family since the 1950s, to Sexton in 2010 after a six-year court battle. The Healeys couldn’t claim adverse possession — which was how Paine finally won his case — because they stayed at the property only in the summers. Sexton subsequently built a house there, where Kevin Sexton now lives. The property is currently assessed at $1.36 million.

Kevin Sexton is embroiled in another Land Court battle against the Wellfleet Zoning Board of Appeals over the family’s property next to LeCount Hollow Beach. He is appealing a cease and desist order issued by the town’s former building commissioner and upheld by the zoning board. Sexton had cleared a large swath of woods on his property. The building commissioner determined Sexton had violated zoning laws governing the National Seashore District, in which the property is located.

JEOPARDY

Fighting the Sextons in Land Court

Wellfleet might be in for a very long legal struggle

By Christine Legere Jul 13, 2022

WELLFLEET — Chellise Sexton, whose lawyers are preparing their final filings in her case against the town over ownership of 12 units of affordable housing on Fred Bell Way, doesn’t give up easily. She has a long history of protracted legal battles like the one she is now waging in state Land Court.

The property at 120 Sapokonish Way in Wellfleet, now assessed at $1.36 million, was acquired by Chellise Sexton in 2002 for $1,500. (Photo by Dorothea Samaha)

Final arguments in the dispute over ownership of the property on Fred Bell Way, first reported in the Independent on June 23, are scheduled for delivery in August, following a trial that was held in mid-March, with each side hiring expert title examiners to testify. But even if the town prevails in this next round, there is no guarantee that Chellise Sexton and her son Kevin won’t drag the case out for years in appeals. She has done it before, and more than one local family has a bitter story to tell about the lengths to which they were forced to go in efforts to secure their rights to property that they thought had been long established.

One family, the Paines, eventually won their case Sexton, who tried to wrest ownership of their longtime campground on Old King’s Highway from them. But it took 21 years and more than a million dollars in legal fees.

Another family, the Healeys, lost their land — 1.83 acres in the Cape Cod National Seashore — and the cottage on it, which had been in the family since the 1950s.

The current court case will determine the ownership of 8.6 acres at 324 Old King’s Highway, which the town took for unpaid taxes and where, 18 years ago, Wellfleet built the apartments that are managed as affordable units by the Community Development Partnership. The Sextons have asked the court to order the town off the property and award its title to them.

Chellise Sexton, who is 75, answers the door at her home in Eastham but steadfastly refuses to speak about her current lawsuit or any of the other actions she has brought against local land owners over the years.

120 Sapokonish Way

Joe and Richard Healey and their sister, Dorothy Gotreau, have not forgotten their battle with Sexton that played out 18 years ago over the land at 120 Sapokonish Way in Wellfleet, where the family had spent summers since the 1950s. They were notified by the Land Court in 2004 that Chellise Sexton was claiming she owned the property. After fighting Sexton in court for six years, they lost the property, along with the cabin built there by their father and brother.

“I had to turn in a life insurance policy to help pay the legal expenses to fight Sexton,” said Gotreau by phone from her California home on Sunday. “What we went through was awful. We were really sad.”

Both Sexton and the Healeys had deeds to the property tracing back to Ralph Cook in the 1940s.

Cook granted ownership to William Fleming in 1942 for “less than $100.” The location was not described as Sapokonish Way until later; on the old documents, the land was identified by a narrative that cited landmarks such as “an old wood road leading to Gull Pond in the range of land of the heirs of Joshua Atwood,” and “running easterly to a large pine tree in the range of land owned by Thomas Newcomb,” and so on.

William Fleming, who hadn’t used the property, kept it until 2002 when, at age 92, he was approached by Sexton. He sold the land, now identified as 120 Sapokonish Way, to Sexton for $1,500, according to the deed filed at the Barnstable County Registry.

But Ralph Cook had sold the very same piece of land to Earl Rich in 1945, again for “less than $100.” The description of the property’s location was exactly the same as on the deed granting ownership to William Fleming three years earlier.

In 1952, Rich transferred the land to Alexander Healey, who built a camp there. Several deeds followed as the land’s ownership was transferred to Healey’s descendants. By 2002, those deeds described the property as located at 120 Sapokonish Way.

Sexton filed a petition in Land Court in 2004 to clear the title, according to court documents. The Healey family received summonses to defend their interest in the property. Sexton, whose deed could be traced back to 1942 via Fleming to Ralph Cook, prevailed. The Healeys filed an appeal but ultimately lost in 2010.

“Even though we had been here since ’55, we couldn’t win with adverse possession because we only used it in the summer,” said Joe Healey, who lives in Mashpee, last week.

According to Healey, Ralph Cook had evidently deeded the property to three of his children, with each getting one-third ownership, although that wasn’t made clear on any of the deeds. Sexton, he said, had two deeds to the land to his one. The first had come via Sexton’s mother, Chellise Cook Cardinal. The second was the one she purchased from Fleming in 2002. The third was the deed the Healeys held.

Sexton built a house on the Sapokonish Way property in 2012 that is now valued by the town at $1.36 million. The land Sexton purchased for $1,500 in 2002 is now valued at over $518,000.

The Campground Fight

The most well-known of Sexton’s legal fights involved Paine’s Campground, which Robert and Cynthia Paine ran on about 30 acres off Old King’s Highway every summer beginning in 1958. The property consisted of several lots. Because they didn’t have a clear recorded title to some sections of it, the Paines filed a petition in Land Court in 1999 to assert title to the entire property.

Robert, their son who is known as Buddy, became the owner of the land and the petitioner in the case a few years later.

The Land Court appointed a title examiner, who spent several years researching titles to the campground. In 2008, the court notified a list of parties who could possibly have an interest in the land, based on the examiner’s research.

Among those who voiced interest were the National Park Service, the town, a couple of family trusts, and the Sextons.

The elder Paines had divided the land into two lots prior to filing in court. One was the campground, and the other was a 1.5-acre property at 116 Old King’s Highway, where their daughter had built a family home in 1978 and for which the Paines had a deed.

Sexton claimed ownership of some of the lots in the campground and, in 2010, added a claim to a fractional interest in the property with the Paine family home. Other parties that had initially responded to the court dropped their interests as the case proceeded, ultimately leaving Sexton as the sole litigant.

The judge ruled that Paine could claim ownership of several lots in the campground solely under the rule of adverse possession, which requires proof of continuous, exclusive, and nonpermissive use of the land for at least 20 years. For the remainder of the campground lots, for which Paine had deeds, the judge granted summary judgment, based on a combination of the deeds and adverse possession.

Sexton appealed both rulings, and a judge ultimately upheld the Land Court’s two decisions in the case in September 2015. Sexton filed a further appeal to the state Supreme Court, which refused to hear the case.

The Land Court then took up the petition for registration of the 1.5-acres at 116 Old King’s Highway, which was again contested by Sexton. The court found for Paine via summary judgment in March 2017. Sexton appealed again and again lost the case.

Buddy Paine continues to wait for the certificate of registration of title for the 1.5-acre family property from the Land Court, which is delaying a sale that is required under a divorce agreement. In 2018, he decided to allow the state Dept. of Conservation and Recreation to take the campground land via a friendly eminent domain proceeding, for which he received $3.6 million. But, he says, he spent more than $1 million fighting Sexton in court over the 21 years since the case was first filed.

LAND COURT

Sextons Claim Ownership of Fred Bell Property in Wellfleet

Litigious family tries to take possession of 12 affordable units

By Christine Legere Jun 22, 2022

WELLFLEET — Chellise Sexton of Eastham and her son, Kevin Sexton of Wellfleet, claim that they own the property off Old King’s Highway, now called Fred Bell Way, where the town built 12 units of affordable housing about 18 years ago.

Wellfleet’s affordable housing complex on Fred Bell Way is the subject of a lawsuit filed by Chellise and Kevin Sexton. (Photo by Teresa Parker)

The Sextons filed a complaint against the town and a long list of others in state Land Court in 2017. They asked the court to order the town off the property, invalidate a handful of utility easements, and award damages for rents and profits connected to use of the land as well as title to the property to them.

At issue are 8.6 acres at 324 Old King’s Highway. The town took the land for taxes owed — a grand total of $96.54 — from Ralph Whitcher in 1967. In 1993, town meeting voters turned ownership over to the Wellfleet Housing Authority to build affordable housing there.

The plan marched forward slowly. In 2001, the housing authority leased the property for 60 years to the Lower Cape Community Development Corp., now called the Community Development Partnership (CDP) — the Eastham-based nonprofit that built the 12 units of housing on the site and continues to manage the project.

The Sextons have sued the town, the Wellfleet Housing Authority, the CDP, and various others, including utility companies, the state (because of the involvement of the Dept. of Housing and Community Development), and even the United States of America, probably in connection to federal subsidies, affordable housing restrictions, and mortgages.

A long list of attorneys hired by those entities are involved in the case.

In the complaint, filed by the Sextons’ lawyer, Albert Schulz of Osterville, the plaintiffs trace the deed they claim gives them ownership to 324 Old King’s Highway back to 1829. The town’s title examiner and the Sextons’ experts disagree on the ownership trail starting in 1922. The Sextons say the property passed through the ownership of several Cooks and ultimately to Chellise Cook Cardinal.

It was conveyed to her daughter, Chellise Sexton, in 1985, according to the complaint. And in 2009, it was recorded on the deed as belonging to Chellise and Kevin Sexton as tenants in common.

The Sextons claim the property the town took from Ralph Whitcher for unpaid taxes in 1967 is not the property on which the town built affordable housing. That property is the one they own, they claim, based on their deeds. Those deeds describe the land in terms of the abutting property owners or boundaries, such as railroad tracks. Sometimes those boundaries are no longer very clear.

The Sextons say the land owned by the town is another piece of property and its current listed owner is the Cape Cod National Seashore.

Boston attorney Zachary Berk was hired by the title insurance company to represent the CDP and other entities connected to the mortgages held on the property. He explained that the court has divided the case into two phases. The first will establish whether the Sextons have good claim to 324 Old King’s Highway, Berk said.

“If they don’t have good title, they can’t challenge the town’s title,” said Berk. “If the plaintiffs lose in the first phase, the case is over.”

After several Covid-related delays, phase one of the trial was held in March. The Sextons submitted testimony from two experts who said their claim to the land is valid. The town submitted its own expert’s analysis of its deeds, although it wasn’t necessary to do so.

“In our case, the town has a record title in the registry of deeds,” Berk said. “If you have a record title, you don’t have to prove anything.”

Final post-trial arguments were due at the end of this month, and a hearing has been set for July 6, but Berk said attorneys on both sides are discussing pushing those dates further into the future. Berk said he expects a decision on phase one in three to six months.

According to a joint filing in March, both sides agreed that if the Sextons prevail in phase one “they will have record title superior to the defendants and sufficient to proceed to Phase II in order to pursue writ of entry,” which means possession of the property.

If that happens, the town and the Wellfleet Housing Authority, represented by Justin Perrotta of KP Law, the CDP, represented by Berk, and the various other entities will mount their own offense against the Sextons.

“There’s a statute in Massachusetts law that arguably provides that if a party improves a parcel and the other party doesn’t say anything for six years, then you are entitled to the value of the improvements,” Berk said.

The Sextons didn’t assert their claim to the property until 2017, 15 years after the Lower Cape CDC had built its complex. That organization and the Wellfleet Housing Authority are claiming they should be paid a minimum of $1.5 million for the housing that was built there — if the Sextons claim ownership of the property.

Some Land Court cases are settled by claims of adverse possession, which under state law is the conspicuous and active use of a property without permission for an uninterrupted minimum of 20 years. One of the attorneys cited it as a possible claim in this case. The town, however, was not actively using the property until 2001, when it moved forward with the housing project, and the Sextons filed their case in 2017, 16 years later.

Attorney Schulz declined to comment on the case. Chellise Sexton, who is 75, was approached by a reporter at her home with questions about the suit. She responded, “I know nothing about it,” and walked away.

Kevin Sexton, 47, did not respond to a message left at his home on Lecount Hollow Road.

The Sexton family owns Cooks by the Ocean, a 24.6-acre compound of rental cottages at 420 Lecount Hollow Road, along with various other properties in Wellfleet. They have also sued many other private landowners, claiming to hold the true titles to their property.

In 2003, Chellise Sexton filed a complaint in Barnstable Superior Court against the heirs of Woodbury W. Smith and others, and against Alfred Pickard, who had purchased the Smith property, claiming she was the rightful title holder to 521 Old King’s Highway. In 2006, the court denied her claim.

Kevin Sexton has another pending lawsuit against Wellfleet appealing a cease-and-desist order issued after his family clearcut a large swath of woods on their property next to Lecount Hollow Beach last June. Former Building Inspector Paul Fowler had determined that the Sextons violated zoning laws governing the National Seashore District, in which their property is located. Fowler issued the cease-and-desist order, which the Sextons then asked the zoning board of appeals to overturn.

When the zoning board upheld Fowler’s order, Kevin Sexton filed the lawsuit against the ZBA in state Land Court.