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BUSINESS

12 Outer Cape Hotels Sued for Website Accessibility

The ADA requires websites to describe disability accommodations in detail

By Pat Kearns Jul 17, 2024

PROVINCETOWN — Outer Cape hoteliers have been warned to check that their websites comply with the Americans With Disabilities Act (ADA) following a spate of lawsuits from a single attorney.

Twenty-three cases have been brought against Cape and Islands businesses in the last two years, including 12 hotels on the Outer Cape. The suits, filed by attorney Lee D. Sarkin, allege that owners violated the ADA by not providing detailed descriptions of the accessibility features of each room on their website and by not holding their accessible rooms open until all other rooms of their type have been booked.

Those accommodations are required by Dept. of Justice updates to the law that were published in 2010 and became effective in 2012.

Sarkin filed about 60 cases in federal court in Massachusetts over the last two years. The Sandcastle Resort in Provincetown, the Dune Crest Motel in Truro, and the Even’tide Resort in Wellfleet were sued in 2022, and the Boatslip Resort, Foxberry Inn, Crew’s Quarters Boarding House, Gifford House, Somerset House, Queen Vic Guest House, Crown & Anchor, Seaglass Inn, and Benchmark Inn, all in Provincetown, were sued in 2023.

The Provincetown lawsuits were all settled, most in just a few months. The lawsuits themselves are public records, but the terms of those settlements are not.

Bruce Bierhans, a lawyer who lives in Wellfleet, represented several of the sued businesses.

“If I can get [the plaintiff] to settle with a defendant for $3,000 along with an agreement that the website will be modified, it’s a much better result for the defendant than having spent $20,000 and winning as a matter of law,” Bierhans said. “The cases were settled for substantially less than Sarkin was initially seeking.”

Who Has Standing?

Lawsuits over accessibility have become common nationwide — especially against small businesses. According to a New York Times Magazine report in July 2021, Congress deliberately chose not to task a new federal agency with enforcement of the ADA — “essentially transferring the role of enforcement from the government to individual disabled people and the judges who heard their cases.”

The U.S. Supreme Court heard oral arguments last fall about whether “testers” — disabled persons who are plaintiffs in hundreds of ADA lawsuits per year — must provide evidence that they actually intended to visit a public-facing business before suing it. The plaintiff in that case, Deborah Laufer, took what the Washington Post called “the unusual step of dropping the complaint” after her lawyer was suspended in Maryland for inflating the legal fees he had charged to defendants. (The case was argued anyway, but the justices later decided it was moot.)

Circuit courts across the country have split on whether testers must show an intention to visit a business they sue. The First Circuit Court of Appeals in Boston has upheld the rights of testers under the ADA, likening them to the activists who challenged racial discrimination in rental housing under the Fair Housing Act.

Sarah Malaier, a public policy researcher at the American Foundation for the Blind, said that individual lawsuits are an important avenue for ADA enforcement.

“There are really only two ways to pursue enforcement of the ADA,” Malaier said. “You can complain to the Dept. of Justice and see if they think your case is worth taking up. They get thousands of complaints every year. Your other option is to file your own lawsuit.

“There’s been a lot of concern raised recently about the number of lawyers engaged in what are considered to be serial litigation,” Malaier said. “The hard part here is that the same law which creates this opportunity also makes it possible for really credible and diligent civil rights lawyers to create expertise in responding to violations of the ADA.”

Federal court records show that Sarkin has filed more than 800 accessibility-related lawsuits in Florida — where he has also been sanctioned for fraud. Federal District Judge Roy Dalton Jr. suspended Sarkin from the bar in the Middle District of Florida for forging the “wet-ink signature” of a disabled plaintiff, David Poschmann, who had died, on a $6,500 settlement agreement in November 2021.

By the time Sarkin was sanctioned in April 2023, however, he had already started filing accessibility lawsuits outside the state, in the federal courts of Massachusetts and Northern Illinois.

Bierhans said that defendants he represented were asked to sign confidentiality agreements as a condition of settling the lawsuit. Nondisclosure agreements, or NDAs, bind only one party, while confidentiality agreements bind both defendant and plaintiff and do not have to be approved by a judge, Bierhans said.

The owners of several Outer Cape hotels that Sarkin sued declined to comment, citing the confidentiality agreements they had signed.

Sarkin also did not respond to multiple requests for comment. His April 2023 sanction applied only in the federal courts of the Middle District of Florida, but he has not filed any federal lawsuits in Florida since then.

Online Accessibility

Nathan Mayfield, a vice president of the online-booking software company ResNexus, said that a 2016 case against Domino’s Pizza by a customer who could not use its online app to complete an order had had a wide-ranging effect on the hospitality industry.

“Domino’s stated that they could have just called, but the court decided that businesses who take orders online or through apps can’t have different call-in requirements,” Mayfield said.

Mayfield said that hotel owners must identify the physical requirements that each room meets or does not meet on their websites, and he recommended adding that information to third-party booking engines like Expedia as well.

“Disabled people use your website or online booking engines to determine physical ADA shortcomings or violations, particularly with pools and lifts,” Mayfield said. Including multiple pictures of each bathroom and bathtub can help, Mayfield said, and websites should include ADA compliance information at the bottom of each page.

Holding ADA-compliant rooms open until all other rooms of their type are booked is also a requirement, Mayfield said.

“If you have five rooms or fewer and live on-site, you are exempt from the physical ADA requirements,” Mayfield said, “but every business, no matter what, is required to comply with online ADA.”

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.

ELDER AFFAIRS

Seashore Point Residents Sue Owner, Claiming Fraud and Abuse

Pointe Group Care is accused of exploiting residents and charging unreasonable fees

By Olivia Oldham Oct 25, 2023

This article was updated on Oct. 26.

PROVINCETOWN — When Robert Compton purchased his condominium at the Residences at Seashore Point four years ago, he imagined an ideal retirement. Seashore Point offers “independent living”; residents attend events together, eat together, and make decisions as a community. Compton, now 74, sold his house on Bayberry Avenue with the expectation that, at Seashore Point, “somebody else is going to cut the grass and water the lawn and make sure that the heat’s working.”

The owner of Seashore Point, Pointe Group Care, has been accused of elder abuse and fraud. (Photo by Elias Duncan)

But for the last two years, he’s been locked in a conflict with Pointe Group Care, the for-profit owner of Seashore Point, about what services it provides residents and at what cost. In 2019, the group and its subsidiary, Provincetown Holding Company, purchased the property, along with the attached nursing facility, AdviniaCare at Seashore Point, from the nonprofit Deaconess Abundant Life.

Compton says the free parking residents were promised now costs $275 a month, and condo fees have jumped from $250 to $600 a month. Elderly residents on fixed incomes, he says, did not plan for these higher costs and cannot afford them.

Five residents at Seashore Point filed suit on April 6 in Superior Court, accusing Point Group Care of “unchecked elder abuse, fraud, and manipulation.” Compton is the lead plaintiff; the others are Robert MacDonald, Robert Hanna, Michael Peregon, and Walter Winnowski.

The suit argues that Pointe Group Care manipulated the value of its ownership of units at Seashore Point to fraudulently claim a majority of seats on the condo’s governing board and thus control the board’s decisions.

The suit also alleges that fees at Seashore Point have grown substantially in the last year even as Point Group has cut services. Compton says the fees subsidize the attached nursing home, which lost $1,129,040 in 2020, according to the company’s tax filings. The plaintiffs claim residents are paying 96 percent of the condominium’s $1.4 million budget for 2023 though Pointe Group Care owns roughly 48 percent of the property.

“We have worked very hard to find a resolution to the unit owners’ concerns, with no success to date,” said David Ball, a spokesman for Provincetown Holding Company. “We are confident that the facts and the law are on our side.”

Parking Fees

The conflict began when Pointe Group Care purchased Seashore Point in November 2019 from Deaconess Abundant Life, the nonprofit that had owned the property for 14 years. The change from a nonprofit to a for-profit owner, according to court documents, made the condominium contract untenable.

In early 2020, Pointe Group took control of the outdoor parking area, according to Compton. Only 35 spots in the lot are available to residents of the 81 condominium living units, the suit alleges. Without free parking in the lot, residents are compelled to pay for parking at the Pointe Group Care-owned parking garage. As of 2023, according to the suit, the garage charges a one-time “license issuance fee” of $5,000 to use the garage plus $275 per month. The plaintiffs claim that cumulative license and parking fees paid by residents for the garage will total about $175,000 in 2023. Pointe Group Care says it anticipates earning $108,900 from monthly garage fees this year.

The case hinges on Pointe Group Care’s claim that it owns an inflated percentage of the property, according to the suit. Most of Pointe Group’s property consists of “service units,” including the nursing home and the garage. Compton says Point Group Care overestimates the value of the service units, which are worth less per square foot than residential units. That enables Pointe Group to claim a larger stake than it really has, he says.

According to court documents, Pointe Group also calls several spaces “service units” that actually communal space. This practice began with Deaconess Abundant Life, which also referred to these communal spaces incorrectly as condominiums, according to the suit. These spaces “have no rooms or defined physical boundaries,” the plaintiffs charge, yet Point Group devised a fee based on these “fraudulent” service units, thus charging residents to “walk through hallways and lobbies,” the suit says. According to state law, all owners of the condominium are entitled to own common areas and facilities together in proportion to their total ownership.

The Concierge Fee

The final straw for residents was a “concierge fee,” the suit argues, for security services, monitoring of emergency alert systems, social programs, and some transportation, under a residency and services agreement established in 2015. The fee is mandatory for residents, though its value is not listed in the agreement. The plaintiffs say it is currently $631 per month.

Compton says the fee is foisted on unsuspecting new residents. After purchasing a unit, he says, “You’re all excited. You want to move in, and you want to get the key. And that’s when they say, ‘Oh yeah, well, by the way, you have to sign this service agreement. And you can’t have your key or parking space until you sign.’ ”

According to Compton, Deaconess Abundant Life, the previous owner, had supplied the services said to be covered by the concierge fee in the service agreement. But when Pointe Group Care took control, the services began to dwindle. This was partly because of the pandemic, when social distancing made use of common spaces and community programs nearly impossible. Yet Point Group continued to charge residents a “residency and lifestyle” fee each month.

The plaintiffs claim they now pay for all these services themselves. Compton says that support for social programs is lackluster, with residents putting on all social events themselves — for instance, he runs the movie screenings. He says that Pointe Group Care doesn’t offer additional community services “other than once a week they vacuum.”

In July 2021, Pointe Group approached the residents and offered to sell them its service units in the independent living facility for $1.5 million. The residents couldn’t afford that price, Compton says, because “we’re all retirees living on Social Security and IRAs.” After that, Compton and other residents consulted attorneys Edward Allock and Sean Regan of the Braintree firm Allock & Marcus, and Pointe Group “backed off,” Compton says. “Everything was quiet for a year.”

Nearly a year and a half later, in November 2022, Pointe Group Care approached the residents again, this time offering to sell its service units for $700,000. A Nov. 17, 2022 letter from Ben Berkowitz, CEO of Pointe Group Care, obtained by the Independent informed residents that in 2023 the concierge fee would be increased to “make up for the significant losses over the past several years.” Alternatively, Point Group offered to sell 26 service units to residents, claiming “the proposal benefits all parties.” Compton says Berkowitz rejected an offer to negotiate an agreement.

In January 2023, Pointe Group Care raised the concierge fee from $250 per month to $600 per month, says Compton. The services agreement says Point Group can raise condo fees and service fees but not the concierge fee, he says.

“We categorically deny these assertions,” wrote David Ball, the Provincetown Holding Company spokesman. “Fees for some services, which were held steady during the pandemic, have been increased to account for increased operating costs, just as the cost of gas and groceries has increased due to inflation as well. We have adhered to the complex terms of the agreement we made when we purchased this property.”

Most residential unit owners at Seashore Point support the lawsuit, according to Compton. In its response to the suit, Pointe Group Care states that, as of 2023, 24 unit owners are not paying any concierge fees, and 18 are paying the rates from before the increase. In total, 42 owners of the 81 residential units are not paying the new fee, the company says. Compton says that around 53 owners of residential units are contributing financially to the legal fund.

The suit is set to go to trial in August 2026, according to Compton. Ultimately, he says, the residents would like to come to an amicable resolution.

“Nobody wants to go to court,” he says. “Can we just sit down and come up with something reasonable that these retirees can afford?”

Editor’s note: Because of an editing error, part of the response to the lawsuit sent by David Ball to the Independent was omitted from an earlier version of this article, published in print on Oct. 26.

LITIGIOUSNESS

Former Principal Clerk Maclauchlan Sues Wellfleet

She accuses the town administrator of age and disability discrimination

By Sam Pollak Sep 20, 2023

WELLFLEET — Former Principal Clerk and select board candidate Jeanne Maclauchlan is suing the town and Town Administrator Rich Waldo for employment discrimination. The lawsuit, filed in Barnstable Superior Court on Aug. 16, alleges that Waldo’s termination of Maclauchlan’s employment last year violated legal protections against age and disability discrimination.

According to court documents, Maclaughlan, 69, is seeking $100,000 in damages for “lost wages, loss of benefits, and illegal termination.” Waldo fired Maclauchlan in July 2022, her complaint says, about a month after she exhausted her 12-week Family and Medical Leave Act (FMLA) leave and her accrued sick leave, after which Maclaughlan did not return to work and did not provide additional supporting evidence from her doctor.

Maclaughlan’s lawsuit asserts that she was fired because of her medical status and age, citing instances in which Waldo allegedly urged her to consider retiring.

Waldo said he could not comment on the lawsuit because notice of it had not yet been served to the town. He said he learned about the suit from a reporter for the Independent.

In May, Maclauchlan filed a separate discrimination complaint through the Mass. Commission Against Discrimination, but she withdrew it before the town could respond, according to Waldo.

When reached by telephone, Maclaughlan confirmed that the lawsuit papers hadn’t yet been served, but she said she “most definitely” plans to follow through with the suit. According to court records, Maclaughlan has until Nov. 14 to have the documents served to the defendants.

Maclaughlan declined to comment on the content of the court filings, and her lawyer, Jamie Goodwin of Duddy, Goodwin & Pollard in Worcester, did not respond to calls seeking comment.

Maclaughlan began working for the town in 1998 and was hired as principal clerk in 2001, according to the court documents. After treatment for cancer in 2006, Maclaughlan began to experience “cardiac health-related issues,” according to the lawsuit, which were exacerbated in 2020 by Covid-19.

During the pandemic, Maclauchlan’s health “began to deteriorate” because of “increased demands” placed on her as the only employee working at town hall while other town staff worked from home, the suit alleges. “She staffed the office, essentially by herself, for nearly two years while she was required to cover for her colleagues and perform many of their job responsibilities,” the documents state.

Several current town staff members who were employed during the pandemic contradicted Maclauchlan’s version of events. “We were all there,” said Assessor Nancy Vail. While some staff worked from home occasionally, “We were basically a full office,” Vail said.

On March 10, 2022, Maclaughlan’s doctor sent a letter to the town requesting a temporary leave of absence. “Cardiologists wanted her to avoid stressful situations and recommended she take time off of work,” the lawsuit states.

Then-interim Town Administrator Charlie Sumner placed Maclaughlan on paid FMLA leave for 12 weeks. But upon the expiration of her leave, Maclaughlan still had not been cleared by her doctor to return to work, say the documents. After exhausting her accrued sick leave, she was denied a request for additional hours from the town’s sick leave bank.

According to the town’s personnel manual, the sick leave bank committee, a five-person board of both union and nonunion employees, may deny a request if the applicant has abused sick leave in the past, has not exhausted other available paid leave options, or if the request is not supported by appropriate information.

Maclauchlan met in person with the newly hired Waldo on June 17. The lawsuit says that Waldo asked her “repeatedly” when she would be able to return to work and suggested retirement “based on her age.”

Waldo asked Maclauchlan for further information on whether it was safe for her to work, but Maclauchlan alleges that, although she kept the town informed about her inability to work, her doctor did not provide her with the requested written confirmation.

According to the court filings, Waldo then notified Maclauchlan that she was required to return to work or proffer a doctor’s note by July 7. Maclauchlan still had not received clearance to work from her doctor, the suit states.

The next day, on July 8, when Maclauchlan did not report for work, Waldo informed her that she had abandoned her position and that she was discharged from her job. “Waldo again expressed animus” about Maclaughlan’s age, the lawsuit asserts.

“Waldo indicated that work was piling up, her position could not remain unstaffed, and they needed to hire someone else right away,” the suit says.

The documents assert that the principal clerk position remained unfilled at the time the suit was filed on Aug. 16, despite Waldo telling Maclauchlan that “her position could not remain unstaffed.” But according to Waldo and the Independent’s previous reporting, Christine Young was hired as the town’s principal clerk in April. She remains in that job.

The lawsuit also claims that Maclauchlan was one year away from being able to retire with a pension of 80 percent of her salary. According to the Barnstable County retirement plan, as well as the State Employees’ Retirement System (SERS), Maclaughlan would have needed to work for the town for at least 32 years to receive 80 percent of her salary as a pension; she had worked for the town for 24 years.

The lawsuit lists four counts against both the town and Waldo: failure to accommodate, disability discrimination, age discrimination, and retaliation in violation of Mass. General Law 151b, the state’s law protecting employees from discrimination.

The suit alleges that Maclaughlan has suffered damages including “loss of income, loss of employment benefits, loss of professional opportunities, loss of personal and professional reputation, other financial losses, emotional distress and mental suffering.”

In May, Maclauchlan ran for a three-year term on the select board. One of her campaign positions was that town staff were being paid too much. She lost to incumbent Ryan Curley by a vote of 532 to 298.

COURT REPORT

Cloverleaf Plaintiffs May Have to Post $50,000 Bond

Town and developer invoke a new law meant to discourage frivolous suits

By Christine Legere Oct 20, 2021

TRURO — A group of residents who have filed suit to block the Cloverleaf affordable housing development at 22 Highland Road in North Truro may be required to post a $50,000 bond with the Land Court to cover the extra expenditures their appeal is requiring of the town and the project developer.

Truro officials and Ted Malone, the president of Community Housing Resource of Provincetown, have invoked a new provision in the state’s housing choice law that allows judges to order those who appeal permits for affordable projects to post bonds of up to $50,000.

If the court grants the town’s request for the bond and the neighbors lose their appeal, they also lose their bond money, which would then go toward covering the town’s and Malone’s related costs.

That includes attorney fees and increases in the cost of building the Cloverleaf as time passes.

This new provision in the housing choice law, which was signed by Gov. Charlie Baker in January, is designed to discourage neighbors from filing frivolous suits to delay affordable housing developments or prevent them from being built.

At the heart of the Truro case is the 39-unit project planned for four acres the state gave to the town in 2017 for the specific purpose of constructing affordable housing. The state furthered its commitment to the venture by awarding the town a $2.1-million grant to build a water line to the target site.

The town selected Community Housing Resource as the developer and plans to retain ownership of the property under a long-term lease.

After a year of contentious hearings, with residents circulating petitions and arguing that the project’s wastewater treatment system would contaminate their drinking water, the town’s zoning board of appeals granted Malone a comprehensive permit under the state’s Chapter 40B affordable housing law.

The permit was quickly appealed by opponents of the project in Barnstable Superior Court. The case was moved over to state Land Court during the summer.

While towns sometimes step back and let developers deal with court battles like this one, Truro has filed a motion to intervene in the case and plans to take an active role.

The list of plaintiffs suing the town includes Lauren Anderson of 30 Highland Road; Helen Torelli of 9 Twine Field Road; John, Brianna, and Mary Bobola of 7 Windago Lane; Rosemary Broton Boyle of 43 Knowles Heights Road; Abby Lynn Corea of 1 Toms Hill Path; George Dineen of 22 Great Hollow Road; Susan Grace of 28 Windago Lane; Barbara Golding of 17 Great Hollow Road; Samantha Hayman of 17C Great Hollow Road; Joanne Hollander of 13 Toms Hill Path; Donald Horton of 5 Longnook Road; Alice Longley of 39 Knowles Heights Road; Eve Turchinetz of 22 Great Hollow Road; and Christine Maxwell, whose property at 24 Highland Road abuts the Cloverleaf site.

In his filing for the town, attorney Jonathan Silverstein of KP Law noted that the project involves “significant cooperative efforts between the town, the Commonwealth and [Community Housing Resource] for almost four years.” He pointed out that only 2.3 percent of Truro’s housing stock is certified as affordable by the state.

“Every month of additional delay caused by the plaintiffs’ appeal imposes substantial carrying costs and delays and jeopardizes the town’s ability to provide critically needed affordable housing,” wrote Silverstein.

He also questioned whether the residents who signed on to the suit had legal standing as aggrieved parties. Other than Maxwell, who was belatedly added to the list of plaintiffs, none are abutters of the Highland Road target site. They do not live down-gradient from the site, so their wells would not be in jeopardy of contaminated from the development’s wastewater, Silverstein argued. The plaintiffs won’t be affected by increased traffic from the project, he also argued, any more than “the general public” would be.

Attorney David Reid of South Yarmouth, who represents the residents who filed the suit, said in an email that he will oppose the request for the $50,000 bond. “We do not believe it is justified or warranted,” he said.

Land Court Judge Diane Rubin could rule on the request for the bond soon or wait and hear arguments during a hearing scheduled for Nov. 8, Silverstein said.

The Land Court has set aside the week of April 18, 2022 for a trial on the Cloverleaf suit.

Cease-and-Desist Order

Silverstein has also asked for an injunction, on behalf of the town, against Christine Maxwell, who has habitually used a driveway on the town’s Highland Road property as an access from Route 6 to her own property next door. She also has her own driveway.

The town sent a cease-and-desist order to Maxwell during the summer, telling her to stop using the driveway on the town-owned property. She, and those visiting her, continued to use the driveway despite the town order, Silverstein said in his court filing. The town was forced “to erect concrete barriers to effectively block her access, at significant expense to the town,” the attorney wrote.

Maxwell’s continued use of the driveway “constitutes an invasion of the town’s interest in the exclusive possession of its land, and of the town’s control over such land to ensure that it is used for affordable housing purposes,” wrote Silverstein.

Historic use of the driveway could work in favor of Maxwell and the other plaintiffs in the suit because it might give her some claim to continued use and upset the layout of the development.

In his email, Reid said he is still researching how long the driveway through the town property has been there.

“It was certainly there for many years before the town acquired the property, and they knew about it before being deeded the property by the state,” Reid wrote. “It’s even shown on their own plan of the property.”

HOUSING

Abutter Joins Lawsuit Against Cloverleaf

Other plaintiffs live far away, with questionable standing

By K.C. Myers Apr 21, 2021

TRURO — Christine Maxwell says she should have been the first, not the last, to sign onto a lawsuit appealing the zoning board’s granting of a comprehensive permit for an affordable housing development known as the Cloverleaf at 22 Highland Road.

But Maxwell, 58, of Glastonbury, Conn. and 24 Highland Road, said she didn’t know the 39-unit project had been approved or that a lawsuit to appeal that approval had been filed in Barnstable Superior Court on Feb. 25. She recently read about the Cloverleaf and the appeal in the Independent. “I found the lawyer and called him,” Maxwell said. The plaintiffs’ attorney, David Reid, has not returned calls from the Independent for comment.

Maxwell is the only one of 16 plaintiffs who is a direct abutter to the Cloverleaf site. Her joining the suit is potentially important, because abutters have presumed standing in court, which gives them the right to file an appeal. Those not abutting must go through a lengthy and often unsuccessful process to prove they have a case.

Even with standing, however, it’s difficult to win appeals overturning affordable housing permits. Neighbors often do it to delay a project in the hopes that funding sources run dry. This scenario is so common that the state recently passed an “abutter appeals reform” law aimed at preventing frivolous lawsuits by neighbors.

Only one other plaintiff, Lauren Anderson of 30 Highland Road, lives on same road as the Cloverleaf, though she’s not an abutter. The others own property at least a mile away, on Knowles Heights Road, Windigo Lane, Twine Field Road, Great Hollow Road, and even as far away as Longnook Road.

Maxwell said she believes that because the Cloverleaf is so large it will affect properties farther away. But, she added, she has never spoken to any of the other plaintiffs. She said a man came to her home twice when only her college-age daughter was home, but that seeing a stranger, her daughter did not answer the door.

The Cloverleaf residents “are going to be right on top of me,” said Maxwell, whose home in North Truro is assessed by the town at $450,000. “I have the worst-case scenario of anyone in Truro.”

Maxwell, the mother of five grown daughters, lives in Connecticut part of the year. She said she bought her Truro property in 2017, having no idea that town meeting voters had acquired the state-owned land the year before for the purpose of building affordable housing. She said she did eventually hear about the project but thought it was not a sure thing.

Her concerns are loss of privacy, traffic, and road runoff. “I need big walls, so people cannot see me,” she said.

After a year-long review of the project, the Truro Zoning Board of Appeals wrote a 21-page decision granting the comprehensive permit under a section of state law that allows the zoning board of appeals to give affordable housing developments waivers under certain conditions and when the tradeoffs are deemed beneficial to the town.

That decision, however, still requires that the project meets health and safety codes, and those have been met in the Cloverleaf case. The development will have town water. Its stormwater management systems must meet state and local guidelines. The wastewater treatment system, approved after months of discussion and two independent reviews by engineers, will be able to reduce the nitrogen in the effluent down to 5 mg per liter, far less than a traditional Title 5 system, which typically reduces nitrogen levels to 26.25 mg per liter.

CLOVERLEAF

More Plaintiffs Sign On to Fight Truro Housing

Opponents appear to seek delay with a lawsuit that’s unlikely to be won

By K.C. Myers Mar 17, 2021

TRURO — The attorney for property owners suing the developer of the 39-unit Cloverleaf project and the Truro Zoning Board of Appeals has added 13 plaintiffs to the suit filed last month in Barnstable Superior Court.

Neither David Reid, the lawyer, nor any of the now 15 named plaintiffs would answer questions about their motives, but affordable housing advocates see the suit as a delaying tactic that could jeopardize state funding for the project.

Attorney Reid, of Stone & Reid in South Yarmouth, is suing developer Ted Malone of Community Housing Resource of Provincetown and the five ZBA members who approved a comprehensive permit for the project on Jan. 14. Initially, there were just two plaintiffs: Lauren Anderson of 30 Highland Road and Helen Torelli, who lives in New Jersey and at 9 Twine Field Road.

But on March 4, Reid added the names of 13 other people he says will be harmed by the development, bringing the total number to 15. None of the new people on the list are abutters, and most live more than a mile from the proposed site at 22 Highland Road.

An aerial view from above the Cloverleaf housing site in North Truro looking south. (Photo Ryan Fitzgerald)

Robert Weinstein, chair of the Truro Select Board, said it seems clear the objective of the lawsuit is not to win, because none of the plaintiffs has standing — that is, the statutory right to appeal a ZBA decision. In order to show standing, plaintiffs must prove they could be harmed by the development. According to Sharon Petrillo, a zoning law specialist at Greenbaum, Nagel, Fisher & Paliotti in Boston, that will be a high hurdle.

“The harms cannot merely be alleged as something that may happen,” said Petrillo, but rather require a “valid and definite” experience of harm, or expert opinions supporting the claim of potential harm.

The opponents know they cannot win, Weinstein said, but they want to run out the clock in hopes that state funding falls apart. “Delay, delay, delay” would be the best strategy to stop the development, planning board member Peter Herridge, a vocal opponent of the Cloverleaf, told the Independent last year.

Reid has not returned multiple calls seeking comment.

The delay tactic is common enough that the state legislature in January passed an economic development bond bill that includes a section titled “Abutter Appeals Reform” to address meritless legal challenges. The law gives judges the authority to require a party appealing a decision to post up to a $50,000 bond if the judge deems “that the harm to the defendant or to the public interest resulting from delays caused by the appeal outweighs the financial burden of the surety or cash bond on the plaintiffs.” The law further specifies that “the court is directed to consider the relative merits of the appeal and the relative financial means of the plaintiff and the defendant.”

Taxpayers could be paying for part of this legal battle. The select board is now in the process of deciding how much the town will help the developer defend the project in court.

As for the lawsuit’s potential to jeopardize the project’s funding, Malone said he has already missed the deadline to apply for low-income housing tax credits. The deadline was in January, but pre-approval was in November, and at that point the project still needed a permit from the ZBA, Malone said. This means the project will be pushed out a year in any case, even without the complication of the lawsuit.

The first two plaintiffs in the suit are Lauren Anderson, who lives three houses away from the Cloverleaf at 30 Highland Road, and Helen Torelli, whose Truro property is nearly a mile away at 9 Twine Field Rd. Those now joining the suit are John, Brianna, and Mary Bobola of 7 Windago Lane, Rosemary Broton Boyle of 43 Knowles Heights Road, Abby Lynn Corea of 1 Toms Hill Path, George Dineen of 22 Great Hollow Road, Susan Grace of 28 Windago Lane, Barbara Golding of 17 Great Hollow Road, Samantha Hayman of 17C Great Hollow Road, Joanne Hollander of 13 Toms Hill Path, Donald Horton of 5 Longnook Road, Alice Longley of 39 Knowles Heights Road, and Eve Turchinetz of 22 Great Hollow Road.

All of the plaintiffs either could not be reached or refused to comment.