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Old King’s Highway

    DEVELOPMENT

    Sexton Subdivisions in Wellfleet Put Access at Risk

    One could block access to Duck Pond landing, another could impede firefighting

    By

    WELLFLEET — Two subdivisions proposed by Kevin Sexton for undeveloped land on Old King’s Highway got considerable pushback during site plan reviews conducted by the planning board over the past six weeks.

    At an April 2 hearing on 10 lots proposed at 538 and 548 Old King’s Highway, the fire chief said his department has a problem with Sexton’s plan. The long road into the subdivision — about 700 feet longer than subdivision rules allow — would create a risky situation for both the fire department and property owners, according to Chief Joseph Cappello. The hearing was continued to June 18.

    Sexton’s proposal for eight lots at 230 and 270 Old King’s Highway, which was before the planning board on May 7, raised objections because it could jeopardize public access to the town landing at Duck Pond. That hearing was continued to July 9.

     

    Access to Duck Pond

    At the May 7 site plan review, Sexton’s lawyer, Albert Schulz of Osterville, said the proposed layout of the eight-lot subdivision on 10 acres would not block access along Duck Pond Road, but he said six of the proposed lots will sit on that road, and their future owners could in fact block access.

    Furthermore, the lawyer said, Sexton will not agree to placing easements on the lots the dirt road crosses.

    The town’s attorney, Justin Perrotta of KP Law, agreed that the town has no authority to keep Duck Pond Road open because it is not a publicly laid out way. While the public has used it regularly for more than 20 years to get to the pond, it would take a court decree to establish the road as a “prescriptive” easement based on use, Perrotta said.

    Perrotta said the planning board could not consider any potential effect on the use of Duck Pond Road as part of its site plan review because Sexton’s proposal does not use the dirt road for access, and none of the planned infrastructure will affect it.

    “You sort of have to think about it as if it wasn’t even on the plan,” Perrotta said of the road.

    But that proved difficult for those at the hearing.

    “As the town’s planning board, we are supposed to look out for things of this nature to make sure public access and things aren’t swallowed up,” said board member Alfred Pickard.

    Vice chair David Mead-Fox, who presided at the hearing because chair Gerry Parent is an abutter to the subdivision and recused himself, said “tons of people” use the dirt road to the pond, “so you can understand there’s an interest in what happens to it.”

    If access can be preserved only by court decree, that could take years, Mead-Fox said.

    Member Bonnie Shepard argued that the dirt road could be classified as an emergency access road under the town’s subdivision control laws. “There are emergencies at ponds,” she said. “People drown. There has to be guaranteed access for emergency vehicles.”

    But Perrotta maintained that the only way to keep Duck Pond Road open would be through the court. The select board could take the lead on behalf of local residents, he said, or residents themselves could take legal action.

    What happens in these situations depends on “who strikes first,” the town’s attorney said. Someone who has used the road for 20 years could go to court to secure the right to continue using it. On the other hand, a property owner could go to court to prohibit use of the dirt road or could simply block access. “That’s what generally happens to bring these issues to a head,” he said.

    The situation is common on Cape Cod. “There are dirt paths that have been used for a long time, but the legality has never been sorted out,” Perrotta said.

    One resident suggested that Duck Pond Road must be an official road because it has a street sign.

    Whitetail Lane resident Chris Merl told the planning board he has been using Duck Pond Road for 53 years. “The planning board’s charge is to protect the community,” he said, “and I don’t think there should be a vote on this subdivision, whether it’s in their purview or not.”

    That hearing will continue on July 9.

     

    A Road Too Long

    At 538 and 548 Old King’s Highway, Sexton proposes a 10-lot subdivision on eight acres sandwiched between Somerset Avenue and Dow Drive. Neighbors said they’re concerned about stormwater runoff, effects on wells, tree clearing, and increased traffic on Old King’s Highway.

    The fire dept. said the length of the proposed road presents a problem. Under Wellfleet’s subdivision regulations, the maximum length of a road that ends in a cul-de-sac is 1,000 feet. Sexton has requested a waiver of that rule; his proposed road is nearly 1,700 feet long.

    At the April 2 hearing, the board discussed a letter from Fire Chief Cappello, who recommended capping the road’s length at 1,100 feet. The department’s pumper truck is equipped with 1,200 feet of hose, he wrote, so a second pumper from another town would have to be called to handle a fire in the subdivision. That situation would put both residents and firefighters at risk, Cappello said.

    Planning board members agreed with the chief. “If the fire dept. can’t protect this property, how can we say it’s OK?” said Beth Singer. Shepard said Sexton would need to plan for a shorter road and fewer houses. “I don’t see any way around it,” she said.

    Sexton’s engineer, Edward Pesce of Pesce Engineering & Associates in Plymouth, has been discussing the issue with the fire dept. and is expected to offer revised plans on June 18.

    DEVELOPMENT

    Sextons’ Two Subdivision Proposals Take Small Steps Forward

    At a 10-lot site, state finds habitat risk, and neighbors worry about density

    By

    WELLFLEET — Kevin Sexton’s plans for two subdivisions on land he owns on Old King’s Highway have been stalled since they were submitted more than a year ago, awaiting a required review of possible effects on species protected under the state’s Natural Heritage and Endangered Species Program.

    The state’s review has been completed on one of the parcels where building is proposed, but both projects took small steps forward on Feb. 12, when the town’s board of health approved preliminary layouts for the wells and septic systems on the lots.

    The next step is the site plan review by the planning board. The two proposals will be considered separately.

    One proposal calls for a 10-lot subdivision at 538 and 548 Old King’s Highway, a narrow eight-acre property bordered by Dow Drive and Somerset Avenue. Sexton’s second proposal, recently downsized from nine lots to eight, is on 10.3 acres at 230 and 270 Old King’s Highway. Both proposals have prompted concern from neighbors, who have followed closely since informal discussions with the planning board began late in 2023.

    The state is still reviewing the filing for 230 and 270 Old King’s Highway. There, Sexton’s engineer, Edward Pesce, told health officials his client’s proposal had been downsized to ensure protection of endangered species.

    Protecting Box Turtle Habitat

    The planning board’s review of the planned 10-lot subdivision at 538 and 548 Old King’s Highway was expected to be taken up first at its Feb. 19 meeting, but Sexton requested a continuance, according to Town Planner Beth Pyles.

    The state Div. of Fisheries and Wildlife, which administers the Natural Heritage and Endangered Species Program, had completed its study of the proposal for the subdivision and determined that the project is within the habitat of the Eastern Box Turtle, a species of special concern.

    In a letter, the Division said Sexton must therefore submit a protection plan before starting any vegetation clearing or soil disturbance at the building site. The protective measures, if the state approves them, will apply to all construction activities occurring between April 1 and Oct. 31.

    Layout and Density Concerns

    Residents of Dow Drive and Somerset Avenue are also watching the progress of Sexton’s proposed 10-lot subdivision, which borders several of their properties. Eight neighbors attended a site walk on the property last month.

    Myra Dorrell, the head of the road maintenance association for Somerset Avenue, went on the site walk and attended the health board’s Feb. 12 meeting, where she said neighbors are concerned about the density of the proposed development.

    “Our street has 13 residents on it, which border the proposed development, and Dow Drive has 12 or 13 residents on it,” Dorrell told the board. She said abutting property owners worry about the proposed layout of the wells and septic systems.

    “Our concern for the septic and wells grows out of our concern for the site plan as a whole, which has bowtie-shaped lots in some instances, where it’s a stretch to imagine where everything will be placed according to the regulations,” Dorrell said.

    Both she and Dow Drive resident Paul Messina complained to health officials that there were no plans for the layout posted online before the meeting. “I don’t know that abutters or anyone else that’s interested has had the opportunity to review these,” Messina said.

    The plans were not put up on a screen for the public to see during the meeting either, added Dorrell.

    Prior to approval of the preliminary layout plans, health board chair Nick Picariello said its preliminary approval was just a first step and added that the layouts might change as various boards weigh in on the project.

    “We understand they are proposed,” Dorrell said, “but we also understand that it’s important to follow these developments step by step. We’re hoping that with some input from the local neighborhood this plan can be made even better than what it appears to be.”

    As the Independent reported in November 2024, the planning board asked engineers from Beals and Thomas, a firm headquartered in Southborough, to do a peer review of the subdivision plans. The review, which will cost Sexton $15,000, will confirm that the submissions meet local subdivision regulations, comply with state stormwater management standards, and address traffic, emergency access, and pedestrian safety.

    The Sextons Versus Wellfleet

    As Sexton seeks approval for the two subdivision plans, Kevin and his mother, Chellise Sexton, continue to pursue their legal claim that they own the land nearby on which the Fred Bell Way affordable apartments were built in 2002.

    In 2017, 15 years after the apartments were built, the Sextons filed suit in state Land Court, claiming they owned the property based on a 1922 deed. The judge determined in December 2023 that the town had the superior claim, following an examination of the deeds.

    A few months later, the Sextons appealed the Land Court judgment in the state Appeals Court, where it remains pending. A hearing on arguments is scheduled for March 3.

    Kevin Sexton filed a separate appeal in Land Court related to clearcutting he did in 2021 on his family’s land in the National Seashore adjacent to LeCount Hollow Beach. The case is an appeal of  a cease-and-desist order issued by then-building commissioner Robert Fowler and the zoning board’s subsequent decision to uphold Fowler’s order.

    In this case, the town prevailed in Land Court in June 2024, with the judge ruling that Sexton did the clearing without a required permit.

    In September, Sexton appealed the Land Court decision in the Mass. Appeals Court but has not yet filed required backup material.

    DEVELOPMENT

    Sexton Asks to Delay Review on Two Wellfleet Subdivisions

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

    By

    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 the state’s Natural 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.

    Editor’s note: An earlier version of this article, published in print on Nov. 21, referred incorrectly to the state program under which the proposed subdivisions must be reviewed; it is the Natural Heritage and Endangered Species Program.

    AFFORDABLE HOUSING

    Wall-Raising Set for 4 Habitat Homes in Wellfleet

    Despite increased earning limit for participants, fewer vie for deed-restricted deals

    By

    This article was updated on Oct. 18, 2024 with new dates for the community kickoff and wall-raising.

    WELLFLEET — The winners of a lottery to become owners of four affordable houses to be built by Habitat for Humanity on Old Kings Highway were selected early last month. A community kickoff to meet the winning families, whose names have not yet been made public, has been scheduled for 5 p.m. on Wednesday, Oct. 23 at Wellfleet Preservation Hall.

    The Habitat for Humanity site off Old Kings Highway is ready for construction, with foundations poured and tool sheds standing at the ready. (Photo by Parker Mumford)

    The four homes — two 972-square-foot two-bedroom houses and two 1,200-square-foot three-bedroom houses — will be built on land the town acquired in 2008 and transferred to the housing authority in 2013. The nine-year-long permitting process was delayed by three lawsuits before it was finalized last summer.

    One of Habitat’s requirements for prospective homeowners is the ability to assist in the house’s construction. Starting with a “wall-raising” ceremony set for 8 a.m. on Saturday, Nov. 2, all four families will work with AmeriCorps volunteers to begin building their new homes, said Kathleen Nagle, a Habitat volunteer. The construction is expected to take up to a year, she said.

    Although some property owners in the neighborhood fought the project in court, at least one couple among the abutters has volunteered to assist with the construction, said Nagle, and others are raising money to hire Harwich-based ecological restoration company BlueFlax Design to do landscaping around the site.

    The homes will be deed-restricted. In this case the initial owners can earn no more than 80 percent of area median income (AMI) for two of the homes — one three-bedroom and one two-bedroom — and no more than 60 percent of AMI for the remaining two. Resale is restricted to keep the properties affordable for future owners, who would have to qualify under income guidelines. Preference for local applicants was given for two of the four houses.

    According to the Mass. Housing Partnership, Barnstable County’s AMI for a family of four is currently $126,650; 80 percent of that is $101,300 and 60 percent is $75,990.

    There were 50 applicants for the four houses, said Tara Cronin, Habitat’s director of resource development, but only 14 qualified for the lottery, which required being first-time home buyers and being able to make monthly housing payments of $1,063 to $1,582.

    Those who qualified had a 28-percent chance of winning. In Provincetown’s latest affordable-homeownership lottery, in which a single one-bedroom condo was sold, 25 of 27 applicants qualified, and there was a 4-percent chance of winning.

    Cronin said that Habitat’s strict criteria may be partially to blame for the low number of applicants. “It can be very daunting to work multiple jobs and find the energy to fill out such a long application,” she said. The application is 22 pages long.

    Applicants are also interviewed in their homes by Habitat volunteers to ensure that they will honor their financial obligations and participate in the house’s construction. They must document “great or compelling or severe need” for affordable housing, according to Habitat family programs manager Mary Ann Mills-Lassiter.

    Another possible reason for the low number of eligible applicants is that Habitat’s desire to provide homes for families clashes with its income standard, said Jay Coburn, president of the Community Development Partnership. “They are looking for families or households with three or more people,” he said. “If you have two income earners, the family likely makes too much money to qualify.”

    “While you say that 4 out of 14 is good odds, it still leaves 2 out of every 3 applicants without a home,” Nagle wrote in an email. “It’s difficult to justify wanting to open the pool to be larger.”

    In 2022, Habitat for Humanity of Cape Cod raised its maximum income standard from 65 percent of AMI to 80 percent. It was a change that Wellfleet’s affordable housing trust, local housing partnership, and housing authority had asked for.

    Habitat President Wendy Cullinan said those earning between 65 percent and 80 percent represent the “missing middle.”

    Habitat for Humanity of Cape Cod has a covenant with Habitat for Humanity International to uphold the parent organization’s core values. The covenant stipulates that the affiliate will serve families that earn less than 60 percent of AMI and will not serve families that earn more than 80 percent. Originally, the Cape Cod affiliate enforced a 65-percent limit, but in 2022 it moved the upper limit to 80 percent.

    But the increased income limit hasn’t resulted in a larger applicant pool. Cronin said that the organization received 51 applications for two homes built on Durkee Lane in Wellfleet in 2019 — one more than the number of applicants received this year with the more generous income standard. In 2019, as in 2024, 14 applicants qualified for the lottery.

    Cronin and Nagle both worry that the numbers suggest that potential low-income applicants have moved away from Cape Cod between 2019 and 2024. Cronin noted that 6 of the 14 eligible applicants for the houses on Old Kings Highway made between 60 and 80 percent of AMI.

    According to the Cape Cod & Islands Association of Realtors, the year-to-date median sales price of single-family homes in Wellfleet was $902,000 as of August 2024. “The struggle for local families to work and live on the Cape is just getting harder and harder,” Cronin said.

    The first Habitat for Humanity of Cape Cod house to use the revised income standard was built on Phoebe Way in Brewster earlier this year. According to Cronin, the first person to qualify for housing under the new standard was a nurse working for Cape Cod Healthcare.

    “It illustrates why we need to help and keep those making under 80 percent AMI here,” she said.

    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

    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.

    CLAIMS

    Final Arguments Heard in Sextons’ Claim to Fred Bell Way

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

    By

    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.

    © 2025 The Provincetown Independent, all rights reserved.

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