TRURO — Attorney Ben Zehnder did his best to make his client’s proposal to build a 5,100-square-foot house at 17 Coast Guard Road sound like a good thing for the neighborhood.
Truro Zoning Board of Appeals
TRURO: THIS WEEK'S CURRENTS
Zoning Board of Appeals
Meetings Ahead
All meetings in Truro are remote only. Go to truro-ma.gov and click on the meeting you want to watch. The agenda includes instructions on how to join.
Thursday, Nov. 18
- School Council, 3:30 p.m.
- Housing Authority, 4:15 p.m.
Friday, Nov. 19
- Open Space Committee, 12:30 p.m.
- Board of Library Trustees, 3:30 p.m.
Monday, Nov. 22
- Local Comprehensive Plan Committee, 10 a.m.
- Climate Action Committee, 10 a.m.
- Charter Review Committee, 4 p.m.
- Zoning Board of Appeals hearing, 5:30 p.m.
Conversation Starters
Zoning Board of Appeals
The select board, in a 2-2 vote on Nov. 9, rejected David Crocker’s application to serve as an alternate on the zoning board of appeals (ZBA). Crocker is married to Sue Areson, a member of the select board. Their relationship worried some board members who said potential conflicts could make it hard to maintain a quorum.
“It would concern me if either you and/or Sue had to recuse yourselves,” said Robert Weinstein, chair of the select board.
Board member Kristen Reed asked Crocker about his “vision for the future” of Truro with respect to ZBA decisions. Crocker asked how much his vision “should really be applicable there,” as the ZBA “tries to be fair.”
“How do you feel about the direction the town of Truro is going with projects like the Cloverleaf, the Walsh property, etc.?” Reed asked.
About the Cloverleaf, Crocker replied, “That’s a done deal, so my feelings on that aren’t too important.” On the Walsh property, he said, “I’d like to see the town take their time and figure out what they want to do with it. It’s a great open piece of property.”
The interview questions returned as a topic during the public comment period of the select board’s Nov. 16 meeting. Joan Holt read a letter that began: “While the board struggles to fill vacancies on town committees, it has just signaled that you needn’t apply — unless your vision for the future of Truro mirrors their own.”
Holt called Reed’s questioning improper, “as was the insulting suggestion that because he is a relative of a member of the select board, he poses a risk of violation of the conflict-of-interest law.”
Anne Greenbaum, chair of the planning board, chimed in, criticizing the board for discussing hypothetical quorum problems, but “offering no factual basis for this.” Greenbaum concluded by asking the board to take up the improvement of its own interview process.
But Bob Panessiti, chair of the finance committee, disagreed. “It is important in the functioning of government that the select board appoint certain regulatory bodies that follow and adhere to what their governance and philosophy of the town is,” he said.
The select board’s Sue Areson raised concerns about a “seriously flawed interview process.” She criticized the board’s seeking her husband’s opinion on town issues. “His opinions are irrelevant in any case before the zoning board of appeals, which must decide based on the facts of that specific case,” she said. —Jasmine Lu
HOUSING
Abutter Joins Lawsuit Against Cloverleaf
Other plaintiffs live far away, with questionable standing
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.
This Week In Truro
Meetings Ahead
Meetings are held remotely. Go to truro-ma.gov, click on the meeting you want to watch, and open its agenda for instructions on how to watch or take part online.
Thursday, March 25
- Climate Action Committee, 10:30 a.m.
Wednesday, March 31
- Planning Board joint meeting with Highland Affordable Housing, 5 p.m.
Thursday, April 1
- Climate Action Committee, 10:30 a.m.
Conversation Starters
Truro and Malone Will Mount Joint Defense
The taxpayers of Truro will help pay for the legal defense of the Zoning Board of Appeals granting a comprehensive permit for the construction of a 39-unit affordable housing development known as the Cloverleaf at 22 Highland Road.
Fifteen people have appealed the ZBA decision. Located on a Route 6 highway cloverleaf, the land was given to the town by the state for the purpose of constructing affordable housing.
“The town has a lot of interest in this, and affordable housing is one its main goals and objectives,” Town Manager Darrin Tangeman told the Independent.
Members of the board of appeals and the select board agreed it was worth helping developer Ted Malone of Community Housing Resource of Provincetown defend the case, added Tangeman.
Malone and the town will each pay their attorneys to jointly defend the case, Malone said. The town will be represented by Jonathan Silverstein of KP Law, Tangeman said.
“The zoning board of appeals issued a thoughtful and careful decision,” Tangeman said in a statement. “The town fully supports the zoning board of appeals’ decision and will be aggressively defending the decision.”
David Reid, the attorney for the plaintiffs, did not return a call seeking comment.
The case will be heard in Barnstable Superior Court. A new law, passed by the state legislature in January, may be helpful to the town. The so-called Abutter Appeals Reform act aims to combat meritless legal challenges that are brought by opponents of housing projects. Often, such lawsuits have no chance of succeeding, but they nonetheless lead to costly delays. —K.C. Myers
THE DRAWING BOARD
Petition Seeks Elected ZBA, Health Board
Weinstein: it’s the ‘usual suspects’ who oppose affordable housing
TRURO — The signers of two petitioned articles that will be on the June 26 annual town meeting warrant want the zoning board of appeals and the board of health to be elected by the public rather than appointed by the select board.
“For me, it is a matter of democracy,” said Joan Holt, who helped circulate the petitions. “I think we all realize how precious our votes are.”
But many in Truro don’t agree, including the chairs of the select board and board of health.
Tracey Rose, the health board chair, said no one has ever brought this up with the members of the board.
“I can only presume it comes from a special interest,” Rose said. “If it was a more universal town-wide request, then absolutely. But I do believe this is a small group of people and that’s disturbing. It’s very suspicious to me.”
The “special interest” Rose referred to is most likely opposition to the proposed Cloverleaf affordable housing development on Highland Road. The ZBA and board of health have both been instrumental in the town’s approval of the project, which has now been challenged in court. (See related article on page 5.)
“It’s a terrible idea,” said Robert Weinstein, the select board chair, of the two town meeting petitions. “One need only look at our planning board, which is elected and which has continued to be an embarrassment to the community.”
Weinstein said the planning board had done nothing to accomplish the development of affordable housing, which is one of the select board’s main goals. Creating housing that’s attainable for year-round residents in a town where the median-price house now sells for $1.2 million has been a priority for years, he said. And yet, the planning board has “done everything in their power to prevent the progress of diverse housing stock,” Weinstein said.
Several planning board members have actively opposed the Cloverleaf development. No one on the planning board responded to calls for comment from the Independent.
Holt argued that elected board members are accountable to the people instead of the five select board members who appoint them. This lessens “the concentration of power,” which she claims is increasing nationally, internationally, and “even locally.”
But, practically speaking, Truro’s planning board members have rarely been elected in a competitive race, said Jay Coburn, a former Truro selectman and director of the nonprofit Community Development Partnership, which promotes and manages affordable housing on the Outer and Lower Cape.
“It’s a complete fallacy that the planning board reflects the will of the people,” Coburn said.
According to Town Clerk Susan Joseph, six members of the current board — Bruce Boleyn, Anne Greenbaum, Peter Herridge, Paul Kiernan, John Riemer, and Steve Sollog — all ran unopposed. Richard Roberts was appointed to fill Karen Tosh’s unexpired term. Coburn pointed out that, when filling an unexpired term, the planning and select boards collectively vote, and there are more planning board than select board members — so, in effect, the planning board can control the filling of vacancies.
Weinstein said several of the petition signers are the “usual subjects” who oppose affordable housing efforts. Herridge, Kiernan, Riemer, Sollog, and Boleyn all signed the petitions.
The authors of these articles got their idea from another petitioned article, which was first presented a year ago but got delayed and so will also appear on the warrant in June, Holt said. It asks voters to make the planning board appointed by the select board rather than elected.
Weinstein supports that article, he said, because “you want the goals and objectives of the policy-making body to be carried out by the regulatory boards.”
This upcoming town meeting is expected to be especially long, since there are 64 articles on the warrant, including nine new petitions and five petitions that were postponed from 2020 in an effort to shorten the town meeting during the pandemic. It begins at 10 a.m. on Saturday, June 26 at the Truro Central School ball field.
Editor’s note: An earlier version of this article gave the date of the annual town meeting as May 1. On Tuesday evening, the select board voted to move the date to June 26.
CLOVERLEAF
More Plaintiffs Sign On to Fight Truro Housing
Opponents appear to seek delay with a lawsuit that’s unlikely to be won
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.
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.
This Week In Truro
Meetings Ahead
Meetings are held remotely. Go to truro-ma.gov, click on the meeting you want to watch, and open its agenda for instructions on how to watch or take part online.
Thursday, Feb. 25
- Climate Action Committee, 10:30 a.m.
Friday, Feb. 26
- Community Preservation Committee, 4:45 p.m.
Monday, March 1
- Conservation Commission, 5 p.m.
Tuesday, March 2
- Board of Health, 4:30 p.m.
Thursday, March 4
- Climate Action Committee, 10:30 a.m.
Conversation Starters
Covid-19 Update
As of Feb. 22, Truro had 10 active cases of Covid-19, according to the town. The state has reported 38 total cases and no deaths related to the virus.
Kristen Reed to Run Again
Select board member Kristen Reed, who joined the board in 2018, is running for a second term, she told the Independent on Feb. 23.
Both she and Jan Worthington, a select board member since 2006, are up for re-election. Worthington did not return a call by deadline seeking comment on whether she was going to try for a fifth term.
Reed said she has more than the necessary 20 signatures for nomination.
Reed has lived on the Outer Cape for 16 years, and is co-founder of Chequessett Chocolate, a craft chocolate business in Truro that has created over 22 jobs, she stated on her website, kristenmreed.com. She also works as a certified nursing assistant caring for seniors.
The town election is May 11.
No Appeal Filed Yet
As of Tuesday, Feb. 23, the Concerned Members of the Pond Village Watershed Community had not filed an appeal of the Truro Zoning Board of Appeals approval of the Cloverleaf, a 39-unit affordable apartment development, according to Susan Joseph, the town clerk.
Jason “Jay” Talerman, of Mead, Talerman and Costa, who was hired by some members of the Pond Village Watershed group, has until Friday to file an appeal, Joseph said. Talerman did not return a call from the Independent on Feb. 23.
—K.C. Myers
WATERSHED
Lawyer Is Hired to Face ZBA on Cloverleaf
Board’s final vote on affordable housing plan expected Jan. 14
TRURO — On the eve of the expected approval of what would be the town’s largest affordable housing development, a group calling itself Concerned Members of the Pond Village Watershed Community has hired an attorney to represent its interests before the zoning board of appeals and possibly in court.
The Pond Village group has sent letters to the ZBA critical of the 39-unit Cloverleaf apartment complex; 75 people appear to have signed a Nov. 5, 2020 letter. It’s not clear, however, how many of them are paying for the attorney, Jason Talerman, or whether they plan to appeal the ZBA’s likely approval of a comprehensive permit for the project. Talerman is a partner at Mead, Talerman and Costa, with offices in Newburyport and Millis.
At the ZBA’s Jan. 7 meeting, Patti Bellinger, who owns a waterfront home on Pond Road assessed at $1.9 million, introduced Talerman, saying, “I’ve asked Jay to represent our interests.”
Talerman declined to name the people who have hired him.
Bellinger told the ZBA her group wants the proposed wastewater system at the Cloverleaf to treat the effluent so that, on average, it reduces the concentration of nitrogen to 5 milligrams per liter (mg/L). And, she said, if the treatment system should fail, “We want to make sure that there is a very strong, fail-safe backup plan.”
“We vehemently support the notion of affordable housing,” Bellinger added, “not only in Truro but at the location that has already been chosen.”
Bellinger did not return an email or phone call to her office at Harvard University, where she is the chief of staff for President Lawrence Bacow. Talerman said his clients do not wish to appeal the expected approval of the project permit. But, he added, he has no “crystal ball.”
“If I had an opportunity to work with [acting town planner] Barbara Carboni, I’d love to collaborate with her,” Talerman said. “It would be our fondest desire not to challenge the [approval].”
The Cloverleaf has been the subject of more than a year of hearings before the ZBA. Carboni, an attorney with KP Law, told the ZBA on Jan. 7 that she was drafting the final language for its decision. ZBA Chair Art Hultin told his colleagues they would be voting on the matter this Thursday, Jan. 14. Abutters to the Highland Road site of the housing development would have the right to appeal in either Mass. Land Court or Barnstable Superior Court.
More often than not, when abutters appeal a decision, the legal fees to defend the board involved are paid by the developer, Talerman said. But in this case, because it has been so supportive of the project, the town may cover legal fees, he said. Either way, the project would be delayed, which would increase costs to the developer, Community Housing Resource of Provincetown, the town, or both.
The major issue facing the board is a requested waiver of the town’s wastewater regulations. The ZBA required the developer to use an alternative treatment system, and then required that treatment system to be peer reviewed by another engineer, Mark Nelson of the Horsley Witten Group.
According to both the developer’s engineer, John O’Reilly, and Nelson, the system is capable of treating wastewater so that it would reduce the nitrogen level in effluent to 5 mg/L. This conclusion was based on reviews of existing systems that are similar in design and use. That degree of treatment exceeds standard Title 5 septic systems, which reduce nitrogen in effluent to 35 mg/L, according to Brian Baumgaertel, director of the Mass. Alternative Septic System Test Center in Mashpee.
The Pond Village group, however, argues that the pond itself, which their homes surround, already has low water quality and the nitrogen levels in many of the wells surrounding the pond are high.
Mary Ann Larkin, who lives at 12 Pond Road, said her water was recently tested at 3.6 mg/L. The Environmental Protection Agency’s established limit for safe consumption is 10 mg/L.
Larkin’s husband, Patric Pepper, said he had “been told” that the EPA considers water with more than 3 mg/L “contaminated.” Pressed on who had told Pepper that number, Larkin said that her husband was “confused.”
A group that formed during the review process of the Cloverleaf calling itself “Docs for Truro Safe Water” has put out statements saying that the 10 mg/L standard is outdated. But their work has been questioned by various authorities including Tim Pasakarnis, a water resources analyst for the Cape Cod Commission. He told the Independent on Dec. 17 that he had never in his research found a jurisdiction anywhere that requires a lower nitrogen level than 10 mg/L.
It was reports of the nitrogen level dispute that caused Marilyn Miller, who lives at 13 Pond Road, to have her name removed from an Oct. 5 letter opposing the Cloverleaf from the Concerned Members of the Pond Village Watershed Community. She said she had not given permission for her name to be there in the first place, and asked Larkin to remove it.
Asked why she is not opposed to the Cloverleaf housing development, Miller, a former reporter for the Provincetown Banner, said, “I read up on it.”
AFFORDABLE HOUSING
Cloverleaf OK Could Happen by Christmas
Opposition remains strong, but ZBA approval seems assured
TRURO — Approval of a comprehensive permit for the 39-unit rental housing development known as the Cloverleaf on Highland Road in North Truro seems almost guaranteed. Counsel for the zoning board of appeals is drafting a decision for review and a possible final vote next week, on Dec. 17.
Of the five ZBA members who will vote on the permit, only John Thornley has expressed reservations about it. In a letter to the board that he said he wrote as a private citizen, he suggested that the town pay to extend the municipal water system to the nearby Professional Heights and Pond Village neighborhoods, where fears about drinking water quality have been fanned by opponents of the housing development.
Thornley’s letter suggested town water be extended to the west end of Pond Road so that the water quality for the Pond Village neighborhood “would no longer be in any way affected by Cloverleaf effluent and no longer be a health issue.”
In fact, no evidence has been presented to the ZBA in a year of meetings on the proposal showing that effluent from Cloverleaf would affect those wells.
Thornley said that the cost of that public water line should be borne by the town.
His fellow board members did not seem receptive to his idea. Chair Art Hultin said extending the public water line was “off topic.”
Thornley’s letter was not the only last-minute surprise during the discussion on Dec. 3.
Mark Nelson, the engineer who conducted a peer review of the alternative septic treatment system at the Cloverleaf, said the system could be further refined to reduce the “effluent concentration” to an average of five parts per million. For a traditional septic system, that number is 35 parts per million.
John O’Reilly, the project engineer, said the cost of such refinements would not be a burden to the developer, but maintenance and management costs would increase. “It’s not insurmountable at this point,” said Ted Malone, president of Community Housing Resource.
The ZBA did not rule on whether to require the upgraded system. Hultin said that would be addressed before the board issues a comprehensive permit.
A number of neighbors continued to raise objections, outlined in a two-page letter signed by the “Members of the Pond Village Watershed Community.”
“It really seems like we’ve covered most of these points repeatedly,” said Hultin to the letter writers.
David Kirshner of Twine Field Road said he objected to the way that Pond Village residents have been blamed for poor water quality because of their own outdated septic systems and cesspools.
“This is baseless and deeply unsettling,” Kirshner said. “The town and the board of health have been fully aware of these issues since at least 2016 and done nothing to address them.”
Hultin responded by saying no one is blaming anyone. But the fact is, he added, the water quality problem in Pond Village is pre-existing.
Kirshner asked that the ZBA require the developer to do a hydrological study of the Pond Village watershed.
To this, Health Agent Emily Beebe responded that because the wastewater treatment system designed for the Cloverleaf will make it so there are no effects on nearby private wells, “it doesn’t appear that there is a need for a hydrogeologic study.” No other treatment system in town is capable of treating effluent to the high degree that the proposed Cloverleaf system will. “I don’t understand why people aren’t hearing this,” Beebe said.
Scott Warner, also of Twine Field Road, said the proposed wastewater system had been tested at only one place, but Beebe replied that the system had been tested and approved by the state Dept. of Environmental Protection and used in many projects.
Warner also said he feared that Cloverleaf tenants would dump harmful chemicals down their drains. Because they would be renters, he argued, they would be less likely to care for the property.
“It seems that an individual homeowner that installs a system can understand and police what goes down their own drains,” Warner said.
Hank Keenan and Karen Ruymann made similar arguments.
ZBA member Fred Todd said the suggestion that tenants would not be decent citizens and respect the water was offensive.
The board will reconvene on Dec. 17 at 5:30 p.m. to vote on the permit with a set of conditions and waivers from the Truro Zoning Bylaw. Under Chapter 40B, projects that include a minimum of 20 to 25 percent affordable units may receive such waivers as long as certain health and safety conditions are met. Thirty-two of 39 Cloverleaf units — 82 percent — will be income restricted.
