HARWICH — Several steps have been taken in recent months that may resolve a lawsuit against the conservation commission and pave the way for development of a home on the west bank of Saquatucket Harbor.
Efforts have been underway for more than 45 years to gain access to a 2.56-acre parcel consisting of wetlands and hillside running down to the harbor. A subdivision plan was granted in 1971 to Winslow C. Grullemans that involved an easement across the new Brax restaurant property, but Carding Machine Brook, which separates the properties, became a road block.
A Chapter 91 tidelands permit was issued in 1970 allowing a culvert and fill so a road could be built over Carding Machine Brook. But that project did not come to fruition.
Under the ownership of David E Bardsley, trustee of Herring Realty Trust, there have been several plans to gain access to the land. There have been discussions with neighboring property owners over the years seeking to allow access over abutting land, and a couple of proposals to construct a bridge from Route 28 to the parcel.
The proposal to construct a 16-foot bridge to the landlocked parcel was denied by the conservation commission, and a court appeal upheld the commission's decision. There were additional discussions with the commission on another design considered to have less of an impact on the brook.
In 2012, Bardsley filed another suit based on the commission's rejection of a variance request for a bridge. The suit, filed by Nutter, McClennen and Fish, LLP of Hyannis, refers to numerous efforts and approaches to provide access to the property that were denied over the year and sought a remand from the court to the commission or a determination that the decision was an unconstitutional regulatory taking, for which the trust is entitled to just compensation.
The case was stayed, based on court decisions relative to the town's wetland protection bylaw, while further discussion and proposals were shaped, Conservation Administrator Amy Usowski told The Chronicle. There is now a plan taking shape that would allow access for the development of a home on a portion of the land.
Tim Brady of East Cape Engineering and attorney Paul Revere have been working with the planning board to obtain a rescission of the three-lot subdivision approved for the property in 1971 and instead seek an approval-not-required plan for two lots with access over a neighbors property.
A month ago, Brady told the planning board in the rescission hearing that there would be a land swap with Colonial Way property owners Sandra Tanco and Thomas Szado that would provide access over Saquatucket Drive. Tanco and Szado would receive a slightly larger piece of land now belonging to Herring Realty Trust along the south side of the property.
“She gets a little bigger lot and we get one buildable lot,” Brady told the planning board at the time.
The buildable lot would be 97,743 square feet, including wetlands and coastal bank, but would have 46,000 square feet of upland. Brady said the rescission of the three-lot subdivision would provide two lots with additional acreage.
After discussions between the planning board and Revere on the proper means of declaring the rescission shortly before Christmas, the rescission was approved. Revere said the litigation between the town and the property owner would be dropped with the approval. He added that the details of access are still being worked out with Tanco, but the plan is to have a two-lot, approval-not-required plan filed with the planning board, providing access over Saquatucket Drive, shortly after the 20-day appeal period passes for the rescission vote.