Legal Issues Threaten Housing At 127 Old Harbor Rd.

CHATHAM – A battle is brewing over the fate of the town-owned property at 127 Old Harbor Rd. which could end up in court and imperil plans to place affordable or attainable housing on the parcel.
 Two attorneys representing “neighbors and abutters” to 127 Old Harbor Rd. warned officials that plans for housing “flaunt” the intent of the original donor of the land, who wanted it restricted to use as a playground and recreational area.
 Attorney John Kanaga of Orleans wrote in an Oct. 7 letter to the select board that the town could “face legal exposure” if it disregards the conditions of Marion Nickerson Ellis’ donation of the land. In a separate letter Oct. 6, Harwich attorney Michael Ford wrote that the language in Ellis’ will was “clear and unequivocal,” and by approving the donation at a Nov. 2, 1971 special town meeting, the town accepted the restrictions. The 2023 town meeting vote to change the use of the land to affordable housing “may not be sufficient to accomplish that task,” he wrote.
 Neither attorney identified their clients and did not reply to emails seeking further information.
 In July, the select board voted 3-2 to pause plans for housing on the land and to instead prioritize moving forward with housing on town-owned property on Stepping Stones Road.
 On Sept. 30, Community Housing Partnership chair Karolyn McClelland asked the board to reconsider its decision. After a lengthy discussion, board members decided to ask town counsel for an opinion on the restrictions.
 Previous Town Counsel Pat Costello told the board several years ago that the restriction expired after 30 years. In an Oct. 6 email to board Chair Dean Nicastro and Town Manager Jill Goldsmith, current Town Counsel Jay Talerman wrote that he agreed that the town has no legal obligation to honor Ellis’ will, but for different reasons than those relied on by Costello.
 The will stipulated that the land be used as “an additional playground and recreation area” for Chatham Elementary School, which backs up to the property, and that no buildings be built on the 41,817-square-foot lot other than the house and barn that were on the lot at the time.
 A playground was built on the rear portion of the property, which is separated from the school by a tall chain-link fence. In the past the house was used as offices for the school department and water department, but it has been vacant for many years. The barn is used for storage by town departments.
 In their letters, Ford and Kanaga cited various state statutes and court decisions asserting that town meeting’s acceptance of the property donation includes acceptance of the donor’s intent and that it does not fall within the 30-year exemption cited by Costello.
Talerman’s email notes that while one section of state law states that restrictions on property that are unlimited as to time expire in 30 years, another section exempts gifts “for public charitable or religious purposes” as well as conservation, preservation and agricultural restrictions. 
“Plainly, there is some tension and inconsistency between” sections of the law, Talerman wrote. However, restrictions no longer apply if the purpose of the restriction is no longer being carried out, he added. Therefore, Talerman wrote, the restrictions only apply to the portion of the property being used as a playground.
“Accordingly, while the playground area continues to be subject to the restriction, the property may be developed as affordable housing and conveyed in accordance with the 2023 vote of town meeting, in my opinion,” he wrote.
Kanaga disagreed with Talerman’s opinion, writing that the town has adhered to the restriction regarding the entire property by not putting up any other buildings. He also suggested that failing to honor the restriction will hurt the town’s reputation and cause others to not donate land out of fear their wishes won’t be followed. He suggested that the town seek guidance from the Attorney General’s Office to ensure compliance with the law.
Earlier this year, select board members leaned toward a “test fit” that included renovating the existing house and building two duplexes on the property. At the select board’s Sept. 30 meeting, Housing and Sustainability Director Gloria McPherson suggested the units could be reserved for teachers as allowed under the state Affordable Homes Act. Such a connection to the schools could possibly be seen as a way to adhere to Ellis’ wishes, she said.
Board members were clearly frustrated over the situation. 
“This has been one of the least enjoyable projects in all of the years I’ve been on the board,” said Cory Metters, who has opposed housing on the property. 
“I think the most dishonorable thing we’ve done is ignore that property” over the years, added Shareen Davis.
Talerman was unable to attend the board’s Oct. 7 meeting to discuss the situation, so the matter was deferred to Nov. 18 so that all board members could attend. 
At the Oct. 7 session, McClelland registered her “general dismay” that the situation was dragging on.
“Every time we make a decision on 127, if some lawyer throws a letter to us, are we going to stop and analyze everything?” she said. “At some point you have to decide and it has to be over.” Noting the dire housing situation in town, she said that “probably the most polite thing” she could say about further delays is that they are “really annoying.”