Board Votes To Move Forward With 127 Old Harbor Rd. Housing

CHATHAM – The select board voted unanimously last week to move ahead with housing design guidelines for the town property at 127 Old Harbor Rd.

 The board had put the plans on hold while it sought a legal opinion on whether the bequest of the property to the town in 1971 prohibited its use for affordable or attainable housing. At its Nov. 18 meeting, the board not only decided to move forward with the housing plans, but on a split vote rejected further research into the property’s status.

 The donation from Marion Nickerson Ellis stipulated that the property be used for a playground in association with the neighboring elementary school and that no buildings be erected on the land other than the single-family home and barn that existed at the time. A playground was built on the rear section of the property and is currently used by Chatham Elementary School students; the home was used for various purposes — including offices for the Chatham School Department and the water department — but has been vacant for years and is in poor condition. The barn is used for storage by town departments.

 Chair Dean Nicastro stressed that he wanted to settle the issue once and for all. 

 “It’s regrettable that the town even accepted this property in 1971 with the stupid provision that we would take these buildings without any direction of what to do with them,” he said. “That would never happen today.”

 After seeing three scenarios for what housing might look like on the 41,817-square-foot section of the parcel that contains the home and barn, the board paused design guidelines after two attorneys representing neighbors raised objections, citing Ellis’ original donation of the land. The attorneys asserted that the provisions prohibit the town from building additional structures on the land or removing those already there in perpetuity.

 Former Town Counsel Pat Costello had previously determined that under existing state law, the provisions of the donation expired after 30 years. While the attorneys representing the unidentified neighbors disagreed, current Town Counsel Jay Talerman agreed with Costello. At the Nov. 18 meeting, he said the gift did not state a public purpose for the buildings. There are three areas where there is general agreement that restrictions can be in perpetuity — conservation, affordable housing and historical preservations. 

 If the donation had included a public purpose for the land and structures, their perpetual protection may have been warranted. “I can’t reach that conclusion, however, because there’s no purpose whatsoever,” Talerman said.

 “There’s no exact case law on this very unique situation, where there’s a split use and there’s a gift that has no use attached to it at all,” he said.

 One of the attorneys, Michael Ford, argued in a letter to the board that the donation created a public trust which should be honored in perpetuity. Talerman said there’s no evidence of creation of a trust, and town meeting’s acceptance of the land did not automatically create one.

 Town meeting has directed that the property be used for attainable or affordable housing, board member Jeff Dykens said. He said he was comfortable with the legal opinion and wanted to move forward with the design guidelines, the precursor for seeking a housing developer.

 Resident Elaine Gibbs said the town should refer the matter to the Attorney General’s Office, which can then petition the court to remove the restrictions in the donation. A motion by board member Stuart Smith to direct Talerman to research the public trust issue and do further title work on the property was rejected 3-2.

Dykens noted that the buildings have been put to various uses over the years which arguably did not adhere to the provisions of Ellis’ donation, with no objection.

 “But when we want to go do something with affordable housing or attainable housing, all heck breaks loose,” he said. “Where was everybody when it was the water department? Where was everybody when it was the harbormaster and stuff was stored there? We weren’t fulfilling her wishes. We weren’t using the building, we let it go into disrepair.”

 Board members pointed out that the single-family home could be renovated but might have to be torn down because of its poor condition. But constructing a substitute home and rebuilding the barn as housing would retain the same number of structures on the property. The board has yet to settle on the total number of units, but such a scenario could support two to four, perhaps via use of accessory dwelling units. Board members support the units being attainable homeownership, but again no decision has been made

 Developing design guidelines will help make those decisions. There is $15,000 available for that work, which the board’s vote authorizes. Once that information is in hand and the board settles on a scenario for the property, “some of the legal opposition may soften or disappear,” said board member Cory Metters, who has opposed housing on the property. “I’m open to compromise on this one.”

 “We need to keep our options open,” said Dykens, “and see what we like. Let’s see what [consultants] come back with.”