Sibling plaintiffs Mark A. Stowes and Sandra L. Stosz are 10 months into a lawsuit that could extend past the end of 2020.
Mr. Stowes and Ms. Stosz own property on Lucerne Avenue in Falmouth Heights. Late last year, the Falmouth Zoning Board of Appeals granted a comprehensive permit for a 28-unit Chapter 40B housing development on under five acres of land between Alma Road and Worcester Court that abuts their property. They decided to sue.
The North Reading Developer, doing business as Helmis Circle LLC, had proposed the development on top of what the plaintiffs call a “mature forest.” The acreage abuts town-owned conservation land that is home to an Atlantic white cedar swamp, a vernal pool, and several coastal banks.
Box turtles, two of which the plaintiffs have named Amber and Goldie, live on the land that will be developed into Little Pond Village at Falmouth Heights, a series of sidewalks, three-bedroom homes, driveways, and parking spots.
“I feel like we kind of have a moral obligation to do something,” Mr. Stowes said. In the past few months they have hired an attorney, filed a complaint, sat for depositions and requested an environmental report from an expert.
They received the preliminary report in December. Paul Shea, a wetland scientist and president of Independent Environmental Consultants, produced his findings and recommendations over the course of 10 pages. Ms. Stosz and Mr. Stowes noted that the report confirmed a lot of their concerns about the project.
Mr. Shea wrote that the project will have a negative impact on wildlife species and their habitat. Construction activities and clear cutting the land will “negatively impact and/or kill” mature oak trees located off the property, near the borders. This could create a safety hazard for nearby residences, Mr. Shea explained in the report, because trees could fall and damage property.
Mr. Shea proposed “viable alternatives” to the plans as approved. The alternatives seek to reduce the scale of the overall project, advising that the developer reduce building density, impervious surfaces, and physical changes to the existing property. He also advised leaving more of the site unaltered, and adding a 50-foot vegetated buffer from the top of coastal banks.
Preserving the environment is the chief concern for the plaintiffs, but projected runoff from the development also poses a threat to their property, Ms. Stosz said.
“Untreated flows of stormwater runoff from the impervious surface area (28 asphalt roofs, 28 asphalt driveways, asphalt roadways) within this high density Chapter 40B project will flow downgradient onto Alma Road, then will flow downgradient within Alma Road to Lucerne Avenue...” Mr. Shea wrote.
The stormwater runoff will “negatively impact the existing waterfront residential properties... including the residential property located at... Lucerne Ave,” he wrote.
In his report, Mr. Shea encouraged the developer to reduce the total volume of stormwater flow. Mr. Shea also noted that the underground management system “is located within the surface water and groundwater recharge zones of Little Pond.” Respecting wetland buffer zones might eliminate some of the proposed homes, including three houses, which Ms. Stosz said are being billed as waterfront properties.
The plaintiffs will have to clear a hurdle in the form of a motion to dismiss in order to proceed with the lawsuit. On May 6, attorney Kevin T. Smith submitted the motion on behalf of the developer, arguing that the plaintiffs do not have standing to sue because they are not “aggrieved” within the context of Massachusetts General Law, Chapter 40A, section 17.
An aggrieved party experiences harm from a project that is separate from the rest of the community. The harm cannot be minimal. The hearing on the motion will be held in August.
In a separate action related to the development, Helmis Circle LLC appealed the Falmouth Conservation Commission’s Order of Conditions on the basis that the commission applied local bylaws instead of state regulations. Chapter 40B projects are only required to conform to state regulations.
The Falmouth Conservation Commission’s original findings noted that, “if local wetlands regulations applied, nine (9) of the 28 housing lots could not meet the performance standards outlined in Falmouth Wetlands Regulations (FWR) 10.18 as currently proposed.”
The Massachusetts Department of Environmental Protection issued a superseding order of conditions in March after reviewing the proposed development and case file. Under the superseding order of conditions, the developer will have to conform to a five-foot buffer between the “limit of project disturbance and the wetland boundary.”
The superseding order of conditions noted that the developer has agreed to a National Heritage and Endangered Species Program-approved turtle protection plan. Ms. Stosz said she does not believe the plan will be effective and expressed concern for the turtles.
The plaintiffs set up a GoFundMe page to seek support with their legal fees. They are ready to continue the court battle as long as it takes. “We just felt like at Helmis Circle, we were just steamrolled,” Ms. Stosz said.
Randall D. Lilly, a developer on the project, declined to comment on the ongoing court case.