Siblings Sandra L. Stosz and Mark A. Stowes are taking legal action against a North Reading developer to stop construction that they say will bulldoze a “rare, mature forest,” nestled behind Alma Road on Little Pond.
The legal action came after the Falmouth Zoning Board of Appeals granted a comprehensive permit to the Aspen Group, a real estate advisory company doing business as Helmis Circle, LLC. The project, called Little Pond Village at Falmouth Heights, would result in 28 three-bedroom homes with associated sidewalks, sheds, three-season rooms, driveways, and parking spaces. The original seven lots, on less than five acres of woods, are being subdivided to make room for 84 bedrooms and 110 cars.
The brother and sister plaintiffs, whose property at 115 Lucerne Avenue directly abuts the intended project, describe the area slated for development as a verdant habitat for otters, foxes, raccoons, migratory songbirds, snowy and great egrets, and a pair of eastern box turtles affectionately known as Goldie and Amber.
“They are building in a forest. Not on a field or a parking lot,” Mr. Stowes said.
Ms. Stosz has identified a 250-year-old white oak, called a “mother tree,” on the property, which borders almost 10 acres under the care of the Falmouth Conservation Commission, including a “globally rare” Atlantic white cedar wetland, a vernal pool, and several coastal banks.
“Mother trees,” according to Ms. Stosz, “use their deep roots to bring up nutrients for the other trees nearby.” She fears that the entire five-acre forest will be clear-cut or bulldozed to provide for the planned development. “There wouldn’t be one tree left standing,” she said.
But Helmis Circle maintains that the project is completely in line with the state’s Chapter 40B incentives, which allow developers to override existing zoning and conservation restrictions as long as 25 percent of the proposed development provides housing to households that earn less than 80 percent of the median income. Little Pond Village at Falmouth Heights is to include seven affordable units, which is 25 percent.
“The vision of Little Pond Village is to create a community that compliments the character of Falmouth,” Helmis Circle stated through its representative, DiPrete Engineering. The development will offer “a living environment of high quality and sustainability,” they said.
But Ms. Stosz and her brother are not buying it. Three of the lots “are not essential for Section 40b and appear to be a flagrant attempt to use 40b as an avenue to develop on top of conservation land,” Ms. Stosz wrote in a letter to the conservation commission.
Mr. Stowes agreed. “You can’t get this environment back if every single tree is cut down, wildlife is bulldozed under, rare white cedar swamp threatened and our vernal pools polluted and poisoned,” he said.
And they are not alone in their concerns.
Although Ms. Stosz and Mr. Stowes are the only residents to take legal action so far, many of their neighbors are similarly critical of Helmis Circle’s decision to quadruple the number of lots from seven to 28.
“Now to hear that the town has approved a 28-unit subdivision on the shores of Little Pond makes me want to scream,” abutters MaryAnne and Robert Olsen wrote in an e-mail to the board of selectmen. They are “all in favor of 40B housing but destroying a community’s environment to squeeze in a few more housing units is wrong,” they said.
In fact, in the months leading up to the permit issuance, half a dozen residents expressed their dismay—in e-mails, letters and personal appeals—to the zoning board, the conservation commission and the board of selectmen.
For one, abutters do not like that Helmis Circle will not shoulder its fair share of a mandatory sewer betterment fee. While the existing homeowners each paid close to $18,000 in connection fees and special assessments, the Helmis Circle homeowners will owe only $3,000, as the cost of the town’s sewer project is spread across 21 additional lots.
“Residents of Falmouth Heights and Maravista have been mandated ... to pay a sewer betterment fee in order to clean up Little Pond ... do we need to allow 28 new units to contribute only seven shares of contribution to the cost?” asked John Banner, a longtime resident, who contacted the zoning board in January.
Abutters also do not like the density—what Mr. Stowes describes as a “Los Angeles zoned development” that impacts traffic, parking, and the ability of firefighters and others to access the street.
“What neighborhood in Falmouth has 28 houses on four acres of land?” asked Joseph Netto, an Alma Road resident, in a letter to the zoning board.
“How can you put 28 homes on a ‘bowling alley lot’ that was originally approved for seven homes?” asked another neighbor, Gregory G. Mazmanian.
Abutters do not like the cumulative effects of added runoff and stormwater drainage that could negatively impact the new sewer system and undercut the millions of dollars that are being spent to reduce contamination in Little Pond.
“Surface runoff, automotive fluids, fertilizers, pesticides” will put additional stress on the wetland areas, said Edward F. Jalowiec, another Alma Road resident.
“I am deeply concerned about the ‘functionality’ of the proposed wastewater drainage system,” which the developer is leaving in the hands of an untested homeowners association, wrote another abutter, Michael Hatch.
And abutters do not like the fact that the trees are being sacrificed, adding to Mr. Stowes’s concern that clear-cutting weakens the root systems of all of the trees, including those on the bordering properties.
“All these trees will be cleared entirely and the wind will whip across that wide open sand,” wrote Loretta J. McCartney, who has lived on Alma Road for 55 years. “It’s such a sorry story,” she said.
To address the abutters’ concerns, at least in part, the zoning board required Helmis Circle to submit a certified plan showing the creation of the 28 residential lots, eliminate ten proposed garages, and add 4,000 square feet of open space as a “play area.”
But after more than eight months of heated debate and feedback from the developer; the public; engineers; and experts, including an arborist, the zoning board granted Helmis Circle a comprehensive permit on August 23.
While acknowledging the concerns raised by abutters about “the development’s potential incompatibility with abutting residential uses and environment,” the board found “that issues have been addressed through appropriate conditions ... and according to the regulations.”
On September 13, Ms. Stosz and Mr. Stowes filed suit against the Falmouth Zoning Board of Appeals and Helmis Circle, LLC, in Barnstable Superior Court.
In their six-page complaint, Ms. Stosz and Mr. Stowes, now plaintiffs, allege that in reaching its decision, the zoning board acted in an “arbitrary and capricious” manner, committed “an error of law,” “exceeded its authority,” and “was otherwise unlawful.”
The plaintiffs claim that the board erroneously waived a number of zoning requirements to enable construction.
“While the required lot size in the applicable zoning district is 40,000 square feet, the development will include lots as small as 3,557 square feet,” the complaint states. Similar modifications in lot widths (from a required 100 linear feet to 22.6 linear feet) and setbacks between lot lines and structures (from 10 linear feet to three) are also at issue.
The plaintiffs allege further that the board erroneously postponed a number of substantive determinations in order to approve the permit application and that the use of Alma Road for access to the development is illegal and overburdensome.
Ms. Stosz and Mr. Stowes are seeking a court order reversing the permit decision, ordering the board to deny the application, and declaring that the development cannot be accessed via Alma Road.
But whether they win or lose, Mr. Stowes is open to starting a dialogue with his Helmis Circle counterparts, something that has not happened at any of the meetings he has attended. He can envision alternative proposals that might satisfy both parties: reducing the number of units, protecting the trees in the setback areas, and locating the houses 100 feet from town-protected wetlands outside of “buffer zones.”
Mr. Stowes and his sister are not against affordable housing, but the targeted five acres are “the only remaining open space in the Heights,” Mr. Stowes said.
From all appearances, however, both sides are digging in for a fight.
The zoning board of appeals filed its answer to the complaint on Thursday, October 11, denying that it acted improperly or that its decision was not supported by the facts or law. And while it conceded that a portion of Alma Road was created as a “private way,” the board denies that the developer’s anticipated use of the road is either illegal or overburdensome.
When asked to comment on the litigation, Peter L. Freeman, attorney representing Helmis Circle, stated that “other than being frustrated by the delay,” his client is “confident” that the zoning board of appeals’s “decision was a perfectly good decision” and “we will prevail.” As of yesterday, Helmis Circle had not filed its response to the pending complaint.
But another dispute is brewing.
With its permit in hand, Helmis Circle is challenging several restrictions imposed by the Falmouth Conservation Commission during its review process. And it has filed an action with the state Department of Environmental Protection, asking it to lift the conservation conditions that Ms. Stosz and Mr. Stowes contend are not stringent enough.
Specifically, Helmis Circle claims that instead of applying the state’s wetland act, the commission erroneously made findings and imposed conditions under more stringent local bylaws and regulations. According to Helmis Circle, these conditions and others that seek to regulate areas outside protected zones (i.e., the wetlands) must be stricken from the conservation commission’s order of conditions.
Helmis Circle also objects to the appointment of an independent environmental monitor, who will be onsite and submit weekly reports to the commission. It suggests that inspections should be performed by a site contractor, whose weekly reports during the construction phase “may be made available upon request.” To do otherwise exceeds state requirements, it said.
Helmis Circle is also challenging “findings” and “special conditions” that require it to save trees, shift the location of at least one structure, and establish a row of native plantings along a containment barrier known as the “limit of work.”
The developers maintain that they have “increased the Limit of Work setbacks, and revised project details to provide greater protection” to the wetland areas. They object to planting native species (highbush blueberries, arrowwood and sweet pepperbush) that they contend will eat up “an additional 3-4 feet” of backyard space. Instead of the native plants, the developers want to install “a wildlife-friendly split rail fence,” which they say is sufficient protection for the wetland areas and the buffers that surround them.
The conservation commission has yet to respond to Helmis Circle’s objections, but it stated in its June 27 findings that the project was reviewed “under the Massachusetts Wetlands Protection Act only. If local wetlands regulations applied nine (9) of the 28 housing lots could not meet the performance standards outlined in the Falmouth Wetlands Regulations.”
Although attorney Stephanie A. Kiefer, who represents Helmis Circle, could not be reached for comment, “the parties are in discussion for issuance of a Superseding Order of Conditions,” according to the zoning board.
For the time being, the intended development is stopped in its tracks. While the lawsuit is pending, “everything comes to a standstill and the permit is tolled,” according to Frank K. Duffy Jr., town counsel.
But the future of box turtles Amber and Goldie, as well as the other animals who stand to be displaced by the project, may hinge upon dollars and cents. The development, which will be built over two years, is expected to produce $13.7 million in sales revenue with an expected $1.8 million in profits.
It’s just a “‘for profit’ venture with a low-income housing element,” argued Alma Road resident Michael Hatch.