Developer Proposes Conservation Deal To Force Town To Improve Road, Or 17 Acres Will Be Developed

HARWICH – Saying they feel like they’re negotiating with a gun to their heads, town officials were presented with a proposal last week by a landowner who is willing to preserve 17 sensitive acres of open space provided that town officials repair and maintain a portion of Round Cove Road. If the town declines the offer, the landowner has said she will sell to a developer who has pledged to put houses on the land. 

 The board took no action on the proposal but has not closed the door to further discussion of the deal.

The land conservation proposal is the latest bizarre turn in a years-long legal battle between the town and developer Robert Fratus, Jr., who is seeking to have the unpaved road slightly widened and hardened with crushed asphalt and gravel. The town prevailed in a prolonged legal battle to avoid having to improve and maintain the road, which is owned by the county.

 On Dec. 16, Hawksnest Road resident Elizabeth Dubuque told the select board that she has signed a purchase and sale agreement preserving 17 acres of her land abutting Hawksnest State Park with the Harwich Conservation Trust and the Native Land Conservancy. 

 “We’ve decided to sell the land and we’ve had a few offers from developers,” she said. The conservation trust made an offer for the property, which was “substantially lower” than other offers, but which she is inclined to accept. A rider on the agreement stipulates that the select board is being asked to improve and thereafter maintain that portion of Round Cove Road out to the intersection with Hawksnest Road, along with a portion of Hawksnest Road. If the select board denies that request, Dubuque can terminate the sale.

 “Should we sell to a developer, they would surely widen and improve the road,” Dubuque told the board. “I think we can all agree that if a tract of this size was to be developed, the character of the access roads in question would be drastically altered [more] than what is imagined in this proposal.”

 According to town records, Dubuque and Fratus are co-owners of the house where she lives at 74 Hawksnest Rd., and Fratus said he helped prepare the purchase and sale agreement, quipping that he is “the evil human who wants the town to maintain town roads.” Fratus said he stipulated in the document that the select board had until Dec. 17 — about 24 hours — to make its decision.

 On Dec. 5, the state’s Executive Office of Energy and Environmental Affairs issued a news release announcing a package of land protection grants; among them was $500,000 for the Native Land Conservancy to “permanently protect 16 acres in Harwich that will conserve pine barrens habitat and complement DCR’s Hawksnest State Park within the Six Ponds Special District.”

 Fratus bought land on a portion of Hawksnest Road known as Seth Whitefield Road in 1996, and the town forced him to improve parts of the unpaved road at the time. In 2016, Fratus bought a tract of land nearby and built a subdivision, and the town required him to improve the road up to that new tract. Three years later, he petitioned the town to make improvements to both Hawksnest Road and Round Cove Road, a request the select board denied. In response, Fratus filed suit against the town, but a superior court judge found in favor of the town, saying Fratus lacked legal standing. In 2021, a state appeals court judge upheld the lower court’s ruling.

 Public response at last week’s select board meeting was split between those who favored the town consenting to the deal in order to conserve the tract of forest and those who felt it was an attempt to force the town’s hand, like neighbor Nadine Anzaldi.

 “To me it feels deliberately coercive,” she said. Improving the road would increase traffic and change the character of the rural roads, she said. “It’s being framed like, if the town doesn’t agree to the road changes, then the town is to blame for the fact that the land isn’t going to be sold to a trust.” She urged the seller to reconsider. “If conservation is your thing, then do it. But don’t leverage the town,” she said.

 James Rosato, who owns property down the road, said development of the parcel is inevitable if the deal with the town falls through.

 “As much as the deal presented to us doesn’t feel great — I feel like a lot of people feel like they’re backed against a wall here — we have two options. And one option is really bad,” he said. Rosato said the two sides should find middle ground that allows the parcel to be preserved while making modest improvements to the road.

 “This is a great opportunity,” said resident Dan Wolf, who regularly walks and bikes the area. He urged both sides to find common ground to save the land and improve the access road to the state park. “There are places in town where we should do affordable and better housing. And this isn’t one of them,” Wolf said.

 Resident Richard Waystack said preserving the land would be preferable, “but no one likes a gun to their head.” He said he opposed the imposition of a deadline on the town and the tactic of having the select board intervene in a private land purchase deal. “This is not the appropriate place to do that. To be honest with you, out of principle, I would say vote it down,” Waystack said. 

 The select board was also divided on the matter. Board member Jeffrey Handler said it was a poor strategy to try and pressure the town, but he sees the value of protecting the land. “I couldn’t forgive myself if there were five to seven homes down there,” he said.

 Board member Donald Howell said the deal seeks to accomplish by contract “that which did not happen through the courts.” If the town agreed to the deal, it could set a precedent for taking on the maintenance of other unimproved roads, he said. And without a clear delineation of the road improvements being requested, the town shouldn’t act on the request, otherwise “we’re going to wind up in litigation again,” he said.

 But board member Michael MacAskill said the roads are an embarrassment, and improvements could be made in such a way as to not encourage speeding or excessive traffic.

 “It’s all about saving the land,” he said. “I don’t believe you’re asking for much, and I believe it benefits the entire town,” MacAskill told the sellers. The town needs more time to consider the offer but should not drag its feet discussing the matter. “We absolutely owe it to the town to take this 17 acres,” he said.

 The meeting concluded with the board taking no action on the proposal, but with board members encouraging the sellers to provide more detailed plans for the requested road improvements.