Town To Buy Half-acre Beachfront Lot For $1.4 Million

 HARWICH – The town has signed a purchase and sale agreement to acquire a waterfront parcel at 5 Sea St. Extension for $1,410,000, which will end lengthy litigation over efforts to develop the parcel.

 Over the past dozen years there have been several lawsuits filed and appeals made to the state Department of Environmental Protection by the estate of Lois A. Jones, her heirs, and Walsh Brothers Building Company seeking to build a single-family home on the half-acre lot. The property owners have claimed the town’s regulations amount to a land taking for which they should be compensated. 

 Jeffrey E. Jones, Julie J. Hutcheson and David C. Allen, representatives of the estate, filed a lawsuit in the U.S. District Court alleging the town’s wetland protection bylaw and regulations prevent the use of the property and represent a taking of the land. The town sought a summary judgment from the court. On Aug. 23 a magistrate judge concluded that while the wetlands regulations are of general applicability to all properties in the town that have wetland resources and are designed to protect coastal and wetland resources generally, “it appears that the Harwich regulations would prevent any such structure on a lot. Therefore, the character of the governmental action at issue here could be considered to be the functional equivalent of a classic taking.”  

The magistrate’s findings concluded that the case should go to trial, but the select board decided to purchase the property rather than moving forward with litigation, said board member Jeffrey Handler. When asked why the town chose not to proceed to trial, Handler said he could not get into the “why’s” because the case was discussed in executive session.

“I can say it was based on the advice of town counsel,” Handler said.

The select board voted 4-0 at its Dec. 16 session to confirm the purchase of the lot for $1,410,000. The board signed a purchase and sales agreement that evening which calls for a closing date for the transfer of property by the end of January. 

 Handler said funding for the purchase was approved in Article 22 of last May’s annual town meeting, which related to the expenditure of proceeds from the sale of town-owned land at 276 Queen Anne Rd. The article authorized the select board to expend the sum of $1,505,001 from the sale of land sinking fund — monies received from the sale of town land deemed as serving no public value — for acquisitions determined by the board to be in the best interest of the town. The article required a two-thirds majority vote and was approved unanimously.

 The 5 Sea St. Extension parcel is a 20,971-square-foot lot facing Nantucket Sound. It was purchased, along with the adjacent lot at 6 Sea St. Extension, by Lois A. Jones in 1958 for approximately $40,000. The 6 Sea St. Extension property contained a residence and was sold in 1999 for $410,000.

 In 2011, Jones began the formal process of obtaining permits to construct a single-family home on 5 Sea St. Extension. She paid taxes on the property, which was assessed as a buildable lot at $1,434,500 in 2012. The town denied her permit request. As a result of the denial, in 2013 the town changed the lot designation to “unbuildable,” reducing the assessed value to $24,000.

In April 2012, Jones sought a Land Court ruling on the claim that the property was exempt from zoning regulations because it was subdivided before zoning was established in Harwich. A minimum of 40,000 square feet was required for a residential lot in the district at the time.

There were additional issues, including the conservation commission’s denial of a notice of intent for a home on the lot, which failed to meet performance standards in the Wetland Protection Act and under the town’s wetland protection bylaw, according to the commission. The commission hired a coastal geologist who concluded the entire lot was a coastal dune, so any activity would take place within the resource area. A house built on pilings could meet the standards of the Wetland Protection Act, the geologist added.

 A superseding order of conditions was sought by Jones from the state Department of Environmental Protection, which upheld the commission’s denial. The project proponents adjusted their plans, redesigning the septic system and eliminating a concrete wall and proposed to place the structure on pilings.

Jones, a Walpole resident, passed away in 2014.

In June 2015 DEP Commissioner Martin Suuberg overturned the earlier DEP denial, declaring the proposed location of the house was in the buffer zone of a coastal dune. The conservation commission appealed that order, but later dropped the appeal.

Additional issues included the health board’s refusal in 2016 to accept a variance application for the septic system proposed on the property. That decision was based on a provision the board put in place in 1987 requiring applicants to first obtain approval from the conservation commission before seeking variances from health regulations.

The health board was sued over that policy, with the estate claiming it was not a provision of the board’s regulations but was adopted as an addendum to the regulations without public hearings. 

For a dozen years the town and the Jones estate battled over plans to develop the property. In the U. S. District Court proceedings, two appraisals on the lot were presented in 2021. The appraisal on behalf of the estate placed the value of the property at $2,350,000; the appraisal from the town’s expert placed the value at $2,584,000, if it was buildable. If not buildable, it had a value of $100,000.    

Handler said the select board has not had the opportunity to discuss the future of the property under town ownership.