Truro's cost to fight suit: $178K
TRURO — For six years, town leaders have been caught in a legal mess centered on the construction of the biggest home in Truro.
And, as the town's legal bills mount, Truro's elected leaders say there are valid reasons for continuing their fight.
But a former Truro selectman for nine years, Christopher Lucy, says enough is enough, and that the town's treatment of the Kline family is selective and illegal.
As of June 30, records show the town has paid $178,000 in legal and appraisal bills in litigation related to the 8,333-square-foot concrete and glass house at 27 Stephens Way in South Truro. The highest expense occurred in fiscal year 2014, which closed June 30, at $81,483.
The land owner, Donald Kline, bought the 9 acres of coastal land in May 2007, and shortly thereafter neighbors on and near Stephens Way brought their concerns to the town about the size of a new house, its potential impact on rare plants and animals, and the location on undeveloped land next to American painter Edward Hopper's old summer home. The coastal landscape, which included the open land that Kline bought, is thought by some to have been an inspiration for Hopper's paintings of Truro in the early 20th century. Hopper lived in New York and died in 1967.
Over the course of six years, the town of Truro issued two building permits in 2008 for the Kline house construction, and was sued by four neighbors for issuing the permits. At that time, a state Land Court judge warned Donald Kline's counsel that construction of the house was at Kline's own risk, but he went forward anyway. In 2011, the state Appeals Court determined that the building permits were invalid. Now, the town is attempting to get the house torn down, given the court-invalidated building permits. The Kline family is suing the town, claiming selective enforcement of a zoning bylaw, violation of due process and equal protection, uncompensated taking and invalidity of the bylaw.
Currently, two cases with the Kline family as the plaintiff and the town as the defendant are pending in state Land Court, and a third is pending in the state Appeals Court.
Donald Kline died in 2009, and the property is held in a trust for his wife, Andrea Kline, with Orleans attorney Duane Landreth as the trustee. Andrea Kline lives in Boca Raton, Florida, although she attempted in 2012 and 2013 to live in the Truro house during the summer, in part to take care of maintenance.
The three-bedroom house sits empty right now while the litigation plays out, with both a tear-down and no-occupancy orders in place from the town. The house is assessed at $4.5 million.
"We've got a party with deep pockets who has already invested multimillions in the house that was illegally built, and they're now trying to save it," Truro Selectman Jay Coburn said. "I don't think we want to set up some kind of double standard where the town doesn't enforce the zoning bylaws if you've got a lot of money and get to hire a lot of lawyers."
In defense of the Kline position, Lucy said that Andrea Kline is "simply asking for a permit to build her home just like every other person on the road has over the years and continue to do so. We're in this because the town put us here by issuing the permit, and now it's the town that has the ability to stop it but they won't back away from the lawsuit."
There are about 15 houses on Stephens Way, a narrow, winding and unpaved road in South Truro, according to town records. The lowest assessed value for a house on the road is $367,000, and one 2,376-square-foot home on Stephens Way was built in 2010.
Lucy was a selectman in 2007 when the board voted to refer the Kline house construction project to the Cape Cod Commission as a development of regional impact. The commission approved the house in 2008, with conditions.
"From then on, I've tried to fix what I have always thought was wrong," he said. Lucy became a landscaping subcontractor for the Kline house and began to understand the family's perspective and legal issues, he said. "Due to my involvement on the project, I always stepped away from the town's discussions on the matter as a selectman, recusing myself during discussions, public or in executive session."
Since leaving Board of Selectmen in 2011, Lucy said he has stayed in touch with the attorneys for the Kline family. "I'm not privy to everything, but I have some insight," he said. "I continue to care for the property, cutting the lawn and performing a house check to make sure the home's systems are operating normally. My reasons for following this are basically to be fair in our process."
The Kline family has offered the town a settlement that could save the town money, Lucy said. Kline attorney Diane Tillotson confirmed Saturday that the family has offered the town a settlement at least twice.
Generally, the terms discussed were for the Kline family to pay off the town's legal bills and to pay for a Fire Department vehicle that could handle the town's rougher dirt roads such as Stephens Way, and possibly other benefits, Tillotson said.
There have been at least two offers that have not been accepted by the town, she said. In exchange, the town was to validate the building permit for the Kline house, and clear the certificate of occupancy, she said. Tillotson stressed that the settlement terms offered have been discussed behind closed doors with the town, as far as she is concerned, and she expressed hesitancy in talking about the specific details.
"All of the discussion with the Kline family has been in executive session and none of the minutes have been released," Selectman Coburn said Saturday. "Therefore I can't comment."
In the latest twist, on June 26, state Land Court Judge Harry Grossman told town officials they submitted too much paper in their request in late May for summary judgments in the two Land Court cases, with almost 1,000 pages filed. The page-count violated the spirit and letter of a Land Court rule governing summary judgment filings, where a short description of the relief sought and a concise statement of the facts of the case are required, Grossman said in his ruling.
On Thursday, Truro Town Counsel E. James Veara said he had resubmitted the paperwork with fewer pages. The resubmission was at Veara's own expense, Coburn said Thursday. In his arguments to the judge, Veara said he submitted so much paperwork because the Kline's arguments are so vague. Coburn, on Thursday, said that Veara had wanted to make as full of an argument as possible.
"This order (by Grossman) does not affect the prior judicial determination that the house is unlawful," Veara said. "The facts we rely on will not change. The law we will rely on will not change. All that will change is the number of pages when resubmitted."
Tillotson said she has not yet seen the resubmitted filings, and therefore cannot comment.
Veara charges the town $120 an hour for his services as town counsel, according to Truro Town Accountant Trudi Brazil. In the last two years, the selectmen met six times with Veara in executive session about the Kline case, Coburn said.
"The board is very much engaged in driving this case," Coburn said. "Our priority here is that as a board we need to make sure that the town's zoning bylaws are enforced."
The Kline house's building permits are illegal, the 2011 Appeals Court decision said, because the new construction made the property substantially more out of sync with the town's zoning bylaws and because the house construction could not be called an alteration of an existing building on the property. Both of those principles were the foundation of then-Truro Building Commissioner Thomas Wingard's decision when he first issued the two building permits May 27, 2008. The town issued a certificate of occupancy for the house on Feb. 7, 2011, as well.
Wingard is currently the building inspector in Eastham, two towns south of Truro.
The town of Truro's legal and appraisal bills related to the Kline house. FY 2008: $2,974 FY 2009: $6,142 FY 2010: $8,173 FY 2011: $22,718 FY 2012: $25,495 FY 2013: $31,314 FY 2014: $81,483 Source: Town of Truro