State Attorney General Files Brief in MVC Case

By JULIA WELLS

The Massachusetts Attorney General sided with a Connecticut housing developer this week in a key legal dispute that is expected to decide whether the Martha's Vineyard Commission has the right to review low and moderate income housing projects under Chapter 40B, a section of state law commonly known as the anti-snob zoning statute.

The groundbreaking case goes to the heart of the unique powers vested in the commission by the state legislature more than 25 years ago.

"The court should declare that plaintiffs are entitled to a constructive permit," wrote two attorneys who work for state Attorney General Thomas Reilly, in a legal brief filed this week. Written in tag-team fashion by attorneys Robert Ritchie and Robert Quinan, the 48-page brief is more notable for its length than its clarity.

Shortly after the brief was filed, a spokesman for developer Corey Kupersmith issued a glowing press release, hailing the brief as a "stunning affirmation" of the developer's position.

The Hon. Peter W. Kilborn, chief justice of the Massachusetts land court, is presiding over the case. The case is rooted in an ongoing effort by Mr. Kupersmith to develop some 270 acres of land he owns in the southern woodlands section of Oak Bluffs.

Mr. Kupersmith's central goal for the last two years has been to develop a luxury golf club on his property. The first golf club plan was turned down by the MVC last year; a second plan was slated for a vote by the commission last night.

A short time after he filed his second golf club plan, Mr. Kupersmith filed plans to build a 366-unit low and moderate-income housing project on the same property. The housing plan has been held up repeatedly as a threat to the town and the commission if the golf club project is not approved.

Attorneys for Mr. Kupersmith later filed a lawsuit against the town claiming automatic approval on the housing application because the town zoning board of appeals did not act on the application within the required time frame. The zoning board said the application was incomplete.

Meanwhile, the project was never referred to the commission for review as a development of regional impact (DRI), and the commission intervened in the case to protect its own right of review.

The commission has reviewed a number of housing projects under Chapter 40B over the years, but its power of review over such projects has never been tested in court.

Last month Judge Kilborn heard oral arguments from attorneys on both sides of the case on a motion for summary judgment in the portion of the case that concerns the MVC jurisdiction.

In December the attorney general decided to file what is known as an amicus curiae brief in the case, on behalf of the Housing Appeals Committee (HAC), an agency that works within the state Department of Housing and Community Development. The HAC is the appeals authority for any appeals under Chapter 40B.

The 48-page brief was filed on Monday this week.

In page after page of loosely framed arguments, the brief wanders over a lot of ground. Case law is cited at length, but the state attorneys ignore all of the landmark MVC cases that have been decided over the years, save one. The MVC statute has repeatedly been upheld by the state's highest courts.

Created by an act of the legislature in 1974, the MVC is a unique regulatory land use commission with broad powers that go well beyond the ordinary powers of local boards. A state law created in 1969, Chapter 40B allows developers of low and moderate-income housing projects to bypass the ordinary approval process with local land use boards.

At its heart, the state attorneys' brief appears to suggest a compromise of sorts. The attorneys urge the court to grant constructive approval to Mr. Kupersmith for the housing project, but they also suggest that the commission conduct what would amount to a pro forma review of the project to develop conditions. The attorneys then suggest that Judge Kilborn assume the role of final arbiter in the housing project, and review the conditions for appropriateness. The attorneys also suggest that the court order the commission to conduct its pro forma DRI review of the housing plan "on a fast track."

"This case presents a seemingly unavoidable clash between two statutes … however it is possible to harmonize these two statutes and thereby give effect to the legislature's intent in enacting both laws," the attorneys wrote.

The brief bears the distinct mark of having been written by two people - among other things, it is written in alternating type fonts, and as the fonts alternate, so does the writing style.

The case involves many complicated questions but in fact it appears to turn on one simple question: whether the MVC is defined as a local board.

In oral arguments last month, attorneys on both sides of the case made vigorous statements around this question.

This week Mr. Quinan and Mr. Ritchie had another view.

"The dispositive issue in this case is not whether the MVC is a local board or not. Indeed, it is not necessary for this court to reach that question to decide this case," they wrote.

The two state attorneys take a swipe or two at the Vineyard commission, and at times the brief takes on a decidedly condescending tone, characterizing the board of appeals as "a lay board struggling in a complicated area of the law," and noting that the state legislature "can be forgiven the omission" for its lack of reference to Chapter 40B in the MVC enabling statute.

Ultimately the two state attorneys concluded that the court should find some middle ground. "Both Chapter 831 and Chapter 40B express important public policies and one or the other would be severely frustrated if the court adopts either the plaintiff's or the MVC's position wholesale," the attorneys wrote.

Attorneys for the commission and the town framed their reaction to the brief in spare remarks.

Oak Bluffs town counsel Ronald H. Rappaport called the brief a "creative attempt" in part. "But I don't expect that the position we have taken will change," Mr. Rappaport said.

"The commission will be filing a reply brief on Tuesday. Beyond that we have no comment," said Eric Wodlinger, a partner with Choate Hall & Stewart, who represents the commission in the case. Mr. Wodlinger said copies of the brief had been provided to members of the commission this week.

Mr. Quinan and Mr. Ritchie had no comment.

Mr. Kupersmith's attorney spoke out at length, calling the brief an important victory for the developer.

"The attorney general has vindicated our approach while suggesting that the interests of the Island are such that the Martha's Vineyard Commission ought to be given what I would characterize as a second chance to provide the comments that they should have provided in the first place to the ZBA," said Mary K. Ryan, a partner with Nutter, McLennen & Fish in Boston, yesterday.

"They got right to the heart of the issue - the attorney general, much to our gratification, said, ‘Let's keep the end in sight here, and in the end they are absolutely entitled to a constructive grant,' " she added.

Ms. Ryan admitted that the state attorneys consulted with her on the brief.

"We've talked," she said.

Ms. Ryan said she, too, expects to file a reply brief by Tuesday, and she said she expects to ask the court to consider holding another hearing for oral arguments.

"I think they [the state attorneys] think they didn't have enough time to flesh out everything - we will probably ask for a hearing to ask the court to invite the attorney general to come in and answer some more specific questions about their proposal unless the court is just going to rule in our favor," she said. She concluded: "If the court is inclined to even seriously consider the AG's approach, it may be helpful to the court to have further oral argument. But the court may decide it doesn't want to go down that road and that the issues are as simple as we say they are."