Attorneys for MVC File Court Briefs

By JULIA WELLS

Attorneys for the town of Oak Bluffs and the Martha's Vineyard Commission returned a serve this week in a high-stakes legal dispute that will ultimately test the power of the Martha's Vineyard Commission to review affordable housing projects under state law.

"Granting the [state housing appeals committee] the power to override the MVC's regulations - has the potential to destroy 25 years of careful environmental study and planning on Martha's Vineyard by opening up every district of critical planning concern (DCPC) to development under Chapter 40B," wrote Eric Wodlinger, a partner with Choate Hall & Stewart in Boston who represents the commission.

"The [housing appeals committee's] argument S is simply wrong," wrote Oak Bluffs town counsel Ronald H. Rappaport.

Mr. Rappaport and Mr. Wodlinger filed replies on Tuesday to a lengthy legal brief filed by the state attorney general last week.

The attorney general, representing the state housing appeals committee (HAC), has sided with a developer who wants to build a low and moderate income housing project in the southern woodlands section of Oak Bluffs.

Among other things, Mr. Wodlinger and Mr. Rappaport revealed that the position taken by the state attorney general last week is in direct conflict with the position of the state attorney general 25 years ago in the landmark Island Properties case.

In Island Properties, the state supreme judicial court ruled that the then-fledgling MVC trumped the zoning freeze provision of Chapter 40A, the state subdivision control law. At the time the state attorney general agreed.

"Development is no longer a purely local matter but has regional and statewide impact," wrote the attorney general at the time.

"The HAC's position stands in sharp contrast to the position advanced S 25 years ago," Mr. Rappaport wrote.

The dispute is pending in the Massachusetts land court. The Hon. Peter W. Kilborn, chief justice of the land court, is presiding over the case. A ruling is not expected for some months.

Developer Corey Kupersmith wants to build a 366-unit low and moderate income housing project on some 270 acres of land he owns in the southern woodlands section of Oak Bluffs.

The central issue in the case is whether the MVC enabling statute trumps Chapter 40B, a section of the state law that allows developers of low and moderate income housing projects to bypass local zoning rules.

In their brief filed last week, state attorneys Robert Ritchie and Rob Quinan tried to suggest a compromise, urging the court to grant constructive approval of the housing application but proposing that the commission conduct a watered-down review of the project to develop conditions for approval.

The case is expected to turn on whether the commission is defined as a local board, but last week state attorneys also downplayed this issue - saying that the court should not worry about whether the commission is defined as a local board, but that if a definition is necessary the commission should be defined as a local board.

In their replies this week, Mr. Wodlinger and Mr. Rappaport took a decidedly different view.

"Close scrutiny of the HAC's recommendation reveals its flaws. Many points of the proposal lack clarity and appear to have no basis in the existing statutory framework," Mr. Wodlinger wrote.

Both attorneys disagreed with the state attorneys on the local board question. "The dispositive issue of whether the MVC is a local board is not a discrete issue - it goes to the heart of the legislative scheme for reviewing DRIs on Martha's Vineyard," wrote Mr. Rappaport.

"The only issue for this court to decide is whether the language of the Massachusetts Constitution, the MVC act, Chapter 40B and entire body of SJC and Appeals Court decisions should be disregarded so that the MVC is deemed to be a 'local board' rather than a 'regional commission,' " he also wrote.

"In urging this court to hold that the MVC is a local board, the HAC gives no attention to the far-reaching, real world consequences of adopting that definition," Mr. Wodlinger wrote.

Both attorneys used the landmark Island Properties case as a guidepost in their arguments.

Mr. Kupersmith's central goal for the last two years has been to build a private luxury golf course on the property. The golf course project was turned down by the commission last week for the second time in 18 months.

In his brief, Mr. Wodlinger countered the notion put forward by the state attorneys that the housing development plan has been long in the works for Mr. Kupersmith's property.

"The plaintiff's interest in using this site as affordable housing is recent, and indeed, not their preferred use of the property. . . . The HAC completely fails to acknowledge that CKA [Mr.

Kupersmith's company] is using 40B as a 'club' to coerce the town and the MVC to approve its earlier application for a golf course on the same property," Mr. Wodlinger wrote.

The current set of arguments before the court center on a motion for summary judgment in the portion of the case that involves MVC jurisdiction. The other parts of the case - including a dispute about whether the housing application was complete and whether the ZBA erred in not acting on the application - have not yet been adjudicated.

Created by an act of the state legislature in 1974, the commission has broad regulatory powers that go beyond the powers of local boards.

The commission legislation been upheld repeatedly by the state's high courts over the years, but its power of review over Chapter 40B projects has never been tested in court.

At the end of his brief, Mr. Wodlinger pointed out that this court case is not just about DRI reviews but also very much about districts of critical planning concern (DCPCs). Quoting a portion of the the well-known language from the Island Properties decision that noted "it would be a perverse anomaly" if the regional purpose of the MVC could be trumped by local zoning rules, Mr. Wodlinger concluded:

"It would be similarly perverse if Martha's Vineyard's DCPCs - carefully created and enacted by the MVC over the last 25 years - could be opened up to the dense, multi-family development envisioned by Chapter 40B, regardless of the environmental or ecological value of the area. Such result could not have been the intent of the legislature and should not be sanctioned by this court."