MVC Power of Review on Housing Projects Upheld in Key Ruling by State Land Court
By JULIA WELLS
Gazette Senior Writer
In a groundbreaking decision that affects every town on the Vineyard, the chief justice of the Massachusetts Land Court ruled last week that the Martha's Vineyard Commission has full power of review over low and moderate income housing projects under Chapter 40B, a section of state law commonly known as the anti-snob zoning statute.
The ruling by the Hon. Peter Kilborn explicitly recognizes the unique powers vested in the MVC, a regional land use commission created by an act of the state legislature in 1974.
"It's good for the commission and it's good for the towns that no one can bust their zoning wide open, which seems to be a tendency that is going on elsewhere," said Eric W. Wodlinger, a partner with Choate, Hall & Stewart who represented the commission in the case.
"This ruling is consistent with a long line of cases dating back to Island Properties, and it is as important as any of them," said Ronald H. Rappaport, an Edgartown attorney and Oak Bluffs town counsel who represented the town in the key portion of the case.
"This can't be the correct conclusion. We don't think it's the right result, and I think it will be reversed on appeal, if not before," said Mary Ryan, a partner at Nutter, McLennen & Fish who represents Connecticut developer Corey T. Kupersmith.
The court challenge springs from an ongoing effort by Mr. Kupersmith to develop the southern woodlands section of Oak Bluffs.
In the 18-page decision, Judge Kilborn found that even though the Oak Bluffs zoning board of appeals did not act within the required 30 days under Chapter 40B, there was no constructive grant on an application by CK Associates for a 366-unit housing project in the southern woodlands - because the project had to be referred to the commission for review as a development of regional impact (DRI).
In short, Judge Kilborn found, the commission act trumps Chapter 40B, a state law enacted in 1969 that allows developers of low and moderate income housing projects to bypass the normal approval process of local planning boards. The ruling was issued on May 29.
The case turned on the question of whether the commission is defined as a local board.
"I conclude that the MVC is not a ‘local board' and a Chapter 40B project within the geographical jurisdiction of the MVC must be referred to the MVC before a local ZBA can act on it," wrote Judge Kilborn. "The ZBA may not grant the permit without the permission of the MVC," he also wrote.
The legal ruling also changes the political landscape in the town of Oak Bluffs, where Mr. Kupersmith has used the threat of a massive 40B housing project to force the MVC to approve a private luxury golf club in the southern woodlands. The golf club project was turned down by the commission three months ago. Meanwhile, the commission ended up in land court with Mr. Kupersmith, defending its right to review the housing project.
The case is complicated and in fact involves two separate cases. CK Associates, whose principals are Mr. Kupersmith and his partner, Brian Lafferty, filed an application for the housing project in June of 2001. When the town zoning board of appeals failed to act on the application within 30 days, the developers sued, claiming constructive approval. The commission intervened in the case to protect its right to review the project as a DRI.
In a separate court action, a group of town boards sued the developers, claiming that the housing application was incomplete. Attorneys for the developers filed a motion to dismiss the case, claiming that the boards had no standing. The second case was filed in superior court, but both cases were later consolidated under Judge Kilborn in the land court.
Later the case became even more complicated when the Massachusetts attorney general sided with the developers, in a friend of the court brief filed on behalf of the Housing Appeals Committee (HAC).
Attorneys for the developer argued that the commission is a local board, and they pointed to the fact that the Cape Cod Commission, which was formed in 1989 using the MVC legislation as a blueprint, is expressly named as a local board and is excluded from reviewing Chapter 40B projects.
The MVC legislation contains no such language, and in fact the commission has reviewed a number of 40B projects on the Vineyard over the years.
Attorneys for the commission and the town argued that the commission is a unique state agency with powers that go well beyond the powers of local boards, and they cited the long list of case law upholding the commission over the years - all the way back to the landmark Island Properties case.
In a loosely framed argument, two state attorneys who represented the attorney general suggested a compromise: Allow the constructive grant but permit the commission to conduct what would amount to a pro forma review of the project.
In the end Judge Kilborn rejected the positions taken by both the attorney general and the developers - and sided squarely with the commission and the town.
"The approach suggested by the attorney general is not appropriate," he wrote.
"The regulatory definition of ‘local board' does not produce the result alleged by the project proponents. . . . [T]he MVC does not ‘perform functions usually performed by locally created boards.' . . . The MVC is a body concerned with regional matters," he also wrote.
The judge concluded:
"The project proponents stress the clear legislative concern for affordable housing embodied in Chapter 40B and referenced in appellate case law; they then point to the undoubted fact that referral of a project to the MVC will slow down, or perhaps even prevent, Chapter 40B approval. All that is true, but it is equally true that the General Court, and the appellate courts, have shown clear concern for the unique status of the Vineyard."
In technical terms, the ruling grants summary judgment to the commission and the town, finding that the commission is not a local board and that there was no constructive grant on the housing project. On the other portion of the case, the judge ruled that the application was complete, but he noted that the whole issue is moot in light of the ruling on the MVC jurisdiction.
"I leave it to counsel to suggest what to do," Judge Kilborn wrote.
Ms. Ryan said she will suggest the judge reconsider his ruling.
"We intend to appeal this decision, but first we are going to go back in front of Judge Kilborn and ask for reconsideration," Ms. Ryan said yesterday. "Our fundamental position is that he jumped the gun, and we would hope that if he starts thinking this through he may re-evaluate the bottom line." She said she will file a motion under rule 59e, which will also delay the period for filing an appeal.
She expressed disappointment at the rest of the ruling. "Obviously I am disappointed and surprised that the judge did not find that the MVC is a local board. But we never asked to have final judgment; we asked to have the court decide the discrete issue of whether the commission is a local board. I think the final judgment in this case was premature, because the parties should have a further opportunity to address what they meant."
Attorneys for the commission and the town had another view.
"The judge read the briefs very carefully; he asked tough questions and made a very clear, forthright decision. We are highly gratified," said Mr. Wodlinger. "A lot of developers will make a threat to do a 40B to get something that a town wouldn't otherwise give them - and everywhere but in Dukes County it's a pretty powerful threat," he added.
Johanna Schneider, an associate at Choate, Hall & Stewart, assisted Mr. Wodlinger with the case.
Mark Bobrowski, an attorney who is a professor at the New England School of Law, represented the town in the second case. "Mark Bobrowski made some interesting arguments - they were very imaginative, but as long as the commission act is not eviscerated by 40B, we don't need to go to those arguments," Mr. Wodlinger said.
Mr. Rappaport called the decision crucial for the Vineyard.
"Had it gone the other way, every parcel of property on the Vineyard would be vulnerable to having a 40B project with limited ability for review. It also would have meant that 30 years of planning and regulations would have been likely set aside," he added.
Mr. Rappaport said the commission can now provide a much-needed regional regulatory review for affordable housing projects. "What this means is the Martha's Vineyard Commission is a stop sign, it's not a barrier," he said, concluding:
"The MVC act still talks about affordable housing as a goal, and for the MVC the challenge is to reconcile the need for affordable housing with the protection of the environment."