Golf Course Developers Agree to Dismiss Property Rights Claims in MVC Lawsuit

By JULIA WELLS

Attorneys for the Down Island Golf Club have backed away from a portion of their massive lawsuit against the Martha's Vineyard Commission, agreeing to dismiss two counts that involved property rights claims.

A stipulation of dismissal signed by attorneys on both sides of the case was filed in Dukes County Superior Court late last week. The two counts that will be dropped from the case centered on claims that a building moratorium in the southern woodlands five years ago deprived Connecticut developer Corey Kupersmith of his property rights and amounted to a regulatory "taking" under the United States Constitution. The one-year moratorium followed the designation of the southern woodlands as a district of critical planning concern (DCPC), a special overlay planning district created through the commission legislation.

Mr. Kupersmith owns 270 acres in the southern woodlands that he wants to develop as a private luxury golf course. The golf course plan has been turned down by the commission three times in the last two and a half years. Mr. Kupersmith now has four lawsuits pending against the commission, three in superior court and one in land court.

MVC attorney Eric Wodlinger has begun to chip away at the latest lawsuit by filing a series of motions to dismiss portions of the case.

"A property owner ‘cannot reasonably rely on an assumption that zoning will forever remain the same,' " wrote Mr. Wodlinger in a memorandum that accompanied the motion to dismiss the property rights claims. Mr. Wodlinger was quoting from a recent state appeals court case.

The case centered on a dispute between the city of Cambridge and W.R. Grace and Co. The city had imposed a 23-month building moratorium on an area that included property owned by Grace. The moratorium stalled a hotel and office building complex that Grace had planned to build, and the company sued the city claiming that the moratorium amounted to a regulatory taking.

The appeals court ruled in favor of the city.

Mr. Wodlinger, a partner at Choate, Hall & Stewart in Boston, has also filed a motion to dismiss a third property rights count that centers on a required buffer zone around a series of walking trails that run through Mr. Kupersmith's property. The stipulation of dismissal does not apply to this count, and arguments on the motion will be heard in the spring sitting of superior court this month. The case is not scheduled to come to trial during the April court session.

Mr. Kupersmith is represented by Paul Kileen, a partner at Holland & Knight in Boston.

Mr. Kileen, who is new counsel for the developer, filed the 37-page appeal in superior court last November. The appeal includes 11 separate counts. Much of the complaint is recycled from two earlier court appeals filed by attorneys at Nutter, McLennen & Fish. Among other things, the lawsuit attacks the district of critical planning concern (DCPC) process and the development of regional impact (DRI) standards and criteria as overly broad, unconstitutional and invalid.

The move to dismiss part of the latest Down Island Golf Club lawsuit comes as the developers prepare to launch a campaign aimed at persuading the town of Oak Bluffs to withdraw from the MVC.

At a town meeting last year, voters agreed to take the first steps to withdraw from the commission, and a home rule petition was rushed through the state legislature last month. A second vote is required by the town, and a special election is now set for May 13 to decide the question.

Last week the chairman of the Oak Bluffs selectmen began to put quiet pressure on the commission to settle the lawsuit by allowing a quick approval of the golf course plan. Selectman Todd Rebello, who is closely aligned with the golf club developers, met privately with commission chairman James Athearn and commission executive director Mark London. It is understood that Mr. Rebello urged them to orchestrate some kind of an approval of the golf club plan before the middle of April, when Mr. Kupersmith reportedly plans to launch a well-funded campaign to promote town withdrawal from the MVC.

Mr. Athearn brought the matter in front of the full commission in executive session, and although the details of the discussion are not known, Mr. Athearn later wrote a letter to Mr. Rebello.

"After a thorough discussion of the matter, there was a very strong consensus that there was no possibility of reconsidering and approving a golf course plan in the time or manner suggested," Mr. Athearn wrote.

Mr. Rebello said yesterday that he went to Mr. London and Mr. Athearn to talk about compromise. "We basically talked about different scenarios and whether there was an opportunity for compromise," he said. He confirmed that the talks strayed to the subject of the state legislature and the possibility that steps may be taken to gut the commission legislation, if the golf course developers do not get their way.

"There was discussion about reform, about the commission reforming themselves … and I suggested to them that what we don't want here is a situation that took place with the Steamship Authority," Mr. Rebello said, referring to the hostile legislation passed last year to overhaul the boat line. "When reforms happen through the mechanism of the legislature, well, it's obviously dangerous when that happens," Mr. Rebello said.

At the weekly selectmen's meeting on Tuesday, Mr. Rebello announced that a public forum will be held on April 29 to allow public discussion on the May 13 ballot question. Mr. Rebello said the forum will include a panel made up of the three Oak Bluffs members of the commission, and one member each of the town board of health and planning board.

"We've tried to set this up so there would be maximum comfort for people on both sides of the issue - we will ask the town moderator to run the meeting. This is the best way for everybody to fully grasp this issue," Mr. Rebello said yesterday.

The chairman of the selectmen said he was aware that a campaign to promote town withdrawal from the commission will soon be launched, but he downplayed his own role in it.

"I talk to people on both sides of this issue, and from what I hear everybody is planning to take the high road and not bash the commission," he said. Mr. Rebello said he had talked personally to Mr. Kupersmith three weeks ago and he said the developer will not put any money into the campaign.

"I made it very clear to him that if he financially supports this that I will not have anything to do with it, so he is not putting any money into it," Mr. Rebello said.

"Next week you're going to start to see people coming out of the woodwork," he added.

Mr. Rebello also commented on the latest court activity around the commission and the Down Island Golf Club, calling the motions to dismiss insignificant. "This may turn out to be a good campaign ploy for the commission, and it looks like a victory on the surface but these are minor issues and this is what always happens in a lawsuit, the minor issues get dismissed," he said.