The unique power of the Martha's Vineyard Commission to review low and moderate income housing projects under Chapter 40B, a section of state law commonly known as the anti-snob zoning statute, will come under scrutiny again later this month in the Massachusetts Land Court.
Attorneys for the Down Island Golf Club have asked the court to reverse a groundbreaking decision made last year by the chief justice of the land court. The Hon. Peter L. Kilborn ruled that the commission has full power of review over Chapter 40B projects, including the power to reject them.
The Down Island Golf Club developers, who failed to win approval from the MVC last year for a luxury golf and housing project in the southern woodlands section of Oak Bluffs, are now pressing a plan to build a massive 40B housing project on the same property.
The property is owned by Corey Kupersmith, a Connecticut businessman.
There has been no appeal in the land court case, only the motion to reconsider, which extends the appeal period. Judge Kilborn took no action on the motion before he retired early this year.
Attorneys for the Down Island Golf Club say that a recent decision by the state Supreme Judicial Court involving a 40B project in the town of Dennis casts new light on the land court ruling for the MVC.
The Dennis case involved a decision by the Old King's Highway Historic District Commission to turn down a 40B housing project. The supreme court ruled that the historic district commission was a local board and thus could not trump Chapter 40B.
In the case involving the MVC last year, Judge Kilborn reached an opposite conclusion, finding that the commission is not a local board, and finding also that Chapter 831, the legislation that created the commission, trumps Chapter 40B.
"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," Judge Kilborn wrote. "The MVC does not ‘perform functions usually performed by locally created boards.' The MVC is a body concerned with regional matters," Judge Kilborn also wrote.
The ruling by Judge Kilborn explicitly recognized the unique powers vested in the MVC, a regional land use commission created by an act of the state legislature in 1974.
The case is complicated and originally involved two separate cases. CK Associates, whose principals are Mr. Kupersmith and his partner, Brian Lafferty, first filed an application in June of 2001 to build 320 houses in the southern woodlands. When the Oak Bluffs zoning board of appeals failed to act on the application within 30 days, the developers sued, claiming constructive approval under the law. The MVC intervened in the case to protect its right to review the housing project as a development of regional impact (DRI).
In a separate court action a group of town boards sued the developers, claiming that the housing application was incomplete. The first case was filed in the land court and the second case was filed in superior court, but the two cases were later consolidated under Judge Kilborn in the land court.
Arguments are now set for July 22 in land court in Boston on the motion to reconsider Judge Kilborn's ruling. The Hon. Charles W. Trombly will preside over the hearing.
On the Down Island Golf Club side there has been a change of counsel. Attorneys at Nutter, Mclennen & Fish have withdrawn from the case and have been replaced by attorneys at Holland & Knight in Boston.
Oak Bluffs town counsel Ronald H. Rappaport represents the board of appeals, and commission counsel Eric Wodlinger, a partner at Choate Hall & Stewart in Boston, represents the MVC.
The fresh activity in the land court puts the spotlight on a peculiar set of circumstances involving the Oak Bluffs selectmen and a special attorney they hired last year to assist with the case.
Mark Bobrowski, an attorney with a private practice in Concord, was hired to represent the town in the second case.
Last year as the case wound its way through the court, it was revealed that Mr. Bobrowski was in fact paid by Mr. Kupersmith, the plaintiff who was suing the town. The payments to Mr. Bobrowski came from a special escrow fund set up by the Oak Bluffs selectmen and funded by Mr. Kupersmith.
Three of the five Oak Bluffs selectmen - Todd Rebello, Richard Combra and Michael Dutton - were strong supporters of Mr. Kupersmith's golf club development.
The circumstances surrounding the escrow fund have never been fully explained. Records requested by the Gazette several weeks ago in connection with the fund produced a series of invoices from Mr. Bobrowski. The invoices show that the vast majority of Mr. Bobrowski's time on the case was spent conferring with attorneys for the plaintiff in the case. Mr. Bobrowski has submitted bills for $18,242. Mr. Rebello said he believed the account was set up with $15,000, but to date there is no clear public record of how the Oak Bluffs selectmen decided to set up the special fund, and the details of the town agreement with Mr. Kupersmith are unknown.
Frequently legal issues have become tangled with local politics.
Mr. Kupersmith's supporters - including the three Oak Bluffs selectmen - were the front runners in a recent campaign to have the town withdraw from the MVC. The campaign failed at a special election in early May when a record turnout of voters agreed to stay in the commission.
Just before the election Mr. Bobrowski was suddenly on the scene again, issuing a quick opinion to the Oak Bluffs selectmen about the Dennis case, declaring that the case posed a serious threat to the land court ruling involving the town and the MVC.
Now questions remain.
Will Mr. Kupersmith continue to pay the town's legal expenses to defend a case in which he is the plaintiff? Will Mr. Bobrowski continue to represent the town in part of the case, and if so, does his written opinion about the Dennis case undermine the town's position?
Mr. Rebello said yesterday that he expects the town will pay the legal expenses from this point on.
"At this point we're probably in an adversarial role [with Mr. Kupersmith], and I would expect the town would probably be paying the expenses," he said.
Mr. Rebello said Mr. Bobrowski is considered an expert on Chapter 40B issues, but as to whether he will continue to represent the town in this next leg of the case, he said the selectmen will likely take their cue from Mr. Rappaport.
"We will ask our town counsel for direction on that," Mr. Rebello said.