Land Court Upholds Power of MVC To Review 40B Housing Projects
Developer of Golf Club Will Appeal
By JULIA WELLS
Gazette Senior Writer
For the second time in less than two years, yesterday a Massachusetts Land Court judge ruled 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 Hon. Charles W. Trombly Jr., a justice of the land court, refused to overturn the groundbreaking decision by the former chief justice of the land court that explicitly recognized the unique powers vested in the MVC by the state legislature in 1974.
Issued in June of 2002, the ruling by the Hon. Peter W. Kilborn affects every town on the Vineyard.
"Plaintiffs have failed to persuade this court that the [Kilborn] judgment was in error," Judge Trombly wrote in the five-page decision issued yesterday.
Attorneys for the Down Island Golf Club had asked Judge Kilborn to reconsider his ruling. The chief justice took no action on the motion before he retired early this year.
Down Island Golf Club attorneys had argued that a recent decision by the state Supreme Judicial Court involving a historic district commission in the town of Dennis cast new light on the land court case.
But Judge Trombly drove a stake through the heart of that argument.
"I find nothing in the Dennis decision which compels a different result," he wrote.
In the Dennis decision the SJC had ruled that the Old Kings Highway historic district commission is a local board and cannot trump Chapter 40B. In his original decision Judge Kilborn found that the MVC is not a local board and that the commission legislation trumps Chapter 40B.
Judge Trombly found that the Dennis decision failed to turn the case in a new direction.
"Judge Kilborn reached the conclusion that the MVC performs regional functions rather than local functions," Judge Trombly wrote, underlining the words "regional" and "local" for emphasis. "There are numerous differences that highlight the local character of the [Dennis historic district commission] and the regional character of the MVC . . . . the [historic commission's] interest is limited to a defined geographical area within the town of Dennis, whereas section one of the MVC act charges the MVC with protecting ‘regional and statewide' interests of the entire Island," he also wrote.
The ruling clears the way for a formal appeal, and attorneys for the Down Island Golf Club said yesterday that it will be quick.
"Down Island believes that the land court decision is incorrect as a matter of law and Down Island plans to appeal promptly," declared Martha Born, a partner at Holland & Knight in Boston who represents developer Corey Kupersmith in the case. "We believe that the Supreme Judicial Court will rule that the Martha's Vineyard Commission is a local board under the affordable housing statute," she added.
Attorneys for the town of Oak Bluffs and the commission had another view.
"This decision says two things very clearly - first that Judge Kilborn was right when he said that the Martha's Vineyard Commission is a regional commission and not a local board and that it has the power and authority to review 40B projects. And the second thing it says is that the Dennis decision has no impact on this analysis," said Oak Bluffs town counsel Ronald H. Rappaport. Mr. Rappaport represented the town zoning board of appeals in the case.
"This was really the town and the commission working together and in our view Judge Trombly's judgment about the Dennis case is entirely correct and it's gratifying to see that," said Eric Wodlinger, a partner at Choate Hall & Stewart who is counsel to the commission.
The commission intervened in the case after the original complaint was filed against the board of appeals.
The court case is rooted in a four-year quest by Mr. Kupersmith to develop 270 acres he owns in the southern woodlands section of Oak Bluffs.
The commission has rejected three luxury golf club projects for the property, and two weeks ago a massive 320-unit housing plan was also turned down.
The land court challenge was first filed when the developers tried to claim they had won constructive approval on the housing project because the Oak Bluffs board of appeals took no action within the required 30 days under Chapter 40B.
Attorneys for the town and the commission argued that there could be no constructive grant because the project had to be referred to the commission for review as a development of regional impact (DRI).
Judge Kilborn agreed. "The ZBA may not grant the permit without the permission of the MVC," he wrote in the original decision.
Attorneys for Mr. Kupersmith filed the motion to reconsider, delaying any appeal. Judge Trombly heard arguments from attorneys on both sides of the case in July.
The case has seen a number of legal twists over the last year and a half, but at every turn the authority of the MVC has remained intact.
Ms. Born said she expects the state supreme court to change all of that. "We believe that the SJC will rule that a permit for Down Island's project was constructively granted because the zoning board of appeals failed to hold a public hearing within the statutory time limit," she said.
Mr. Rappaport disagreed.
"This decision upholds the argument that the Oak Bluffs zoning board of appeals has made since day one, which is that this project requires review and approval by the MVC. And now two different land court judges have agreed with it," he said.
Commission executive director Mark London hailed the land court ruling yesterday as important for both the commission and all of the Vineyard.
"We sometimes take for granted that Martha's Vineyard will preserve its special character but it's very much at risk from developers who are primarily interested in financial return," Mr. London said. "This decision will help us protect the Vineyard. There is a lot at risk, not just in the southern woodlands but for all of the Island, and this court decision will help us protect the Vineyard that we love," he concluded.