A long-running effort by an Aquinnah property owner to build a house on a lot off Moshup Trail was blocked by the town planning board plan review committee this week, which found the lot lacks adequate road frontage under new zoning rules adopted by the town eight months ago.
After a series of public hearings that began in October, the committee voted 7-0 on Tuesday night to deny a special permit for James Decoulos to build on the two-plus-acre property.
Mr. Decoulos has been trying for 12 years to win the right to build a three-bedroom house on the lot, which is largely wetland. He recently prevailed in a protracted dispute with the conservation commission over whether he could build a bridge across the wetland to reach the building site. The commission denied the bridge, but the state Department of Environmental Protection overruled the decision.
The issues before the plan review committee were complicated and involved an array of evaluations to determine if the building site was adequate under planning board rules. Among other things, if the bridge was defined as a structure, Mr. Decoulos also would need a variance from the zoning board of appeals because it was located inside the setback lines. In an apparent attempt to avoid this step, last month Mr. Decoulos amended the application, asking for four open-bottomed culverts to replace the bridge on the plans. A continued public hearing three weeks ago attended by Mr. Decoulos saw heated debate about whether the culverts were defined as a structure. Mr. Decoulos told the board they were not; planning board members disagreed.
“To me it’s a structure because it is a quite large and visible assembly of materials,” said planning board chairman Peter Temple. “It’s just a pipe and it’s not destroying resources,” Mr. Decoulos responded.
In the end and after much back and forth that included confusion over what was even in front of the board on the application — the bridge or two culverts — the key question centered on the lack of road frontage for the lot. At the annual town meeting in May of this year town voters adopted a bylaw requiring 200 feet of road frontage for building lots. The bylaw was later incorporated into the townwide district of critical planning concern through the Martha’s Vineyard Commission. (Aquinnah is the only town to have a townwide DCPC).
Mr. Decoulos applied for his permit in July of this year and claimed since his lot was pre-existing, it was entitled to so-called grandfather protection under state law from the new frontage requirement.
In an Oct. 26 opinion, town counsel Ronald H. Rappaport disagreed. Mr. Rappaport said because the bylaw is included in a Martha’s Vineyard Commission DCPC, it is exempt from grandfathering. “It is our view that the trust property does not meet the frontage requirement,” Mr. Rappaport concluded, referring to Gorda Realty Trust, controlled by Mr. Decoulos and his wife.
Mr. Decoulos also claimed the planning board has been inconsistent with its decisions in the past, and submitted a long list of examples for the record that he said show a pattern of “arbitrary and capricious” behavior by the board. Mr. Temple did not deny certain inconsistencies, but he and other board members said the examples all predated the adoption of the new frontage rules.
“This is exactly why we needed a bylaw with definitions,” Mr. Temple said.
Mr. Decoulos subsequently told the planning board that he would meet the frontage requirement by creating an easement across the property boundary.
But the board was not persuaded. The final deliberation took place on Tuesday night with Mr. Decoulos and his attorney listening by speaker phone.
“I looked at town counsel’s letter, and so many points in here are important and well-stated,” said board member Sarah Thulin. She continued: “We have something called the Martha’s Vineyard Commission here and it’s different from other areas of Massachusetts. There are some special protections . . . and while they may seem nebulous to some . . . they are about our own values. And I get a little confused when you start talking about making frontage — this is not on a public or even a private road.”
Carlos Montoya agreed. “I think the frontage issue is a fatal flaw,” he said.
“It’s inconsistent with the bylaws,” concluded Jim Newman, a selectman and member of the plan review board.
“It doesn’t have frontage, and the examples [Mr. Decoulos] gave [claiming inconsistency] predated what we have now and were under the old bylaw,” said JoAnn Eccher.
The roll call vote was as follows: Peter Temple, Sarah Thulin, Berta Welch, JoAnn Eccher, Jed Smith, Carlos Montoya and Jim Newman all voted to deny the special permit.
The vote is subject to a final written decision by the planning board meeting next week.
The decision adds another layer to the simmering tension between the town and Mr. Decoulos, a Cambridge engineer who has been pressing a complicated legal battle through numerous lawsuits against the town for many years in a broad effort to open up access to a series of lots off Moshup Trail. The application decided by the plan review committee this week is unrelated to those cases.