Acting on a joint request from attorneys for the Martha's Vineyard Commission and the Down Island Golf Club, a superior court judge sent the golf club plan back to the commission this week for fresh review.
"This matter is remanded to the Martha's Vineyard Commission for further proceedings, including a public hearing to consider plaintiff's amended application," declared the Hon. Richard C. Connan, an associate justice of the superior court who sits in Barnstable.
The order from Judge Connan was issued yesterday morning in Dukes County Superior Court. The remand in the golf course case does not speak to the merits of the case, and in fact no amended plan has been filed yet by the golf course developers. The developers' lawsuit against the commission still stands.
The Down Island Golf Club plan for a private 18-hole luxury golf club was denied by the Martha's Vineyard Commission in two consecutive votes last year. The project was reviewed by the commission as a development of regional impact (DRI).
The developer of the project is Corey Kupersmith, a businessman from Greenwich, Conn. Mr. Kupersmith's attorneys sued the commission in two separate court complaints following the vote to reject the golf club plan.
The two court complaints have now been consolidated into one complaint.
The commission tried legal mediation with the golf club developers in January; the mediation ended after a single session. At that session, spokesmen for the golf club tried to show the commission a new plan, but the commission members on the mediation team said any new plan should be filed in public.
No new plan has been filed yet.
In tandem filings in court last month, attorneys on both sides of the case agreed to the remand.
MVC executive director Charles W. Clifford said yesterday that he agreed to the remand because it was meaningless.
"I knew this was coming, and it's no big deal. It doesn't mean a damn thing. It's saving face for the applicant," Mr. Clifford said yesterday.
"It has nothing to do with the case at all. It gives the golf course developers something to crow about; they can say, ‘We have a remand and now the court has told you you have to do something.' So what. If they're happy, then who cares. I saw no reason to oppose this," Mr. Clifford added.
Commission chairman James Vercruysse agreed yesterday that the remand is insignificant in terms of procedure, because any new plan will require a full review by the commission as a new development of regional impact (DRI).
"It shouldn't really make any difference; they still have to file a new application and I don't see how it would change anything," Mr. Vercruysse said.
Commission attorney Eric Wodlinger did not oppose the remand; in fact he concurred with it.
"The Martha's Vineyard Commission respectfully requests that this court enter an order remanding this matter to the commission for the purposes of conducting public hearings on Down Island's modified plan and application," Mr. Wodlinger wrote.
The language in Mr. Wodlinger's response mirrors much of the language in the motion from the attorneys for the Down Island Golf Club requesting the remand.
Superior court motions that are not opposed are automatically allowed.
Mr. Wodlinger said yesterday that the remand is simply a tool that is used frequently in land use cases. "It happens all the time in zoning and subdivision cases. It's a very common procedure," he said. Mr. Wodlinger is a partner at Choate Hall & Stewart in Boston.
James Ward, a partner at Nutter, McClennan & Fish in Boston who represents the Down Island Golf Club, said the remand is a tool for filing a new plan.
"We asked for a remand and it was granted - it means a that we just bring a new plan back in front of the commission," Mr. Ward said.
He conceded that a remand is not required for the developer to file a new plan.
"We thought the remand was more appropriate just given the litigation," he said.
Mr. Ward said he expects the developers to file a new plan imminently. "Once we have the whole package together, probably in a week or so, definitely sooner rather than later," he said.
Attorneys for the golf club also filed a voluntary motion to dismiss one count in the case that challenges the commission's jurisdiction to review affordable housing developments under state law.
"We agreed we would take that out - for now," Mr. Ward said.