Using new lawyers but spelling out the same themes, the developers of the Down Island Golf Club filed a lawsuit against the Martha's Vineyard Commission late last week, attacking everything from the recent vote to reject a luxury golf course project in the southern woodlands to the enabling legislation that created the commission.
"Acting under color of a statute, regulations and guidelines which are entirely vague and ambiguous, the members of the MVC measured the proposed project against standards which are completely subjective and unpredictable," declared Paul Killeen, a partner with Holland & Knight in Boston, the firm that now represents Connecticut developer Corey Kupersmith and his partner Brian Lafferty, a Bolton housing developer.
Holland & Knight replaces Nutter, McClennen & Fish, the Boston law firm that has been a nearly constant presence in Mr. Kupersmith's development projects for the last two years.
The 37-page complaint was filed in Dukes County Superior Court last Friday. The complaint is an appeal of the 9-8 decision by the MVC two months ago to reject the golf course plan for the third time. And like the two appeals that preceded it, the court complaint also mounts a broad attack on the regional land use commission and the unique legislation that created it 27 years ago.
"Down Island's constitutionally protected property rights have been infringed by the MVC's arbitrary, irrational and discriminatory decision to deny Down Island's application," the complaint declares in part.
Much of the language in the complaint is lifted verbatim from the two earlier court appeals written by attorneys at Nutter, including an array of constitutional claims. Among other things, attorneys attack 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 complaint recycles an array of conflict of interest charges against four members of the commission, even though all members of the commission were cleared of any conflict by the state ethics commission last year. It also restates a series of old claims that the commission gave special treatment to the golf club project at the site of the old Vineyard Acres II subdivision in Edgartown, a project that was approved two years ago.
The quest by Mr. Kupersmith to build an 18-hole private luxury golf club on some 277 acres he owns in the southern woodlands has occupied center stage in the town of Oak Bluffs for the last two-and-a-half years.
The southern woodlands, which is protected by special planning regulations through a DCPC, is the last unbroken stretch of oak and pine forest in the town of Oak Bluffs.
The Down Island Golf Club project has been reviewed by the commission as a development of regional impact three times, and each time the project has been rejected in a close vote.
The first plan was rejected by the commission in an 8-6 vote in July 2000. The second plan was rejected in a 9-7 vote in February 2002. The third plan was rejected in a 9-8 vote on Oct. 16.
Along the way Mr. Kupersmith, his attorneys and his partners mounted a series of threats against the commission in an attempt to force approval of the project. At one point the developers threatened to build a 366-unit affordable housing complex under Chapter 40B of state law if the golf club project was not approved. Mr. Kupersmith's attorneys sued the commission, challenging its authority to review 40B projects, but in a landmark ruling last June the chief justice of the Massachusetts Land Court strongly upheld the right of the commission to review such projects.
The affordable housing project is technically still pending before the commission, but a DRI review of the project is dormant.
Also still pending is a vote by the town to take the first steps to withdraw from the commission. The vote came at a special town meeting last March during a period when the affordable housing project loomed as a threat to the town and the commission. But the political atmosphere changed after the land court ruling three months later.
A bill is now pending in the state legislature for the town to withdraw, but the bill is stuck in committee and is not expected to move until after the legislature reconvenes in January. A second vote is still required by the town to complete the process.
Meanwhile, the developers decided to try a third time for approval of the golf course project, and this time the plan was altered to include 30 houses. The developers met behind closed doors with some Oak Bluffs selectmen and other town officials to craft the new plan under the auspices of a "settlement agreement."
During one private meeting in Boston between developers and an array of state and local officials, Mr. Lafferty threatened to "bring down" the commission if it refused to sign on to the back-room deal for a new development plan.
"If the Martha's Vineyard Commission doesn't approve this, we will destroy them with lawsuits," Mr. Lafferty reportedly said.
The complaint filed last week asks the court:
* To annul the decision of the commission rejecting the golf club plan.
* To declare the southern woodlands DCPC invalid.
* To declare that the commission's statutory and regulatory standards for DCPCs are unconstitutionally vague.
* To declare that the commission has no authority to require buffer zones around trails and ancient ways.
* To award the plaintiffs full damages and costs, including attorneys' fees.
As of yesterday the complaint had been filed in court but had not yet been served on the commission or its attorneys. Eric Wodlinger, a partner at Choate, Hall & Stewart in Boston who represents the commission, said he had not seen the complaint.