BOSTON - An attorney who represents the Down Island Golf Club developers tried to convince a Massachusetts Land Court judge this week that the court's chief justice was wrong when he ruled last year that the Martha's Vineyard Commission has full power of review over affordable housing developments - including the power to reject them.
Martha Bourne, a partner with Holland & Knight in Boston, said a recent decision by the state Supreme Judicial Court involving a historic district commission in the town of Dennis casts new light on the land court case.
The SJC ruled that the Old Kings Highway historic district commission is a local board and cannot trump Chapter 40B, a state law that promotes affordable housing. In his landmark decision last year, the Hon. Peter Kilborn, the chief justice of the land court, reached an opposite conclusion, ruling that the Martha's Vineyard Commission is not a local board, and that the commission legislation trumps Chapter 40B.
"There is no difference between the Martha's Vineyard Commission and [the Dennis] historic district commission . . . . Judge Kilborn did not have the benefit of the Dennis housing decision when he ruled the year before," Ms. Bourne said.
Attorneys for the commission and the town of Oak Bluffs had another view.
"The Vineyard commission has jurisdiction over all the towns on the Vineyard. The Dennis commission is clearly a local board and the Vineyard commission is clearly a regional regulatory agency," declared Eric Wodlinger, a partner at Choate Hall & Stewart who represents the commission.
"I heard Attorney Bourne say that the Dennis decision overrides Judge Kilborn's decision but I haven't heard her say where Judge Kilborn is wrong," said Oak Bluffs town counsel Ronald H. Rappaport
" ‘The Martha's Vineyard Commission does not perform the functions of a local board'," Mr. Rappaport said, quoting from the landmark ruling by Judge Kilborn last year. "Judge Kilborn is right when he says that and there is nothing in Dennis that would lead to a contrary conclusion," he added.
Attorneys on both sides squared off in a Boston courtroom on the question of whether the land court should reconsider Judge Kilborn's ruling.
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. The Hon. Charles W. Trombly is now presiding over the case.
Arguments on the motion to reconsider took place on Tuesday morning.
Leaning heavily on the Dennis decision for support, Ms. Bourne revisited many of the same arguments that had been laid out by the previous attorneys for the developer when they argued the first case in front of Judge Kilborn.
"[The Dennis decision] is a solid and appealing reason to amend the judgment and find that the Martha's Vineyard Commission is a local board," Ms. Bourne said.
Quoting heavily from the ruling by Judge Kilborn, Mr. Wodlinger and Mr. Rappaport said the Dennis decision changes nothing. They cited a long list of differences between the MVC and the Dennis historic district commission.
Both pointed to the makeup of the commission, which includes nine members who are elected at large, six members appointed by each of the towns, one member appointed by the county commission and five members appointed by the governor of Massachusetts. Mr. Rappaport noted that the members of the Dennis historic district commission are elected in a town election while the nine elected members of the MVC are chosen every two years in the state election. He said there is even a provision in the MVC statute that allows for an appointment by the President of the United States, if it is deemed necessary by Congress.
"A plain and stark difference," Mr. Rappaport said.
"The regional theme runs through the whole thing . . . . the opening paragraph of Chapter 831 [the enabling statute for the MVC] refers to the entire Island of Martha's Vineyard, whereas Dennis refers to Dennis," Mr. Wodlinger said.
"What Judge Kilborn found and what we agree with is that there is no inconsistency between Chapter 40B's concern with affordable housing and the Vineyard commission act itself," he also said.
Mr. Wodlinger pointed to the numerous affordable housing projects that have been approved by the commission over the years, including the recent Bridge housing project in Vineyard Haven. He said the commission has carved 30 affordable lots out of development projects over the years and has extracted $250,000 from developers for the Dukes County Regional Housing Authority.
"The Vineyard commission has been promoting affordable housing for years," Mr. Wodlinger said.
"As Judge Kilborn stated, this is not a case of comparing one board and another board. The Martha's Vineyard Commission is designed to protect the values of Martha's Vineyard and that is its charter," Mr. Rappaport said. Returning to one of his own themes from the original case, the town attorney said it is the job of the state legislature, not the courts, to change the enabling statutes for the MVC or Chapter 40B.
"It is not a question of choosing one over the other, they are both worthwhile and the legislature has spoken. It is the job of the legislature, not the courts, to decide the relationship between these two statutes," Mr. Rappaport said.
Mr. Rappaport represents the town zoning board of appeals in the case. Mark Bobrowski, a Concord attorney, represents the Oak Bluffs selectmen.
Mr. Bobrowski was also present on Tuesday, but he made no comment other than to say that he endorsed the arguments of Mr. Wodlinger and Mr. Rappaport.
"Simply stated, Judge Kilborn was right, his analysis was correct," Mr. Rappaport concluded.