Golf Developers Target MVC

By JULIA WELLS

The developers who want to build a luxury golf club in the
southern woodlands section of Oak Bluffs aimed conflict of
interest charges at five members of the Martha's Vineyard
Commission last week, just days before a public hearing was due
to open on a new plan for the golf club. The commission
responded by announcing that it will delay the public hearing
process until the charges are sorted out by the state ethics
commission.

"I'm not suggesting that there is merit to any of the
claims of conflict of interest, but the public process is served
by having these allegations resolved before public testimony is
received," said commission attorney Ronald H. Rappaport. Mr.
Rappaport met with members of the commission last Thursday night
to discuss legal issues in connection with the golf course plan.

The first hearing on the new golf club plan is set to open
on Thursday night. Mr. Rappaport recommended that the commission
open the hearing but continue the session to a later date and
take no public testimony. His recommendation was in concert with
a letter from Eric Wodlinger, a partner with Choate Hall &
Stewart who is the MVC Boston counsel.

This is the second appearance by the Down Island Golf Club
before the commission in 12 months. Last summer the commission
rejected a plan for a golf club on 200 acres in the southern
woodlands.

Developer Corey Kupersmith has appealed the decision in
superior court.

The court complaint was the subject of a mediation attempt
that lasted for one session last fall. Following the mediation,
attorneys on both sides of the case agreed to a remand order
that put the court proceedings on hold while the developers
prepared a new plan.

A new plan for the golf club was filed in late May.

In a letter to the commission last week, the leading
attorney for Mr. Kupersmith said five elected members of the
commission have a conflict and must recuse themselves from the
development of regional impact (DRI) public hearing.

"This is a matter which should be addressed by the full
commission," wrote Mary K. Ryan, a partner with Nutter McLennen
& Fish in Boston.

Mr. Rappaport and Mr. Wodlinger parried back, recommending a
delay in the review of the plan until the state ethics
commission rules on the conflict charges.

The delay throws cold water on the rapid-pace schedule
expected by the golf club developers for the review of their
plan this summer.

Three public hearing dates had been set, and it appeared
that the golf course review would be complete by the middle of
August. Now it is unclear whether the hearing will even be
completed this summer.

The conflict charges are trained on James Athearn, John
Best, Richard Toole, James Vercruysse and Andrew Woodruff. The
attorneys claim that Mr. Athearn, Mr. Best, Mr. Toole and Mr.
Woodruff all have prior connections with the Vineyard
Conservation Society, and they further claim that the society
has had an interest in buying Mr. Kupersmith's property. The
attorneys claim that Mr. Vercruysse's employer had made an offer
to buy Mr. Kupersmith's property.

There is dispute about the factual nature of both of these
claims.

Nevertheless, Mr. Rappaport told members of the commission
last week to put the public hearing on hold — and clear the air.

"You are required to open the public hearing, but these
issues of conflict should be resolved before any public
testimony is received," Mr. Rappaport said.

"I think the public has a right to expect that the decisions
of the Martha's Vineyard Commission are free from conflict, and
the public also has a right to know that the commission does not
make decisions because it is intimidated by any charge of
conflict," he added.

He also said: "I am not saying that anyone has a conflict —
it's important for the individuals — you should be free from
doubt."

Mr. Rappaport outlined the choices for the individual
members of the commission: either submit an opinion to the
ethics commission from MVC counsel or ask the ethics commission
for a ruling. Mr. Rappaport recommended that the members of the
commission ask the ethics commission for a ruling.

Ethics commission rules are somewhat arcane, but in simple
terms, elected officials may request two levels of rulings: an
informal and a formal ruling. Formal rulings can take a very
long time, and Mr. Rappaport suggested that members begin with a
request for an informal ruling.

Mr. Rappaport said there is no way to know how long the
ruling will take — he said it could be a few weeks or it could
be several months.

Commission member Dan Flynn asked Mr. Rappaport if the MVC
could be open to charges of negligence by delaying the public
hearing process.

"Are you convinced that this is well within the boundaries
of a good-faith hearing process?" Mr. Flynn said.

Mr. Rappaport replied bluntly that the delay was, in fact,
triggered by the developers.

"These are questions that were raised by the applicant. Your
Boston counsel and I agree that these issues should be resolved
— and I would have a hard time believing that anyone would not
say that this is a responsible action by a government agency,"
Mr. Rappaport said.

Commission member Robert Zeltzer said he wondered if members
of the commission who have been charged with a conflict should
simply step down in order to preserve an image of fairness. "If
it is going to reflect back on this body and the public trust,
then why not just get the hell out?" Mr. Zeltzer said.

But Mr. Rappaport said there is a difference between bias
and a point of view.

"No one should participate [in a DRI review] who thinks that
they cannot be fair," Mr. Rappaport began. "On the other hand,
it would be naive to think that people do not have life views,
and certainly people have life views and life experiences that
they bring to the Martha's Vineyard Commission. Having
viewpoints is to be encouraged — that's diversity, and people
are elected to the commission on the basis of their viewpoints,"
he said.

On a related legal issue, Mr. Rappaport said he and Mr.
Wodlinger also agree that the word "remand" is irrelevant when
it comes to the review of the new golf club plan.

"This is a new plan, and it is to be considered a new plan.
The fact that there is an agreed-on remand order is of no
significance," said Mr. Rappaport.

He said the remand only has the effect of putting a stay on
the court proceedings.

Mr. Kupersmith's attorneys have a somewhat different view,
and the conflict of interest charges are anchored in the
position that the remand somehow creates a continuous process
involving the old plan.

In her letter to the commission outlining the conflict
allegations, Ms. Ryan said the new plan was the subject of a
"rehearing process."

Mr. Rappaport disagreed.

"It's a new plan. To take any other position would lead to
results that would obviously be absurd," he said. In a letter to
the commission, Mr. Wodlinger echoed Mr. Rappaport.

"The remand is not for the purpose of a re-hearing on the
old, rejected DRI application. . . . For all practical purposes,
the MVC should treat the amended application as a new DRI," Mr.
Wodlinger wrote.

Mr. Rappaport told the commission that any written material
from the previous golf club hearing is not automatically
included but must be resubmitted for the record. As for oral
public testimony, Mr. Rappaport said it's a new ball game.

But for now, there will be no public testimony at all.

"No testimony. Nothing. The hearing will be continued to a
date indefinite," said MVC executive director Charles W.
Clifford yesterday.

The hearing begins on Thursday night at 7:30 p.m. at the
Martha's Vineyard Regional High School.