Golf Developers Target MVC

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.