The chief justice of the Massachusetts Land Court heard arguments this week in a groundbreaking case that will ultimately decide whether the Martha's Vineyard Commission has the power to review low and moderate-income housing projects under Chapter 40B, a section of state law commonly known as the anti-snob zoning statute.
The court challenge, which springs from the ongoing effort to develop the southern woodlands section of Oak Bluffs, strikes directly at the unique powers vested in the MVC when it was created by the state legislature more than 26 years ago.
"Giving the authority [of review] to the Martha's Vineyard Commission will ultimately frustrate the purposes of 40B. . . it would eviscerate 40B," said Mary Ryan, a partner at Nutter, McLennen & Fish who represents developer Corey Kupersmith in the case.
"It is plain that Martha's Vineyard has been treated as a unique place since 1974, and any decision to change that should be made by the legislature, not by the courts," said Eric Wodlinger, a partner with Choate Hall & Stewart who represents the commission in the case.
"If 40B can supersede a [development of regional impact] then 40B can supersede [district of critical planning concern] regulations, and I say that it absolutely cannot - if their argument is correct then you could go down to the coastal district and build a housing project. This goes to the heart of the Martha's Vineyard Commission legislation," said Ronald H. Rappaport, a Vineyard attorney who represents the town of Oak Bluffs in the case.
The lawyers squared off Tuesday afternoon in a fourth-floor courtroom at the Edward W. Brooke courthouse in Boston. The Hon. Peter W. Kilborn, chief justice of the land court, is presiding over the case.
Attorneys for Mr. Kupersmith have filed a motion for summary judgment in the portion of the case that concerns MVC jurisdiction. Technically it is a superior court case, but for procedural reasons Judge Kilborn was appointed to sit on the case as a special superior court justice.
In another minor procedural tangle, the attorney general has filed a motion to intervene in the case, and Judge Kilborn said he will give the state until Jan. 31 to submit a brief in the case. Although attorneys for the state have not yet said whose side they will come in on, they are expected to come in on the side of the developer.
Mr. Kupersmith has filed an application to build a 366-unit low and moderate-income housing project on some 270 acres of land he owns in Oak Bluffs. Mr. Kupersmith's attorneys filed a lawsuit against the town claiming automatic approval on the housing application because the town zoning board of appeals did not act on the application within the required timeframe. The commission intervened in the case to protect its own right of review.
Mr. Kupersmith has a separate plan pending for a private luxury golf course on the same property. The golf course plan is under review by the commission as a development of regional impact (DRI); a vote on the project is expected late next month.
The developers have said repeatedly that the two projects are not connected, but on Tuesday Ron Mechur, a Vineyard resident and leading spokesman for the golf club project, attended the hearing and assisted Mr. Kupersmith's attorneys by passing them handwritten notes. Mr. Mechur is a former executive director of the commission.
The commission has reviewed a number of housing projects under Chapter 40B over the years, but its power of review over such projects has never been tested in court.
Attorneys on both sides of the case have submitted lengthy briefs. On Tuesday, Judge Kilborn said that he had read the briefs and had decided to put a series of questions to the attorneys instead of allowing arguments in the traditional manner.
The case recounts the history of both Chapter 40B and the MVC. A state law created in 1969, Chapter 40B allows developers of low and moderate-income housing developments to bypass the normal approval process of local planning boards.
The Martha's Vineyard Commission - created by a special act of the state legislature in 1974 - is a unique regulatory land-use commission with broad powers that go well beyond the ordinary powers of local boards.
The case is expected to turn on whether the MVC is defined as a local board under Chapter 40B. There are two distinct points of view.
In her brief and in her argument on Tuesday, Ms. Ryan argued that the commission is a local board in practice, if not in explicit definition. She centered much of her argument on the fact that the Cape Cod Commission, which was formed in 1989 using the MVC legislation as a blueprint, is expressly named as a local board and excluded from reviewing Chapter 40B projects.
The MVC legislation contains no such language - a point highlighted by Judge Kilborn.
"How do you get around the fact that the legislature specifically dealt with it with the Cape Cod Commission and very clearly didn't - and significantly didn't - with respect to the Martha's Vineyard Commission?" he asked Ms. Ryan.
"Legislative oversight," she replied.
Pressing further, the judge said: "When they adopted the Cape Cod Commission act the legislature said, ‘This is going to be a local board when it comes to hearing Chapter 40B applications.' It's certainly conceivable that someone would have said, ‘Hey wait a minute, they've got another one down there and that's the Martha's Vineyard Commission.' "
"It's a gap in the statute," Ms. Ryan said. "We have legislative silence, and the question is do you construe something positive from that or do you negate the legislative anomaly."
Mr. Wodlinger and Mr. Rappaport both argued that the "silence" in the Martha's Vineyard Commission legislation regarding Chapter 40B projects was no oversight. If there was a need to amend the statute for clarity with respect to 40B, Mr. Wodlinger said, the legislature has had the opportunity to do so, having amended the commission statute more than once since 1974.
"It's not as if the legislature hasn't been willing to amend the Martha's Vineyard Commission legislation over the years with respect to various policy changes," he said.
Mr. Wodlinger also countered Ms. Ryan's heavy reliance on the Cape Cod Commission act as a guidepost, noting that the founding MVC act is different, just as the Vineyard is different from Cape Cod.
"There is a considerable difference in both population and geography between the two counties - there are solid reasons to say that Dukes County is different from Barnstable county," Mr. Wodlinger said.
"It's ‘uniquer,' you say?" asked the judge with a small smile.
"An excellent term, your honor," Mr. Wodlinger replied.
Mr. Wodlinger and Mr. Rappaport's briefs read like a legal history of the commission, citing many of the landmark cases that have been argued all the way to the state Supreme Judicial Court over the years, from the Island Properties case to the three-acre zoning case. The commission statute has been upheld repeatedly by the state's high courts.
On Tuesday the arguments turned again and again to the central question of whether the commission should be defined as a local board.
In part the 40B statute defines local boards as "any town or city board," such as boards of health, planning boards and boards of selectmen. The statute also notes that boards created by special acts of the legislature "shall be deemed local boards if they perform functions usually performed by locally created boards."
Mr. Wodlinger noted the clear difference.
"The commission has legislative power - it has the power that town meeting might have, and town meeting is not a local board. The commission has the power to create a DCPC," he said.
Pointing to the language in the 40B statute, the judge said: "On one level this is a five-minute case - if you say the statute is clear, then this isn't a town or city board, let's all go home."
Ms. Ryan said state law gives oversight authority for 40B projects to zoning boards of appeal. "One-stop shopping," she said, repeating a phrase used in her briefs.
"So you're saying that if you are doing a Chapter 40B project that you don't have to go to the Martha's Vineyard Commission at all?" the judge said.
"Yes, but the Martha's Vineyard Commission shouldn't be ignored," Ms. Ryan replied.
Judge Kilborn concluded: "So you are saying that the zoning board of appeals should send a letter to the Martha's Vineyard Commission and say ‘We're having our hearing on this next week, why don't you come on over.' "
A ruling on the case is not expected before the middle of February.