Attorneys for MVC File Court Briefs


Attorneys for the town of Oak Bluffs and the Martha's
Vineyard Commission returned a serve this week in a high-stakes legal
dispute that will ultimately test the power of the Martha's Vineyard
Commission to review affordable housing projects under state law.

"Granting the [state housing appeals committee] the power to
override the MVC's regulations - has the potential to destroy 25
years of careful environmental study and planning on Martha's
Vineyard by opening up every district of critical planning concern
(DCPC) to development under Chapter 40B," wrote Eric Wodlinger, a
partner with Choate Hall & Stewart in Boston who represents the

"The [housing appeals committee's] argument S is simply
wrong," wrote Oak Bluffs town counsel Ronald H. Rappaport.

Mr. Rappaport and Mr. Wodlinger filed replies on Tuesday to a
lengthy legal brief filed by the state attorney general last week.

The attorney general, representing the state housing appeals
committee (HAC), has sided with a developer who wants to build a low
and moderate income housing project in the southern woodlands section
of Oak Bluffs.

Among other things, Mr. Wodlinger and Mr. Rappaport revealed
that the position taken by the state attorney general last week is in
direct conflict with the position of the state attorney general 25
years ago in the landmark Island Properties case.

In Island Properties, the state supreme judicial court ruled
that the then-fledgling MVC trumped the zoning freeze provision of
Chapter 40A, the state subdivision control law. At the time the state
attorney general agreed.

"Development is no longer a purely local matter but has
regional and statewide impact," wrote the attorney general at the

"The HAC's position stands in sharp contrast to the position
advanced S 25 years ago," Mr. Rappaport wrote.

The dispute is pending in the Massachusetts land court. The
Hon. Peter W. Kilborn, chief justice of the land court, is presiding
over the case. A ruling is not expected for some months.

Developer Corey Kupersmith wants to build a 366-unit low and
moderate income housing project on some 270 acres of land he owns in
the southern woodlands section of Oak Bluffs.

The central issue in the case is whether the MVC enabling
statute trumps Chapter 40B, a section of the state law that allows
developers of low and moderate income housing projects to bypass
local zoning rules.

In their brief filed last week, state attorneys Robert
Ritchie and Rob Quinan tried to suggest a compromise, urging the
court to grant constructive approval of the housing application but
proposing that the commission conduct a watered-down review of the
project to develop conditions for approval.

The case is expected to turn on whether the commission is
defined as a local board, but last week state attorneys also
downplayed this issue - saying that the court should not worry about
whether the commission is defined as a local board, but that if a
definition is necessary the commission should be defined as a local

In their replies this week, Mr. Wodlinger and Mr. Rappaport
took a decidedly different view.

"Close scrutiny of the HAC's recommendation reveals its
flaws. Many points of the proposal lack clarity and appear to have no
basis in the existing statutory framework," Mr. Wodlinger wrote.

Both attorneys disagreed with the state attorneys on the
local board question. "The dispositive issue of whether the MVC is a
local board is not a discrete issue - it goes to the heart of the
legislative scheme for reviewing DRIs on Martha's Vineyard," wrote
Mr. Rappaport.

"The only issue for this court to decide is whether the
language of the Massachusetts Constitution, the MVC act, Chapter 40B
and entire body of SJC and Appeals Court decisions should be
disregarded so that the MVC is deemed to be a 'local board' rather
than a 'regional commission,' " he also wrote.

"In urging this court to hold that the MVC is a local board,
the HAC gives no attention to the far-reaching, real world
consequences of adopting that definition," Mr. Wodlinger wrote.

Both attorneys used the landmark Island Properties case as a
guidepost in their arguments.

Mr. Kupersmith's central goal for the last two years has been
to build a private luxury golf course on the property. The golf
course project was turned down by the commission last week for the
second time in 18 months.

In his brief, Mr. Wodlinger countered the notion put forward
by the state attorneys that the housing development plan has been
long in the works for Mr. Kupersmith's property.

"The plaintiff's interest in using this site as affordable
housing is recent, and indeed, not their preferred use of the
property. . . . The HAC completely fails to acknowledge that CKA [Mr.

Kupersmith's company] is using 40B as a 'club' to coerce the town and
the MVC to approve its earlier application for a golf course on the
same property," Mr. Wodlinger wrote.

The current set of arguments before the court center on a
motion for summary judgment in the portion of the case that involves
MVC jurisdiction. The other parts of the case - including a dispute
about whether the housing application was complete and whether the
ZBA erred in not acting on the application - have not yet been

Created by an act of the state legislature in 1974, the
commission has broad regulatory powers that go beyond the powers of
local boards.

The commission legislation been upheld repeatedly by the
state's high courts over the years, but its power of review over
Chapter 40B projects has never been tested in court.

At the end of his brief, Mr. Wodlinger pointed out that this
court case is not just about DRI reviews but also very much about
districts of critical planning concern (DCPCs). Quoting a portion of
the the well-known language from the Island Properties decision that
noted "it would be a perverse anomaly" if the regional purpose of the
MVC could be trumped by local zoning rules, Mr. Wodlinger concluded:

"It would be similarly perverse if Martha's Vineyard's DCPCs
- carefully created and enacted by the MVC over the last 25 years -
could be opened up to the dense, multi-family development envisioned
by Chapter 40B, regardless of the environmental or ecological value
of the area. Such result could not have been the intent of the
legislature and should not be sanctioned by this court."