The Edgartown zoning board of appeals referred plans for a new housing development to the Martha’s Vineyard Commission this week despite the developer’s assertion that the Islandwide planning agency shouldn’t have jurisdiction over the project.
The planning board voted unanimously Wednesday in favor of sending the 40-unit Edgartown Cove proposal to the commission, which for decades has reviewed so-called 40B housing projects ahead of the town boards.
This marks the first 40B project to be referred to the Martha’s Vineyard Commission since the Massachusetts Housing Appeals Committee, a state body that adjudicates housing disputes, ruled that the MVC should not have its own review process for 40B projects. The referral could set off a new fight between the town, MVC, developer William Cumming and the Housing Appeals Committee, which are all currently in the middle of litigation over prior 40B projects from Mr. Cumming.
During Wednesday’s 90-minute hearing, which drew about 50 people, there was little discussion among zoning board members about if they should or shouldn’t pass the project along to the MVC for review as a development of regional impact, or DRI. The only comment came from zoning board member Pam Dolby, who said the board should keep with its past practices before making the motion.
“I truly feel this is a DRI, and I think it should be referred,” she said.
In the weeks before the hearing, Mr. Cumming argued that the MVC did not need to review the project, in light of the Housing Appeals ruling. The dispute centers around language in the state’s affordable housing laws, which are commonly referred to by their statute number of 40B.
The law was created in 1969 to encourage more affordable housing in communities that had few opportunities. Under 40B developers can have a streamlined permitting process if they make proposals that dedicate at least a quarter of the units in a development to people who make up to 80 per cent of the area median income.
While other developments would have to get several approvals from different town boards, a 40B proposal would have a singular application with the local zoning board.
The question on the Vineyard is whether the Martha’s Vineyard Commission, which oversees large developments in the six Island towns, should be considered one of the local boards that is bypassed in the streamlined application.
The commission itself contends that it is not local, as it provides services to the entire region. Mr. Cumming, with the backing of the Housing Appeals Committee, argues it is.
The debate sprung from Mr. Cumming’s two previous 40B applications. Edgartown Gardens, a development planned to be built behind Donaroma’s on Upper Main street, was rejected by the commission in 2025. Green Villa, a 116-unit project near the high school in Oak Bluffs, was approved in May.
Mr. Cumming has appealed both decisions in Dukes County Superior Court, claiming neither project should have been considered by the MVC.
While those cases are being reviewed by the court, the Martha’s Vineyard Commission will continue to review projects as it has for the last 52 years, Adam Turner, the MVC’s executive director previously told the Gazette.
“We’re going to review the benefits and detriments as we always have,” he said last week.
Like his past two proposals, Mr. Cummings latest project is also proving controversial. Several town officials raised concerns and the zoning board received several letters from the public.
Planned for a vacant two-acre Edgartown-West Tisbury Road lot just west of Codman Spring Road, Edgartown Cove would have 40 condominium units divided into six buildings.
As proposed, the project would have eight three-bedroom units and 32 one-bedroom units. The one-bedrooms would be about 680 square feet and the three-bedrooms would be about 1,360.
Ten of the units would be designated for affordable housing, while the other 30 would be market rate, according to the application.
Mr. Cumming’s lawyer Jay Talerman touted the project as one that would limit land disturbance, while still providing much needed housing on the Island.
“We’re providing 10 affordable units, which is a significant improvement on your subsidized housing inventory in town,” Mr. Talerman said.
He also noted that it would not be adding to the town’s number of large, cookiecutter homes.
“We’re adding smaller units rater than more McMansions in town, so as to provide, even on the market rate side, another type of housing to diversify your housing stock,” he said.
The town has brought on Joe Peznola, a consultant who specializes in 40B developments, to help the board through the process. He suggested the board request additional information on water and sewer flows, capacity analyses, nitrogen loading calculations, and studies on traffic and stormwater.
Mr. Peznola also recommended that the zoning board be ready to diverge from past precedent, where the zoning board review was paused until the Martha’s Vineyard Commission finished its review. Instead, the zoning board should be prepared to run its review in tandem with the commission.
“You will have to do all of the diligence and some of the diligence that maybe that you relied on the MVC to do, such as a review of traffic,” he said.
A similar process played out with Mr. Cumming’s Green Villa project. In that instance, the Oak Bluffs zoning board of appeals began meeting on the proposal while the Martha’s Vineyard Commission was still deliberating on the project.
Worried that they could be up against a state-mandated 180-day deadline to decide on 40B projects, members of the Oak Bluffs zoning board eventually rejected Green Villa because the commission hadn’t made a ruling.
The board, however, placed more than 100 conditions on the project that could make it approval-worthy should the MVC vote in favor.
Mr. Peznola suggested a similar route for Edgartown Cove.
“I can see this taking a similar tact unless the courts somehow rule on the jurisdictional issue of the MVC prior to the 180 days,” he said.
No public comment was held Wednesday, but the board promised several opportunities at future hearings.
“If you have questions, write them down,” said chair Martin Tomassian. “If you want to write to us, please do.”
The next zoning board hearing on Edgartown Cove will be on Dec. 2.