A dispute over the permitting for one of the largest proposed housing projects in recent memory could have lasting effects on future developments across the Island. 

The town of Oak Bluffs and the developers of MV Green Villa, a proposed 100-apartment affordable housing complex eyed for Edgartown-Vineyard Haven Road, are locked in a pair of legal challenges over the approvals process. 

Earlier this fall, the town filed a lawsuit against Green Villa, claiming the developer is attempting to circumnavigate the way large housing projects have gone through the permitting process for years. 

Under the state housing laws, housing projects with a certain number of affordable units can go to the zoning board with a single comprehensive permit – allowing developers to avoid the normal permitting process with numerous town boards in favor of a streamlined application. Here on the Vineyard, though, projects such as these have historically also had to go through the Martha’s Vineyard Commission to consider the impacts across the Island.

The plan includes space for four retail stores.

In recent legal filings, Green Villa asked the state to determine that the Martha’s Vineyard Commission need not first review the project before passing it to the Oak Bluffs zoning board of appeals. Attorneys with Green Villa are arguing that the Martha’s Vineyard Commission is one of the local boards that, under state law, should be bypassed in favor of the consolidated zoning board review. In recent legal filings with the state Housing Appeals Committee, Green Villa asked the state to determine that the zoning board can stand in for the MVC. 

“The MVC is — and always has been — a Local Board, and the Committee should recognize it as such,” the attorneys for Green Villa wrote. 

If the request is granted, it would overturn years of precedent.

Lawyers representing Green Villa declined to comment on the case when reached by the Gazette last week.

Developer William Cumming first filed an application with the zoning board in May to build the 100 apartments and four retail stores on about eight acres of land near the southern tier woodlands. The town board then referred the Green Villa project to the Martha’s Vineyard Commission. While the MVC considered the project application, the zoning board of appeals put its permitting process on pause — a typical move for town boards which let the commission review the project first.

Green Villa objected to the zoning board’s pause for the MVC review, prompting a lawsuit from the town in Dukes County Superior Court. The town asked a judge to step in, saying if the town were to forge ahead of the MVC permitting, it would put an undue burden on the town board, the suit claims. 

“Under the MVC Act, the board has no power to issue a development permit until the MVC has completed its review,” the zoning board wrote in its lawsuit, filed in October. “Consistent with the usual practice and procedure, the board wishes to have the MVC review the project first before the board conducts its own review.”

The legal squabble caught the attention of the Martha’s Vineyard Commission, which late last month gained permission from the superior court to join in the case to protect its right to review the project. 

Fred Hancock, the chair of the commission, said the heart of the dispute is language in the state’s affordable housing laws, commonly referred to by their chapter number 40B. 

Mr. Hancock said a similar challenge came about in 2002, when a developer sought to build a 366-unit housing project in the southern woodlands of Oak Bluffs. In that case, a state Land Court judge found that the act which created the MVC in 1974 supersedes chapter 40B, cementing the commission’s right to review affordable housing projects. 

“They want to try and adjudicate that again,” Mr. Hancock said. “Obviously the MVC thinks it’s in their best interest to maintain our authority over 40B developments.”

In filings, Green Villa’s attorneys have said the commission could run its review concurrently with the zoning board, while also saying the MVC’s claims boil down to nothing more than territoriality.

“[T]he MVC would prefer not to have its power be wielded by municipal officials in towns who have submitted to its jurisdiction, and it is not content to serve the same advisory capacity in which all other Local Boards have served in countless Chapter 40B hearings since before the MVC’s formation,” the Green Villas attorney wrote in a filing last week. 

Oak Bluffs’s attorney Michael Goldsmith declined to comment on the legal dispute between the zoning board and Green Villa, citing the pending litigation.

The Green Villa project proposes to build 84 one-bedroom apartments and 16 three-bedroom apartments. Twenty-five per cent of the residences would be reserved for people making below 80 per cent of the area median income and the rest would be reserved for people making under 150 per cent. 

The team behind the project has touted the project as a way to help the “missing middle” Islanders who earn too much to qualify for most affordable housing but not enough to afford Vineyard real estate. 

Mr. Cumming has also proposed a housing development near the Triangle in Edgartown, and donated land in West Tisbury for teacher housing.

The superior court lawsuit is an outgrowth of a separate squabble between Oak Bluffs and Green Villa over the town’s interpretation of the 40B statute. Under state law, the town can claim “safe harbor” status if the town has a certain percentage of affordable housing. Under safe harbor, the town can be more restrictive in its permitting process.

Green Villa contested the town’s claim that it had reached the affordable housing threshold, and won in an appeal with the state’s Housing Appeal Committee. The town has challenged the committee’s ruling, and that is currently under review by the state.

The town and Green Villa are scheduled to have a conference with the Housing Appeal Committee. A further date in the superior court case has not yet been set.