The permitting process for large affordable housing projects on Martha’s Vineyard could see seismic changes if a decision from a state body this week stands up to expected legal scrutiny.
The state housing appeals committee ruled on Tuesday that the Martha’s Vineyard Commission, which has long been one of the major hurdles for affordable housing projects, should not have purview in so-called “40B” housing applications. Instead, affordable housing projects only need to get approval from the town zoning board of appeals, as is done in other parts of the Commonwealth under state law.
The ruling from the housing appeals committee sprung from an appeal over Edgartown Gardens, a senior housing project with 12 low-income units planned for Upper Main street by developer William Cumming, and would represent a major shift in housing permitting on the Island.
The project was rejected by the Martha’s Vineyard Commission, but Mr. Cumming and his lawyer Jason Talerman have long argued that the commission should not have jurisdiction over the project under the state’s affordable housing regulations, often referred to by their statute number 40B.
The main question in the dispute is if the Martha’s Vineyard Commission, which was created in 1974 by the state legislature to oversee development on the Island, is considered a “local board.”
Enacted in 1969, the 40B legislation streamlines the permitting process so affordable housing in underserved parts of Massachusetts only has to go before a single board – the zoning board of appeals. Other local boards can send their concerns to the zoning board to be considered in that process.
Here on the Vineyard, the commission has not been considered a local board, and has also had its own review of projects. Affordable housing projects have historically gone to the town’s zoning board, where they are referred to the Martha’s Vineyard Commission. After the commission makes a ruling, the project is sent back to the zoning board, which then holds its own hearings.
But the state housing appeals committee Tuesday ruling states that Massachusetts should have a unified system across all 351 of its municipalities and not make exceptions for Martha’s Vineyard.
“To exempt the MVC from the definition of ‘local board’ would retain a form of local impediment to the development of affordable housing that the comprehensive permit act sought to eliminate, leaving the MVC with ‘effective veto power over proposed affordable housing’ which is ‘wholly incompatible with the purposes of the comprehensive permit act,’” the housing appeals committee wrote in its 35-page decision.
“Furthermore, such veto power would exist only in those municipalities subject to the MVC Act, creating an inequity between the island and the rest of the Commonwealth,” the three-person panel continued.
This will likely not be the last word on the issue, which has been raised in the past and ruled on in the commission’s favor. There are two lawsuits pending in Land Court and Dukes County Superior Court, one for Edgartown Gardens and one for Mr. Cumming’s other project Green Villa in Oak Bluffs, which argue over similar jurisdictional questions.
Martha’s Vineyard Commission executive director Adam Turner said Tuesday that he believed the decision from the housing appeals committee was incorrect and the commission will launch a legal challenge.
“We’re going to appeal it,” he said. “We think the decision was in error.”
Edgartown commissioner Jeff Agnoli said if the ruling stands, it would make a real change to the regulatory powers of the commission and be a disservice to the Island.
“It would be a big change and not a good one for at least the time being,” he said.
The attorney for Edgartown Gardens contended that this decision is the right one for the Island, bringing it into compliance with state law as the lack of housing continues to be a major issue. He also noted that this doesn’t entirely cut the Martha’s Vineyard Commission out of the process.
“The MVC is not gone when it comes to 40B projects,” Mr. Talerman said. “They still have an opportunity to advise the zoning boards on the project…Their role here is not done and it remains uniquely important.”
The appeal to the housing appeals committee was made by Edgartown Gardens in July 2025, and also called for a de facto approval for the 55 apartments of senior housing because the Edgartown zoning board of appeals failed to hold hearings on the project.
The town has argued that it didn’t hold hearings because the project was denied by the Martha’s Vineyard Commission.
“Here, the MVC declined to approve the [development of regional impact] and ordered that ‘the permit-granting authorities of the Town of Edgartown shall not grant the request for approval of the Applicant’s proposal,’” Zeb Landsman, the town’s attorney, wrote in arguments to the housing appeals committee. “This is not merely a missed-deadline case; constructive approval from the ZBA is legally impossible. We adopt and rely on the contemporaneous submission of the MVC for this point.”
The housing appeals committee also sided with the developer on this dispute, and will hold a hearing to consider conditions for the project in the future, Mr. Talerman said.
Proposed for the area behind Donaroma’s Nursery near the triangle in Edgartown, the project was largely criticized for its size, location and potential impact on traffic, and resulted in a rare unanimous denial from the commission.
Edgartown zoning board of appeals chairman Martin (Skip) Tomassian declined to comment Tuesday due to the pending litigation. Mr. Landsman also said he could not comment.
The town had asked the housing appeals committee to wait on making a ruling until the other two lawsuits are adjudicated.
“Staying this appeal until resolution in the Land Court of this critical island-wide issue would promote judicial efficiency, avoid the risk of inconsistent outcomes, and conserve the resources of the parties and the [housing appeals committee],” Mr. Landsman wrote in a motion from December.
Developers have tried to check the Martha’s Vineyard Commission’s powers in the past. A similar challenge came in 2002 from a developer who 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 superseded 40B, cementing the commission’s right to review affordable housing projects.
The housing appeals committee said that decision is not “binding precedent” though, and stated that the committee and the Supreme Judicial Court of Massachusetts has consistently interpreted the term “local board” broadly in order to adhere to the policy objectives of Chapter 40B.
“The purpose of Chapter 40B is to eliminate both substantive and procedural barriers to building affordable housing,” the committee panel wrote. “If the MVC is not a local board subject to the Committee’s jurisdiction, then the result is that the MVC may wield its own procedures and veto power to thwart statewide affordable housing goals, which is exactly the type of procedural barrier the Legislature sought to avoid in enacting Chapter 40B.”
Former Martha’s Vineyard Commissioner Fred Hancock, who stepped away from the commission in 2024 after 15 years of service, said he found the housing appeals committee to be a creature of the 40B process and it often favors developers in its decisions.
“The [housing appeals committee] was certainly generous to the developers,” he said. “Ruling that the MVC was a local board and granting constructive approval of the project. I hope the SJC rules otherwise.”
Related documents:
Edgartown Gardens Housing Appeals Committee Decision
This article appears in April 24, 2026.
Thank you, Mr. Cummings for standing up for our community. The chokehold, the MVC has had on it has done nothing but exacerbate affordability issues.
I find it interesting from a psychological point of view what islanders think about affordable housing and this project. On the one hand, we all know that there is a housing crisis that affects low and medium income people to the point where it is undeniable. On the other hand every time a developer comes to get a 40B project approved it is denied by the MVC. The exception is IHT which gets approved almost every time because their projects are mostly, if not all, for 100% affordable apartments/houses in their projects. To do this they require outside money due to the cost of building. Where does this money come from? Donations and tax money. Now comes a developer who does not get any of that money and all of a sudden the project is too large and/or the developer is greedy (developers of 40B are limited to 25% profit) and the MVC has shut down plenty of those 40B projects despite Mass law that says until you have 10% affordability in your town, you are subject to 40B. The current Mass administration has put affordable housing to the top of their priority and property owners have been given permission to build ADU’s (accessory dwelling units) in order to help to make Mass more affordable. The bottom line is that at least on some level Mass politicians understand if you allow the increase of supply it will eventually exceed demand and the price will come down. That philosophy will take a long time here because of the MVC and other restrictive zoning, but Edgartown Gardens if ultimately approved by the SJC (Supreme Judicial Court) will start to whittle the imbalance down. So, my question is does the Vineyard want attainable housing for the low and middle? Or, do they want to preserve the Island as it is? Can’t have both, pick one, let me know in the comments or maybe you have an alternative.
Your last 3 sentences are the crux of the matter. I completely agree you can’t have both. If you want to preserve the character of the island, we need to stress conservation more and affordable housing less. That would mean whittling down the year round population (a fast speed ferry for workers would help with the labor shortage). If we simply do not care about the character of the island, then build it out. Build high-rises and become like some of the formerly great destinations in Europe that are now overrun (Santorini comes to mind). It sure seems to me we are at that point where the decision needs to be made.
If we built enough affordable housing to house all that currently need it (no idea what that number is), I can guarantee what happens next: in 5 years we will be right back at it as more folks will descend on the island in hopes of snagging affordable housing. The Vineyard is expensive and for many, a tough place to make a living. And it’s an island.
Be careful of what you wish for. It might help to take a long look at what has happened at other resort communities regarding affordable housing. Our nearby Colorado resort has been in the forefront of approving and even building affordable housing since the 1970s. The local housing authority currently oversees over 3,000 deed-restricted, rent-controlled units for local employees! A thousand or so such units seemed sufficient back in the 1990s. Yes, it seems they have created a monster because there never seems to be enough. A new project of another 300 plus units has just broken ground. So, it appears that if you build it they will come…and stay. In our local case, once the employees retire, they ale allowed to stay. Certainly the Vineyard needs affordable housing but how much is enough? No one locally can tell you, even after all these years. Just some food for thought.
Affordable housing projects have never solved an affordable housing problem anywhere on this planet! More people simply creates more demand for services, which creates more demand for more affordable housing for service providers. It is a “tragedy of the commons” in that an artificial market is created for those who want to live in a place by personal choice, but want others to foot the billl. You can develop all of MV and will NEVER reach an affordability endpoint.
This is what happens when our local planning boards and even MVC have regrettably fallen asleep at the wheel. This was always coming when the SHI of Edgartown is 4.47% of the 10% threshold. We have been talking about the “housing crisis” SINCE 1974 and 52 years later what’s been done? Too little too late and I applaud our housing committee in Edgartown and planning board, but even with latest efforts and exciting new affordable housing projects in progress, the problem is for 52 years since the MVC was founded, a true housing solution was never established. I’m sorry but relying on IHT (a non profit) is not a viable long-term solution. Frankly, Mr. Cummings is going to have his breakfast, lunch and dinner and I’m not upset about it. Rather I’m asking us all to actually step back and examine how we got here. It’s not the developers fault to fill in the missing 5.53% of SHI housing. It’s our fault for thinking the MVC is impermeable and that housing as an issue would simply fade away. “WE” caused this and it’s time to wake up and get both hands on the wheel.
Even if this ruling holds up, and the MVC loses its “veto power” over a development, it can still conduct a full review, have a vote, and send its findings to the relevant town zoning board. These findings would be only”advisory” but a town would be in a difficult position to approve a development with strong negative findings by the MVC.
This is so sad to read this as these developers at one time loved the Island of Marthas Vineyard and Edgartown in particular and to see what they’re now forcing on the Islanders is just a shame. Greed is certainly a disease these developers have and does not look like there’s a cure for it. The Island spends several million dollars a year to run the Martha’s Vineyard Commission and if they do not have a say in these projects, we need to seriously think about scaling back the MVC. It has already got to a point where it’s questionable we get our moneys worth from funding the commission.
So building homes for the middle class (teachers, firemen, EMTs, librarians, police officers, carpenters, reporters, etc) to live on our island is a sign of greed? I’m not following at all what you’re saying.
Building for the middle class sounds great, but it actually does not work. Look at the island of Manhattan. It has subways, trains, bridges, and tunnels for a reason — middle class workers commute there. Supply/demand should be followed in an unfettered market. One can pave over the entire Island and one will NEVER satiate the “demand” of affordable housing. If you can afford to live here, fine, but one is not forced to work here. If you cannot afford to live here, commute. Alternatively, there are many places on the mainland that pay great salaries without the need for an artificial affordable housing market / lottery system. Affordable housing turns the Island into Anyplace, USA with ugly garden apartment complexes.
So many of us make too much to qualify for affordable housing yet can’t afford $4,000 per month. Schocker.
OK, Yes… let’s fill-in the 5.53 gap and get current with SHI yet, WHY AT THIS LOCATION?
After kicking this can for 52 years, We have now seemingly lost control of the “when” …yet have we also, truly lost control of the “where”? WHAT EVER HAPPENED TO HOME-RULE and what the town wants “where” ? and in which location?
The darn thing should become an over-flow parking lot, we need it.
I can already see the line into Edgartown forming now…We can ALL start to que-up at the end of the line on the EDG-VH Road starting at the NAVIGATOR HOME mega-plex and wonder…GEEZ!…how did this happen, this is horrible!
Just build it and stop whining
Regardless of the fate of the MVC, this specific development is a horrible idea for the greater, long-term prospects and ‘feel’ of the island. I support profit motive, but the short-term money grab associated with this (let’s be clear, that’s what the developers are after, and the affordable housing angle is just their mechanism to try and jam this on the island) is borderline shameful. If the MVC is pushed aside, let’s hope that its strong caution to the town board, combined with meaningful public outcry, are able to intervene.
MVC is a total money grab…. all the big salaries and staff. Towns should be able to handle their own affairs….
Does anyone else see the hypocrisy in this development filed under the “40-B” statute? This is not an “affordable housing” development when only 13 of the proposed 57 units will be marketed as such. The remaining 44 units will all be offered at “market rate” – hardly affordable to islanders. Amazing how the state allows for developers to build such a monstrosity under the guise of 40-B when such a small percentage of the units will actually qualify as affordable.
John, edgartown will get to count all 57 units towards their “affordable” units percentages. Yes 13 will be truly affordable. The full price units subsidize the “truly affordable” units.
Absolutely, John. It’s laughable to call this particular project “affordable housing”. Anyone who knows the Island should also have deep concerns about traffic implications at that particular and currently awful traffic-wise juncture at the triangle. The MV Commission for all its flaws has worked diligently to ensure the island doesn’t become certain parts of “stripmall land” like the Cape. I actually wish it had more teeth. For example, Boston does a v good job of making developers commit to community benefits when they develop–creations of Parks, donations to cultural organizations, service orgs, landscaping, streetscaping, placemaking initiatives, even building whole T stations! These are important benefits that should be extracted from developers –not as punishment but to ensure they are giving back to a place–Martha’s Vineyard –they rightfully perceive to gain economic benefit from. They are regulated then to become civic contributors to the place they benefit from, and to a place they should see themselves to have a vested interest in. MV should have the same standards of community benefits and linkage albeit the scale of contribution would obviously be different, and based on scale of project proposed.
If the last square foot of Martha’s Vineyard was developed for affordable housing, there would still be an affordable housing “crisis”. The more you build on the Island — any island really — the more “need” there is for affordable housing. The only way for MV to combat a worker “shortage” (created by the circular demand for affordable housing) is to maintain adequate commuting options to/from the Cape. Building more and more affordable housing does not solve any problem, nor does it help the industries that do provide the Island with income. Tourists do not come here to see ugly affordable housing developments surrounded by parking lots — they can see that in any MA suburb. Keep building, and the Island and its character are gone forever.
Just elect the members of the ZBA from former MVC a members!
I’m all for affordable housing for teachers, police, firefighters, people in the building trades, etc. The problem is not the housing, it’s the location of these two proposed developments.
The Edgartown Project will make traffic at the triangle, which is already a nightmare in summer, even worse. And the Oak Bluffs development, which is huge, it located in an area of island, congestion near the high school, YMCA, ice rink, rollerblade park, and MV Community Services. Why can’t developers locate these projects away from our densely populated areas?
In my opinion the only two significant things coming out of this current administrative structure, which are, the lawyers involved continue to profit and the cost of building anything keep getting more insane because of the always increasing number of hurdles required to do anything. It’s a false narrative to say our current system is looking after the best interests of the vast majority of full time island residents, this is simply incorrect and morally wrong.
The islands character has been gone for years
The concept of affordable housing sounds nice and the right thing to do. It isn’t either. If you can’t afford to live here, leave. If the level of services don’t meet your mainland existence leave or don’t buy here. If your business can’t be successful due to a labor shortage, leave the island. An island is a special place and is unique. It is not for everyone, in fact, not for most. If we attempt to make the island perfect for all, we make terrible for everyone.
This whole argument stems from the intolerable creep of authority the MVC has exercised over the island during the last two decades. There is an undercurrent of hostility from the MVC against anyone with new money without a direct connection to the island. Conspicuous consumption has been a hallmark of American exceptionalism since our founding.
It’s unfortunate that the gazette can’t require commenters to articles like this to have at least a slight understanding of what they’re talking about. Most of these commenters have absolutely zero knowledge of how the commission operates and why this particular project was denied. It was denied because it was a really lousy project. Also 40 B is a really crappy law that provides a guaranteed return on investment for developers and very few actual affordable housing units.
“If you can’t afford to live here, leave”. Wow. So who, exactly, will provide the necessary services for those privileged enough to “afford to live here”? And can you afford it because you bought a home or your family bought land before the real estate went market went insane? Could YOU afford to live here if you weren’t the recipient of an affordable market and low interest rates? If YOU actually had to buy a home today, could YOU “afford to live here” now? People need affordable, stable housing if a community is to thrive. I can’t tell you how many people I hear complain that they can’t fine a plumber, electrician, HVAC contractor, Veterinarian, primary care physician, sports coach, etc… And it’s not greedy to want a return on your investment. How many of you will sell your homes for what you purchased it for back in the day?? Is it greedy of you to make 10X what you paid for it?
RIP…….MVC, can’t happen soon enough.