Martha's Vineyard towns push for change at MVC
Photo by Steve Myrick
This month, the Martha's Vineyard Commission began a review of the ways developments of regional impact (DRI) come before the powerful regional planning and regulatory agency. The review of the DRI checklist, the document that determines what triggers a review, happens every two years.
This year, local town officials will be more involved than ever in that review. The three down-Island towns are coordinating their efforts to modify the DRI checklist.
Criticism of the MVC by local elected officials and business interests has escalated in recent years. Increasingly, town officials question whether commercial projects that trigger a DRI review have significant regional impact that warrants such review. And they question whether requirements such as traffic studies and architectural changes unfairly burden applicants with increased costs and delayed projects.
"We will have a discussion with our planning board, building inspector, and zoning board of appeals," Oak Bluffs town administrator Michael Dutton said. "We'll go through the entire checklist, and talk about the overall philosophy on how DRI are triggered, and who does the referral. We'll come to a consensus and present something well thought out.
"I don't see this as a confrontational discussion, I think it's a very practical discussion about what kind of things should happen."
The 1974 legislation that created the MVC gives the commission exceptional powers. Its decisions have never been overturned by a court. The commission has broad authority to regulate commercial development.
"The purpose of the commission created by this act," the enabling legislation says, "shall be to further protect the health, safety and general welfare of island residents and visitors by preserving and conserving for the enjoyment of present and future generations the unique natural, historical, ecological, scientific, and cultural values of Martha's Vineyard which contribute to public enjoyment, inspiration and scientific study, by protecting these values from development and uses which would impair them, and by promoting the enhancement of sound local economies."
Protecting the cultural values of Martha's Vineyard, while promoting sound local economies is a charge the commission must weigh carefully when considering the probable benefits of a project, against the probable detriments.
"That's the balance we're always seeking to achieve, in any application," Mark London, executive director, MVC, said. "If the commission was only looking at environmental protection concerns, then almost all development projects would not be approved. It's because of this dual mandate that virtually every project does get approved."
Mr. Dutton said the legislation sets out responsibilities that are often contradictory. He and others have called for a review of the legislation, to further reflect changes in the Island more than 40 years after the state-elected officials enacted the legislation.
"Anybody who is contemplating opening a business probably should be encouraged," Mr. Dutton said. "But even the perception of having to go through an extra regulatory process which could take up to six months, is going to have a dampening effect."
Mr. London says over the years, MVC review made the vast majority of projects better.
"It's hard to know what projects don't get off the ground and whether they were good projects or not," Mr. London said. "It might well be the projects that don't get going are the ones that would have difficulty in the review process, either at the commission or at the town level."
On January 11, the commission began its formal review of the DRI checklist at a meeting of the land use planning committee. The subcommittee invited town officials to the session. The committee intends to work on the checklist during its first scheduled meeting of each month. The committee meets most Mondays at 5:30 pm.
"We would like the checklist to be in some way reflective of community concerns," Doug Sederholm of Chilmark, the committee chairman said. "We want to make it more clear, more relevant, and make sure we're not missing things."
Linda Sibley, of West Tisbury, is the longest-serving member of the MVC. She said the DRI checklist is difficult for most town officials to understand.
"It's hard to read the checklist," Ms. Sibley said. "It takes extraordinary patience just to read it. I suspect the only people on the Island who are really familiar with it are the building inspectors."
Edgartown selectman Michael Donaroma, a former chairman of the MVC, advocated loosening the triggers for a DRI review, including the 2,000-square foot size threshold, which sometimes mandates a review.
"I think the commission tends to scare the little guy away sometimes," Mr. Donaroma said. "If you have a 2,000-square foot business, you have to go through the fear of the commission, the extra cost of the commission.
"I'm not here to promote more parking, more traffic, more congestion, but maybe there's a way to loosen up."
Ann Floyd, spoke about the expense developers must bear to comply with MVC conditions. In 1999, the MVC approved her plan to subdivide the 57-acre Tom's Neck Farm on Chappaquiddick into nine building lots and 31 acres of common area. Among the conditions imposed in the decision was a requirement for an intensive archaeological survey.
Ms. Floyd said that survey cost her close to $100,000, and because historically significant artifacts were found, the Massachusetts Historical Commission now requires data recovery that could cost $750,000.
She said much of Martha's Vineyard, including the land on either side of her development, does not face the same requirements.
"That's unconscionable," Ms. Floyd said. "I know they had as many or more items of archaeological significance. There's a real imbalance. There's something wrong with this. This is not okay, this is criminal."
While some advocated loosening the DRI checklist, there was considerable support, at the January 11 meeting, for tightening regulation beyond the MVC's current mandate. The Vineyard Conservation Society (VCS) advocates new regulation of large private residences, or any residence within 100 feet of a scenic road.
"McMansions," Bruce Rosinoff, a VCS director, said. "It's gotten to a ridiculous extent. I know it's something the commission has tried to stay away from. It's a slippery slope, but the time is right to take a look at this. Probably everyone in this room has seen the gigantic house on Sengekontacket with the stone revetment. That's an insult to the Vineyard. It's a slap in the face to anyone concerned with conservation."
Former Oak Bluffs selectman Kerry Scott also voiced support for the commission's role in reviewing controversial projects.
"You saved us many times" Ms. Scott said. "You have powers we don't have. Summer residents and non-voting taxpayers understand that the MVC gives them equal status with voters. I love the DRI process."
Time and money
Applicants express frustration at the long regulatory process of committee meetings, hearings, revisions, deliberation, and a final decision.
A project planned for Upper Main Street in Edgartown took nearly 11 months to get MVC approval.
Jayne Steide and Melissa Montession proposed to tear down the existing one-story building that houses the Wave Lengths salon, according to the MVC staff report. They wanted to build a new three-story mixed-use building and another three-story condominium building on the property.
The Edgartown planning board referred the project to the MVC on January 13, 2010, under DRI trigger 3.301b, that requires review of new mixed-use construction totaling 2,000-square feet or more.
A public hearing began on April 1, 2010, and the commission continued it three times. The commission held the final session on November 4. Over the course of the process, the applicants revised their plan several times, reducing the size of the buildings, and added surface parking and garages for the residences.
Project manager Colin Jones said the process was long and expensive, but resulted in an improved proposal.
"The points they brought up were relevant," Mr. Jones said. "In the end, we have a better project. It was a pretty positive experience. I find myself pretty shocked to say that."
Mr. Jones questioned the regional impact of the business, whether it would affect residents or businesses in other towns. He said the MVC review added "tens of thousands of dollars" to the cost of the project.
"This has been financially taxing for the business owners," Mr. Jones said.
The MVC required the applicant to pay for a traffic study.
"That was one thing I found a little negative," Mr. Jones said. "It was done by someone off-Island, who it seemed to me doesn't really have a grasp on what's going on here, in a resort community that has 60 days of busy time, and the rest of the year traffic is not that big an issue."
The final decision included seven conditions, all offered by the applicant, covering landscaping, lighting, wastewater, and energy. Also among the conditions was an easement requirement, and a $10,158 donation for affordable housing. The project is now before the Edgartown planning board.
Corners and conditions
While the MVC rarely rejects a project, the conditions imposed sometimes cause the applicants to abandon a development.
According to the MVC staff report, applicants Bryan Nelson and Kenneth Bettenhauser intended to buy a small lot at 6 Water Street, demolish a dilapidated two-story house on the lot, and replace it with a three-story building with office space and housing for employees of their auto-rental business.
The Tisbury zoning board of appeals referred the project to the MVC based on section 3.101e of the DRI checklist. That section triggers a review if the project would change the use, or intensity of use of the existing structure. Though the applicants were adding employee housing, the auto-rental business was a change of use only by a matter of inches. They already operated the auto-rental business on the tiny adjacent lot, which they rented from its owner.
According to the MVC's written decision, the applicants offered a number of restrictions voluntarily, including several restrictions aimed at mitigating any traffic concerns, specific building design factors, and exterior lighting restrictions. The last of seven conditions in the MVC's written decision was a requirement for a 10-foot wide dormant easement along the edge of the property, "allowing for the possible future relocation of the curb cut and driveway."
That requirement, according to Tisbury selectman Jeff Kristal, made the purchase of the property untenable for the applicants. They never completed the purchase, and never began the project.
"They were going to be cleaning up a rough area," Mr. Kristal said. "They were bringing an investment to the town of more than $1 million. We were going to be getting more taxes. They (the MVC) put conditions on it that killed their project. That was already after they spent considerable money."
Form and function halls
Oak Bluffs businessman Mark Wallace wants to turn the former Dreamland Ballroom on Oak Bluffs Avenue, into a function hall and nightclub, according to the MVC staff report. The building currently houses the Ocean Club and an auto-rental business. The town selectmen referred the project to the commission under DRI checklist trigger 3.1g, that regulates an increase in intensity of use.
Mr. Wallace has all the necessary permits to serve alcohol, but needs an entertainment permit from the town. He disputes that his project is an increase in intensity, noting that the space was used as an arcade, a ballroom, and a roller rink at various times over the past 100 years. He said the town handles hundreds of people and vehicles arriving on Steamship Authority ferry four times each day at the height of the summer, and manages thousands of revelers enjoying clubs and restaurants in the downtown business area.
He also questions whether the project has any regional impact. The key issues listed in the staff report refer to no town other than Oak Bluffs.
"Can downtown Oak Bluffs accommodate the parking needs of a function hall/night club with a capacity of 500 or more?" the report asks. "What flow will the Oak Bluffs Wastewater Commission allow? How will the second floor be made handicapped-accessible?"
After three meetings with the commission's land use planning committee, Mr. Wallace put the project on hold. He must now decide whether to continue.
"I could go to the commission tomorrow and take my best shot," Mr. Wallace said. "Once someone sends you to the commission, you're dead in the water until they deal with it. I'm genuinely apprehensive because I don't know what conditions they can dream up."
Mr. Wallace said he is carrying a mortgage on the building, with no way to generate income from 6,400-square feet of space.
"We've gone through several difficult years," Mr. Wallace said. "They act like we're immune to that, that it doesn't matter. It costs me a lot of money to not use the property."
This article has been revised to reflect the following correction:
January 25, 2011
An earlier version misidentified the project manager for the Wave Lengths Salon project as Colin Jones. The project manager is Colin Young. Also, according to the MVC staff report, the proposal calls for the present salon building to be removed, not demolished.