Oak Bluffs Planning Board denies Lagoon Ridge special permit

Legality of the decision is unclear after member attending via teleconference disappeared before the final vote.

Lagoon Ridge plans are on hold, at least for now, after a vote of the Oak Bluffs planning board.

Updated Feb. 28

The long fought Battle of Lagoon Ridge is over — maybe.

Initially, it appeared the special permit for Lagoon Ridge, a proposed 23-lot subdivision off Barnes Road, might finally be approved at the Oak Bluffs planning board meeting on Thursday, Feb. 22, ending a five-year permitting gauntlet by landowner/developer Davio Danielson and his attorney Eric Peters.

But after 90 minutes of deliberation, punctuated by moments of contention and confusion, the Oak Bluffs planning board voted 3-1 to approve the permit. However, the majority vote was not sufficient to approve the permit because according to town bylaws, a special permit requires a supermajority, or a minimum of four votes from the five member board.

Board members Brian Packish, Bo Fehl and Mark Crossland voted to approve, with three explicit conditions, drafted by a subcommittee since the board’s last meeting on Feb. 15.

Chairman Ewell Hopkins, after a long, contemplative pause, cast the final and dissenting vote, effectively denying the permit.  

But the legality of the vote remains in question.

Board member Erik Albert, who was in Utah and attending the meeting by teleconference, left the meeting before the final vote. Albert has been one of the most consistent supporters of the development since the board began discussions in December. Albert did not announce that was leaving the proceedings. It was only when Packish checked the connection on the silent phone that he saw a text from Albert, indicating he had to leave.

On Monday, Hopkins told The Times that attorney Michael Goldsmith is in the process of clarifying the legality of the vote.

Goldsmith has advised the board extensively during the Lagoon Ridge permitting process. He would not comment on any specifics to The Times, other than to say that the process is ongoing.

Board member and former board chairman Brian Packish, who corrected several procedural missteps during the meeting, told the The Times the final vote was mishandled.

“After Erik left Ewell should have stopped the meeting and asked the applicant if they wanted to continue with a vote, or continue at a later meeting when we have all five members,” he said. “The process in my opinion was flawed.”  

On Wednesday, Hopkins told The Times that the planning board will meet on Thursday at 5 pm at town hall meeting room, to discuss the legal guidance regarding the decision.

Process or excess?

Irrespective of Albert’s absence, the special permit would have been granted had Hopkins voted in favor. Explaining his dissenting vote to The Times, he said, “There were a lot of factors that caused me to vote the way I did, I’m reluctant to boil my vote down to any one quick point. Overall, I was not confident the purpose of [the flexible zoning] bylaw was being met. It’s a special permit which asks us to look at the greater good and there are certain hurdles one must meet to be considered, and I didn’t feel comfortable those were being met.”

The purpose of the flexible zoning bylaw, also referred to as Section 7.3, is to allow for density development in exchange for the preservation of natural resources and the “traditional New England landscape” and to enhance “open space, forestry and recreational use.” It is also intended to create alternatives to standard subdivisions and to promote the development of housing affordable to low, moderate and median income families, and for Islanders over 55 years old.

Packish sharply disagreed with Hopkins appraisal.

“There’s a fine line between proper process and too much process and we went way past enough,” he said. “In public service we have the responsibility to make sure the neighbors, the concerned citizens, the town as a whole are protected and receive a fair process. We also have that responsibility to the applicant. The applicant, in my opinion, were not given a true and open and fair process.”

A number of significant permitting hurdles had been cleared by developer Danielson in the past eight months. The Martha’s Vineyard Commission approved the project in June, 2016, with significant conditions on wastewater treatment, including stringent measurement and a bond that would ensure emergency repairs to the water treatment system. Subdivision plans call for an Amphidrome system — essentially a self-contained sewage plant, which has never been used on Martha’s Vineyard but is used widely on Cape Cod. The Oak Bluffs board of health reviewed and approved the system for Lagoon Ridge in July.

The yield plan for Lagoon Ridge, which determines how many units could be built under standard zoning, was accepted by the planning board on Jan. 25. It appeared the board might take a final vote at its regular meeting on Feb. 15, but after lengthy deliberation, it unanimously voted 5-0, with all members in the room, to allow a subcommittee — Hopkins, Goldsmith and administrator Kim Leaird — to draft three conditions for the special permit before the ostensible final vote on Feb 22.

One condition was drafted for structural assurances — a guarantee that the six senior housing and three affordable housing lots will remain as such in perpetuity.

The board also sought a more defined buildout schedule, which included incentives to accelerate the building of affordable housing and senior housing.  

The third condition sought for an increased buffer zone in some areas which did not meet the required 50 feet width.

Although there was considerable debate whether the “open space” criteria had been meet under 7.2, a majority of the board voted on Feb. 15 to approve the allocation of open space on the site plan, with Hopkins and Mark Crossland dissenting. Also at that meeting, board of health member Tom Zinno suggested that the planning board consider a lower nitrogen threshold than had already been approved. On Feb. 22, attorney Eric Peters told the board that Danielson had agreed to Zinno’s post-approval request.  At the Feb. 22 meeting, the board voted unanimously to uphold the 50-foot buffer zone around the entire property, for which Danielson sought some relief where the property abuts the Bayes Hill subdivision. Attorney Peters said the vote could necessitate redrawn plans at significant cost to his client but gave no indication it was a deal breaker.

Lagoon Ridge also has its share of detractors. A number abutters have stated that the development will be environmentally destructive and that it will diminish property values in the area. Shellfish constables from Oak Bluffs and Tisbury, members of the Lagoon Pond association and concerned citizens have said that even the smallest amount of additional nitrogen in the Lagoon watershed is too much for the rapidly decaying Lagoon.

Unless the attorney general’s office decides against the board’s final vote, it appears they may have won the battle of Lagoon Ridge.

Subdivision division

An added wrinkle in the Feb. 22 meeting came when chairman Hopkins said he wanted to request “independent verification” of the subdivision guidelines by an engineer, to be hired by Danielson.

The subdivision application — Form C — is separate from the special permit under section 7.3.

At the meeting, Packish said he thought the request was excessive and ill-timed. “We’ve had this application since December. There’s no reason to condition this now,” he said. “The applicant worked hard to meet all demands and the bar was consistently raised for him as the process went on.”

Explaining his request to The Times on Monday, Hopkins said, “As I uncovered the complexity of the application, I saw it was appropriate to have that kind of verification, and not to rely exclusively on the information supplied by the applicant. I don’t see it as another bite of the apple.”

Packish again disagreed.

“On the final night, we’re going to postpone the whole thing again?” he said. “And we’re telling them to hire an engineer to take the whole thing apart and that it needs subdivision control, after four months? At the end of the day there’s people who want those three affordable lots. At the end of the day, there’s people who want those six over-55 lots, there’s people that need homes in our town. We need to expand the tax base, we need to connect the water through so Vineyard Hills has a better flow. That’s part of our responsibility, too. At some point you owe the applicant a vote.”

The board will deliberate and possibly vote on the Form C subdivision application on March 15, assuming Danielson does not change course with his plans.

Danielson is abroad and not reachable for comment.

In an email to The Times, attorney Peters wrote, “The board’s actions have denied Mr. Danielson his rights to due process under General Laws c. 40A, §9 and pulled the rug from under an innovative and environmentally sensitive subdivision with many public benefits that has been under four years of regulatory review and twice approved by the Martha’s Vineyard Commission, and also approved by the Oak Bluffs Board of Health and the Natural Heritage and Endangered Species Program of the Massachusetts Division of Fisheries & Wildlife.”

Updated to include meeting scheduled for Thursday, March 1.