MVC may choose to extend its regulatory reach

By Janet Hefler - August 31, 2006

In what could be a series of precedent-setting decisions, the Martha's Vineyard Commission (MVC) next week will consider designating the construction of a large house in West Tisbury a Development of Regional Impact (DRI) and naming an Edgartown neighborhood a District of Critical Planning Concern (DCPC).

The MVC will hold a public hearing Thursday at 7:30 pm to review the DCPC nomination of the Mullen Way neighborhood in Edgartown consisting of a narrow, dead-end street off Pease's Point Way and approximately 12 bungalow-style homes built in the 1920s and 30s. Up until now, the DCPC designation has only been used to apply a superseding set of regulations over larger geographical areas of Martha's Vineyard.

On the same evening, the MVC is scheduled to decide whether to review a West Tisbury seasonal homeowner's plans to build a 15,575-square-foot house on his 30-acre north shore property as a DRI.

Up until now the MVC has never applied the DRI designation to any single-family dwelling. Such a designation would allow the MVC to impose conditions and restrictions above and beyond those imposed by local town zoning bylaws.

A neighborhood DCPC

The MVC's enabling legislation provides the land use regulatory body with broad powers that include the DCPC designation. Once a district is nominated as a DCPC, the proposal goes to an MVC public hearing and a commission vote on whether to formally designate the district. Once the district is designated, a 12-month moratorium goes into effect to accommodate commission planning efforts for the property. Regulations to cover the district are formulated during this period as well, which must be approved by a town vote.

Last year, a group of developers proposed to build nine luxury homes on a parcel accessed by Mullen Way. The residents objected and although the development was under the MVC's review threshold, town officials asked the MVC to accept it for review as a DRI. At that point the developers decided to withdraw the project.

Still concerned about eventual development, the neighbors decided to pursue a DCPC nomination. In July, the MVC unanimously approved the Mullen Way DCPC nomination, the first step towards eventual designation.

The DCPC designation allows for the imposition of a layer of regulatory control above and beyond that which exists at the town level. The possibility of widening the scope of DCPCs to include neighborhoods is something that Michael Donaroma, an Edgartown selectman and former MVC commissioner and chairman, said scares him.

"I think that where it will end is everybody who has a bungalow or a little Cape on a street and already has what they want will try to put a freeze on everybody else," Mr. Donaroma said. "It will instantly devalue anybody's property who has kept their house in its existing condition for all these years. All that's left for them to do is keep it as a bungalow."

With existing bylaws, zoning, and special permits, neighborhood DCPCs aren't necessary, Mr. Donaroma pointed out. "The main thing I hope the commission thinks about is that the system works - why fix it?" he said. "The development near Mullen Way was considered too big for that little street. It got sent by the planning board with the support of the selectmen to the MVC, and the project is not going to happen."

Ron Mechur, who served as MVC executive director from 1976 to 1979, agrees that existing regulations should be considered first. "Are the general laws of the Commonwealth inadequate to protect Mullen Way? I don't think so," he said. "What have the townspeople done to make sure the area is protected? One possibility would be to extend the historic district."

Mr. Mechur recalled that when the MVC first started, the commissioners had to review 101 nominations for DCPCs. They whittled those down to seven that they accepted, which cover areas across the entire Island. The initial idea for a DCPC was to protect broad geographical areas, not streets, he said.

"It will be interesting to see if the MVC gets flooded with 40 nominations for streets," said Mr. Mechur. "Five or ten years from now, we might as well have designated everything as was proposed with the 101 nominations. We're doing it anyway."

To justify a DCPC designation for the Mullen Way neighborhood, the commission must find that there is a regional need for special regulations or planning to protect the area from damage or losses by inappropriate development.

In MVC staff notes prepared for next week's hearing, DCPC Coordinator Jo-Ann Taylor wrote, "It may be difficult for the Commission to find that damage to this small neighborhood by itself would be a loss to the region or to two or more towns."

She suggested as a possible option that the MVC might designate Mullen Way as the first neighborhood in a new "Special Neighborhoods District" that could be expanded to include several others, Island-wide. Alternatively, the MVC might add Mullen Way to the existing Island-wide Special Places District that includes 29 small sites (such as Sampson's Hill in Edgartown) in all towns except Tisbury.

Rattner Subdivision

The issue of so-called trophy houses has dogged the Vineyard for years. Although the definition is subjective, and generally applied to large houses, efforts to restrict what people may do on their property within the limits of existing town zoning have generally been resisted as an infringement of property rights.

That has until now included referring individual houses to the MVC as a DRI.

On July 28, Steve Rattner and his wife Patricia (Maureen) White applied to the West Tisbury planning board for two separate building permit applications to move an existing 3,300-square-foot house to an adjacent lot, and to build a new 12,700-square-foot home (15,575 gross square feet including porches and basement) on the site of the existing house.

On Aug. 10, the West Tisbury planning board referred both projects to the MVC as DRIs.

The MVC had approved the couple's subdivision of their property off Indian Hill Road in West Tisbury into two parcels, nine acres and 21.63 acres, as a DRI proposal in 1990.

In a letter to the MVC on behalf of the West Tisbury planning board, chairman Murray Frank cited several questions from the DRI checklist that he said substantiated the request for the project's review, including regional impacts such as electricity use, possible disturbance of a wetland or vernal pool, and increased traffic during construction. In addition, the property contains a Native American burial ground.

The MVC's land use planning committee (LUPC) voted on Aug. 21 to recommend that the full commission review the housing project as a DRI. Ms. White and Mr. Rattner questioned the timeliness of the West Tisbury planning board's referral to the MVC at this time, given that they began the permitting process for their project more than three years ago and have been before the planning board and town conservation commission twice.

Moreover, other large-scale homes on the Island have not been subject to the same scrutiny. For example, construction currently is underway on two houses, a guesthouse, and a pool house totaling 21,200 square feet on two lots on West Chop owned by James Ferraro, a lawyer from Miami. Although the project required permits from Tisbury's zoning board of appeals, the planning board, and building department, it stirred little public debate.

While opposition to large houses on the Vineyard is not new, there are no specific bylaws among the Island towns regulating total house size. Typical building and zoning bylaws restrict height, setbacks, and septic requirements. State law does not allow specific restrictions on the interior of a single-family residential building.

Although the MVC's DCPC regulations allow for some restrictions, there is no specific DRI trigger for large houses.