Oak Bluffs sends Moujabber to MVC

By Susan Vaughn - September 13, 2007

The Oak Bluffs selectmen agreed Tuesday to refer the controversial three-story garage addition built by Joseph G. Moujabber in the North Bluffs district almost four years ago to the Martha's Vineyard Commission as a development of regional impact (DRI).

The selectmen discussed the decision in an executive session before taking the vote in their public meeting on the recommendation of town counsel Ronald Rappaport to "refer the project in its entirety" to the MVC as a DRI, town administrator Michael Dutton said in the public session. He said Mr. Rappaport's recommendation came after he reviewed a letter dated Sept. 7, from Mr. Moujabber's attorney, Michael Vhay, to the town building inspector, Jerry Wiener. Mr. Vhay asked for a new hearing with the Copeland district review board, and a clarification of several items from that board.

A state Superior Court ruling had looked at the Copeland district's decision against Mr. Moujabber and noted some confusion around the district's regulations, Mr. Dutton said Wednesday in clarifying the selectmen's actions. The MVC had designated the Copeland district a district of regional planning concern (DCPC), and the selectmen said in their letter, "The judge's decision raises several questions as to how to apply the Copeland DCPC regulations to the North Bluff area."

The letter to the MVC notes several points Judge Richard T. Moses raised in his ruling regarding the design of Mr. Moujabber's structure. Mr. Vhay asks the commission for guidance on those points, as well as a review of the entire project. The selectmen also stated in the letter that Mr. Moujabber's intention to submit his revised plans to the various town boards "is constructive, but we also believe, given the questions raised by the court, that the town boards would benefit from the commission's review of this project."

"I think the selectmen would be well served to move the referral," Mr. Dutton said. In response to a question from a resident, he said the selectmen's decision would put Mr. Moujabber's request for the Copeland hearing on hold.

Selectmen chairman Kerry Scott commented after the vote, "We've done what we can to protect our interest." No other selectman commented.

The action sets up a possible precedent for the MVC. The Martha's Vineyard Commission has never acted on a private residential development as a DRI, although in the early days of the MVC, some single-family homes went through the DRI review, said Paul Foley, DRI analyst/planner for the MVC, on Wednesday.

Last September, the commission turned down a request to review as a DRI a proposed 15,573-square-foot single-family house proposed by Patricia (Maureen) White and her husband, Steve Rattner, in West Tisbury. The MVC decided not to review the proposal because none of its checklist items applied to it, Mr. Foley said.

Since the Oak Bluffs referral was submitted as a discretionary referral, the MVC has 40 days after receipt of the referral to hold a public hearing to determine whether to designate it as a DRI, Mr. Foley said. It would take a month to six weeks to start the DRI process.

According to the MVC web site, it's enabling legislation authorizes the Commission "to review developments that are either so large or have such significant impacts on their surroundings that they would affect more than one town. Such projects are labeled Developments of Regional Impact. Examples include projects that could have a significant impact on nitrogen-loading in coastal ponds, that could seriously worsen traffic on the Island's major roads, or that could have a notable impact on the Vineyard's scenic values viewed from highly traveled ways or from water bodies."

Mr. Moujabber also filed a notice of appeal with the Massachusetts Land Court last week, in response to the Superior Court ruling last month. The town also filed a notice of appeal in that court, in order to meet the deadline for filing. Neither party has filed a formal appeal of the Superior Court ruling.

Mr. Vhay, contacted at his Boston office before the selectmen's meeting Tuesday, said Mr. Moujabber had filed notice of appeal anticipating the town would appeal the court decision.

Mr. Moujabber's letter to Mr. Wiener requesting the Copeland board hearing was in response to the Superior Court ruling, which ordered the board to conduct a new hearing and more detailed review of Mr. Moujabber's application, Mr. Vhay said.

"My client's goal is to obtain approval of a fair proposal to put an addition onto his house," he said. "We're hoping we can achieve that now that the court's ruling is out there."

Mr. Moujabber's request for the Copeland hearing was intended to start the permit process again, Mr. Vhay said. If the Copeland board gave enough directions, he said, Mr. Moujabber could "revise his plans and come up with something acceptable to everyone."

In the August court ruling, Judge Moses said the structure could be "modifiable and legally usable for its intended use as an addition to the main structure," but he also concluded that the building could ultimately be ordered to be removed or modified. The original building permit allowed replacement of an existing, single-story, garage.

The superior court ruling in August said the ZBA had correctly ruled that the Copeland board had jurisdiction to review the modification permit and the ZBA lacked the authority to do so. Judge Moses also annulled a demolition order by the town building inspector that was upheld by the Oak Bluffs ZBA in April 2005.