Warning bells sound for the MVC – its authority has limits


The Martha’s Vineyard Commission’s (MVC) review of the checklist triggers that send development projects in the towns to the regional land-use regulatory agency for review is important. The revisions that will be made to the current checklist are important, of course. But more important, more fundamental, is the occasion this review presents to MVC members to reconsider their regulatory mandate.

Two current issues illustrate the need for this reexamination. First, the MVC last week changed course on the matter of Goodale’s Construction Company, which is not an applicant for a permit but which has been referred to the MVC by the town of Oak Bluffs for a development of regional impact review.

The regional impacts of Goodale’s plant may very well be authentic, but the MVC jurisdiction, based as it is upon a request to a town for a development permit of some sort, seems not to apply in this instance. There may indeed be reasons for the town of Oak Bluffs, where Goodale’s operates, or state or federal regulators to examine Goodale’s decades-old gravel mining, concrete, and asphalt businesses, but MVC review is triggered by a permit request to a town, and there is none. In addition, the MVC has no enforcement powers, should there be anything to regulate or enforce about Goodale’s. The MVC’s land-use planning committee has already recommended to the full commission that it turn aside the Oak Bluffs referral. No one should be able to merely decide that a neighbor or business displeases and should be subjected to MVC scrutiny. That’s not the way the law was written.

Although the MVC is often called a super-zoning agency, meaning that it can impose itself where mere municipal regulatory rules would be barred from interfering. It is in fact designed by its creators to be a limited derivative of the towns. That’s why MVC review hinges on a development application to a town. The MVC was not legislated to be a discrete and superior development regulator, but rather an adjunct regulator when regional effects of a development could be plausibly asserted.

So, we come to the second issue. Some interest groups urge the MVC, in its reshaping of its development of regional impact checklist, to add large single family houses to the trigger list. Officers of the Vineyard Conservation Society (VCS), in a letter published this morning, claim, with no supporting arguments, that big houses, undefined, are regionally important. They suggest also that effective regulation is beyond the reach of a single community’s subdivision, building, zoning, and health and safety regulators to manage.

As this page has argued many times, MVC review of any development demands that the proposal’s implications are genuinely regional in nature, that they are demonstrable and quantifiable, and that they are beyond the ability of towns to handle.

As the MVC’s land-use planning committee chairman Doug Sederholm of Chilmark has said, “We wouldn’t put something on the checklist just because people don’t like it. There may be a lot of people who don’t like large houses, there may be some people who love large houses, but that alone is not a reason to put it on the checklist, just because it’s aesthetically displeasing to some of us. We have to look at what some of the regional impacts would be from large houses to decide whether or not they should be reviewed, and what level should trigger it.”

This checklist review is timely, but just as important is a broader review of the MVC’s 1970s-era enabling legislation. The MVC-enabling legislation grants broad discretion over budgets, planning, districts of critical planning concern, and developments of regional impact, but the extent and historic use of that discretion deserve to be reconsidered.

The MVC has not, except in rare instances, reviewed large single-family houses. It will certainly be argued, though not without willfully enlarging the mandate embodied in the law that created the regional agency in 1974, that the commission possesses discretion to encumber the plans of property owners who want big houses. And, there will certainly be arguments that regional impacts from such structures will be immense.

But, what’s also certain is that the measures by which one commissioner or one neighbor judges a proposed house to be too big — 4,000 square feet or 10,000, too obtrusive — it impinges on a view or a familiar landscape, or too architecturally unsuitable to the conventional Island design vocabulary, will be subjective, even whimsical. How genuine, meaningful regional impact is measured is hardly a science, and it’s not an art either.

There are sensible rules that could be applied to very large houses, but they could be imposed by planning boards and town building officials, and for health and safety reasons. For instance, large houses with no handy access to a water supply — say, a pond — could be required to install large underground tanks for firefighters. The builders of such houses could be required to have sprinkler systems, alarm systems, and enhanced surveillance systems, to assist law enforcement and emergency service personnel. The size and maintenance of access roads could be prescribed. Supplementary solar power might be required, or package wastewater treatment plants.

These are simple, practical, — oh, and expensive — requirements that make sense.

What does not make sense is the impulse to add large houses to the MVC development of regional impact review trigger list, because such structures abuse the eye of this beholder or that one.

In a comment that reflects what is beyond question at the heart of this push to add large houses to the checklist, Bruce Rosinoff, a board member of the private, nonprofit Vineyard Conservation Society and a signatory to the letter published today, told MVC committee members, “We’re not trying to be social engineers and start a class warfare here. We’re just saying that these things are outrageously ostentatious in some cases, and we tried to make that case by sending you some examples of that.” (Mr. Rosinoff referred to some photos of large houses that he sent to the MVC.)

Subjectivity like this, or worries like those of Goodale neighbors who are trying to invoke the MVC in a regulatory skirmish, ought to be recognized by MVC members as dangerous attempts to leverage a limited development regulatory agency into something it was never intended to be. This is an occasion for the MVC to exercise thoughtful discretion, in the faithful execution of its legislative mandate.