Chilmark counsel suggests defensible big house regulation

Ralph Stewart

Ron Rappaport, the Chilmark town counsel, told the town planning board that big houses can be regulated by the town, if the rules are carefully written. He suggested that the best way to do it may be to build the rules into the Martha’s Vineyard Commission (MVC) regulations for districts of critical planning concern, several of which govern development in parts or all of Chilmark.

Mr. Rappaport’s suggested approach, expressed orally to the planners on October 22, in response to their questions, would take advantage of the enhanced power vested in the MVC by state legislation that created its land use regulatory authority in 1974. Using the MVC would accomplish several goals, Mr. Rappaport explained. It would furnish a complete, tested, and accepted legal foundation for rules that are intended to protect the Vineyard from unwanted development. The district of critical planning concern designations are built upon such a foundation.

It would allow a more aggressive approach to house size regulation than is now permitted by state law to planning boards by themselves. It would allow rules that set a threshold cap on building size, triggering a review by a special committee that the planners could devise. Zoning law now allows special permit review only by the selectmen, the planning board, or the zoning board of appeals.

And, legal challenges against decisions made pursuant to the big house rules almost certainly will include the MVC as a defendant, a financial help to a small town with a small legal budget, as well as an umbrella organization that has repeatedly enjoyed deference from the courts in the exercise of its super-zoning powers.

The planning board and a subcommittee established for the purpose has for eight months or so investigatead ways by which it might cap the size of houses in Chilmark. The planners have created several drafts of a possible rule [see Chilmark planning board seeks cap on house size, July 25].

A July 25 draft of the proposal would subject all planned houses of more than 3,500 square feet to a site review by a town committee. The location of the lot, the height of the house, visibility and energy efficiency would all be reviewed by the committee, which would work from a checklist of seven questions.

The questions include: Is the project far more than 20 percent greater than the median of all other residential developments in the same district? Is the house visible from public areas (roads, waterways, conservation land)? Does the project include the clearing/disturbing of more than one acre? And is the project lacking “stretch” energy conservation measures?

A yes to any of the questions would refer the project to the zoning board of appeals for a special permit.

“The zoning board of appeals shall consider the same issues,” according to the draft. “This review shall be in more depth, with some estimates of the degree of impacts.”

Mr. Rappaport said, in response to the questions the planners posed and with the latest proposed draft rules in front of him, that he had conducted extensive research of pertinent case law, he spoke with town counsels in towns that have such rules, he discussed the issue with leaders of the Cape Cod Commission, a sort of spawn of the MVC, and he polled town counsels statewide and spoke with many of them. The result of the poll supported his view, he said, that town zoning cannot restrict the interior floor area of a residential structure.The effect of the rules must be “incidental, not direct,” Mr. Rappaport explained.

But, Mr. Rappaport explained, the court has held that reasonable regulations may be imposed on the structure’s bulk, its height, yard sizes, and setbacks, so that depending on lot size, some limits on house size may result. In most cases, such as in Brookline and in a part of Wellfleet that is within the Cape Cod National Seashore, the lots were relatively small. And, in the latter case, the application of the house size rules inside a national preserve added a measure of defensibility to the rules, much as the creation of rules in Chilmark that are promulgated by the MVC might.

Mr. Rappaport said the imposition of a cap, with special permit review and objective standards could withstand a legal challenge. He said of a rule that capped house size regardless of lot size, “I don’t think so.”

Zoning decision upheld

One of the catalysts for the recent effort to rein in house size was unhappiness with the size of a house overlooking Quitsa Pond. In a meeting on October 23, the Chilmark planning board rejected an appeal by Jill and Kenneth Iscol who asked that the board rescind a building permit, already issued by the town zoning officer, that allowed construction of an accessory structure on neighboring land owned by Adam and Elizabeth Zoia. Lenny Jason, the building and zoning officer had earlier rejected the Iscol request, and the planning board upheld Mr. Jason’s decision.

The Iscols live at 19 Inner Point Way, next to Mr. Zoia. Mr. Iscol has been energetic in his objections to his neighbor’s house.

A wealthy telecommunications businessman, philanthropist, and Democratic fundraiser, Mr. Iscol has accused Mr. Zoia of violations of the Chilmark zoning regulations.

Last year, Mr. Zoia, founder of Glocap Industries in New York, bought the 4.9-acre lot on Quitsa Pond from the Harrison family.

The Iscols had charged that the Zoia construction, which would include a pool, gym, and spa, did not comply with town zoning and building rules. The Iscols also asked the board to have the Zoia buildings measured by an independent authority. Mr. Jason said the Zoia buildings total 10,000 square feet, including the pool-gym-spa, while the Iscols say they think the total is 20,000.

In an OpED published in The Martha’s Vineyard Times of November 1, [Op-Ed : Revised development of regional impact checklist awaits comment] Chris Murphy of Chilmark, chairman of the MVC, and Doug Sederholm, chairman of the land use planning subcommittee, discuss the commission’s consideration of a suggestion from West Tisbury for changes to the MVC’s developments of regional impact checklist, now under review, that would add big houses to the list of checklist thresholds.

“One suggestion made by the West Tisbury planning board, the Vineyard Conservation Society, and a few individuals at last year’s public meetings was that the commission review very large houses,” Mr. Murphy and Mr. Sederholm wrote. “It was argued that such houses could have significant regional impacts with regard to issues such as community character and habitat disruption, and that these proposals are often beyond the purview of town board control. Others argued that these issues are best handled at the town level. The [MVC’s land use planning subcommittee] LUPC has recommended that the MVC not include a mandatory threshold for large residential buildings at this time. However, the LUPC recommends that the Commission indicate to town boards that it is receptive to reviewing discretionary referrals for large house proposals, if a town seeks MVC assistance, as the Commission has done on a few occasions in the past.”