The Edgartown planning board erred when it approved a plan by Michael Kidder to build a nine-home residential development off Mullen Way. As a result, Mr. Kidder, who won unanimous approval from the Edgartown planning board on Jan. 19, intends to withdraw his application for that development, and submit a modified proposal.
At a special meeting on Jan. 29, the planning board, on the advice of town counsel Ron Rappaport, voted to rescind its approval and refer the plan to the Martha’s Vineyard Commission (MVC).
Mr. Kidder, doing business as MRK, LLC, wanted to divide his land into nine house lots and one open-space lot. But in a letter to the planning board following its approval, MVC executive director Mark London told the planning board that the project triggered a mandatory referral and mandatory review before the MVC as a 10-lot subdivision.
“It is in everyone’s interest, including that of the landowner, to ensure that all required review and approval procedures are followed in order to avoid any unnecessary delays in the permitting of the proposal and any challenges to such permits, as well as any issues that may arise in the event of future sales such as any cloud on the title or inability to obtain financing from a lending institution due to legal difficulties,” Mr. London said in a letter to the planning board.
The planning board asked Mr. Rappaport for his opinion, and he agreed that referral is mandatory, and the board erred in approving the plan.
“It is my opinion that the MRK plan constitutes a mandatory referral to the MVC, and that the board should have referred the matter to the MVC in the first instance before taking action,” Mr. Rappaport wrote in a letter advising the planning board. “When a subdivision shows 10 or more lots, the board has no discretion on whether to refer the development to the MVC.”
The issue was discussed in the Jan. 13 meeting. Attorney Ellen Kaplan, who represented a group of Mullen Way residents opposed to the development, argued that the plan required referral to the MVC, because the MVC defines a parcel as any lot, whether buildable or not. Planning board chairman Fred Mascolo said the board considered the development a nine-lot plan because there were only nine houses, and that it did not require review as a development of regional impact (DRI).
In his letter to the board, Mr. Rappaport said two other MVC regulations appear to trigger a mandatory referral. Both of those “DRI triggers” involve subdivision of land designated as priority habitat by the Massachusetts Natural Heritage and Endangered Species Program. Most of the 7.1-acre parcel Mr. Kidder wants to develop lies within priority habitat. While the MVC rules say the plan must be referred to the commission, the MVC has discretion with referrals involving priority habitat, to review the plan or decide it does not need review.