Oak Bluffs Planning Board deliberates under threat of litigation

The board and property owners are at odds over efforts to amend a special permit issued in 2004 for the Southern Woodlands subdivision.

Michael Cummo

The decade-long saga of a Southern Woodlands subdivision, the remnant of the never-completed Down Island Golf Club, added another colorful chapter last Thursday when the Oak Bluffs Planning Board (OBPB) and attorneys for the property stakeholders met for a third time. At issue is the validity of the special permit for the 26-lot subdivision off County Road named the Preserve at the Woodlands.

The action heated up before the meeting began. As she had prior to the July 9 OBPB meeting, Michelle Manners, attorney for NLP Finance, sellers of the $5.15 million note on the property, threatened legal action if the board rescinded the special permit issued to former owner Corey Kupersmith in 2004. Ms. Manners stated that she would sue the board and individual board members if they employed “such a draconian maneuver to achieve [their] goals.”

Ms. Manners also presented a copy of a letter to the board addressed to Attorney General Maura Healey in which she sought an advisory opinion. Ms. Manners told the Attorney General the permit has not lapsed, and that the board was acting “on a pretext solely for the purpose of gaining a more favorable affordable housing contribution than originally agreed to by the planning board.” She said that the matter has ”broad impact across the Commonwealth.”  In an email to The Times of Wednesday, July 29, Ms. Manners said she’d received no response from the Attorney General’s office.

As Thursday night’s meeting closed, Ms. Manners informed the OBPB that she had also received an email from the bankruptcy trustee, who was also threatening litigation if the board rescinded the special permit.

The OBPB is expected to meet Thursday night, July 30, at 7 pm in the lower meeting room in town hall and hold a public hearing, to be followed by a possible vote on whether to let the 2004 special permit for Southern Woodlands stand, to approve the permit with amendments, or to rescind the permit.

Simmering all summer

Tensions between stakeholders and the OBPB began to rise almost immediately after Paul Adamson, a Boston-area developer and Edgartown seasonal homeowner, purchased the property for $5.15 million at a June 26 auction from National Land Partners, a subsidiary of Patten Companies.

OBPB leaders said they planned to take another look at the project, in particular the requirements for nitrogen mitigation and affordable housing, because it considered several of the provisos of the 11-year-old permit outdated.

New Bedford Attorney Daniel Perry has advised the OBPB that the planning board has the authority to rescind the special permit for the Preserve at the Woodlands.

Ms. Manners has repeatedly challenged that opinion, and she did so again as soon the Thursday meeting began. “Taking this step is overreach,” she said. “You’re acting in a capricious manner.”

“Our attorney has reassured us of the authority of the board,” OBPB member Ewell Hopkins said. “We stand by his opinion.”

Mr. Hopkins is the former executive director of the Island Affordable Housing Fund, which foundered on a downturn in the economy and the failed Bradley Square project in Oak Bluffs, which ended in foreclosure. He has pushed hard for an increase in the affordable housing contribution negotiated as a condition of the original permit.

For the most part, cooler heads prevailed for the rest of the 90-minute discussion. As he has in the past, OBPB Chairman Brian Packish said that although the board has the right to rescind the permit, its intention is to work with the stakeholders to find equitable solutions so the project can move ahead — just not with 2004 criteria.

Geoghan Coogan, attorney for Mr. Adamson, presented the board with a set of draft proposed amendments to the 2004 permit. These included doubling compensation for affordable housing from $240,000 to $480,000, preserving more open space, providing better access to special ways and hiking trails, enlarging the buffer zone between the development and preserved lands and, to address nitrogen mitigation, reducing the limit of overall bedrooms from 190 to 156, or 6 bedrooms a unit, and a willingness to discuss enhanced wastewater options.

The draft offers for 25 additional acres of open space, rerouted special ways and increased buffer zones were, in general, well received by the members of the board.

The revised offers for nitrogen mitigation, and in particular for affordable housing, were not.

Affordable housing divided

Both the sellers and the buyers combined to fund the new $480,000 offer for affordable housing. The number was derived, according to Mr. Coogan, using the town affordable housing bylaw — two units of the 22 lots qualify for a 10 percent allocation, and the town assesses the lots at $240,000.

Oak Bluffs town officials did not agree with the figure or the calculus involved.

Mr. Packish said he thought the lots were undervalued by half.

Marie Doubleday, chairman of the Oak Bluffs Affordable Housing Trust, said the amount “isn’t even close.” She declined to discuss a counterproposal until she could speak with the full committee.

Mr. Hopkins was unyielding that the Southern Woodlands special permit follow town bylaw passed at town meeting in 2004, which states a special permit for a “Flexible Development” of 10 or more “dwelling units” must allocate either 10 percent of the units for “low income” families or 15 percent for “moderate income” families, which translates to two to three units in the proposed 26-lot development.

“The will of the people is paramount,” he said. “It was voted at town meeting and it’s not negotiable.”

“You wanted land, which we’re not willing to do,” Mr. Coogan said. “Are we willing to put more money on the table? Potentially, yes. But land versus money is a sticking point.”

Negotiations have progressed since Thursday night. Tuesday night, planning board chairman Brian Packish told selectmen that Mr. Coogan had increased the offer from $480,000 to $650,000. A lengthy discussion ensued. Town administrator Robert Whritenour said that per the town flexible development by-law, Oak Bluffs is entitled to 10 percent of the housing inventory, which is two finished units. Mr. Whritenour said the town calculates the current value per lot to be $440,000, and thus the affordable housing component for the deal should be $880,000. Selectmen agreed with a unanimous vote.

Swap meet

Mr. Hopkins added a wrinkle to the affordable housing negotiations on Thursday night when he said if Mr. Coogan could help facilitate a long-delayed land swap between the Martha’s Vineyard Land Bank and the town for an adjacent town-owned landlocked 24-acre parcel, he might look more favorably on a financial settlement, provided the amount was higher than the $480,000 offer.

Although the issues were unrelated, Mr. Coogan told the the OBPB that he would be happy to help clear the titles if that would help the deal move forward. “I have all that title work,” he said. “It wouldn’t take too long to figure it out.”

Mr. Coogan told The Times on Monday that his late father, Edmond Coogan, a lawyer and former Tisbury selectman, had done a great deal of title work. “I have 16 boxes of it in my basement,” he said.

Mr. Coogan told The Times that even though the land swap is not legally connected to the Woodlands special permit, he would consider it to be a win for his client and for the town.

“Completing the swap would be a huge step for affordable housing in Oak Bluffs,” he said. “It would help move along multiple projects, including teacher housing walking distance from the high school.”

“When Geoghan said he could help make the swap happen, that put the offer in a whole different stratosphere,” Mr. Hopkins told The Times on Monday. “By taking the land out of the heart [of protected Land Bank property] and putting it in the southeast corner by the hockey rink, across from Edgartown–Vineyard Haven Road, that would do more for affordable housing in Oak Bluffs than just money, and it would create a whole lot more than three affordable units. It would enable us to focus on comprehensive planning for a significant number of people.”

Negotiating nitrogen

Mr. Coogan’s offer Thursday to reduce the number of bedrooms from 190 to 156 elicited little enthusiasm. However, the offer to “work with the Oak Bluffs Board of Health and Joint Lagoon Committee to come to an agreement that would require individual lot owners to eliminate a negotiated percentage of nitrogen with enhanced septic technology” sparked a lively discussion.

“It’s disheartening that I have to be here for our ponds,” Selectman Gail Barmakian, who is also a wastewater commissioner and co-chairman of the Joint Lagoon Pond Watershed Committee (JLPWC), said. “They are dying. We have to do something. We have no choice. The science the MVC used [in 2004] is outdated. We’re already faced with removing 47 percent of the nitrogen in the entire watershed. This project will add 20,000 gallons of sewage a day.”

In a letter to the OBPB, Ms. Barmakian and JLPWC co-chairman Melinda Loberg requested that the development either create its own sewage plant or require homeowners to use systems that remove at least 75 percent of nitrogen from their wastewater.

Lagoon Pond Association President Doug Reece told the board, “I’m here to support Gail. It’s unfortunate that the buyers are getting thrown into this, but we have to deal with this now.”

At the conclusion of Thursday night’s discussion, Mr. Coogan agreed at the meeting to work with Ms. Barmakian and members of the Tisbury/Oak Bluffs Lagoon Pond Committee to negotiate a percentage figure for nitrogen reduction.

Conditional

In an email to The Times on Monday, Mr. Coogan said that all of the amendments he presented at the Thursday meeting are conditional. “These are draft offers subject to further discussion and ultimately agreement by the board, seller, and buyer,” he said. “We don’t own the land, so we can’t actually commit to offers just by the potential buyer.”

OBPB Chairman Brian Packish told The Times he thought there was significant progress in all areas. “They went from $240,000 to $480,000 on affordable housing,” he said. “They reduced the number of bedrooms per lot by 25 percent. They agreed to a no-cut zone along the west end. I deem that progress. Twelve hours before the meeting, there was no progress; six hours before the meeting, the buyer and seller were backing out. I went into Thursday’s meeting thinking they weren’t going to offer anything.”

Mr. Hopkins said that ultimately the planning board will make an informed decision with input from all relevant town departments.

Mr. Packish said the interdepartmental cooperation is an example of “Oak Bluffs taking care of Oak Bluffs in a cohesive way.”

He said, “The MVC has expressed little interest in this matter. This is the town taking care of itself.”