Checklist review generates complaints of much MVC meddling

The biennial scrutiny of the triggers under which projects must be subject to Martha’s Vineyard Commission review is underway.

The Martha's Vineyard Commission offices are in Oak Bluffs. — File photo by Martha's Vineyard Times

Businesspeople, property owners, developers, builders, architects, and town planners — most anyone with a building project on Martha’s Vineyard — follow a permitting route that begins with the local boards within the town where a particular development is located.

Depending on the size and nature of the project, and any number of variables — so-called triggers — it may be required to take a side trip to the Martha’s Vineyard Commission (MVC), the Island’s powerful regional permitting authority, where the project will be subject to review as a development of regional impact (DRI). It is no easy detour.

Full MVC review can add significant costs and time to a project. The MVC may approve, approve with any number of conditions, or turn down a project. The only appeal for an unhappy applicant is Superior Court.

Every two years, the MVC reviews its checklist of triggers under which local boards must refer a project to the MVC for mandatory review as a development of regional impact. During this process, the commissioners may add or delete triggers.

In 1975, one year after state lawmakers created the MVC, the DRI checklist was two pages long. The applicant was required to answer a 12-question checklist that was used to determine if a project had “regional impact.”

The current checklist encompasses 18 pages, including nine subsections, a swath of definitions, and a list of possible factors warranting discretionary DRI referral. Overall, about 75 different triggers can send a project to the commission.

The most recent addition to the MVC checklist is the requirement that any structure more than 100 years old be subject to review by the 17 MVC members eligible to vote on the 21-member body, which includes a director, nine elected and 11 appointed members.

What impact

This fall, new MVC executive director Adam Turner began visiting town boards to solicit views on the MVC checklist. Town officials have been generally supportive of the MVC’s mission and the bulwark of protection it provides against rampant and out-of-scale development, but have been critical of what they say is MVC review of projects with questionable regional impact.

At recent meetings with the Edgartown planning board and the All-Island Planning Board, Mr. Turner fielded criticism from town officials who complained of heavy-handedness. Planning board members at both meetings said that the relationship between town planning boards and the commission needs to improve.

At the All-Island Planning Board meeting on Nov. 4, Oak Bluffs planning board member Ewell Hopkins highlighted the whimsical nature of the process. “We need a DRI checklist that we can publicly endorse, so we can work regionally with more consistency,” he said. “What goes to the MVC is all over the map. I don’t think it’s consistently imposed.”

“It’s supposed to be regional impact that’s the trigger,” Edgartown board member Fred Mascolo said at a meeting of the Edgartown planning board on Nov. 11. “When we read through that checklist the other night, there were so many things that had nothing to do with regional impact, yet they were all triggers. Speaking from being on the board for 17 years, I think the planning board is perfectly capable on local issues.”

Participants at both meetings said that the checklist often encompassed projects that were of questionable regional impact, and ought to be left to the purview of local boards.

What input

The MVC’s DRI checklist subcommittee includes retired town administrator Christina Brown of Edgartown, retired businessman Robert Doyle of Chilmark, retired lawyer Joan Malkin of Chilmark, retail business owner Linda Sibley of West Tisbury, and lawyer Doug Sederholm of West Tisbury. For the past few months, they have met from 8 am to 10 am every Wednesday. Currently, they are reviewing their data. The next step will be to present recommendations to the commission, which Mr. Turner expects will happen after the new year.

Asked what the MVC is doing to solicit input from businesspeople, tradespeople, and professionals, Mr. Turner said in an email that the group “spoke to numerous private-sector individuals in various development disciplines including design, landscaping, and builders.” He estimated that approximately 50 people weighed in on the checklist review.

In 2014, developer Sam Dunn shepherded the Barn Bowl and Bistro, a bowling alley/entertainment center located on the edge of the Oak Bluffs business district, through the MVC process. The planning board unanimously approved the plan on Jan. 23, and referred it to the MVC as a DRI, as required by several triggers in the project, including size.

Mr. Dunn, who has worked on a number of projects reviewed by the MVC, said he has not been approached for input about the checklist review. He expressed concern about the subjectivity of the term “regional impact,” but said he believes the MVC itself is generally an asset to the Island.

For many years, Edgartown selectmen chairman Michael Donaroma was both a member and chairman of the MVC. In a phone conversation with The Times, Mr. Donaroma lamented the expansion of the breadth and width of the checklist.

“When I was there, the DRI checklist was two or three pages, and now it’s a book,” he said. “They’ve basically got themselves in a position now where they’ve almost got to look at everything, or they say ‘in concurrence.’”

During his tenure, Mr. Donaroma, owner of a nursery and landscaping business that bears his name, often spoke on behalf of Island businesses.

“I’ve been hoping, and a lot of people have been hoping, that they’d let the towns do a little bit more, because it hurts people,” he said, referring to the MVC process. “When a little businessperson tries to do something and they have to go to the Martha’s Vineyard Commission, that adds thousands of dollars.”

Mr. Donaroma said the towns can refer projects to the MVC irrespective of the checklist if town leaders think a project has a regional impact, which acts as a check on outlandish developments.

“We’re all trying to get them [MVC commissioners] to lighten up, but they never do,” he said.

Eight major criteria

DRI triggers are just that, benchmarks that require that a project go to the MVC where the MVC may decide to go forward with a full review or refer the project back to the town — essentially saying, you handle it.

The DRI checklist includes eight major criteria. Broadly, these triggers include division of land; development of commercial, business, and industrial lands and buildings; residential and mixed-use developments; developments in or adjacent to harbors, great ponds, ponds, or the ocean; private and public facilities and places of assembly; transportation facilities; developments affecting natural and built resources; and communication and energy facilities.

Within each broader section are a series of specific triggers and specific caveats.

For example, section two lists all triggers related to the division of land. There are specific rules about division of land in a business, commercial, or industrial zone; divisions resulting in six or more lots; division of more than 10 acres, division of current, former, or potential farmland; division of habitat; and a caveat for more subjective land-division projects.

Last Wednesday, the Island Housing Trust broke ground on a six-unit apartment building located on Water Street in Tisbury adjacent to the Stop and Shop market. That project was referred under trigger 3.1, which stipulates that “any development of commercial, storage, office and/or industrial lands or building(s), that has: i) any increase in intensity of use such that the total new use on its own triggers any threshold in the DRI checklist — with MVC concurrence.”

Preliminary review began mid-June 2014, and was completed on July 17, 2014.

Once a project is deemed a DRI, any future change is subject to review.

Time and money

DRI review is a costly process with varying timeframes. DRI coordinator Paul Foley estimates that most projects take up to two months, but large and complicated projects can take much longer.

For concurrence referrals, in which the MVC decides to send a project back to the town without full review, turnaround depends on how soon the MVC receives the application. Mr. Foley said they generally needn’t take longer than two or three weeks.

There is a $800 base fee for a DRI application. Additional fees are added depending on varying factors.

For example, commercial developments are charged an additional $600 for being commercial developments. On top of that, the commercial development project is then charged for how many square feet the project is. A similar practice is used for subdivision projects.

The MVC charges applicants for meetings that last longer than four hours. That rate is $75 per staff member, per hour.

A commercial application to construct a 60-foot by 60-foot two-story metal building for wholesale lumber storage, an office, and an apartment on High Point Lane in Tisbury earlier this year cost the applicant $3,564.

Developers of a project that involves 10 or more residential lots, or “dwelling units,” are required to pay into the Dukes County Regional Housing Authority (DCRHA) for the creation of, or maintenance of, affordable housing. The applicant may either donate 10 percent of that property as affordable housing space or pay the DCRHA 20 percent of the property’s assessed value.

Nonresidential developments between 2,000 and 3,999 square feet are charged a flat-rate fee of $1,000 for the first 2,000 square feet, and 50 cents per square foot thereafter, up to 8,000 square feet. Developments in excess are charged $7,000 for the first 8,000 square feet, and $2 per foot thereafter.

Added cost

The actual cost of the DRI review process is not limited to fees. Applicants often appear with lawyers and architects. Requests for additional drawings all have a cost, as does the time for any professional in attendance.

On July 9, 2015, the MVC reviewed an application by the Polly Hill Arboretum in West Tisbury, a nonprofit preserve set on 70 acres off State Road, to build a new $1 million, 2,800-square-foot learning center and laboratory funded in part with grants and donations on the site of an aging wood building.

DRI application fees cost the arboretum $2,549. Polly Hill also had to pay $1,312 toward affordable housing and $2,600 for an archeological assessment because the project was in a historic district, director Tim Boland said.

The time it took to get through the review was the most arduous expense. More than once, he said, arboretum representatives attended land-use planning committee (LUPC) meetings where a quorum wasn’t met, and the meeting had to be rescheduled. He said this delayed the project quite a bit. The whole review took nearly three months.

Mr. Boland said the DRI process serves a good purpose, and that he was sure commissioners were doing their due diligence in looking after the Island. “I personally feel that if we didn’t have [the MVC], we’d be more like suburban North America. They’ve been able to maintain [the] quality feel of the Island,” Mr. Boland said.

Tom Seeman of Island Source represented the company before the MVC in June to propose a self-storage building project in the airport business park. Mr. Seeman paid out $9,613 in DRI review fees, but then was assessed nearly $10,000 in mandated affordable housing contributions due to the size of the building. Despite the nearly $20,000 in fees, Mr. Seeman said, the process went quickly and that “everybody was very helpful.”

Chris Dias of Specialty Builders Supply paid $3,546 in DRI review fees. Mr. Dias said he understood the purpose of the process, but he had issues with unmet quorums, which he described as “a nightmare.”

Mr. Dias is about to undergo his second DRI review as he buys and builds on a lot adjacent to his lumber storage building. He said he’s almost a year into the DRI review process.

Insofar as other costs, he said, “It’s the time.”