
A lawsuit filed last year in Dukes County Superior Court by Island Elderly Housing against the Martha’s Vineyard Commission has been remanded back to the regional planning agency, after a judge ordered that a significant contingency placed on the project’s approval be vacated.
Island Elderly Housing (IEH) first sought litigation following the commission’s June 2022 approval of a proposed elderly housing project in Oak Bluffs, called Aidylberg III.
The June 2022 approval was decided in a 7-5 vote with two abstentions, but the commission required several conditions, including massive alterations, essentially requiring a complete redesign.
“The applicant shall return to the MVC with a revised design that reduces the massing of the proposed building, including the second story, and more faithfully replicates features of the demolished building,” last year’s commission approval stated. “The revised design shall be subject to MVC review and approval prior to the issuance of a building permit.”
But on April 19, Superior Court Judge Douglas H. Wilkins approved a motion to remand made by IEH, despite the commission’s wishes to continue litigation in court.
“A trial in this court will not avoid further MVC hearings and fact-finding,” the judgment states, adding that a trial — which had been advocated for by the commission’s legal reps — would cause “significant delay” in the proposed project.
“The burden of the delay falls solely upon IEH,” the court’s decision reads. “The court will not participate in a battle of attrition by which, intentionally or not, the MVC effectively forces IEH to abandon its desired plan due to costs of litigation of delay.”
The court decision cites comments made by MVC chair Joan Malkin during the commission’s deliberation on the project, that “a denial would leave the MVC without a basis for imposing conditions on the new structure.” The judge’s decision states, “That may explain why MVC did not want to deny the project in so many words, but that does not justify a ‘non-denial denial.’”
“The MVC simply lacks authority to circumvent the MVC Act by devising a new species of decisions that fails to grant meaningful permission for issuance of local permits, fails to specify conditions that could be included in such a permit, and evades the consequences that a denial would produce,” the judgment continues.
“If the MVC is unwilling to decide to approve the project, or approve it after ‘specifying conditions,’ then it must be accountable for whatever consequences flow from denial, instead of sidestepping issues as the [IEH approval] tries to do,” the order states.
The decision also states that although the commission granted conditional approval, it failed to “specify conditions,” which effectively “drag[s] out the MVC review process” by not coming to a decision that could be referred to for local permitting, which would be required for the IEH construction project to continue.
Located at 38 Wing Road, Aidylberg III is slated to be the third building of its kind, with construction of Aidylberg I and II having been completed in 2006.
The project presented to the commission last year calls for the construction of five deed- and age-restricted affordable housing units, adding to the organization’s existing dwellings.
The land on which the units sit was previously subdivided by the former owner of the property, Marguerite Bergstrom. Bergstrom retained one lot for her existing house, and granted the rest to IEH to provide housing for senior citizens.
Upon Bergstrom’s death in 2003 — and per her will — the existing house on the remaining lot was granted to IEH. Built around 1900, the 1,200-square-foot house is listed in the Massachusetts Cultural Resource Information System (MACRIS) as being “a significant part of the continued expansion of Cottage City.”
In 2019, a demolition permit was issued by the Oak Bluffs building department, and with a COVID-caused extension of the permit’s expiration date, the house was demolished in May 2021. The demolition took place without the approval of the MVC.
The commission had argued that reviewing a retroactive demolition would allow them to review proposed replacement structures, which led to lengthy public hearings and deliberation prior to the project’s conditional approval.
In the lawsuit filed in August of last year, IEH called the conditions placed on the project’s approval “arbitrary and capricious, and in excess of the authority of the MVC because it imposes requirements that exceed the standards set forth in the local zoning bylaw.”
The conditional approval stemmed from various commissioners’ — and some abutters’— distaste for the construction; many of them had previously taken issue with the actual design of the building, and the expansive nature of the project. The commission had previously expressed frustration over IEH’s alleged refusal to search for less expensive construction alternatives, in addition to repeatedly ignoring suggestions to consider a redesign.
Among the contingencies IEH was bound to, per the commission’s approval, were strict regulations and guidelines on what building materials could be used, along with a commission-accepted plan for clean energy generation. Project representatives argued that some of the requirements were detrimental to the project’s construction timeframe and finances. That condition has now been vacated, and IEH must come to terms with the MVC regarding the remaining conditions and overall project.
Should the elderly live on the Island, they don’t work.
So; Now that they are elderly, they should no longer be allowed to reside on the Island? Really?
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