Stone Bank modifications throw commissioners for a loop

Efforts to review a developer’s changes to a Tisbury condominium project have shed light on the complexities of Island permitting and planning processes.

In the midst of a second review of the fifth stage of a development of regional impact (DRI) project, which has spanned years, the Martha’s Vineyard Commission is tasked with approving or denying modifications to the old Stone Bank condo project that have already been made.

On Thursday, as commissioners were faced with decisions about how to view changes to an already approved project, conflicting and incomplete documentation, mixed with a developer’s laissez-faire approach to providing reliable building plans, sparked contention between the commission and the applicant whose project is under review. 

Thursday’s Martha’s Vineyard Commission meeting was a continuation of last month’s modification review of the project. At that meeting, commissioners voted to retroactively approve a number of minor changes made to the condo project by developer Sam Dunn; but two other, and arguably more significant, modifications required additional review.

That includes the construction of metal chimneys on each of the site’s seven buildings, which commissioners say were unexpected additions to the project. 

Further, commissioners say that prior approvals of the condominium and commercial business development did not have plans for fireplaces, a surprise considering what has now been built includes a fireplace in every residential unit. 

When re-reviewing the approved plans at Thursday’s meeting, commissioners took note of two chimneys apparent in the hand-drawn renderings provided to them before construction began. 

However, those chimneys appeared to be square, nonmetal, and they weren’t included in the plans for all of the buildings. 

Still, commissioners were unable to recall Thursday whether they’d specifically approved any chimneys in the plan. Moreover, they say they wouldn’t have approved residential gas fireplaces. But a few commissioners noted that if in fact they had approved the chimneys, what was thought to be connected to them, if not fireplaces?

Building plans provided by Dunn show unmarked squares in the unit blueprints that commissioners now say could be associated with the chimneys. But that wasn’t discussed during the project’s original review or subsequent approval.

This triggered a contentious back-and-forth between commissioners and Dunn, who claimed the plans provided were merely preliminary drawings, exhibiting a general sense of what was to come. 

That in itself is problematic, commissioner Linda Silbey noted, adding that the MVC receives incomplete or inaccurate plans and renderings all too often. “Shame on us, for not realizing we were approving preliminary plans,” she said.

The commission has reviewed a number of projects brought to them by Dunn, and more often than not, commission chair Joan Malkin has said, the developer builds something different from what he had initially presented for review — a habit that makes the review process particularly difficult.

Dunn has called his approach to developing and constructing “design-build,” and has acknowledged that his way of doing things may be frustrating to a regulatory entity whose job is to review precise and thorough plans in order to make informed decisions on developments of regional impact on the Island.

Among the concerns raised by commissioners was the possibility of setting a precedent for what could be considered noncompliance regarding the MVC’s conditional approval.

At their last meeting, commissioners noted that although most of the changes are minor, the cumulation of all the changes is significant. 

But on Thursday, when the entirety of the agenda item was in regard to the construction of unapproved propane-fueled fireplaces, a number of commissioners re-emphasized the importance of their charge — upholding the agency’s pledge to mitigate the effects of climate change.

Commissioner Ben Robinson pointed to the original order of the approval, which restricts propane amenities. He took issue with Dunn’s claim that the fireplaces are just an amenity and not a primary heat source. 

Additionally, he said there have never been any markers on the building plans indicating chimneys or fireplaces. If there were, the commission would have deliberated on it, and likely denied that part of the project.

“I don’t think I need to remind everybody, but maybe I do,” Robinson said, “we are in a time when we need to eliminate fossil fuels at every single opportunity that we’re given. Every single opportunity.” 

“It’s not about the aesthetic of a silly metal chimney versus a boxed chimney. This is life and death for civilization,” he said.

Commissioner Carole Vandal agreed. “We are here to make decisions that will affect the future of Martha’s Vineyard and the citizens who are living here,” she said. “Eventually, we need to truly address fossil fuels [and] polluting fuels.” 

“Those are things that should be addressed, and align with our climate action plan,” she said.

Commissioner Jeff Agnoli emphasized the effects MVC decisions have Islandwide, and the unintentional precedent the commission could be setting by turning a blind eye to what some may consider minor alterations. 

 “We make the lines Ben and Carole are referring to,” he said. “If it looks like ‘OK, go ahead and do whatever you like, because the commission will end up OKing it after all,’ I think that sends the wrong message at the wrong time.”

The governor’s appointed commissioner, Michael Kim, shared that in Aquinnah, there are already regulations in place for fossil-fuel-burning amenities. He said within a few years, it’s likely the state will have adopted similar building code regulations. 

Though commission chair Joan Malkin shared less concern about the impact of the fireplaces, she said she’d have voted against having the propane amenity included in the project if the commission had been made aware of it.

Commissioners then voted not to approve the metal chimneys on all but one building. Per a partial determination drafted by DRI coordinator Rich Satlzberg on July 11, “It was the general opinion of the commission that the metal chimneys were an unacceptable departure from the traditionally shaped chimneys depicted in the 2021 plans.”

Additionally, Dunn has been advised by commissioners “not to attempt a construction remedy” until the LUPC receives and reviews said remedy. 

According to the commission’s determination, Dunn now must generate those plans and inform the commission when they’re ready for review.

Commissioner Greg Martino called for “a little more due diligence” by the commission. “We either approved it or we didn’t approve it,” he said.

Regarding who’s to blame for the discrepancies, Malkin said the MVC’s Land Use Planning Subcommittee will now be tasked with reviewing all the past documentation to determine how to proceed. 

The subcommittee will decide “if a reasonable person would assume that [that’s] a fireplace, especially since there’s a chimney immediately above it in the renderings.”

The commission must also decide whether having an ancillary device is a violation of the order of conditions. 

Per the agency’s partial determination, “The commission was unable to determine whether or not the fireplaces constituted a modification or modifications, and was also unable to determine whether or not the fireplaces violated [conditions of] the Stone Bank Condos written decision.”

That condition states “Interior space heating shall be with air-source heat pumps.” 

At this time, the commission is not yet viewing the issue as a compliance matter. 

If the commission decides that the issue is one of compliance, a committee will be formed to review it, and recommend how to proceed. 

But “if the plans square up, I think it’s on us,” Malkin said. 

Commissioner Kathy Newman inquired about whether the commission ought to take “compensatory measures” in the event of noncompliance.

Dunn asked what form that would take, and said, “I’m always for finding a way.”