With its authority to review housing developments in flux, the Martha’s Vineyard Commission (MVC) is attempting to reverse the ruling that reduced its power in court.
In Dukes County Superior Court, the MVC and the Edgartown zoning board of appeals jointly filed a challenge against the Massachusetts Housing Appeals Committee (HAC) and Edgartown Gardens LLC, the company backed by Falmouth-based developer William Cumming that proposed building a 60-unit project for seniors near the Edgartown Triangle, on May 19.
The 25-page complaint from Vineyard officials pushes back against a ruling from April made by the state agency that deemed the MVC a “local board,” and prohibited the regulatory body from reviewing projects proposed under Chapter 40B, a state statute that allows developers to more easily bypass local zoning if at least a quarter of the project consists of affordable units.
Chapter 40B was created in 1969 to bolster the development of affordable units amid a national housing shortage, an issue that persists. Amid a housing crisis on the Island, the MVC also acted as a shield against potential overdevelopment, and worked to preserve the character of the Island.
“The HAC’s ruling, if upheld, would undermine the MVC’s ability to fulfill its 50-year statutory mandate to protect the unique natural, historical, ecological, scientific, and cultural resources of Martha’s Vineyard, and would give developers a mechanism to circumvent the MVC’s regional review authority entirely by allowing local deadlines to lapse before MVC review is complete,” the complaint reads.
The housing appeals committee’s ruling not only essentially stripped the MVC’s power to review these types of projects, it also clashed with a 2003 Massachusetts Superior Court ruling that determined the MVC, and not a local board, had jurisdiction over 40B projects. The committee’s ruling also worked in favor of the Edgartown Gardens development, and gave the developers constructive approval, because the Edgartown zoning board of appeals failed to hold a hearing for the project within 30 days after a comprehensive permit application was submitted in 2024. That development was approved despite the MVC’s unanimous rejection of the proposed development in October.
Housing is a balancing act on the Island. While the Vineyard faces one of the toughest housing markets for year-round residents, with more than half of units empty during the winter, regulators are careful to prevent overdevelopment. The issue is magnified for an area with limited resources, like land, and lingering questions of how many people can actually be supported through the available land and infrastructure.
Zeb Landsman and Johanna Schneider, attorneys representing the zoning board and the MVC respectively, argued that the state erred in its ruling. They said in the complaint that the MVC is empowered by its 1977 enabling act to review issues and projects that impact the Island on a regional level, which they say is “inconsistent” with the municipal-level functions of a local board. The complaint also argues that while the act omits mention of whether the MVC is a local board, the piece of legislation is “akin to other statewide regulatory programs — such as the Wetlands Protection Act, Title V, and MEPA [Massachusetts Environmental Protection Act] — that coexist with Chapter 40B without being subsumed by it. The HAC lacks authority to override laws passed by the legislature or regulations validly promulgated by commonwealth agencies.”
The attorneys also stated that the constructive approval should not have been given by the HAC. Considering the longstanding practice of the zoning board of appeals on the Island referring projects with regional impact to the MVC, the 30-day deadline was put on pause, the complaint read. The attorneys cited a 1990 Massachusetts Supreme Judicial Court ruling that upheld this practice. The attorneys called the housing appeals committee’s ruling “arbitrary, capricious, and an abuse of discretion,” since it allegedly dismissed the various past court rulings that the MVC used to review Chapter 40B and other projects. They also alleged that Edgartown Gardens had not provided all the requested materials to the MVC.
“The HAC has no specialized expertise in construing the MVC Act, and no deference is owed to its legal conclusions about the MVC’s status under that act,” the complaint states.
Jay Talerman, the attorney who represented Edgartown Gardens, said the developers plan to proceed as if the approval is active. Under this approach, according to Talerman, the developers will primarily be working on approvals from the state. He said the project isn’t sited near any wetlands, and there is enough wastewater, so the only item that would remain under local jurisdiction is a building permit from Edgartown.
“It’s disappointing that they aren’t accepting reality and not working with us,” Talerman said, adding that the commission is “clinging to an archaic process.”
Talerman said talks occurred with Island officials between the HAC’s ruling and when the most recent complaint was filed, although the parties haven’t been able to come to an agreement on the project’s conditions. Talerman emphasized that despite the ruling, not every project should be pushed through, and that his client wants to work with Vineyard officials.
“If all the MVC wants to do is fight, fight, fight, then that’s their bed,” Talerman said. Meanwhile, there are still pending cases for projects in which Cumming is involved. There are ongoing lawsuits in Massachusetts Land Court over Edgartown Gardens and Green Villa, a 116-unit project proposed in Oak Bluffs that received approval from the MVC in late April.