As the Martha’s Vineyard Commission (MVC) continues litigation to retain its ability to review Chapter 40B projects, several Island towns have decided to back the planning authority.
Starting with the Chilmark Select Board on June 17, a total of four Vineyard town select boards decided to send letters to state legislators who represent the Island, State Sen. Julian Cyr and State Rep. Thomas Moakley, to urge their support for the MVC and its continued review of 40B developments. The other three towns are Edgartown, Oak Bluffs, and West Tisbury.
Chapter 40B was created in 1969 to bolster the development of affordable units amid a national housing shortage, an issue that persists. The state statute gives developers more leeway in local zoning if at least a quarter of units in a proposed project are designated as affordable; It ensures that large housing projects have a portion of units that are affordable to residents of an area by giving that incentive to developers.
The letters from the towns stated the MVC has protected the Island from “rampant overdevelopment” since it was created 50 years ago, ensuring that housing projects are “balanced against the need to maintain our rural character, and coordinated in a manner that prioritized regional interests over those of any single town.”
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.
The outpouring of support is a concerted response following an April ruling by the Massachusetts Housing Appeals Committee (HAC), which determined the MVC as a “local board,” a designation that places these reviews outside the commission’s jurisdiction. The 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 was not a local board, and had jurisdiction over 40B projects.
The HAC decision followed an appeal filed by the developer of Edgartown Gardens, one of the developments proposed by William Cumming of Falmouth-based Atwood Co. LLC, which was unanimously denied by the MVC in October.
The towns’ letters state the Vineyard is now “once again under threat from development that fails to respond to the particular needs of this Island.” Boards highlighted to the legislators that “the consequences of failing to act now are both significant and irreversible.”
“Under the 40B statutory scheme, in exchange for a small percentage of income-restricted units, towns are rendered largely powerless against inappropriate density, demands on our infrastructure, and impacts to our environment, including our great ponds and open spaces,” the letters read.
The letters also said that the towns would be unable to require developers to provide the year-round workforce and community housing “the Island desperately needs.”
Cyr told The Times that he’s been working with the MVC to analyze potential options to “remedy and respond to” the committee’s ruling since “the minute this decision came down.”
“This is a real departure from long-standing precedence,” Cyr said.
So far, a definitive path forward has not been determined. While Chapter 40B is a longstanding state statute that’s been used to boost housing availability in Massachusetts, Cyr said areas reliant on seasonal tourism have been more susceptible to homes taken out of the housing stock from year-round community members for decades.
“If there’s no restriction, that unit is going to be a second home, an investment unit,” Cyr told The Times. “That is where we are at in this ravenous real estate market.”
At a time when home costs are rising and more summer homes are popping up, there’s also affordable housing available throughout the entire year. Only Aquinnah has reached a 10 percent threshold for affordable units in its housing stock, a requirement to achieve safe harbor status, a status that allows municipalities to block special permits for 40B affordable housing projects. This status can also be achieved through a housing production plan, though Island towns are still in the process of finalizing and adopting their five-year plans.
Adam Turner, executive director of the MVC, and Peter Wharton, MVC chair and Oak Bluffs representative, were not immediately available for comment. But Wharton and MVC housing planner Laura Silber previously expressed the need to preserve the commission’s ability to review projects, citing a need to protect the Vineyard’s finite resources and how 40B projects have exacerbated the housing crisis in other communities.
Peter Freeman, the attorney who represents the sprawling Green Villa project in Oak Bluffs, was not available for comment. Jason Talerman, the attorney who represents Edgartown Gardens, said he wasn’t surprised about the towns’ support of the MVC. He was particularly critical of Chilmark, the first town whose board took up the issue of a letter, since it was the Island town without affordable housing units in its inventory. Considering the other municipalities in Massachusetts that are subject to Chapter 40B regulations, Talerman saw no reason the Vineyard should be an exception.
Talerman said the pushback on the housing appeals committee’s ruling was spurred by anti-housing fearmongering masqueraded as protecting the Island. “The notion the sky is falling is garbage,” Talerman said.
And Talerman said Chapter 40B projects are not a zero-sum game, and “we think we’re good developers” willing to work with towns to make projects more palatable. But he said the onus is also partly on towns to be proactive, such as developing affordable housing or having a housing production plan.
“Under the law, if you make progress, you get safe harbor,” Talerman said. “That allows you to control your own destiny.”