A recent ruling by the Massachusetts Housing Appeals Committee (HAC) has thrown the Island’s governing guardrails for large affordable housing developments into uncharted territory.
The ruling, issued on Tuesday, April 21, has deemed that the Martha’s Vineyard Commission (MVC), the regional regulatory authority that has reviewed large housing developments for decades, is a “local board.” This categorization essentially pushes out the Commission from making major decisions on projects proposed under a state housing statute called Chapter 40B.
The housing statute allows developers to curb local zoning regulations to build housing more easily, as long as 25 percent of the project is made up of affordable units that are at or below 80 percent of the area median income. It’s also regarded by state legislators as a tool to ensure that at least a portion of developments are deemed affordable.
The ruling diminishes the previously-established role of the MVC, as the evaluation of 40B developments has been a consequential part of what they do, and their knowledge of the state law has informed other efforts by the regional planning group, including the drafting of Housing Production Plans for all six towns.
The HAC decision also runs counter to a ruling by Massachusetts Superior Court more than 20 years ago that ruled the MVC had jurisdiction over all 40B projects. In the 2003case, the MVC was deemed to not be a “local board.”
“We believe that the case was wrongly decided by the HAC,” the executive director of MVC, Adam Turner, told The Times. “We’re going to file an appeal.”
The MVC has acted as a buffer for the Vineyard, where there’s a finite amount of land to build on, wetlands and environmental considerations, and wastewater constraints. All of those factors are considered when the MVC weighs the benefits and detriments to large developments, but it’s not clear whether the towns, whose zoning boards would take on these proposals in lieu of the MVC, would weigh them in the same way.
The ruling by the HAC also stated that since the Edgartown Zoning Board of Appeals had failed to hold a hearing for Edgartown Gardens, an up to 60-unit Chapter 40B project proposed to be built near the Edgartown Triangle, within 30 days of when a comprehensive permit application was submitted in 2024, that an approval had been constructively granted.
The ruling, if it stands, could lead to increased development on the Island, since it streamlines approval for Chapter 40B proposals past the checks and balances that the MVC has in place.
Chapter 40B, a state law also known as the Massachusetts Comprehensive Permit Act, was created in 1969 to ensure that affordable housing would be built amid a national shortage of units and a boom in development.
The statute is also tied into the Subsidized Housing Inventory (SHI), a way for the state to track the amount of affordable units in municipalities. Since the 1960s, the issue of affordability has not only prevailed but significantly worsened across the nation. The Island has not been immune.
“[The Vineyard has] one of the most expensive housing markets in the country,” Cape and Islands State Sen. Julian Cyr told The Times. “The reality is that most Islanders can no longer afford to buy market-rate housing.”
“I have been in touch with the MVC regarding the ruling and will be following litigation closely,” Cyr said.
He added that the challenge on the Vineyard is that market-rate units rarely get purchased by year-rounders. “Almost any new development that isn’t either through an affordable housing program or an attainable housing program is going to be out of reach of Islanders,” Cyr said.
But the Vineyard produces other concerns that the MVC has evaluated in regards to housing projects, too.
Although the MVC has only denied two 40B projects in recent years, the decisions they make about developments are one part of a larger puzzle. And it could be far easier to get 40B housing proposals through without their vetting process for large projects.
And the MVC is a unique institution in Massachusetts: Even the Cape Cod Commission, which oversees all 15 towns in Barnstable County, doesn’t approve or deny 40B projects.
The MVC goes through an extensive process of balancing the detriments and benefits of housing proposals, a process that the towns and zoning boards may not have the staffing to do in the same regard. If the responsibility falls to the town boards for large housing developments, as is the case in other Massachusetts municipalities, large housing developments could be much more easily approved.
“What the towns could benefit from is the due diligence that the MVC does when reviewing these, because they don’t really have the same capacity with staffing,” Philippe Jordi, the executive director of Island Housing Trust, a nonprofit that has built multiple 40B projects, told The Times.
But on an Island grappling with a crisis of affordability, with no Vineyard towns having met the 10 percent threshold of having its housing stock consist of affordable units (SHI) required by the state, some developers say that too many checks and balances is an unnecessary deterrent.
“We have a situation that’s a disaster in the Commonwealth, and we need to address that,” William Cumming, of Atwood Company LLC., told The Times, regarding housing affordability. Cumming was born on the Island and is the developer of 40B projects Green Villa in Oak Bluffs, which proposed building at least 100 units, and Edgartown Gardens.
“This is about the law,” Cumming added about the recent ruling.
Developers of the project had argued that the MVC was a local board, highlighting that it does not actually grant permits and addresses projects that are deferred to them, and therefore had no jurisdiction in public hearings over comprehensive permits, which are granted by the zoning board of appeals of whichever town the project was proposed to be built.
On the Vineyard, developments deemed to have a widespread impact have been deferred by towns’ zoning boards of appeals to the Martha’s Vineyard Commission.
But the committee noted that the MVC received municipal funding to operate, and that the materials it reviewed in its hearings, such as site plans and landscaping, were what a zoning board would look over. Additionally, there isn’t a bylaw regarding Chapter 40B projects in the MVC Act.
“To exempt the MVC from the definition of ‘local board’ would retain a form of local impediment to the development of affordable housing that the comprehensive permit act sought to eliminate, leaving the MVC with ‘effective veto power over proposed affordable housing’ which is ‘wholly incompatible with the purposes of the comprehensive permit act,’” the committee’s analysis reads in part.
Edgartown Gardens was unanimously denied by the commission in October, when commissioners cited that it was an inappropriate design for the area. But Jay Talerman, attorney for Edgartown Gardens, said the HAC ruling made the MVC decision “moot.”
“They never had that authority to make that decision,” Talerman said.
Not long after the Edgartown Gardens rejection, the other development by Cumming, Green Villa, came across its own barrier in January. The Green Villa project had been undergoing review with the Oak Bluffs Zoning Board of Appeals following a ruling by the state housing appeals committee that the town had not reached its subsidized housing inventory in 2024.
The board initially expressed support for the iteration of the project they saw after a series of workshops. But a procedural issue, in which a lack of approval from the MVC and the applicants not willing to extend the amount of time for a draft decision, led to a denial since at the time the board couldn’t issue a comprehensive permit without the MVC approval.
In municipalities without a regional body like the MVC, the developer of a proposed 40B project goes to a state subsidizing agency, like MassHousing, first. This prompts a 30-day commenting period for the town the project is in. At this point, abutter and community members can submit letters. Then, the comprehensive proposal is submitted to the local zoning board of appeals (ZBA) for approval, opening up another 30-day comment period before a hearing must be held. After that, there’s a 180-day window after hearings are opened before the ZBA approves, denies, or approves with conditions, the project in front of them.
The commission still has an opportunity to appeal the housing appeals committee’s decision, with a conference scheduled 30 days after the ruling’s issuance date, and there is still lingering litigation over the project in Dukes County Superior Court and Massachusetts Land Court arguing over similar issues. But Talerman said the courts will need to take into consideration the state’s ruling when making a decision and expressed confidence that Edgartown Gardens will move forward.
“The train has left the station and it’s a foregone conclusion, in my opinion, that the Edgartown Gardens has the requisite approvals under 40B,” Talerman said.
But Talerman assured The Times that this doesn’t mean the developers want to steamroll through the town. He said despite the “highly charged dispute,” his clients see the town and the commission as important partners in developing a successful project.