The developer behind one of the largest proposed housing projects in recent memory is attempting to upend decades of permitting precedent with a new lawsuit. 

William Cumming’s Atwood company, which has been attempting to build the 100-unit Green Villa housing complex along Edgartown-Vineyard Haven Road in Oak Bluffs, filed a complaint against the Martha’s Vineyard Commission last week. In it, he calls on the state Land Court to rule that the commission has no jurisdiction to review “40B” affordable housing projects.

“Instead, all such projects would be reviewed exclusively by the individual towns, with [zoning boards of appeals] authorized to issue all necessary development permits — including any approvals that would normally be issued by the MVC — consistent with state law across the Commonwealth’s 351 municipalities,” Green Villa wrote in a statement on Tuesday. 

If successful, the suit could drastically change how permitting works on the Vineyard, cutting out the commission and its staff on some of the larger developments coming before towns.  

The suit, filed on Sept. 4, largely hinges on a portion of state law that focuses on what boards are allowed to have permitting authority over affordable housing. The 40B law, so-named for its statute number, was enacted in 1969 in order to protect low- and moderate-income housing from exclusionary zoning practices.

Sometimes called “anti-snob” zoning, the law condenses almost all of the different permits normally needed for a large-scale development with the local zoning board of appeals, cutting down the red tape.

But on the Vineyard, the process has operated differently. Here, developers apply to the town zoning board, and projects that meet certain triggers are referred to the Martha’s Vineyard Commission.

Created by the legislature in 1974, the commission is one of the only regional planning agencies of its kind in the state, and it has been tasked with defending the ecological, historical and cultural values of the Island. The commission has a much broader review power than the municipalities, able to consider aspects outside of normal zoning. 

Normally, after the MVC has made a decision, a project is sent back to the zoning board to go through that approval process. 

Green Villa argues that this two-step process is not justified in the state law and has asked the court to bar the MVC from reviewing the project. The developer contends that the MVC is a “local board” and thereby should be lumped in with all other municipal boards in the streamlined zoning board application. 

Green Villa is also arguing that the sentiment extends to any and all 40B projects, potentially cutting down on reviews if the argument finds favor with the court. 

“MVC lacks jurisdiction to review any development project proposed under Chapter 40B in the Towns of Aquinnah, Chilmark, Edgartown, Oak Bluffs, Tisbury, and West Tisbury,” the suit concludes. 

This is not the first time Mr. Cumming has pushed back against the Island’s permitting process, and over whether the commission should have jurisdiction. In a technical skirmish with the Oak Bluffs zoning board, Mr. Cumming previously called on the state’s housing appeals committee to rule that the MVC doesn’t have the right to have a say. 

In that fight, the state decided to stay out of the matter, instead ruling at the heart of the complaint, which had to do with the amount of affordable housing units in Oak Bluffs. 

Peter Wharton, the chair of the commission, declined to comment on the specifics of the new lawsuit Tuesday, citing the pending litigation. But he did point to the act that created the commission and its five decades of work to protect the Island. 

“That’s something I hope we do for the next 50 years,” he said. 

The Oak Bluffs zoning board, for its part, has also said in the past that it wants the commission involved. 

“​Under the MVC Act, the board has no power to issue a development permit until the MVC has completed its review,” the zoning board wrote in a previous lawsuit over the development. “Consistent with the usual practice and procedure, the board wishes to have the MVC review the project first before the board conducts its own review.”

A similar challenge against the MVC power came in 2002 from a developer that sought to build a 366-unit housing project in the southern woodlands of Oak Bluffs. In that case, a state Land Court judge found that the act which created the MVC superseded 40B, cementing the commission’s right to review affordable housing projects. 

“You could see why that may be something a developer may want to avoid,” said Fred Hancock, a former commissioner. “The crux of it is if the Martha’s Vineyard Commission is considered a local board.” 

​​ Green Villa points to a section in state law, amended after that decision, where regional entities are specifically mentioned as falling under the zoning board’s ability to issue a master permit. 

Proposed to be built on an eight-acre parcel near the Martha’s Vineyard ice rink, the 100 ownership apartments would be for people making between 80 and 150 per cent of the area median income. Mr. Cumming has also talked about dedicating some of the housing to Island teachers. 

An initial plan for four retail buildings at the development has also been withdrawn, according to the company. 

Mr. Cumming is also proposing a controversial development near the Triangle in Edgartown, which is supposed to have a hearing with the MVC on Thursday.

The Green Villa case is scheduled to have a case management conference on Oct. 30.