Procedural matters have once again landed the Island’s largest housing project in recent memory at a crossroads.

In a special meeting Wednesday, the Oak Bluffs zoning board voted to deny without prejudice a permit for Green Villa, the 116-unit housing development eyed for Edgartown-Vineyard Haven Road combining affordable units and market-rate units.

But the reason for the denial, as stated by officials, was that the proposal has not yet been reviewed by the Martha’s Vineyard Commission. The board indicated it is prepared to issue Green Villa a permit if the commission gives its blessing first and accepted a draft approval decision ready to be voted on in the future.

“The applicant has not secured an approval from the MVC under its [Martha’s Vineyard Commission] Act, and therefore the [zoning board] is precluded from issuing a development permit at this juncture,” said zoning board member Jonathan Holter. “If, however, the MVC were to approve the project, then the board’s draft decision, reviewed during today’s deliberations, represents the [zoning board’s] current view on the merits of the project.”

The project would have more than 100 apartments.

Courtesy MVC

The project would have more than 100 apartments.

Courtesy MVC

Created by the state legislature in 1974, the Martha’s Vineyard Commission Act positions commission approval as the first hurdle developers must clear if they’re building a project determined to have a significant Islandwide impact. Effectively, any municipal zoning board’s decision on a large Island development hinges on the commission making a decision first.

But Green Villa developer William Cumming, owner of Atwood Company, has already contested this kind of procedural matter in court. 

In September, Mr. Cumming called on the state Land Court to rule that the commission has no jurisdiction to review “40B” affordable housing projects.

Sometimes called “anti-snob” zoning, the 40B law was enacted in 1969 to protect low- to moderate-income housing from exclusionary zoning practices, especially in towns that do not meet a minimum threshold of affordable units. The law reduces the number of hoops developers need to jump through to develop projects that fill affordable housing needs. 

On the Island, though, developers have historically still had to go through the commission, as well as the town zoning board.

If Mr. Cumming’s ongoing lawsuit is successful, it could drastically change permitting practices on the Vineyard, cutting the commission out of projects like Green Villa entirely.

Since chapter 40B law grants local zoning boards only 40 days from the closure of public hearings to issue a permitting decision, time can be crunched for Island developers seeking commission and town approval, in that order.

Officials said Wednesday that the Oak Bluffs zoning board’s 40-day approval period will expire before the commission is scheduled to vote on Green Villa later this month. The board asked Mr. Cumming and his attorney, Peter Freeman, to grant it an extension, which they denied.

“I wish it weren’t so, but … the Martha’s Vineyard Commission has their Martha’s Vineyard Commission Act, and they believe that it controls even a 40B situation,“ he said. “As you know, ad infinitum, we have challenged that.”

Board members argued that they had no choice but to deny the project without a green light from the commission. But by accepting a draft decision, the board has created a path for Green Villa to gain permit approval pending a future commission decision.

Accepted by the board Wednesday was a 31-page draft approval of the project written by board consultant Joe Peznola, attorney Michael Goldsmith and Mr. Freeman. The document outlines a list of conditions under which the board is willing to approve the project and addresses several long-debated logistical matters.

One such issue was municipal wastewater capacity, which the Oak Bluffs wastewater commission found in November would be insufficient to support all of Green Villa until 2031. Mr. Cumming had previously requested that all 116 units be hooked up to town wastewater flow immediately, but given apparent constraints, has agreed to initially utilize on-site septic systems with the option for hookup in the future. 

The draft asks that Mr. Cumming pay wastewater hookup fees up front to be placed in escrow. Additionally, it requires any on-site septic systems used to mitigate excess nitrogen loading into Oak Bluffs waters.

The decision also clarified how different units will be priced and who will be given priority for them. Twenty-nine of the units will be designated as affordable, meaning they will be sold to buyers with incomes under 80 per cent of area median income. Nine will be reserved “to the extent permissible by law” for Oak Bluffs teachers. Sixty-six will be priced for those with incomes under 150 per cent of area median income, with up to 30 available for purchase by local businesses who can rent them to employees. The remaining 12 units will be priced at market value with no restrictions.

Officials have repeatedly noted that the order of proceedings for the Green Villa proposal is unprecedented for the Island.

“This is the first 40B that’s run the gambit with the local board before going back to the MVC,” Mr. Goldsmith said in a zoning board meeting last month.

Concurrently, Mr. Cumming has not shied away from disputing procedural matters in court.

While Mr. Cumming’s case against the commission on Green Villa unfolds, he’s also taken the commission to court over Edgartown Gardens, his other controversial housing development denied by the commission in October.

The complaint filed with Dukes County Superior Court contends once again that the commission has no right to oversee affordable 40B housing projects, says the commission did not meet several statutory deadlines and objects to the commission charging the developer for a peer review study.

And in May, the state Housing Appeals Committee ruled in favor of Green Villa by deciding that Oak Bluffs did not have “safe harbor” status when Green Villa was proposed, meaning the developer can skirt certain local zoning bylaws.

Despite Wednesday’s deliberation technically ending in a denial, zoning board chair Llewellyn Rogers expressed support for the project. He stated that the board’s decision was not a reflection of the quality of the proposal, but instead out of deference to the commission.

“You guys put a lot of work into this. I like it. It looks like it’s going to be a good project,” Mr. Rogers said. “We’ll probably see you back here sometime.”

The Martha’s Vineyard Commission will deliberate the Green Villa proposal on Jan. 22.