The developer behind a controversial condominium complex proposal in Edgartown is claiming his project should get a de facto approval because of an alleged permitting snag by the town. 

William Cumming, the backer of the 60-unit Edgartown Gardens senior housing project proposed for a parcel near the Triangle, filed a legal challenge earlier with the state housing appeals committee against the Edgartown zoning board.

In the four-page July 16 complaint, Mr. Cumming’s lawyer Jason Talerman argues that because the zoning board never held a hearing on his client’s application for the senior housing development at the Donaroma landscaping lot within the state’s prescribed 30-day window, the project should be automatically approved.

Under state law, zoning board of appeals are supposed to hold a public hearing on affordable housing projects submitted under the “40B” housing law within 30 days of an application, Mr. Talerman wrote in the suit. 

But the Edgartown zoning board of appeals never scheduled such a hearing after Edgartown Gardens submitted an application for the 12 affordable and 48 market-rate units in September 2024.

Unlike most of the state, the Vineyard has an extra layer of oversight when it comes to large-scale development. Here, projects that hit certain triggers are referred to the Martha’s Vineyard Commission.

Often, zoning boards will open a public hearing on affordable housing projects, only to immediately refer them to the commission. The town boards then keep the hearings open until after the commission, an Islandwide planning agency, is finished with its review.

The Edgartown Gardens project was referred to the Martha’s Vineyard Commission by the town building inspector, something that is also commonplace, said Lucy Morrison, the development of regional impact administrator at the commission.

“Any permit granting authority that has jurisdiction over an application can refer it to us,” she wrote to the Gazette in an email. ”The Building Inspector has jurisdiction, so this referral did not need to come from the ZBA.”

She also noted that, as she understood it, zoning boards don’t need to meet and vote to refer an application, and staff can administratively decide.

In a letter to the Edgartown zoning board, dated July 17, Mr. Talerman wrote that Edgartown Gardens was willing to overlook the lack of a public hearing and voluntarily submit to the Martha’s Vineyard Commission. 

The commission met to discuss the project earlier this month, and several members of the public highlighted the potential increase in traffic that the project could have on the already congested area of Edgartown.  

Mr. Talerman said that he filed the legal challenge with the state because of the resistance he and his client have felt at the commission. 

“[W]e pledged to try to work with the ZBA and the MVC in the hope that the participating in a cooperative process would result in an expedient approval of the project, with agreed upon conditions that would strengthen the project and allow the development of twelve vitally needed affordable housing units, along with much needed market-rate housing for Island seniors,” Mr. Talerman wrote. “Unfortunately, because the MVC did not approach the project in a cooperative spirit and has, at every turn, delayed and frustrated the project, we regrettably have been compelled to pursue constructive approval.”

Martin (Skip) Tomassian, an Edgartown lawyer who serves as the chairman of the zoning board, declined to comment, as did town counsel Michael Goldsmith.

This is the second time Mr. Cumming, who grew up on the Island and has also proposed a large housing development in Oak Bluffs, has challenged the technical permitting process for affordable housing projects on Martha’s Vineyard. 

Mr. Cumming also took the town of Oak Bluffs to the housing appeals committee and emerged victorious over a dispute on the oversight required for his project based on the number of affordable housing units in the town. 

In that challenge, Mr. Cumming also claimed that the Island’s longheld process, where the Martha’s Vineyard Commission reviews projects before zoning boards, was illegal, though the state committee did not find favor in that argument. 

Oak Bluffs has formed a working group to go over the Oak Bluffs project, dubbed Green Villa, and the zoning board has begun to have hearings on the project while the Martha’s Vineyard Commission is still reviewing. 

Mr. Goldsmith, who is also the town attorney for Oak Bluffs, declined to comment on the departure from past practice.

A clerk with the state housing appeals committee did not return a request for comment on the timeline for the Edgartown Gardens case.