2026-09-30 - Board of Regional Commissioners

03:25Welcome everybody to the September 30th 3 p.m. meeting of the Barnstable County Board of Regional Commissioners and this meeting of the commissioners is going to be conducted in accordance with applicable law. Persons wishing to participate may do so in person or by accessing the meeting via the posted meeting agenda.

03:55Or they may view the meeting via live broadcast on our county YouTube channel or our government, our county government website which is kitcud.gov.

04:10I'm also going to ask if there's anybody here recording this meeting. I see the answer is no. So this meeting is called to order. We have a quorum. Commissioner Bergstrom is here. Commissioner Lyons is here. I am here.

04:24And the first order of business is a brief pledge of allegiance to the flag. I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.

04:46And now I'm going to ask you all to join me in a very brief moment of silence to reflect on the bravery and the sacrifices of those who have put their lives on the line in service to our country. Thank you.

05:12The next item on our agenda is number four, public comment. Is there anyone seeking recognition? Wants to make a statement? Esteena, is that you that wants to make you want to make a statement? I'm just kidding. You can. Okay, very good.

05:29So we're going to move on to that item on the agenda since we have no public comment. The next item on our agenda is general business. We have the good fortune today to be joined by Jonathan Witten.

05:41He is Barnstable County's special counsel. And we are going to get a brief update on a case that the commissioners have taken a very strong interest in.

05:51The case is Edgar Town Zoning Board of Appeals and the Martha's Vineyard Commission versus the Massachusetts Housing Appeals Committee and Edgar Town's Gardens, LLC.

06:02So that is a hot case on the vineyard that's keeping a lot of folks very busy.

06:08And there may be some implications here on Cape Cod. So we wanted John to come and join us and help us understand what's going on there and whether or not at some point in the process, we may need to intervene in some way.

06:23So, John, welcome. Thank you, Mr. Chairman. Good afternoon, commissioners. And thank you for inviting me. It's my pleasure to be here.

06:32The Martha's Vineyard case is relevant to the Cape Cod Commission Act and the county commissioners because they both center on whether or not in the vineyard, the Martha's Vineyard Commission can apply its DRI jurisdiction over a comprehensive permit, a 40B project.

06:51And that, of course, is a similar matter here on the Cape. There is an awful lot of focus on the vineyard case because we have all been, when I say all generically, of the opinion that the Martha's Vineyard Commission Act applies to comprehensive permits within the six towns on the vineyard.

07:12The reason for that belief has been to and other suggested cases where the courts have made quite clear that the Vineyard Commission has jurisdiction over comprehensive permits.

07:25Why are we so confident in saying that? Because that's what the law says. And I have that same confidence here on Cape Cod. I know there are many who disagree with that.

07:33But the Cape Cod Commission Act does not remove the Cape Cod Commission from DRI review of comprehensive permits. And again, that's a second conversation we can have when the commissioners would like to.

07:46But the current case on the vineyard has implications for the Cape because of this similar notion that the legislature created a regional planning agency with regulatory teeth, the vineyard and then much later the Cape.

08:00And then the question on the vineyard is, did somehow the legislature remove from vineyard jurisdiction on comprehensive permits?

08:08And of course, that would make no sense on its face because the development is a development is a development.

08:13But the argument has been made. It's now in the land court. The land court justice will be sitting as a superior court justice, which is a bit of a nuance in Massachusetts law.

08:24So the case is being teed up on what's called a 30 A review. So the Housing Appeals Committee is a state agency.

08:32They rendered a decision pursuant to the Administrative Procedures Act.

08:37That decision gets reviewed by the trial court, in this case, the land court sitting as a superior court.

08:44No new evidence is taken. It is the record that was assembled before the Cape Cod, excuse me, the Housing Appeals Committee.

08:51And that decision and the record before the Housing Appeals Committee is what is reviewed by the trial court.

08:58The trial court's decision, of course, is appealable. And my guess, and it's only a guess, is however the trial court decision comes out, there will be an appeal.

09:08And that appeal most likely would end up at the Supreme Judicial Court rather than the appeals court.

09:12But that's just a guess based on cases that the SJC takes.

09:16The focus of the MVC case, the Edgerton Gardens case, is really about whether or not the Vineyard Commission Act applies to a DRI.

09:28And because of the similarities, the apples to apples with the Cape Cod Commission Act, it really is something for the commissioners to keep an eye on.

09:36And of course, that's what you're doing.

09:38The question maybe for a later date is whether what we learn from this litigation is applicable to the Cape, I think is really important as well.

09:48These acts were drafted at very different periods of time and they've been interpreted differently.

09:54I know the Cape Cod Commission interprets their legislation very differently than I believe their legislation says quite clearly.

10:01So there is an issue. I don't think anybody on the Vineyard would agree with the argument that the Vineyard Commission does not have jurisdiction over 40B.

10:11Here on the Cape, of course, there are different opinions as to that.

10:15So that's the future discussion.

10:18But I think where the commissioners are is to watchdog, and I'm happy to help you do this, to watchdog what's happening with the Vineyard Commission case.

10:28And I'm guardedly optimistic that the reviewing judge who knows how both regional acts work will support the fact that the Vineyard Commission Act provides jurisdiction over DRI's.

10:44This might be helpful. This is from the HAC's decision and it's one of their final sentences and it's just worth noting.

10:51Furthermore, such veto power, meaning the MVC's power over 40B, would exist only in those municipalities subject to the MVC act, creating inequity between the island and the rest of the Commonwealth.

11:07Well, that's the most nonsensical thing I've ever seen in an administrative decision ever published, because of course the MVC treats the six towns just like the Cape Cod Commission Act treats the 15 towns,

11:18just like the Nantucket Land Bank treats one town differently.

11:22That's the nature of local government and that's how the legislature works.

11:26The two statutes are in harmony with each other.

11:28There's nothing about 40B that interferes with the Cape Cod Commission Act and there's nothing about the Cape Cod Commission Act that interferes with 40B.

11:36We have overlapping statutory schemes across the country.

11:40That's the norm and that's very much the norm on the Vineyard.

11:43So my opinion is hopefully the trial court will realize the obvious because of the way the Vineyard Commission Act is written and then hopefully that gets transferred here, notwithstanding some opposition to that.

11:59Commissioner Lyons, turn your mic on.

12:04In that statement that you just read the last statement, that was the defense that was stating that the Mothis Vineyard did not really have this power because it would make it different than other towns.

12:20But the fact that it was created for Mothis Vineyard or for Cape Cod actually acknowledged that we're not like the other towns.

12:29There's an environmental issue.

12:31So I agree with you. I think that that is a nonsensical because why would you have it in the first place?

12:37The Housing Appeals Committee, you know, I'm not shy about saying this.

12:40The Housing Appeals Committee writes decisions like this every every month.

12:44Very few of them make any sense.

12:47They make up case law.

12:48They attribute case law wrongly.

12:50And this is the Housing Appeals Committee.

12:52And because of the Administrative Procedures Act, their decisions are given deference.

12:57So if folks want to know why we're seeing the level of 40B activity across the Commonwealth that we're seeing, it's the Housing Appeals Committee.

13:05They have rubber stamped virtually every single application that's before it.

13:09And again, I'm not saying anything that isn't patently obvious.

13:13It's just a lot of people are not willing to say.

13:16Commissioner Bergstrom, what you might know.

13:20I agree with that statement you just made.

13:24It's pretty obvious the administration is very pro-housing and has been for a while and, you know, sees 40B as one of the tools in their terms.

13:32Toolbox.

13:34We're presuming, I mean, I'm presuming that if Martha's Vineyards were to win its case and have the Martha's Vineyard Commission allowed to review the DRIs,

13:47that that would translate to Cape Cod Commission or we'd have to have specific changes in the Commission Act.

13:53So an excellent question, Commissioner.

13:55In my opinion, and again, for what it's worth, there's a lot of contrary opinions.

13:59So I freely admit that.

14:01In my opinion, the Cape Cod Commission Act does not need to be revised.

14:05That in its current formation, there is no prohibition, preclusion or conflict between the Cape Cod Commission Act and Chapter 40B.

14:15The fact that the Commission is labeled a local board does not remove the Commission from DRI jurisdiction, in my opinion.

14:24A local board is in addition to the DRI authority.

14:28A local board would say to the Cape Cod Commission that you are on the same plane in terms of getting information as the Board of Health,

14:36the Planning Board and the Conservation Commission.

14:39That information is what a local board gets and then submits comments.

14:42Nothing in that states that your DRI authority has been stripped by the very same legislature that created 40B.

14:52So when the Cape Cod Commission Act was adopted, the legislature knew full well that 40B had been adopted.

14:58If they wanted to remove Cape Cod Commission jurisdiction from 40B, they knew how to do that.

15:04And one of the most common statements from a court in reviewing legislation is the legislature knows how to write language.

15:13So I think, you know, from my perspective, it's we don't want to talk about this.

15:19This is the third rail.

15:21We don't want to talk about DRI jurisdiction over 40B's on Cape Cod because that's not how we do it here.

15:26And for all these years, at least for as long as I've been on the Cape, which is a long time working on the Cape, that's been the norm.

15:34We just 40B's, DRIs.

15:37No. And and of course, that's ignoring what the Cape Cod Commission.

15:40Yeah, I you know, we if you were privy to the discussion this morning that we had with Mashpee, they talked about 40B's and made the comment.

15:49And I think a lot of people agree that when the when the 40B legislation was created, they saw as having a net benefit to the Cape.

15:57We needed housing as the years have progressed.

16:00Now, the question is, is it still a net benefit or is it actually costing us more infrastructure and so on?

16:06So that, you know, it's right for for review.

16:10But I mean, I'm a practical guy.

16:13I see myself, you know, I project a year or two when this goes to the courts.

16:17And if we get a favorable decision, it's going to be a lot of opposition to giving the Cape Cod Commission that authority to go through the builders.

16:25It's going to come from the legislature, you know. So if indeed we succeed, they say we as what the commission succeed, that battle is not going to be over.

16:36I talked to when this first hit the press, the decision I talked to, I think it was represented locally.

16:43And I said, what are you guys going to do about this?

16:45And he said, well, we'll see the march of the courts go along and we'll see what happens.

16:51And if we get an unfavorable decision, maybe we'll try a legislative, you know, legislative correction.

16:59That's another battle. But no, I'm glad what you're saying.

17:01I'm very optimistic about what you're saying, because it was the presumption that for some strange reason, Cape Cod Commission did not have authority over.

17:10Now, you know, there's enormous pressure to review DRIs.

17:16We've we took a beating in Harwich and a couple of other places on that.

17:19So I'm glad to hear what you said.

17:21It is, if I could, Mr. Chairman, it is just worth mentioning.

17:25And again, I think everyone, no matter how you feel about 40B in general, an impact is an impact is an impact.

17:31And the fact that a percentage of the units are below market doesn't reduce the impact.

17:37So the whole purpose of a regional planning entity is to look at things holistically, regionally, cumulatively.

17:45So a three person dwelling unit is a three person dwelling unit that triggers vehicle trips per day and generates wastewater and consumes water.

17:54The impacts are agnostic. And how naive to, in my opinion, to suggest that you can segregate below market rate housing and say there's no impact,

18:06whereas the impacts only coming from market rate housing.

18:09Of course, that makes no sense and no environmental scientist, no engineer and no planner in my world would ever say that because it makes no sense.

18:18The only reason you'd say it is because you have a political reason for supporting one over the other.

18:23And of course, I respect that, but that doesn't make it right.

18:26It just makes it what it is.

18:30Commissioner Wines. No, I agree with John.

18:37No, I agree with. You know, everybody knows I'm sort of agreeing along this line of thinking.

18:43However, I'm wondering if first he has any questions.

18:48I mean, your your understanding of things are certainly.

18:54Yeah, through the chair, I certainly appreciate your position on this and look forward to further dialogues.

19:01Certainly look forward to these decisions coming out down the road.

19:05Obviously, this is going to require a lot more thoughtful consideration.

19:09And so at this point, there's probably nothing more for me to add on this.

19:12But this certainly will be a legal discussion going forward.

19:15Thank you, Christie. Anybody else?

19:18John, this has been great. Thank you for coming here and providing this update.

19:22And we look forward to keeping in touch with you on this and other matters.

19:26Thank you. Yes, thanks, Mitchell.

19:28Thank you very much. Appreciate it. Thank you.

19:31So and at this point in our meeting agenda, I am going to basically we have a motion for this chair.

19:44I move I move that we move into executive session, not to return to public session.

19:51No, we are going to return.

19:53So we are going to return. Oh, I'm sorry. And then return to open session.

19:57Second. OK, is that motion a completed motion?

20:05Is that sufficient? Yes. In terms of the text. Does that work?

20:09Does that work, Michael? OK, then we've had a motion and a second.

20:18All those in favor of the motion of going into executive session, say aye.

20:22I oppose the carries unanimously.

20:25We are now in executive session vote to go into executive session.

23:45So I'm going to ask Commissioner Lyons to provide a complete motion.

23:51Yes, I felt that that wasn't enough information for people going into executive session.

23:56So, Mr. Chair, I'd like to move that we go into executive session for discussion

24:02pursuant to General Law Chapter 30A section 21 subsection A2 to conduct strategy sessions,

24:12a strategy session in preparation for negotiations with non-union personnel or to conduct collective

24:19bargaining sessions or contract negotiations with non-union personnel.

24:26And I go and say and that's the motion. Commissioner Bergstrom.

24:34I hate to be a stickler. We've had issues before

24:43and apparently the chair is supposed to make the motion to go into executive session.

24:48However, if you don't agree with that, I'm fine.

24:50The chair finds that having such a discussion and such a discussion in open session would be

24:57contrary and detrimental to our overall negotiations.

25:01So I make that finding. I make that affirmation.

25:04I want to make sure that it's clearly understood.

25:06And you can go ahead and second.

25:08All right. So we have a motion. We have a second.

25:12And the motion is being made clearly with the understanding that doing this,

25:17conducting this meeting in an open session would be contrary to the purposes of the agenda.

25:23So I'm asking for a vote, roll call vote. Commissioner Lyons.

25:27Lyons votes aye.

25:28Commissioner Bergstrom votes aye.

25:29And Commissioner Forrest votes aye as well.

25:32So it's unanimous vote. We are now going into executive session.

25:36Thank you.

1:49:54We have returned into public session of our meeting for Wednesday, September 30th.

1:50:01And we have finished our executive sec session deliberations.

1:50:07And now the next item on the agenda involves acting on the contract for the

1:50:14director of the Cape Cod commission.

1:50:17So commissioner Alliance, do you have a, a motion chair?

1:50:22I do. Mr. Chair, I move to approve the, to approve the execution of a three-year contract

1:50:36with Christie, Senator, executive director of the Cape Cod commission, uh, for a three-year

1:50:41contract and a 4% increase for a term of three years starting October 3rd, 2026 ending on

1:50:51October 2nd, 2029.

1:50:56And the amount is a 4% increase.

1:51:00So we have a motion, we have a second, um, uh, commissioner Bergstrom.

1:51:05Bergstrom votes aye.

1:51:07Lions.

1:51:07Lions votes aye.

1:51:08And commissioner Forest votes aye as well.

1:51:10It's unanimous.

1:51:12Okay.

1:51:14Yes.

1:51:14I move that we adjourn.

1:51:18Have a motion.

1:51:19Any discussion?

1:51:20Hearing none.

1:51:21All those in favor say aye.

1:51:23Opposed.

1:51:24It carries unanimously.

1:51:25Thank you.

1:51:26Thank you.

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