Developer’s mutable building plans force retroactive approval by MVC

Unauthorized changes to the old Stone Bank condominium project in Tisbury have left Martha’s Vineyard Commissioners frustrated over developers’ failure to adhere to previously approved plans.

The initial project, brought to the commission by developer Sam Dunn in 2019, proposed the renovation of two existing buildings and construction of five more, along with transforming a historic fieldstone building — formerly Main Street’s Santander Bank — into a mixed-use condominium and commercial business development. 

The project was approved in April 2021.

Dunn has returned to the commission a number of times since, most recently for the developments of regional impact (DRI) review of the upcoming taqueria that’s slated for 16 Union St. 

But new modifications have been made to the property, unbeknownst to the commission who’d previously greenlit the project.

On Thursday, commission chair Joan Malkin stated that the review process of Dunn’s project has been particularly difficult for MVC staff, largely due to the fluid nature of Dunn’s design and developing approach. 

“The way [Dunn] operates is extremely difficult for the commission,” Malkin said. “It is not consistent with the way we operate.”

“This is not going to be a simple process,” she added.

“I understand I do things like other people may not do them,” Dunn told commissioners. “The reason is, I’m wearing all the hats. I’m the architect, the builder, and the developer.”

He said he uses a process called “design-build,” which allows him the “freedom and the ability to make changes to things that I think need to be made in the project.”

“It’s just the way I do it, and I’ve always done it,” Dunn said. “I’m sorry it causes these issues. But I strongly believe that it’s the best way to get a good project.”

“We too have a process,” Malkin replied, before requesting that Dunn offer explanations for each one of the unapproved modifications.

The addition and relocation of staircases, change of window proportions, added lattice work, and building material changes have all served as improvements to the project, Dunn said, arguing that those changes are minor and don’t fall under developments of regional impact.

While commissioners noted a number of those changes were indeed not consistent with Dunn’s original proposal, it was ultimately decided that most were “de minimis,” and involved only minor deviations from the approved plan. 

Still, some commissioners expressed frustration over the cumulative impact of many minor changes.

“Taken individually, these are a thousand little bites that add up to information that we should have known about, processed, included, and approved or denied,” commissioner Peter Wharton said. “Now we’re faced with a million little bites that look like, frankly, a disregard of the process that we initially approved.”

“I’m uncomfortable with that,” he added.

Commissioner Christina Brown agreed. “I’m reluctant to approve the plethora of small changes which have added up,” she said. The work that’s been done “wasn’t what we thought,” when first reviewing the project two years earlier. 

Commissioner Trip Barnes called out his fellow commissioners for piling on the developer. He called the unapproved changes “pretty innocent,” and said the discussion on the minor changes was “chicken****.” He urged commissioners to move ahead with the review process. “Is there an improvement?” Barnes asked. “Is there something you’d rather see there? Other than just sitting around seeing how hard you can spank him.”

The more significant modifications that have raised concerns among the regional planning agency included a unification of two of the 10 housing units, resulting in one less than anticipated; the installation of metal chimneys; additional fencing, and the erection of a retaining wall connected to the foundation of one of the buildings that could potentially block stormwater flow. 

Additionally, commissioners say Dunn has failed to comply with approved plans regarding building elevation, a significant change, considering the property is located within the flood zone.

Earlier this week, the commission’s land use planning subcommittee (LUPC) approved the project’s landscape plan around the proposed taqueria. 

Although portions of the property’s fencing had not been previously approved, that landscaping plan relied on the current placement of the newly constructed fencing. 

Commissioners retroactively approved that portion of fencing. 

To complicate matters further, the taqueria project, considered another modification of the initial stone bank condo project, has yet to obtain the subcommittee’s approval on a number of details.

Outstanding details include “a final drawing set for the proposed deck, fish tank, take-out window, and other features of the building and seating area, including any proposed colors,” DRI Coordinator Rich Saltzberg said.

That information was required to be submitted to the LUPC before the receipt of a building permit, a condition on the taqueria approval states. 

Furthermore, commissioners have confirmed that the work in the area of the restaurant is proceeding without a building permit. 

Dunn denied being in violation of doing work without a proper permit. He claimed that the only work that’s been done in that area is installing underpinnings of a deck structure, which was necessary to proceed with the storm water plan. 

Until developers receive final plans from restaurant owner Patrick Lyons, Dunn said, “we’re not doing anything else.” 

Commissioners noted that connected to one of the buildings which was to be elevated on piers — as was laid out in the approved plans — developers instead constructed a solid concrete wall perpendicular to the harbor. 

Dunn told commissioners that the wall was necessary for insulation, and to be able to incorporate a utility at the foundation of the structure. 

Because of this, the commission’s land use planning subcommittee agreed to confer with stormwater experts to see if the solid wall would hinder flow of stormwater.  

The chimneys, which connect to both propane and wood-burning fireplaces found in most of the units, hadn’t been discussed by commissioners, commissioner Ben Robinson said. “We never contemplated fireplaces as an energy source,” he said.

He cited the energy conditions placed on the project upon its approval. Those fireplaces violate that condition, he said.

Dunn claimed that the fireplaces were merely “amenities,” and “not a heat source.” 

Robinson disagreed. “It’s absolutely a heat source,” he said. 

Despite claims by Dunn that fireplaces were included in the original site plans, Robinson pointed out that at no time did Dunn label the fireplaces in the blueprints or renderings; nor did he mention fireplaces in any of the DRI review hearings. 

“I have a concern that what we’re dealing with here is somebody who is not asking for permission, but asking for forgiveness,” commissioner Kate Putnam said. “I’m concerned that we could set a precedent by simply rolling over for it, when we should have seen these changes months ago.”

Malkin agreed and said that Dunn has put the commission in “an awkward position.”

She reiterated the difficulties of reviewing the changes that had been made, which had come to light by rigorous MVC inquiry, rather than submitted by Dunn. 

“I don’t want to be approving changes after they are already done,” she said.

Ultimately, commissioners voted in favor of most modifications, with the exception of the features that will involve third party experts. The commission will continue its review at a later date.

Malkin called the modification review “a most unsatisfactory way of proceeding.” 

She said Dunn’s lack of transparency with his plans suggest a disrespect of the commission’s process.

“It’s unfortunate,” she said.