MVC will reconsider Edgartown special ways designation
The Martha's Vineyard Commission (MVC) will reconsider next month its October 2007 decision to add five ancient ways to Edgartown's special ways district. The reconsideration is in response to a Superior Court decision allowing a motion by members of the Benjamin Hall family and several entities it controls, and vacating the commission's action.
Judge Cornelius J. Moriarty 2nd, an associate justice of the court, ruled on January 31, that the commission had failed in its decision to make findings, as required by its enabling legislation, that would support the decision. In particular, the judge found fault with the MVC decision because of the lack of clarity over whether the designated ways are legally accessible to the general public, for whom the designation is supposed to protect such historically significant resources. He remanded the matter to the MVC for reconsideration.
At a 2008 Edgartown town meeting, over the strenuous objections of members of the Hall family, voters approved changes to zoning rules to govern the old roads, sometimes called proprietors' ways, that the commission had added to the Island Roads District's list of "special ways." The rules limited development, restricted tree cutting, and limited the use of motorized vehicles on these roads.
The five roads named special ways were Middle Line Path, Ben Tom's Road, Pennywise Path, Tar Kiln Road, and Watcha Path. Before the commission's action to add these five old roads, only the Dr. Fisher Road in Edgartown was among the town's special ways. The added roads, Judge Moriarty found, "serve as the only means of access to large portions of Edgartown, including land owned" by the Halls.
MVC will reconsider
"For several years," Mark London, the MVC's executive director wrote in a February 15 press statement, "the town of Edgartown and the Martha's Vineyard Commission have been defending an appeal of the commission's designation of five special ways in Edgartown as part of the Island Road District of Critical Planning Concern. The court has dismissed most of the counts against the MVC. But in a ruling issued last week, the judge remanded the case to the MVC, giving the commission 30 days to reconsider the nomination and to clarify the relationship between this designation and the issue of public access.
"The commission's intention has always been to protect the cultural and historical character of these ancient ways, and neither to grant public access where this does not presently exist, nor to deny the reasonable development of properties abutting these historic pathways. The commission intends to reconsider this nomination at a public hearing scheduled for March 10, 2010, and expects to be able to deal with the concerns that have been raised."
In an email message transmitting a copy of Judge Moriarty's decision to The Times, Eric Wodlinger, MVC counsel, wrote, "The impetus for the town to nominate these ways, and for the MVC to designate them, was to preserve these historic 'ancient ways' and the 20 feet on either side of them from being developed as subdivision roads, if there is alternative way to reach the abutting land. The MVC may well seek to retain the special ways designation, but without even the implication that this will alter whatever private and public rights may already exist in the ways."
Hall family's objections passed over
At the 2008 town meeting, Benjamin Hall Jr., a lawyer, objected to the voters' action. "It's a very complicated bylaw that tries to sound like it's doing one thing and preserving byways, but it's actually doing far more, and it's doing so in a manner that sets up a virtual dictatorship in the planning board to tell you whether or not you can drive to your land any more.
"This is about railroading a series of special permit regulations down the throat of my family so that we will have our rights to drive to our properties extinguished. They're stepping on our necks with iron boots."
Voters approved the rules over Mr. Hall's objections and those of other family members.
The court's findings
Judge Moriarty described the MVC's authority as "quasi-judicial" rather than "quasi-legislative." The latter, the judge described as a "highly deferential standard," the former more restricted. Consequently, the judge wrote, "The MVC did not have broad discretion in designating the DCPC. The MVC was bound to comply with the MVC Act's provisions governing, inter alia, the types of areas subject to designation, the requirements for accepting and rejecting nominations, the notice, public hearing, and specification requirements for designations, and the requirements for developing DCPC guidelines.
"Because the MVC's authority is circumscribed by these and other procedural and substantive requirements, the court's review of the MVC's actions is based on an assessment of the strength of the evidence supporting these actions and specifically whether there was substantial evidence in the record before the MVC to support its decisions."
Among the standards and criteria that the evidence needed support is public access.
Judge Moriarty found that "the MVC has not shown that the five additional Special Ways meet the criteria for a cultural or historic resource district that each be 'of exceptional symbolic or recreational importance to the residents of more than one town and is either visible or accessible to them or can reasonably be made so.'"
The judge continues, "The MVC concedes that no such determination has been made and that, in designating the five ways as part of the DCPC, the MVC assumed that they were public and reasoned that there need only be a presumption of public rights to a way. The plaintiffs repeatedly raised this issue during the designation process, and the MVC dismissed it as off-point, as it continues to do in its opposition to the plaintiffs' motion for judgment of the pleadings."
But, the judge held, "Such a determination is an essential prerequisite to the DCPC designation and the consequent regulations. Nothing in the MVC Act supports an inference that the Legislature intended to authorize the MVC to designate and regulate Special Ways as a cultural or historic resource category of DCPCs without making reasonable effort to determine, rather than merely assuming, the public's right to access the ways."
With reference to the access issue, Mr. Wodlinger added, in his email to The Times, added, "Rights in proprietors' ways go back to the original colonial set-offs and may even go back to Native American usage. In any event, Edgartown has the ability to make them public ways if town meeting so desires."