Martha’s Vineyard towns pay twice in roundabout legal challenge

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The Martha’s Vineyard Commission’s (MVC) current chairman said the regional agency will vigorously defend itself against a legal appeal the towns of Edgartown and West Tisbury filed, challenging the commission’s approval of a roundabout project for the intersection of Barnes Road and Edgartown-Vineyard Haven Road as a development of regional impact (DRI).

“The commission believes that it thoroughly and properly reviewed this proposal,” wrote Christopher Murphy, a Chilmark resident, in a statement, “that its review benefitted from the perspectives offered by the public and the commissioners, and that the court will give deference to the commission’s expertise and efforts, and uphold the decision.”

As the court challenge advances, officials from some Island towns are working to defend the cost of the intramural litigation and the basis for the appeal. Others want to know whether the two towns have a reasonable chance to prevail, and they question the wisdom of the two towns suing an agency that they and the other four Island towns pay for. In effect, say critics, Island towns are paying lawyers on both sides of the case.

At the Tuesday night Oak Bluffs selectmen’s meeting selectman Walter Vail read a prepared statement in which he blasted the lawsuit as a costly and unneccessary delaying tactic. His comments drew a round of applause.

The MVC has issued more than 600 decisions since the state legislature created the powerful regional planning and regulatory agency in 1974. It has lost only one court challenge.

Legal circles

The towns of West Tisbury and Edgartown filed suit against the MVC in Dukes County Superior Court on December 7.

Nearly 10 years in development, the roundabout was referred to the MVC for review by the town of West Tisbury on June 22. The commission accepted the referral.

On October 6, following several contentious public sessions, the commission voted 7-6 to approve a circular traffic interchange for the intersection that is now controlled with four stop signs.

On November 3, the commission reconsidered the action, but deadlocked 6-6. Failure to get a majority in favor of overturning the approval meant the earlier decision remained in place.

The complaint alleges that the commission violated its own procedures in approving the project, by voting before their land use planning committee made its recommendation to the full commission, by relying on preliminary design plans, and by failing to conduct a traffic impact study that could be reviewed by independent engineers.

“The MVC exceeded its authority by approving the roundabout in its written decision, dated November 8, 2011, which was not supported by the evidence before the commission,” attorneys wrote in the lawsuit.

The two towns asked the court to annul the MVC decision and send it back to the commission for further consideration. The MVC has 20 days to respond to the lawsuit

Sue once, pay twice

Richard Renehan, a highly regarded trial attorney with the Boston firm Goulston & Storrs, represents Edgartown and West Tisbury in the lawsuit. Mr. Renehan has represented Island towns and individual clients on the Island in several high-profile cases.

“Here’s the beef,” Mr. Renehan said in a phone interview with The Times. “They rushed through the approval of this project without giving everybody a fair chance to be heard and without making some of the tests, traffic studies, you would expect. If there is a basis for what the towns are saying, if that’s your view, I think you’re entitled to express it, and let a court tell you otherwise,” Mr. Renehan said.

Mr. Renehan understands the legal hurdles the two towns face in challenging the MVC. To overturn the MVC approval, the two towns must convince the court that commissioners made an unreasonable decision, based on the information gathered at public hearings and by their staff. In past cases, courts have granted commissioners wide latitude to reach conclusions. The legal issue does not hinge on the merits of the roundabout project.

The MVC budgeted $60,000 for legal costs in each of the last two fiscal years, and its draft budget for next year includes the same amount. Legal costs are difficult to forecast, however. In the last complete fiscal year, the commission actually spent $100,707 for legal representation, 68 percent more than planned for that year.

The bulk of the MVC’s operating income comes from the six Island towns through annual assessments, so collectively, the towns will pay all of the commission’s legal costs to defend the lawsuit.

In the current fiscal year, the MVC assessed Edgartown taxpayers $286,829 for that town’s share of total operating costs. West Tisbury taxpayers were assessed $113,264.

Edgartown voters appropriated $130,000 for the town’s own legal expenses in the current fiscal year. West Tisbury appropriated $45,000.

Costs all around

Richard Knabel, chairman of the West Tisbury selectmen, said the level of opposition justifies the expense. “It’s going to cost some money,” Mr. Knabel said at the time his board voted to file a lawsuit. “But given the staggering amount of opposition that this roundabout has on the Island, I think taxpayers will see this as money well spent.”

Art Smadbeck, chairman of the Edgartown selectmen, defended the cost by contrasting the attorney fees to the cost of the roundabout.

“Here we are in a time of austerity,” Mr. Smadbeck said shortly before the two towns filed the appeal. “This thing (roundabout) is going to cost, I’ve heard, $1.4 million. You know what that means, it’s probably going to be double that before they get done.”

Geoghan Coogan, speaking as a Tisbury selectmen, but not for the full three-member board, said he sees a conflict in towns hiring an attorney to sue an agency, when the towns fund that agency. Mr. Coogan said he is uncomfortable when the towns pay lawyers on both sides of the issue, and when one town pays to defend another town’s legal challenge.

“The taxpayers of Edgartown are paying for both sides of the pending legal action,” Mr. Coogan said. “The town of Tisbury taxpayers are also funding the defense the MVC must mount. If the town of Tisbury were then to contribute toward the legal action of the town of Edgartown, we’re then on both sides, just like Edgartown.

“I think it’s wrought with conflict. There is an appeal process in every MVC decision and so I understand this is a particular town’s option if they feel aggrieved by the decision of the MVC. But, that said, when the town is financially involved in the MVC, I see a potential conflict.”

Tisbury selectmen briefly discussed the lawsuit at a recent meeting, but did not decide whether to join the appeal.

History repeats

The roundabout decision is not the first time Edgartown and West Tisbury have been embroiled in controversy that involved a cross-town referral.

Many MVC decisions have been challenged in court, only one has ever been overturned, and Mr. Renehan argued that case.

Townsend Morey, then of West Tisbury, is the only person to date who has successfully sued the MVC. Mr. Morey and his sister owned a waterfront lot on North Water Street in Edgartown. Their plan to build a guest house was first reviewed by the appropriate town boards in Edgartown. It complied with all zoning requirements and did not trigger any provision of the DRI checklist then in effect, the complex list of projects that warrant mandatory or concurrent review. Some Edgartown residents objected, however, contending that it would block views of the harbor.

With no reason to refer the project to the MVC and no reason to deny permits based on local zoning, Edgartown selectmen asked West Tisbury selectmen to make a cross-town referral of the project. The MVC reviewed the plans and imposed several conditions.

Mr. Morey’s appeal progressed through various courts, until the Massachusetts Supreme Judicial Court ruled that the MVC erred. The court vacated the decision. The state’s highest court ruled that cross-town referrals were not what state lawmakers intended when they approved the legislation that created the MVC.

Soon after the court ruling, the state legislature amended the law to authorize cross-town referrals. The legislation, broadly written, now allows a government board to make a discretionary referral for a project located in another town, for any reason. The MVC must then decide whether to accept the referral.