The Martha’s Vineyard Commission (MVC) will not rescind or even reconsider its approval of the state funded Blinker intersection Roundabout in Oak Bluffs.
Commissioners, at a meeting Thursday, June 21, heard from their chairman, Chris Murphy of Chilmark, that he would not entertain a motion offered by Lenny Jason Jr., also of Chilmark, to withdraw the agency’s approval of the state project.
Mr. Murphy, a supporter of the Roundabout, said that MVC legal counsel, Gareth I. Orsmond of the law firm Rackemann, Sawyer & Brewster in Boston, advised that there is no basis in the regional land use planning and regulatory agency’s enabling legislation that would allow such a backtrack from the favorable decision the commissioners gave the project.
The commissioners studied the letter from counsel that had formed the basis for Mr. Murphy’s action. And, voting on a question posed by Mr. Jason – whether the commissioners would accept Mr. Murphy’s decision – the tally was 9-4 to end the controversial effort, urged by some town officials and a sampling of Island voters, to reverse the Roundabout decision.
The meeting agenda had listed a “possible motion to rescind DRI 633.” Mr. Jason, the Dukes County Commission’s MVC appointee, had announced at a meeting on June 7 that he intended to challenge the MVC’s decision now eight months old.
The $1.4-million project by the Massachusetts Department of Transportation (MassDOT) involves constructing a single-lane roundabout at the intersection of Edgartown-Vineyard Haven, Barnes and Airport roads that is now controlled with four stop signs and flashing red lights. The project also includes pavement reconstruction, sidewalks, drainage, landscaping, and other improvements.
Mr. Jason had asked Mr. Murphy at the MVC’s June 7 meeting whether he could start the process to call for a rescission of the commission’s approval of the roundabout project. When Mr. Murphy said yes, Mr. Jason announced he would call for a vote to rescind the MVC’s decision at its next meeting. Mr. Jason also said if the commissioners approved his motion to rescind their approval, he would follow up with a motion to deny the project application.
However, there is now no application for the project in front of the commissioners, MVC executive director Mark London told The Times in a phone conversation on June 13.
He said the MVC staff had asked legal counsel for an opinion as to whether there was any legal basis for rescinding a decision, especially after the appeal period was over and the decision had been filed.
In his letter dated June 21, Mr. Orsmond wrote, “Since the roundabout was approved by a written decision, a new vote would be a rescission of the approval, not just a reconsideration of a vote prior to adopting a final written decision (as was the case earlier). Rescission is a weightier matter than reconsideration.
“The MVC must act within the confines of its enabling legislation. That legislation does not grant express authority to rescind a DRI approval. I have serious doubts about the MVC’s authority to rescind a DRI approval without express statutory or regulatory authority or an express condition in the DRI approval stating that the approval may be revoked for good cause (the roundabout DRI approval includes no such condition), except where the applicant made material misrepresentation to obtain the approval or has violated conditions of the approval.”
Mr. Orsmond added that even in cases where a DRI approval may properly be rescinded for material representations or violations of conditions, the applicant and holder of the DRI approval would be entitled to due process, with notice and an opportunity to be heard prior to rescission.
Arguments for and against
After he allowed Mr. Jason to make his motion, Mr. Murphy read a statement in which he explained his role as chairman, and his decision to deny Mr. Jason’s motion.
Mr. Murphy pointed out that the town of Oak Bluffs and MassDOT have spent a lot of money on detailed plans for the project.
“So it’s not as though we are rescinding something that does not have repercussions,” he said. “The towns of West Tisbury and Edgartown and the MVC already spent over $60,000 arguing about this. This is really a political issue. It’s not a regulatory issue. ”
Speaking directly to Mr. Jason, Mr. Murphy told him that he respected his opinions, but added, “You’re a politician in every sense of the word, more than I am. But in my role as chairman I have to rule the motion is out of order and that’s the end of it.”
Mr. Murphy said, “Can you be comfortable with that?
“Of course not,” Mr. Jason replied. He paused a beat and added, “With all due respect.”
Mr. Jason said it was a difficult decision to call for the rescission vote, but he thought it was the commissioners’ obligation as elected officials to do what is right for the Vineyard.
“As a regional body, we should be looking at the regional ramifications that this project is going to cause to the neighboring communities,” Mr. Jason said. “It would be no different than, say, if Chilmark wished to put up a nuclear reactor so it could generate its own electricity. It would probably benefit people in Chilmark but it certainly wouldn’t be good for the entire Island.”
Mr. Jason made a motion to overturn Mr. Murphy’s ruling not to allow a rescission vote.
Doug Sederholm, an elected Chilmark commissioner since 2003 and a practicing attorney, weighed in against Mr. Jason’s new motion, also on legal grounds.
“I’ve read cases and I happen to agree with our counsel,” Mr. Sederholm said. “Our statute does not give us the power to rescind a DRI.
“And the reason we have this rule is there can be finality and predictability in the law, and the landowners, when they get a permit, can rely on the permit that they’ve gotten to go forward. It may be unpopular with those people who opposed the round-about, but regardless of whether it’s a roundabout or an ice cream stand, it’s important that we do our job the right way, and the right way is to have predictability and finality in what we do.”
Commissioner Jim Joyce of Edgartown said he understood that the state could move forward with the roundabout project even if the MVC rescinded its approval.
“Let them shove it down our throats, then,” Mr. Jason responded.
Commissioner Brian Smith of West Tisbury took issue with the MVC’s review process.
“This was a sloppy process we went through and a poor decision,” he said. “Are we saying now, as counsel is saying, if we make a really bad decision we can’t go back and fix it?”
Commissioner Erik Hammarlund of West Tisbury, also an attorney, said besides being illegal, a vote to rescind the roundabout decision would raise the question of the future of the MVC as a trustworthy body.
“To open ourselves up to being a body where we cannot produce decisions in finality would gut the MVC,” Mr. Hammarlund said. “The MVC has an incredibly important role. In theory, if we rescind this, we put every single decision the MVC has made in question.”
Mr. Jason said he disagreed with the arguments against his motion and that the MVC had a right to govern itself.
“If we move to rescind, the state has option to say we don’t need your permission,” Mr. Jason said. “Let them jam it down our throats.”
Veteran commissioner Linda Sibley of West Tisbury said she could not recall any previous circumstance when the MVC sought legal advice and ignored it. “I’m sorry it got approved, but I am certainly not going to vote to rescind because I think it’s illegal,” she said.
Mr. Smith, Christina Brown of Edgartown, and Camille Rose of Aquinnah joined Mr. Jason in voting in favor of his motion to overturn Mr. Murphy’s ruling not to allow a rescission vote.
Mr. Sederholm, Mr. Joyce, Mr. Hammarlund, Ms. Sibley, Kathy Newman of Aquinnah, John Breckenridge of Oak Bluffs, and Peter Cabana, Ned Orleans, and Holly Stephenson of Tisbury voted against Mr. Jason’s motion.
“Thank you, Mr. Jason, I hope we can put this to bed,” Mr. Murphy said after the motion’s defeat.
The Oak Bluffs selectmen approved the roundabout proposal in 2006, following a study of possible options prepared by the MVC and after several public hearings convened by the town.
The roundabout’s construction was delayed until last year, when MassDOT accepted the project for funding under the fiscal 2012 transportation improvement program for the MVC.
On June 22, 2011, the town of West Tisbury referred the roundabout to the MVC for review as a development of regional impact (DRI). The commission accepted the referral. On October 6, following several contentious public sessions, the MVC voted 7-6 to approve a roundabout at the Oak Bluffs intersection.
Mr. Jason was a vocal opponent of the project throughout the MVC’s DRI review. His latest effort to rescind the MVC’s approval mirrors his previous action in November 2011. Mr. Jason made a motion to rescind the commission’s vote that failed to achieve a simple majority, and the MVC’s decision stood.