Counsel weighs in on Oak Bluffs moped complaint, hearings set for next week

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Mopeds rentals are back in business in Oak Bluffs after an emergency selectmen's meeting.

Oak Bluffs town officials received long-awaited legal opinion concerning the town’s authority to ban moped rentals, and it does not augur well for moped opponents.

The 13-page opinion was in response to a January complaint from the Mopeds Are Dangerous Action Committee (MADAC). The MADAC complaint asserted that licenses for the three moped rental businesses, owned or co-owned by Jason Leone, should be rescinded for numerous bylaw violations.

The March 11 opinion, written by attorney Michael Goldsmith, of Reynolds, Rappaport, Kaplan & Hackney, says the town’s ability to act on moped rentals is limited.

“The town does not have the legal authority to prohibit the leasing or renting of mopeds through a local bylaw,” Mr. Goldsmith wrote.

He cited a 1981 Supreme Judicial Court (SJC) decision from an unsuccessful attempt to ban rental mopeds in Provincetown.

The SJC decided the town bylaw could not trump a state statute that allows people to operate mopeds on public roads.

“We do not doubt that Provincetown’s problems … may be a unique hazard in a congested resort area … but since the bylaw and [state law] are inconsistent, the bylaw must yield,” the SJC opinion states. The SJC added, “Provincetown has shown that it is not without means to deal effectively with such problems.”

Mr. Goldsmith also cited a 1988 Dukes County Superior Court decision, Town of Tisbury v. T.P. Leasing, in which the court ruled the town could not revoke the moped rental license for T.P. Leasing “without a hearing and a factual determination of regulatory violations warranting denial of a license … [Tisbury] has crossed over the line between reasonable regulation and effective prohibition,” the opinion stated.

Mr. Goldsmith noted that the state attorney general has ruled that the existing moped bylaws, which include provisions to reduce the number of licenses over time, are valid, “provided that any resulting reduction in total available licenses does not amount to an outright prohibition.”

Mr. Goldsmith’s opinion also addressed the oft-cited “test track” violation cited by the MADAC complaint, which asserts that none of the three moped rental concerns have the required 50-foot-long, 25-foot-wide test track on premises, as required by a town bylaw approved in 2002. Todd Rebello, a former selectman directly involved with the drafting of the 2002 by-law, has stated that the codicil was only intended to ensure that no new moped businesses could open, since the dimensions were nearly impossible to accommodate in the B-1 district, and furthermore, that the existing businesses were and are exempt.

At the March 14 selectmen’s meeting, Mr. Rebello said that Mr. Leone’s attorney had advised against an offsite training track, since it could be construed as a violation of the existing bylaw.

In his opinion, Mr. Goldsmith said, an offsite training track could be permissible. “The board should be satisfied that a licensee’s alternative proposal satisfies the purpose of the provision, which is public safety,” he said.

Mr. Goldsmith recommended that selectmen hold hearings with Mr. Leone before renewing the three licenses for the 2017 season. Individual hearings for each license will be at 4:30 pm, 5 pm, and 5:30 pm on Tuesday, March 28, at the Oak Bluffs library meeting room.