It appeared the nine-month battle over rental mopeds in Oak Bluffs was rounding the corner for a final conclusion on Tuesday night, when selectmen were set to vote on the license renewal of three businesses in town. But the final decision will have to wait until the board’s next regular meeting on May 9.
Before a packed town hall meeting room, town counsel Ron Rappaport rendered a detailed opinion based on facts he gathered at the selectmen’s March 28 public hearing, and from a 13-page legal opinion written by his colleague, attorney Michael Goldsmith, which was submitted to town officials March 11.
Mr. Goldsmith’s opinion was in response to a Jan. 20 complaint MADAC complaint to the town from the Mopeds Are Dangerous Action Committee (MADAC) which alleged numerous bylaw violations by the three moped rental concerns in town — Island Hoppers, King of Rentals, and Ride On Mopeds — including change of location and change of ownership without the board’s approval, lack of licenses in certain years, and the absence of a required onsite test track or suitable substitute approved by selectmen.
“I’m well aware of the town meeting votes,” Mr. Rappaport said, referring to the overwhelming opposition to rental mopeds expressed at last week’s town meeting and election. “Under the bylaw, it is up to the board of selectmen to make the decision.”
Mr. Rappaport reiterated a point made in Mr. Goldsmith’s opinion, which cited a 1981 Supreme Judicial Court decision that denied Provincetown’s proposed ban on rental mopeds. “An outright ban won’t fly in the courts,” he said. “But they did indicate Provincetown was not without means to address the situation.”
Those means, Mr. Rappaport said, are filing a “Home Rule Petition,” which allows towns to act independently of state law, after the petition is passed at town meeting and then by the state legislature.
“The attorney general’s office has cautioned us to not interpret our bylaws to bring the number of dealers down to a point where it can be deemed a ban,” he said. “We cannot get to a number where we effectively bar mopeds in this town unless we get to the legislature.”
The missing license renewals and improper change of location cited in the action committee’s complaint were not reason for license forfeiture, Mr. Rappaport said. “The three moped businesses have operated from the same location for a decade or longer, irrespective of what number was on the license,” he said. “While physical licenses for every year could not be located, most of the licenses were located, as were checks showing payments. It’s a reasonable inference that licenses were issued by the board of selectmen.”
The same inference held true for the assertions of change of ownership, he said.
The test track bylaw, however, can be considered a public safety issue in Mr. Rappaport’s opinion, and therefore could and should be treated differently.
The “test track” bylaw, approved in 2002, requires a 50-foot-long, 25-foot-wide test track on premises, unless granted a waiver by selectmen. Todd Rebello, a former selectman directly involved with the drafting of the 2002 bylaw, has stated at previous selectmen’s meetings 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. He also has asserted that the existing businesses were and are exempt, or grandfathered.
“It’s clear that none of the three moped dealerships have training facilities that meet the bylaw requirement,” Mr. Rappaport said. “It’s also clear that there are no documents that show waivers were applied for or granted by selectmen as the bylaw requires. I have to say over all those years that the board inherently waived that requirement.”
Although Mr. Rappaport did not see solid legal ground for license forfeiture for past noncompliance with the test track by-law, he did present selectmen with recourse moving forward.
“No licenses have been issued for 2017, and the training track requirement in our bylaw, created by the voters, and the waiver requirements go directly to the issue of public safety,” he said. “This board has a responsibility moving forward to require the applicants complete waiver applications and to see whether they are satisfied that public safety is being met.”
Addressing Mr. Rebello’s contention that the current businesses are grandfathered, Mr. Rappaport said that there is no grandfathering in bylaws unless specifically stated, which in this case it is not.
“It doesn’t mean that because licenses were issued in the past that you have to issue them again,” Mr. Rappaport said. “This is the voters’ bylaw, and it’s the selectmen’s obligation to enforce it. The failure to do it in the past does not in any way prevent you from acting in the present.”
Moving forward, Mr. Rappaport advised selectmen to not renew any licenses until presented with a test track waiver application.
“You’re dealing with important public safety requirements, and you should take it very seriously. You have to sit as a board and make the tough choices, and ask, Is this providing proper training?”
Mr. Rappaport also suggested selectmen get the gears moving on a home rule petition: “Bring it to the voters [at town meeting] and ask them if they wish to ban mopeds. That’s the only way you can do it.”
Noting the overwhelming support the nonbinding rental moped ban has received at town meetings and on town ballots so far, Mr. Rappaport said an Island-wide ban could be instated via home rule petition.
“But I don’t have any idea whether the state legislature would pass it,” he said. “I couldn’t begin to predict the likelihood of it.”
Selectmen voted unanimously 5-0 to take town counsel’s advice. Applicants Jason Leone and Aguimar Carlos, who between them account for the three licenses, must apply for a test track waiver, and present detailed plans for training protocol to the selectmen at the board’s next meeting on May 9.
In other business, the board unanimously approved chairman Gail Barmakian’s motion to pass her gavel to selectman Kathy Burton. The board also unanimously voted selectman Greg Coogan as vice-chairman.