Judge sides with MVC in gas station appeal

By Nelson Sigelman - March 23, 2006

A Superior Court judge ruled that the Martha's Vineyard Commission (MVC) acted reasonably when it decided that an offer to sell gasoline at a discount to Islanders did not outweigh the probable detriments associated with a proposal to build a new gas station on High Point Lane adjacent to the Tisbury Park and Ride lot.

Tisbury Fuel Services, the company formed to build the project, filed the lawsuit against the MVC after the Vineyard's regional land use permitting body in Dec. 2002 voted 8-3 not to permit the new gas station. In rejecting the project, commissioners cited concerns about increased traffic along State Road, reliance on the automobile in general, and the pressure a new station might place on other Island gas retailers.

TFS filed suit in Dukes County Superior Court on Feb. 12, 2003. In its 26-page complaint, Tisbury Fuel Services claimed that the company was denied a fair hearing before an impartial body and that the MVC based its conclusions on "mere speculation," and failed to take into account the benefits for year-round Island residents during most of each year, as opposed to "any detriment caused by a slight increase" in traffic for six weeks during the summer season.

"The MVC failed to fully weigh the potential benefits of the proposal. Specifically, the MVC failed to weigh the potential benefits of introducing competition, which would result in other gas stations lowering their prices, into a market which has been controlled by two gas suppliers," TFS argued.

In a 14-page decision (available here) handed down Thursday in Dukes County Superior Court, Justice Bertha D. Josephson agreed with the MVC's view that the proposed gas station would compound congestion, increase delays and create dangerous conditions along a critical traffic corridor.

The judge said that savings that could amount to as much as 59 cents per gallon for some residents over the span of time it would be offered was not enough to offset the project's detriments.

The judge rejected the results of a traffic simulation presented by TFS as flawed and gave little weight to information presented after the trial about a proposal by Tisbury to build a new connector road between State Road and the Edgartown-Vineyard Haven Road, noting that "whether the connector road will come to fruition and the form it may take are not known."

In her conclusion the judge wrote, "In short, the economic benefit of offering cheaper gasoline to Island-resident patrons over the period of several years is not sufficient to outweigh the non-economic costs to the Island as a whole by compounding congestion, increasing delays and creating dangerous conditions on a critical traffic corridor. As the probable benefits do not exceed the probable detriments of the project, I find that there is sufficient evidence to support MVC's decision and it was not arbitrary or capricious."

According to the memorandum of decision issued by the court, the trial before a judge took six days and generated nearly 1,000 pages of transcript and 50 exhibits.

Mark London, MVC executive director, said the trial was a long and arduous process that included a presentation before the court of all the original arguments and evidence presented during the MVC permitting process. "We are very pleased that the court came to the same conclusion that the commission did and upheld the decision," he said.

Steven Wehner of Towson, Md., one of several partners in the project, said he found the judge's decision hard to accept. Mr. Wehner, the former owner of a Vineyard auto repair shop, said the judge relied heavily on a traffic study model produced by an expert who admitted on the stand that he did not believe the predicted results, such as an eight-minute wait to exit Cronig's Market, should a gas station be allowed.

Mr. Wehner said TFS would file an appeal of the Superior Court decision. "I feel so strongly that there is not a traffic problem there," he said. "I would not have brought the project before the MVC if I thought there was."

Mr. Wehner said the decision would have been easier to accept if the MVC had been straightforward and said it did not want a gas station rather than created a "fantasy" with traffic. "It would have been a lot easier to swallow," he said.

Traffic, traffic and more traffic
The impact of a gas station on traffic underpins much of the court's decision. The judge noted, "As the year-round population has grown, so has the number of vehicles registered on the Island. In 1991, there were 12,807 such vehicles; by 2000, there were 22,345."

Citing a traffic study prepared by TFS, the court said that the proposed project would generate between 103 and 141 new vehicles trips per hour on High Point Lane at peak season depending on the day of the week, and put additional pressure on nearby intersections

Lengthy delays, said the judge, "have dangerous consequences and compromise public safety as they can increase driver frustration and lead to risky driving maneuvers operators might not otherwise undertake."

The MVC's enabling legislation provides a framework under which the commission is provided with broad discretion. In her decision the judge discussed the authority of the MVC and the parameters of its decision-making.

The judge outlined the criteria the MVC uses to evaluate the probable benefits and detriments of a proposal, a process that allows the MVC to consider "other relevant factors." She said that in considering the appeal her responsibility was to make an independent determination as to the sufficiency of the evidence giving no weight to the commission's finding.

The judge was not persuaded that discounted gasoline would "significantly contribute" to the Island or the "soundness of the local economy." She noted that there are already nine gas stations on the Vineyard and suggested that the same cost saving measure could be provided "at new stations at other sites where the location would not pose the same hazards."

Two for two
TFS was the second gas station plan rejected by the MVC in the fall of 2002. The first proposed station - known as Gervais and Goldsborough (G&G), which would have been located less than 100 yards from the projected TFS site on the site of the old Coca-Cola bottling plant - was rejected unanimously by the MVC on Sept. 19.

In comments preceding the Sept. 19 vote on the Gervais-Goldsborough station, the commissioners expressed concerns about the effects a new gas station would have on the economic well being of the Vineyard's two up-Island gas stations.

During the application process, TFS representatives sought to distinguish their proposal from G&G, emphasizing benefits such as its low visibility from State Road, public restrooms, and proximity to the Park and Ride (for which they offered to sell tickets).

Proponents also argued that the new station would ease traffic congestion at Five Corners because motorists would no longer have to pass through there to buy gas. But it was lower gas prices, which TFS asserted would be the biggest advantage - even one that they argued could trigger lower gas prices across the Island - that drew the most fire.

Other gas station owners challenged the project at public hearings where much of the discussions centered on business competition that could put an existing gas station up-Island out of business and disrupt the geographic distribution of a "basic necessity."

During the debate leading up to the MVC vote, commissioners questioned the wisdom of a proposal meant to facilitate more use of the automobile. "It may be incredibly unfair that Martha's Vineyard has more expensive prices than everybody else in the United States," said commissioner Linda Sibley of West Tisbury, "but we should all have higher gasoline prices to discourage the use of the automobile."

"For reasons of philosophy," said Tristan Israel of Tisbury, former MVC commissioner said, "I don't really think we should be building facilities to promote the automobile on Martha's Vineyard. I think that's a big mistake and I don't want to be a part of it."

Alan Schweikert, former Oak Bluffs MVC member, who voted for the project, said the station would provide an opportunity for people to purchase gas on sale and perhaps lower the price of gas on this Island. "I think we're overanalyzing this completely. We're just trying to justify our own reasons for killing this project," he told his fellow commissioners

In its January denial of the application, the MVC said in part that "the commission believes that the combination of the lack of clear evidence of the need for another gas station combined with the very serious traffic consequences of the proposed station resulting from introducing a high traffic-generating use onto State Road - a vital stretch of road that is overly congested - do not outweigh the possible benefit of discounted gas prices."

MVC math
Sean Conley of West Tisbury, an Island realtor and one of several partners in the project, said that the MVC process, culminating in the judge's decision, had been both disappointing and frustrating. He said some projects referred to the MVC as developments of regional impact (DRI) appear to get little scrutiny while others remain bogged down for months for no apparent reasons.

"There are no criteria. There are no standards," said Mr. Conley. "It is sort of what the commissioners feel like and what pops up."

Mr. Conley said the DRI hearing process is undisciplined.

"It is not a smooth one-two-three process," he said. "It is more like, one-two-five, oh let's go back to three, uh, let's go up to seven now and back to four."

Mr. London addressed similar issues in his 43-page report released in March 2003, "Looking at the Commission, Review of the Operations of the Martha's Vineyard Commission and Recommendations for Improvement."

Regarding DRIs, he said, "There is a perception that the MVC improvises the process as it moves along, that it micro-manages projects, and that its decisions are inconsistent." Mr. London recommended it be "thoroughly renewed" to become more clear and predictable - and also to make better use of everyone's time, including applicants, commissioners, and the public.

Mr. Conley said small businesses face large expenses, beginning with the MVC application fee, and continuing with the need to hire experts. He said that TFS spent more than $50,000 just on a traffic study.

Mr. Conley said that during the course of the application process the MVC commissioners sometimes disregarded their own professional staff. "They should listen to their own staff," said Mr. Conley. "That is what they are there for, that is what we pay them money for."

He said the commissioners need to step back and consider whether projects truly have regional impact and stop getting involved in every little detail, including the nature of the bushes used in a landscaping plan. "They should consider their time more valuable than it is but obviously they think they have to get into every little detail even when it is not of regional impact," he said. "I wish every Vineyarder had to sit there, go through it once. It is unbelievable."