Edgartown tells TTOR no sale

By Nelson Sigelman - August 9, 2007

The town of Edgartown last week ordered The Trustees of Reservations (TTOR), the private conservation group that owns or manages several properties totaling more than 900 acres on Chappaquiddick, to stop advertising and selling merchandise.

TTOR had been selling tee-shirts, sweatshirts, hats, tote bags and tire gauges imprinted with the property sticker logos for Cape Poge Wildlife Refuge, Wasque Point Reservation and Norton Point Beach. Money earned is used to defray management costs.

The merchandise was displayed and sold at the gatehouses that provide access to the beach properties and the popular Mytoi Garden on the road to the Dyke Bridge. It has since been removed, said TTOR officials.

Town zoning officer Lenny Jason Jr. insists that the sale violates zoning bylaws prohibiting commercial activity. The issue had lain dormant until some residents of the small island complained to Mr. Jason, prompting him to take action.

The dispute is not a new one. The Trustees and the town wrangled over the issue of what constitutes a commercial activity in 1998 and again last year. TTOR says that the sale of merchandise supports the nonprofit's educational and conservation missions. TTOR has framed its legal argument around what is commonly called the Dover Amendment, a state law that prohibits local zoning from regulating the use of land for educational purposes.

In a letter dated August 2, Mr. Jason said that "over the past several years" he and town counsel had sent TTOR letters informing the conservation group that the sale or merchandise violates zoning. He said advertising merchandise constituted a separate violation of the town's sign bylaw.

Mr. Jason wrote, "It has come to my attention that you are once again selling merchandise from Mytoi at Chappaquiddick and are advertising merchandise at Norton Point. I regard these as inherently commercial activities, which are prohibited uses under the Edgartown Zoning bylaw, and are not exempt uses within the meaning of the Dover Amendment.

"This letter constitutes a formal cease and desist order directing you to immediately stop the selling of merchandise from these or any other locations in Edgartown, and to stop advertising the merchandise as for sale."

Mr. Jason said any violation would result in fines of $50 per day. He advised TTOR of its right to appeal to the zoning board of appeals.

On Monday, Chris Kennedy, TTOR Island regional director, said TTOR had complied with the town order. He said the conversation is now between the lawyers.

"We have in the spirit of cooperation suspended the sale of merchandise and removed any offending signage that might even suggest tee-shirt sales," said Mr. Kennedy. "We will just stand pat and see what happens." He added that TTOR has always worked well with Edgartown and he wants it to remain that way.

Ron Rappaport, Edgartown town counsel, said he had discussed the issues with TTOR's lawyer and expects to come to a resolution. "The dividing line between what is permitted activity for a nonprofit and what goes over the line into commercial activity is very hard to draw," said Mr. Rappaport. "We have worked successfully with The Trustees in the past to come up with a line that we can all live with and I am confident that we will be able to work out a solution on the current issue."

TTOR is the state's oldest private conservation group. It was established in 1891 "for the purpose of holding and maintaining, for public use and enjoyment, properties of exceptional scenic, historic and ecological value." In addition to those on Chappaquiddick, its Vineyard properties include Long Point Wildlife Refuge in West Tisbury and Menemsha Hills in Chilmark.

TTOR took over management of Dukes County-owned Norton Point Beach under a contract signed last year. At the time the management deal was concluded TTOR said it planned to support the cost of Norton Point management with sticker sales, merchandising, and eventually the sort of natural history tours now popular on other properties.

Last summer The Trustees cleaned the beach of old rusting posts used by the county to erect fencing in the past, removed much accumulated debris, marked off-road vehicle trails, delineated protected areas for returning shorebirds, and began regular beach patrols.

TTOR relies for operating revenues on property-based permit fees, tours, merchandise, donations, and memberships.

Mr. Kennedy said the sale of merchandise provides another important source of revenue that helps to support other programs, such as the Claire Saltonstall Education Program, which provides free environmental education for more than 700 Vineyard school children.

Mr. Kennedy said the Museum of Science and other educational and cultural institutions sell merchandise in order to maintain valuable programs. And in the process, visitors are happy to have a memento to take home.

Mr. Kennedy said TTOR earned more than $120,000 from merchandise sales last year. "If we are barred from selling tee-shirts it will certainly have a serious impact," he said. "It is certainly a substantial portion of the revenue stream."