Court order stops tree cutting

By Susan Vaughn - October 4, 2007

The Martha's Vineyard Commission will decide tonight whether to add five ancient paths in Edgartown to the existing Dr. Fisher district of critical planning concern (DCPC).

On two of those paths, extensive tree cutting took place this week. A Superior Court order, obtained by Edgartown town counsel Ron Rappaport, put a halt to the tree cutting. The order was directed at four members of the Benjamin Hall family, a trucking firm and an employee of that firm. Edgartown's action was intended to enforce the MVC moratorium against development within 20 feet on either side of the designated path areas. The moratorium is an automatic event following the nomination of a district of critical planning concern and the acceptance of the nomination by the MVC. It can last 60 days, or until the commission acts on the nomination.

Mr. Rappaport requested the order Friday. Margaret Serpa, chairman of the Edgartown selectmen, requested the court's intervention to stop the cutting on Middle Line Path, within three hours after it was reported to police. After more cutting occurred Saturday on Watcha Path, the Edgartown selectmen authorized Mr. Rappaport on Monday to request an extension of the earlier order to include three additional ancient paths, Pennywise Path, Tar Kiln Path and Watcha Path, which are also included in the DCPC proposal along with Middle Line Path and Ben Tom's Road. That extension request has not been filed, Mr. Rappaport said Tuesday. The town is monitoring the paths to guard against further tree cutting.

The defendants subject to the original cease and desist order were Terese M. Hall, individually and as trustee of the Forsythia Trust; Benjamin L. Hall; Benjamin L. Hall Jr. and Brian M. Hall, both individually and as trustees of the Ben Tom Realty Trust; J.C. Trucking; and James Clark. The Halls are described in the injunction as the alleged owners of properties along or near Middle Line Road, "seeking to utilize the road as access to various properties which they allegedly own in Edgartown." The paths are considered public ways based on historical evidence cited in the restraining order.

Reacting to the restraining order in a telephone call to The Times yesterday, Benjamin Hall Jr. defended his right to trim trees and clear the paths, because he said they are not public ways.

The tree-cutting appeared to defy the 60-day moratorium the MVC imposed on Aug. 9, against any development along the five paths, while they are being considered for inclusion in the existing Dr. Fisher DCPC.

"Cutting trees constituted development," Bill Veno of Edgartown, an adviser to the town byways committee, said at the selectmen's meeting Monday. Residents of the affected byways and the town byways committee members are angry about the cutting.

"This is a slap in the face to everybody," Robert Green of the byways committee said Monday at a meeting of the Edgartown selectmen. He offered photographs of cut trees on Watcha Road. "Some of the damage has been done. It's almost criminal," he said, adding that some of the trees were 80 years old.

Linda DeWitt of 77 Watcha Path told the selectmen she believed the cutting was "very deliberate." She said a confrontation on that path Saturday afternoon between residents and individuals cutting the trees was a "volatile situation for 15 to 20 minutes before police arrived." She added that the warden system set up last year to patrol the paths worked well in that instance.

The tree cutting on Middle Line Path was a continuation of previous cutting on the path, also believed to have been initiated by Benjamin Hall Jr. Representatives of the Edgartown Meadows Road Association complained about that cutting also at a selectmen's meeting on July 30. Benjamin Hall Jr. said at the July meeting that he has an easement to Middle Line Path, which he is allowed to maintain.

Mr. Hall claimed Wednesday that he is trimming trees as other private property owners on the paths have been doing for years, to keep them clear. He said the tree cutting he has been doing in the Middle Line Path area is primarily on Fisherman's Knot Road and his family's property, Hall's Gate at the intersection of those two roads, to gain access to the property. The Edgartown Meadows Association has put boulders in Fisherman's Knot Road to block his mother's access to her property, he said, so the Halls are seeking access on Middle Line Path.

Mr. Hall also claimed that the MVC moratorium applies to development permits, based on the MVC's enabling legislation. Tree cutting does not require a permit, he said. He said he is surprised by the attempts to make the ancient paths public ways. He said the town has insisted for years the paths are not public ways, because it didn't want to maintain them. "In making them public ways, the town is obligated to make them passable streets," he said. "I don't think anyone wants to widen these streets for two-way traffic."

"I'm trying to make it safe and passable for fire trucks," Mr. Hall said, adding that he cannot navigate that road where he also owns property. "We're making it so people can go up and down those roads," he said. "We're doing nothing wrong and doing it by the book."

The Edgartown Meadows Trust and Edgartown Meadows Road Association also are "exploring their legal options" in connection with the tree cutting, Marilyn Vukota, a lawyer and resident of the subdivision said Wednesday. "The Halls have unilaterally determined their rights in the Edgartown Meadows subdivision," she said.

Ms. Vukota said the trees between Middle Line Path and Whaler's Walk, the main road in the subdivision, "have been wiped out." She said the association is awaiting the MVC's decision tonight and waiting to see what action Benjamin Hall Jr. will take. He has the right to appeal the MVC decision, she said.

During the first tree-cutting incident on Friday, Paul Elliott, resident of the Edgartown Meadows Road Association, met police on Fisherman's Knot Road shortly after noon. Mr. Elliott told police officer Christopher Dolby that he had observed James Clark of J.C. Trucking operating a Bobcat and another worker cut trees with a chain saw on Middle Line Path, according to the police report. He said the workers were continuing to clear Middle Line Path, work that had been started by John Keene Excavation earlier.

Mr. Elliott said Mr. Clark told him, "Ben Hall [Jr.] had instructed him to cut in a 14-foot wide road along Middle Line Path and connect it with the work Keene had done previously," according to the police report. Mr. Elliott also told police he had reported the incident to the selectmen's office, and that Mr. Rappaport was working on an injunction to stop the clearing. The sheriff's department delivered the order to Mr. Clark, who had stopped the clearing by 4 pm, Officer Dolby said in his report.

On Saturday afternoon, Officer Garan Chivinski responded to a complaint about the tree cutting on Watcha Path and met with Mr. Green and several neighbors, including Chris Downing, the road association president. The residents told Officer Chivinski they had noticed two men with a pickup truck marked "JC Associates" cutting down trees along the wooded byway, his police report said.

When Mr. Green asked the workers what they were doing, "they told him that Ben Hall sent them to cut some firewood," the police report said. Mr. Green told police Watcha Path leads to a property in West Tisbury owned by Mr. Hall, but is not otherwise accessible. Officer Chivinski also took photos of the damage.

A hearing on Edgartown's request for permanent court action to stop the cutting was scheduled for Superior Court Tuesday, but the case was continued because Benjamin Hall Jr. was not able to attend, Mr. Rappaport said. The hearing will be held at a future date when Mr. Hall is available, and the temporary order remains in effect until the hearing, he said.

At the July meeting, the selectmen told the Edgartown Meadows homeowners they would probably have to solve the tree cutting matter through litigation, because it had been done on private property.