The Times did a poor job last week describing Edgartown's effort to stop tree cutting along Middle Line Road, one of several ancient pathways that were part of a nomination to the Martha's Vineyard Commission for protection in a district of critical planning concern (DCPC). At the end of the day Oct. 4, the commission accepted the nomination. Ben Hall Jr. takes us to task in a letter published this morning.
Edgartown will now develop rules to govern changes to these ways. These rules will become effective if and when Edgartown voters adopt and incorporate them in town zoning rules, and subsequently when the MVC approves the rules as adequate to the DCPC purpose.
The acceptance of the nomination of these roads - Middle Line Road, Pennywise Path, Tar Kiln Road, Ben Tom's Road, and Watcha Path - to be added to the existing Dr. Fisher Road special ways district in Edgartown triggered a moratorium that prohibits Edgartown from allowing development permits for work on or along these ancient paths. Before the MVC's decision on Oct. 4, no Edgartown development permit would have been required to cut brush or trees on the five old roads, only on the Dr. Fisher Road, which was already subject to special ways protections. Similarly, since the Oct. 4 decision to accept the nomination, because no development permits are required for work on these roads, the DCPC moratorium prohibiting the town from issuing development permits of any sort does not extend to any tree cutting that may take place. This is one of the arguments advanced correctly by Ben Hall Jr., on behalf of his family real estate interests in the land on and adjacent to the five ancient roads over which the MVC intends to extend special protections. It is not an argument that is immune to legal challenge, but even the MVC has had no advice that the moratoriums incident to DCPC designations apply to all developments on designated property, rather than exclusively to those development activities that require a town-issued development permit. Our story last week fumbled this distinction.
What does govern - and prohibit - the clearing, tree cutting, and other alterations of the Middle Line Road is the temporary restraining order issued Sept. 28 by a Superior Court judge in Fall River. But the basis for this court ordered restraint - which has yet to be argued on its merits in front of a judge and made permanent, or otherwise extended, or set aside - had very little to do with the pendency of MVC action on the DCPC designation.
The argument that Edgartown town counsel Ron Rappaport made successfully to the Fall River judge was that Edgartown may have rights in Middle Line Road that would be harmed by continued alteration of the road and roadside by the work the Hall family had hired done, first early in the summer and most recently within a few days of the MVC meeting. Mr. Rappaport asked the judge to stop the cutting "until the court determines the scope of the public rights therein."
To buttress his request to the court, Mr. Rappaport cited his own examination of the issue of public rights in the road, documented in his Sept. 6 letter to the Edgartown selectmen. The selectmen had asked "whether any public rights exist in [such old roads, known as Proprietors Roads] and, if so, who has the right to clear or expand them." Mr. Rappaport told the selectmen that the answer to their questions was "both complicated and unclear."
"I have consulted with a number of lawyers who are land-use experts," Mr. Rappaport wrote the selectmen, "all of whom reach the same conclusion: we cannot say with certainty that a court would determine that public rights exist in these Proprietors Ways (with the exception of Middle Line Road, where there was a specific reservation in 1810 by the Vinsons to the public for traveling to the 'watering hole')."
The Halls, as Ben Hall makes clear in his letter, do not doubt their rights in these ancient ways, and claim that their alterations of these old roads are appropriate, lawful, and within their rights. Mr. Hall adds severely critical assessments of neighboring property owners who have pressed the DCPC nomination, but he does not directly confront Mr. Rappaport's conclusion that the various rights in the roads and the adjacent properties may ultimately need court review to finally settle.
In the alternative, the town's adoption of new, strict rules governing development changes in these roads, implemented through the powerful mechanism of the Martha's Vineyard Commission's DCPC process, may limit the upside for a private owner considering court action to free himself to develop his holdings or access to them. After all, it is accepted that municipalities and regional land use regulatory organizations such as the MVC may impose reasonable restrictions on the use, development, and access to private holdings.
As Mr. Rappaport put it at the conclusion of his letter to the selectmen, "... it is my opinion that it would be appropriate for the selectmen to take steps to ensure that these roads are not altered, expanded, or destroyed until (1) a court determines the scope of the public's rights, or (2) the Martha's Vineyard Commission takes steps, acceptable to the selectmen, to protect the public's interest in these roads."
Finally, although Mr. Rappaport cites the MVC nomination as a sign that additional regulation of the Middle Line Road may be on the way and that "a moratorium on the issuance of development permits will automatically issue by statute," he does not assert that that moratorium will apply to the Hall tree trimming. The Edgartown counsel leaves that possibility for his honor to pursue on his own, or not. And Mr. Rappaport concludes his persuasive request for the court's immediate intervention with the assertion that "the defendants' [Halls et al] efforts to perform the cutting at this point in time are designed to preempt and circumvent the jurisdiction of the MVC which, as set forth in the preceding paragraphs, may well decide these issues in the near future." Absolutely right.