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Legal issues loom for parks, sharks, pops, and fireworks
A legal opinion on the use of Oak Bluff public parks could affect this summer's Boston Pops concert and the Oak Bluffs Fireman's Civic Association fireworks show.
And a re-discovered restriction on the use of Sunset Park could alter plans for the Monster Shark Tournament.
Town counsel Ron Rappaport advised selectmen at their Tuesday meeting that Festival Networks' proposed changes in the Martha's Vineyard Festival, which is scheduled to feature the Pops performing in Ocean Park, raises a serious legal issue.
"The public enjoys an easement for Ocean Park," said Mr. Rappaport. "For the public to be excluded from Ocean Park, there has to be a corresponding public benefit."
Last year, Festival Networks made a large donation to Martha's Vineyard Hospital, a public benefit that Mr. Rappaport says fits the legal standard.
This year, promoters do not intend to make an outright donation. Instead, they propose offering premium concert seating to various local charities at the ticket's face value. The charities could package some other value, a pre-concert reception, for example, with the ticket. The charity would then sell the package for a substantially higher price, and keep the difference, minus expenses, for the organization.
"The devil is in the details," said Mr. Rappaport. "I don't want to make this into a Supreme Court of the United States case, and I don't want to pre-judge the outcome, but I have real concerns."
Another legal issue could prompt changes in public use of parks for the annual fireworks display. In past years, the Fireman's Civic Association has charged a fee to park in Waban Park on the night of the show, with the proceeds going directly to their organization for charitable works.
Mr. Rappaport said that using a public park on rare occasions to accommodate a traffic overflow is not a problem, in a legal sense.
However, he said fees collected for parking on a public park cannot go directly to the charity.
"It's not permissible," said Mr. Rappaport. "These funds have to go into the general treasury." He added that there are ways to establish funds for a specific charitable use, such as a scholarship.
Barbara Hoyle, an opponent of the annual Monster Shark Tournament, alerted the board last week to a long forgotten restriction on the use of Sunset Park, across Lake Avenue from Oak Bluffs harbor, where tournament organizers have held awards ceremonies under a large tent. Ms. Hoyle spent hours researching documents dating back to 1870, because she thought there was a prohibition against serving alcohol in Sunset Park.
"I've been looking at maps and titles 24/7," said Ms. Hoyle. She could find no such alcohol restriction, but she found something else: a covenant that prohibits structures on the public park.
After checking the deeds, Mr. Rappaport confirmed there is no restriction on the sale of alcohol, but a covenant still in effect prohibits any structure, except a temporary structure specifically for the purpose of park maintenance. The restriction was spelled out when the land was donated to the town as a public park.
Building codes define a tent as a structure, if it is greater than 120 square feet, or holds more than 10 people.
The tournament organizer has not yet applied for a permit to use Sunset Park for the awards ceremony this year. He has not yet applied for a liquor license.
The decision to use the park rests with the park commissioners. The decision to issue a temporary liquor license rests with the selectmen.
