Legal landscape shifts – but there are new issues to face

I saw a change in the legal landscape over the past year. A soft real estate market led to fewer lawsuits appealing decisions of the Martha’s Vineyard Commission and town regulatory boards. Simply put, fewer development applications meant fewer decisions and fewer appeals. That said, 2010 was still an interesting year, with court decisions in several important Vineyard cases.

The most notable case involved West Tisbury’s efforts to have public rights declared in Rogers Path, an approximately mile-long dirt road that runs between the Bananas Gallery (formerly the Red Cat bookstore) and South Indian Hill Road. The road meanders past the North Tisbury Cemetery (sometimes called the Middletown Cemetery), which has been maintained by the Town of West Tisbury since 1892, the year the town was incorporated. The cemetery has about 200 gravestones. Veterans of various wars are buried there — even a Civil War veteran.

In recognition of its history and character, West Tisbury voters and the Martha’s Vineyard Commission declared the road a special way in 1992. When the Town entered into a maintenance agreement for the road with the Martha’s Vineyard Land Bank in 2001, five homeowners on the South Indian Hill side of Rogers Path filed a lawsuit challenging the public’s right to travel over the road.

After a three-day trial, a judge of the Dukes Superior Court, earlier this year, determined that Rogers Path was indeed public because “the public has made open, notorious, and continuous use of [Rogers] Path . . . [t]his use includes use by Town officials and employees including Cemetery Commissioners, the Cemetery Superintendent and the Town Highway Superintendent and the Veteran’s Agent.” The neighbors have appealed, and argument is scheduled in the Massachusetts Appeals Court on January 6, 2011.

The appeal of the Rogers Path case will be closely watched, not only by Islanders but by other Commonwealth residents. Preservation of old roadways, or so-called “ancient ways,” is of interest not only to those of us on the Vineyard, but in many other rural communities in Massachusetts. The Rogers Path case was widely followed; the Boston Globe ran a story after the decision came down.

In a somewhat related case, the town of Edgartown spent 2010 defending itself from a challenge to the designation of four ways as additions to the Special Ways District. Again, the roadways date back to Revolutionary War times. We expect significant court activity in 2011 in this case.

Windmills also dominated the legal landscape in 2010, and will continue to do so in 2011. The Massachusetts Supreme Judicial Court decided a lawsuit involving Cape Wind, the Cape Cod Commission and two towns on the Cape. The Court was bitterly divided. I expect to see legal challenges to windmill permitting efforts, both land-based and in the Vineyard Sound, in 2011.

Aquinnah has had a long running legal dispute with a developer who claims that land-locked parcels off of Moshup Trail should be granted legal access under a theory called an “implied easement” as a result of the “setoff” of all lands in Aquinnah (then “Gay Head”) by the Dukes Probate Court in the 1870′s. In 2010, a Land Court judge rejected the developer’s claims. We expect this case to make its way through the appeals process in 2011. The case is of particular importance to the Town and the Island.

Aquinnah was also faced with a lawsuit by a property owner who sold his seasonal residence, but retained a small parcel of unbuildable vacant land in the Town. (He built another seasonal home in Chilmark.) He claims he has rights — based on his ownership of the retained vacant, unbuildable parcel — to a beach sticker at the Town-owned Philbin Beach. Philbin Beach was deeded to the town in the 1960′s under a restriction that only “residents” (year-round or seasonal) had rights to beach stickers. The town does not consider owners of vacant unbuildable lots to be “residents.” The case was filed in the United States District Court, and we expect rulings during 2011.

The town of Tisbury brought, and recently lost, a challenge to the 1997 Massachusetts Educational Reform Act, which has the effect of mandating that a unanimous vote of all six towns in the Martha’s Vineyard Regional High School District is required before a town’s assessment can be based on a “per-pupil” cost rather than on the “wealth-based assessment” mandated by the State Act. Tisbury unsuccessfully argued that the State-based formula was “unfair.” Tisbury has not yet indicated whether it intends to appeal.

Occasionally, public bodies are able to keep disputes out of the courts. This year the town of Aquinnah and the Wampanoag Tribe, through the leadership of their governing bodies (and in particular selectman Jim Newman of Aquinnah and tribal chairwoman Cheryl Andrews-Maltais) were able to resolve a potentially acrimonious dispute involving access to Lobsterville Beach from the end of Clay Pit Road. This mediated resolution shows that quiet diplomacy can, sometimes, yield positive results.

Also in 2010, West Tisbury seasonal resident Margaret Marshall resigned from her position as Chief Justice of the Massachusetts Supreme Judicial Court. Justice Marshall was an outstanding Chief Justice. I am hoping that her retirement means that she and her husband, Tony Lewis, will now be able to spend more time on the Vineyard.

The legal disputes arising on the Vineyard continue to generate challenging questions and issues of first-impression. The Vineyard has been a leader in enacting progressive land-use regulations, and decisions on our cases have been precedent-setting.

I know that we all realize that we are fortunate to live here. The beauty and character of the Vineyard are well worth preserving.