It was a full house at Tuesday night’s Oak Bluffs selectmen’s meeting, with the majority there to support the “Mopeds Are Dangerous Action Committee” (MADAC), a growing grassroots movement that is calling on town officials to overhaul moped rental bylaws, and to determine if current businesses are in violation of existing bylaws, which could shut them down permanently.
The spirited hourlong discussion ended with a surprising development that puts into question the legality of the three moped-rental business licenses issued by the town in 2016, when it was revealed that only two selectmen, chairman Gail Barmakian and Walter Vail, had signed the licenses. According to town bylaw, a business license must be approved by the majority of the board, which in Oak Bluffs would be three out of five selectmen.
Tuesday night marked the fourth time in four months that members of MADAC have gone before the selectmen. The movement was sparked by a horrific accident on July 30, when two young women from New Hampshire collided with a dump truck, one of them losing a leg at the scene. Since then, MADAC has shone a light on longstanding shortcomings of the town in regulating mopeds per town bylaws, written in 2004, and the glaring inadequacies of those bylaws.
An August 12 formal complaint from MADAC member Nicole Brisson to the board documented a long history of shoddy recordkeeping, late payments on license fees, violations of state law, and insufficient training for moped renters; in particular, disregard for bylaw that requires an on-premises training track “at least 50 feet long and 25 feet wide.”
Underscoring the questionable wisdom of current moped bylaws, Ms. Brisson cited a child safety proviso that states “no child under 4 feet, 8 inches, may ride as a passenger, and if they do, the [moped] must be equipped with a child seat fitted with proper seat belt type restraints.”
Tuesday night, Ms. Brisson cited a litany of safety issues to selectmen, including “the lack of safety measures observed by moped dealers, improper training and vetting of renters, substandard conditions of the mopeds themselves, and putting two people on vehicles that are designed to hold a maximum weight of 335 pounds.”
Ms. Brisson said that vox populi has long wanted a moped ban, citing a nonbinding referendum passed in spring 1988, with 85 percent of Vineyarders in favor of a ban.
After reading aloud a list of people who have been killed or seriously wounded in Island moped accidents, Ms. Brisson concluded, “We come to you as the only regulation enforcers and appointing and licensing authority of the town, to move toward resolution of this public safety issue.”
After the applause for Ms. Brisson died down, Tim Rich, former Chilmark police chief and long an outspoken moped critic, addressed the board. “I was a police chief in Chilmark for 30 years, a cop for 34, and an EMT through all that time. I could probably say there’s very few people on the Island that have seen as much carnage, death, and injury from mopeds as myself. I’ve been fighting this battle since the ’80s.” he said. Mr. Rich said he redoubled his efforts in the wake of a fatal moped accident in 2014, when an experienced moped driver lost control and drove into the path of an oncoming pickup truck operated by his son, Jonathan. “The woman who lost her leg this summer was the absolute last straw,” he said.
At three previous selectmen’s meetings, Mr. Rich had asked selectmen for clarification on whether businesses operating before the 2004 moped bylaws were “grandfathered,” and therefore exempt from the revisions. In particular, Mr. Rich had asked about the bylaw that requires a test track — or selectmen’s approval of an alternative — to train renters. Since no moped business in Oak Bluffs has an onsite test track, and there was no written record of selectmen approving any alternatives, Mr. Rich has contended that the licenses of the three businesses should be revoked. Town bylaw also states that once a moped concern in Oak Bluffs goes out of business for any reason, that license is voided in perpetuity.
Mr. Rich made his frustration clear about the lack of clarity from the board. “I have asked repeatedly, I have been stonewalled, I have been sent smoke and mirrors, and to this day I have no answer after multiple public forums,” he said.
Mr. Rich told selectmen he had consulted Assistant State Attorney General Kelli Gunagan, who informed him that while “grandfathering” can offer protection from local zoning laws, she was not aware of “any state law that gives such protection generally to Town general bylaws.”
Additionally, Mr. Rich said any grandfathering provision would have to be in writing, attached to the bylaws on file at the state attorney general’s office. “That does not seem to exist,” he said. “I have been more than patient. You folks said you were going to get an answer. This is not rocket science. It’s a pretty simple question. The confusion here is just biblical.”
The term “grandfathering” was used at a Sept. 13 selectmen’s meeting by former selectman Todd Rebello, who helped pen the moped bylaws 14 years ago. Town administrator Robert Whritenour told Mr. Rich that Mr. Rebello subsequently explained that it was the intention of the board of selectmen at that time not to apply the bylaws to pre-existing businesses, and that only new moped concerns would be required to have a test track. “That’s what he meant when he said grandfathering, and that’s on the record,” Mr. Whritenour said.
Mr. Rich said such an exemption could only be given in a public forum, and he has yet to see any proof that it was. He continued to press the board if they had consulted town counsel on the matter.
“There’s nothing specific to ask because there’s not a grandfathering provision in the bylaw,” chairman of the selectmen and attorney Gail Barmakian said. “You may not like the answers to the questions, but I think they’re all directly addressed and did not need the advice, or the expense, of town counsel.”
MADAC member Lisa Holley, also an attorney, suggested that MADAC craft a question for town counsel “asking specifically if there’s record of a written petition to selectmen to waive the training track.”
Ms. Barmakian agreed.
“The next question that I think you want to address is, Why aren’t the bylaws being enforced?” Ms. Barmakian said. “Some of the things have been addressed, some of the things have not been addressed, and we intend to address them.”
Ms. Barmakian said she’d had preliminary discussions with Oak Bluffs Police Chief Erik Blake about forming a stakeholders committee in the Scanning, Analysis, Response, and Evaluation (SARA) model, the same tactic used in addressing the trash problem downtown.
“It works great,” Chief Blake said. “It’s a forum where everyone can sit down and get everything out that they want. It’s obvious there are provisions in the [moped] bylaw that are absolutely outrageous, and that I would never approve of. I promise this will be done before town meeting in case there is a bylaw that has to be changed. I want to move forward with it as soon as possible.”
“The elephant in the room here is [the intention] to ban the rental of mopeds,” Ms. Barmakian said. “If this dialogue will not end unless that happens, then we need to discuss that too.”
Ms. Holley expressed concern about the town’s vulnerability to litigation on the moped matter. “I have serious concerns about the enormous liability the town may face if we continue to allow the moped rental licensees to conduct business under our noses without proper regulation, without proper protocol, and in some cases operating on town property,” she said. “I’m concerned about the town allowing this to go on under our noses, because when the lawsuits come, it’s going to be against the Town of Oak Bluffs, and everybody in this room is going to be shelling out money to these families, and they deserve it, because we’ve fallen down on the job … The recklessness, negligence, and risk of the simple act of handing the key to an inexperienced moped renter and [is] analogous to the drug dealer handing a bag of fentanyl-laced heroin to an addict.”
After the applause for Ms. Holley died down, selectman Kathy Burton expressed her concerns, and promised the board would do better. “It’s pretty clear we’ve not been doing a good job of enforcing this bylaw. I think we need to rewrite the bylaw, and I’d like to be a part of that,” she said. “I would like to see one rider per moped, for starters. I think that’s going to eliminate a whole slew of issues.”
“You guys are the enforcement body; that’s why we’re coming to you,” Ms. Brisson said. “You have the responsibility and the obligation to take care of what’s going on in your town.”
“I can tell you I’m not going to sign that license until we have changes; I don’t think anyone on this board will either,” selectman Mike Santoro said.
After the applause for Mr. Santoro’s comment died down, selectmen asked Chief Blake to assemble a SARA committee and report back within 45 days.
“I’m anxious to see what you come up with,” Mr. Santoro said. “We’re ready to act.”
Speaking to The Times after the meeting, Ms. Brisson said she was encouraged by the board’s willingness to listen. “We were encouraged that they acknowledged that they hold responsibility for this,” she said.
Mr. Rich was not appeased. “It blows my mind that they haven’t had town counsel answer a simple question that’s been repeatedly raised,” he said. “I’ve been to hundreds of selectmen’s meetings, and I can’t figure out the motivation going on in this room. They could be setting the town up for a helluva lawsuit … We’re not going away.”