Island Theater deemed dangerous by unanimous board of survey vote

Vote gives building inspector the authority to order the building demolished.

A Superior Court judge wants answers on the Island Theater by 3 pm Friday. –MVT file photo

Updated Wed., Dec. 7 at 4 pm

The board of survey (BOS) assembled by Oak Bluffs building inspector Mark Barbadoro officially declared the Island Theater “dangerous” in a unanimous 3-0 vote at the Oak Bluffs fire station meeting room on Friday afternoon, Dec. 2. The vote gives building inspector Mark Barbadoro the authority to order the building demolished, per state law.

The BOS was comprised of Mike McGrath from Falmouth-based civil engineering firm Holmes and McGrath, Oak Bluffs Fire Chief John Rose, and Aquinnah town administrator Adam Wilson, who served as the “disinterested observer” per state law.

The BOS inspected the theater on Nov. 16. They were accompanied by Mr. Barbadoro and co-owner Brian Hall. The report from the half-hour inspection painted a bleak picture.

“The plaster had mostly crumbled away due to exposure to the elements, revealing large cracks running vertically from the floor to the ceiling in the masonry walls. The cracks coincided with each side of each pilaster on the northern- and southern-facing walls. Many of the cracks appeared to disconnect the walls from the pilasters. Daylight was visible through many of the cracks … The board attempted to inspect the west-facing exterior wall behind the projector screen by entering the southwest door. The building owner cautioned the board not to enter the space because it was not safe, and the board stopped in the doorway. The back wall had similar vertical cracks disconnecting the curtain walls from the pilasters.”

The report concluded, “The Board of Survey, having reviewed all the structural problems the building has, by unanimous consensus agreed that the building is dangerous.”

According to state law, if the Halls don’t act in a timely manner if the Halls don’t act in a timely manner to remedy the situation, and it is thus demolished by the town, they will be legally bound to reimburse the town for the costs, and there are substantial additional penalties possible.

Mr. Barbadoro said that if action is not taken to make the building safe by the Halls, or by the town, the state Department of Public Safety has the authority to step in and demolish a building deemed “dangerous” by a board of survey.

Not due process

Speaking to The Times after the vote, Island Theater co-owner and attorney Ben Hall Jr. said he was unaware of the BOS decision.

“I find it telling that the owners of the building were not made aware of the vote,” he said. “There must have been deliberation. It should have been done at a public meeting. That is not due process.”

Mr. Hall said that he and his brother, co-owner Brian Hall, have been hamstrung in attempts to remedy the situation since Mr. Barbadoro declared the building “unsafe” on Oct. 26. Mr. Hall contended that the declaration prohibits workers from entering the building, per Occupational Safety and Health Administration (OSHA) regulations. “OSHA is federal law, and that takes precedence over state law,” he said. “[Mr. Barbadoro] is nailing our feet to the floor and saying, ‘Run in place.’ We asked for it to be classified as ‘potentially dangerous’ so we could get inside and do the work. But he made it impossible to do the work he claims he wants done.”

Mr. Hall said an engineer recently hired by architects Keenan + Kenny to inspect the building would not enter because of the “unsafe” placard.

“The town is creating a self-fulfilling prophecy; they love the building so much they want it taken away, and I don’t understand that,” Mr. Hall said. “People who have lived on the Island a long time don’t want it taken down, but people who’ve moved here more recently don’t want what they think is an eyesore.”

Informed of Mr. Hall’s assertion that he’s been legally prevented from repairing the theater, Mr. Barbadoro told The Times the claim is a “flat-out lie.”

Mr. Hall told The Times that he spoke to Mary Dozois, environmental engineer at the Region 1 OSHA office, who told him that the town would be fined if employees were sent into a building that had been declared unsafe.

The Times was unable to reach Ms. Dozois.

However, a spokesman for the Department of Labor contradicts Mr. Hall’s interpretation of the law, writing in an email to The Times on Wednesday, “Issues such as posting of buildings as unsafe to enter are under the town’s jurisdiction, not OSHA’s. OSHA does not have oversight over municipal governments. It is the town that determines if the building is safe.” OSHA is an agency of the U.S. Department of Labor.

Mr. Hall also said Mr. Barbadoro and the BOS were in violation of OSHA laws by entering the building with no hardhats and substandard breathing apparatus. “They were not concerned for their safety one bit,” he said. “If they honestly felt the building was unsafe, [Mr. Barbadoro] would have abided by OSHA standards.”

More delays likely

Mr. Barbadoro told The Times that the demolition was not a fait accompli, because the matter will next go before the Oak Bluffs Historical Commission (OBHC). If the OBHC determines that the structure is “significant,” it will hold a public hearing, which may result in a building being classified as “preferably preserved,” which can delay demolition for up to six months.

Another reprieve can be granted by the Martha’s Vineyard Commission (MVC), since the building may be over 100 years old, which is an automatic trigger on the development of regional impact (DRI) checklist. Co-owner Brian Hall told the BOS the building was built in 1915. Mr. Barbadoro has indicated that he will refer the Island Theater to the MVC.

“I just want that building to be made safe, that’s all,” he said.

Brian Hall told The Times there has been interest from potential buyers, including from Oak Bluffs business owners Mark and Mike Wallace, but no formal offer has been made. “There are always tire kickers, but we’ve never had a concrete proposal,” he said.

“We would like to move forward with repairs, and we’re trying to get as many options as we possibly can,” Ben Hall said. “It doesn’t behoove us or the town to tear it down if it can be left in place.”

Chairman of the selectmen Gail Barmakian told The Times she believes different legal approaches should be investigated. “My concern is that the town spends hundreds of thousands of dollars to pursue this avenue, and we end up with a hole in the ground with a fence around it, and we’re tied up in court for years,” she said.

At the Nov. 29 selectmen’s meeting, Ms. Barmakian suggested the board discuss the Island Theater in executive session. Selectman Walter Vail disagreed and stated the meeting should be in open session.

Speaking to The Times on Wednesday, Mr. Barbadoro said he strongly favors Mr. Vail’s approach, and hopes there will be a discussion at the next selectmen’s meeting on Tuesday, Dec. 13.

On a positive note, he said, progress has been made in the theater since the “dangerous” declaration. “Brian has done a lot of work taking out seats, hauling out trash, and building a staircase for the asbestos abatement,” Mr. Barbadoro said, adding that, at the Halls’ request, he is also giving written permission for an architect to enter the building next week.