Squibby causeway suit dismissed with prejudice in Land Court

Judge’s decision eliminates one legal recourse, but fight could take a new route.

An artistic rendering of Squibnocket Farm's causeway by Vanasse Hangen Brustlin, the project's engineer. The project is slated to break ground within a month. — Courtesy Peter Alpert, Ropes and Gray

Plaintiffs led by Blacksmith Valley Road resident Doug Liman suffered a rout in Land Court last week after Judge Gordon Piper dismissed their suit against the Chilmark zoning board of appeals, the Town of Chilmark, and Squibnocket Farm, Inc., with prejudice — a TKO that marks the latest round of legal sparring between deep-pocketed advocates and opponents of the Squibnocket causeway project.

Judge Piper’s three-page decision shows that Mr. Liman’s contingent, represented by Anderson Kreiger of Boston, not only lost the case, but also lost the right to file any further action on the matter pursuant to zoning — the prejudice portion of the dismissal. The judgment appears to knock aside the final impediment to Chilmark’s long-planned removal of a revetment parallel to Squibnocket Beach and the erection of Squibnocket Farm’s contentious, pier-supported roadway over Squibnocket Pond and the marshy terrain surrounding it.

Final bell or rope-a-dope?

Court documents show that the plaintiffs notified the court in March that two-thirds of their case would be gutted if Chilmark voters amended the town’s zoning bylaws the following month. “If town meeting approves both bylaw amendments, plaintiffs’ arguments would become moot and the issues before the court would be eliminated, leaving only plaintiffs’ claim that a building permit is required for the project,” a motion by the plaintiffs’ law firm states.

While still in their formative stages in January, concerns that those amendments amounted to spot-zoning were voiced by planning board members. But the planning board adopted them, as did the town. After the zoning bylaws were amended at town meeting, the plaintiffs pressed on with their case.

“The plaintiff stipulated to the court that they would drop the zoning challenge should Chilmark voters opt to change the town’s zoning laws,” Ropes and Gray attorney Peter Alpert, who represented Squibnocket Farms, wrote in an email. “After this occurred, the plaintiffs nevertheless tried to amend their complaint to bring new zoning claims. The court held them to their stipulation, and did not allow them to do this. This left only a question of whether such projects require building permits under the State Building Code. The court concluded that it did not have jurisdiction to decide that question.”

“I’m really tired of this whole thing, quite frankly,” selectman Bill Rossi said last spring in reference to an ethics inquiry about potential conflicts he had with the project and also about the litigation the project opponents continued to pursue. “There is a real tenacity with a group that’s not getting its way,” he added. Mr. Rossi recently told The Times over the telephone that he filed a disclosure with the Chilmark town clerk last spring. He said he had no interest in Squibnocket Farm, and that the issue was “hot air” and that nothing more has come of it.

While it killed the possibility of future argument over zoning, Judge Piper’s judgment did not bar the plaintiffs from further prosecuting the causeway project’s lack of a building permit outside the context of zoning.

“This dismissal, although otherwise with prejudice, is without prejudice to the plaintiffs: (1) seeking adjudication in any court of competent jurisdiction regarding the need (for reasons unrelated to zoning law compliance) for a building permit to issue for the project,” Judge Piper wrote. He went on to say that should the project be “constructed in a manner materially different” from the bylaws Chilmark voters amended in the spring, the plaintiffs could pursue the matter.

“I still believe they need a building permit. The issue has not been resolved,” Mr. Liman said. “You can’t put up a lean-to in Chilmark without a building permit.”

Beyond the permit angle, the strategy behind continuing the case after Chilmark voters effected a zoning end run around the plaintiffs’ argument isn’t totally clear. Since litigation is often won through attrition, one possibility may be that the plaintiffs are hoping to wither the resources and therefore the will of the defendants, a common litigation practice. And while that seems unlikely to succeed against exceptionally affluent Squibnocket Farm property owners like former Bear Stearns executive Warren Spector, other property owners in the development aren’t so deep-pocketed. According to Mr. Liman, the defendants have apportioned out the cost of the suit(s) among all the owners at Squibnocket Farm, and placed liens on the homes of some owners as a result.

A bridge by any other name

A consistent argument of Mr. Liman and his anti-causeway associates has been that what Squibnocket Farm intends to build constitutes a structure, like a bridge, and therefore it requires a building permit to erect. What differentiates a causeway from structure such as a bridge?

The Times reached Vanasse Hangen Brustlin senior environmental scientist Daniel Padien by telephone to ask that question, among others. Vanasse Hangen Brustlin are Squibnocket Farm’s causeway engineers.

“It pains me. I love talking about this project,” he said before referring the inquiry to Mr. Alpert.

“I think the general notion is that a causeway is a road built on a compacted earth or stone embankment,” Kenneth Clark Hover, a professor at Cornell’s Civil and Environmental Engineering Department, emailed, “whereas a bridge bears on its piers and abutments, not on a compacted soil. A boat could pass under a bridge, but could not pass through a causeway, except at openings that are crossed by bridges. But there are exceptions in the nomenclature. For example, the Lake Pontchartrain Causeway is actually two parallel bridges crossing Lake Pontchartrain.”

In a brief telephone conversation, Chilmark building inspector Lenny Jason told The Times that elements that defined a causeway to him were that it crosses water, is either manmade or natural, and consists of a narrow strip. Regarding bridges, he said they are higher and wider.

“The causeway consists of an approximately 280-foot-long grade roadway,” Mr. Jason wrote in an August 2016 letter, “connecting the existing Squibnocket Road (which is public) to an approximately 300-foot-long pile-supported elevated causeway to access Squibnocket Farm (formerly known as Squibnocket Ridge subdivision). This causeway is modeled after [the] Menemsha drive-in dock. In my opinion, the causeway constitutes a relocated roadway, and is not a structure as that term is defined in the Chilmark zoning bylaws.”

A somewhat similar “structure” in Dukes County is the Dike Bridge on Chappaquiddick. Dick Barbini of the survey and engineering firm Schofield, Barbini & Hoehn shepherded the reconstruction of the Dike Bridge in the early ’90s. The permitting process was extensive, he said, and included a DEP chapter 91 license. But he said there was no building permit that he recalled. He also said Leonard Jason was the building inspector in Edgartown at that time — a post Mr. Jason retains. The town of Edgartown commissioned the restoration project and received a special permit via the conservation commission, he added. While it may look causeway-ish, what type of structure the Dike Bridge is classified as isn’t easy to answer, he said, because it possesses traits of piers and bridges.

“It could be either, or — it’s both; it’s really weird,” he said.

An elementary difference between the Dike Bridge and Squibnocket Farm’s project is that a portion of the former spans a navigable channel, and the latter doesn’t, he said.

“It is a road relocation project,” Mr. Alpert emailed. “A portion of the relocated road will be at-grade. A portion will be elevated on piles. We have generally referred to that elevated portion as a ‘causeway.’”

NIMBY-ism vs. elitism

To lend credence to what he sees as elites despoiling the public’s beach experience at Squibnocket while enhancing their own, Mr. Liman pointed out that some Squibnocket Farm owners enjoy a 75 percent reduction on their annual real estate taxes by dubbing some of their beachfront public.

He said the owners have nicknamed one such stretch of beach the Squibnocket Bass and Surf Club. Chilmark assistant assessor Pam Bunker confirmed that a limited partnership that owns map 38, lot 1, enjoys a chapter 61B real estate reduction. The market assessment value of the beach lot is $1,326,440, but the partnership only pays taxes on $331,610, she said. She confirmed that among other criteria, the public need only be allowed access to the beach once a year for the property to qualify for the reduction.

Mr. Liman shared with The Times a comment from a commenter that recently appeared on the online petition board Citizens Against the Bridge, which is geared to resist the causeway and drum up further resistance to the causeway.

“Still spreading falsehoods and untruths to support your NIMBY desires, I see?

I wish you people would go back where you came from and stop trying to impose your elitist attitude on the voters of Chilmark. No one is going to ‘bathe under a 300′ long 13′ high concrete and steel bridge.’ The causeway is not going to be 13′ high, and it will be nowhere near the beach. That is just one refutation to your multiple lies.

“The truth of this is that the people in the Blacksmith Valley area object to this because they think any manmade structure will ruin their view toward the beach and ocean. It’s that simply. Total NIMBYism.”

Mr. Liman said he did not know who is behind the petition. “It’s been an interesting forum for people to comment on [the issue],” he said.

The parties behind the petition have also taken ads out in The Times decrying the project.

Selectman Jim Malkin, who has been the town’s spokesman on the project, considers the issue resolved.

“Based upon the advice of town counsel, following the ruling of the land court, all of the issue seems to be put to bed,” Selectman Malkin said.