Squibby bridge decision in hands of judge

Motion for preliminary injunction continues in court Thursday.


Update Oct. 24

A hearing Wednesday for a preliminary injunction to halt construction of a bridge to Squibnocket Farms sent the judge, the superior court clerk, and a courtroom of attorneys on a road trip to the site in Chilmark.

Dukes County Superior Court Judge Gary Nickerson, after hearing arguments from both sides, said he wanted to see the area for himself. Before making the decision to go Wednesday afternoon, the judge first went into chambers to call his wife to work out ferry logistics. The bridge has been the focus of debate for more than two years. Owners of property at Squibnocket Farms want more reliable access than the causeway that washes out in powerful storms. Opponents say the structure that’s proposed isn’t in keeping with the area and is going through wetlands.

Earlier this month, construction crews began setting the stage for building the structure. As of Tuesday afternoon, a crane had crawled down off the beach parking lot into a wide lane cut through phragmites and other marsh vegetation adjacent to Squibnocket Pond. At the scene Wednesday, there were already several pilings in the ground. Judge Nickerson was initially kept out of the construction area because there were no hardhats available.

Francis Shannon III, attorney for C. White Marine, made a phone call and got Judge Nickerson access to the site.

The judge made no decision after the site visit and did not continue the proceedings in superior court on Thursday. At issue is a suit filed Friday by 10 opponents seeking the injunction.

Mr. Shannon argued that a work stoppage on the $1.6 million contract would be a hardship to contractor C. White Marine’s six-member crew.

In addition, the crane would have to be hauled back to East Boston on a barge and then back again at a cost of $150,000 each way, he said. The contract also calls for a fee of $4,300 per day if there is a work stoppage, Mr. Shannon told the court.

During the hearing, Daniel Larkosh, attorney for the plaintiffs, argued that the structure amounts to a “bait and switch,” because a five-foot-tall structure had been approved, but the one under construction is 13 feet off the ground.

“It’s the applicant’s burden that they have complied with all the regulatory hurdles, environmental or otherwise,” he also argued.

As opponents have in the past, Mr. Larkosh brought up the lack of a building permit. Without a permit, there’s no way to determine the structural soundness and whether emergency vehicles can use it, he said. Proponents have argued that a building permit isn’t required and that all necessary permits have been gotten.

Richard Batchelder, attorney for Squibnocket Farms, argued that the plaintiffs had no standing to seek the injunction. He pointed out the the Martha’s Vineyard Commission found the project posed no environmental impact. He also noted that some of the plaintiffs aren’t even from Martha’s Vineyard. “You better be careful,” Judge Nickerson deadpanned. “You’re asking someone who doesn’t live on the Vineyard either to make a decision.”

Mr. Batchelder also argued that the area in question can’t be called a wetland because C White Marine’s extraordinarily heavy crane is not sinking where it’s driving pilings. That was countered by Mr. Larkosh, who said that manmade material from a revetment that often washes away has built up in the area where the crane is situated and therefore provides sturdy footing.

Who brought the court action?

In a bit of a twist, it was a new set of people who filed for the court order and not Doug Liman or David Stork, who have been vocal opponents.

Mr. Liman and Mr. Stork had promised court action in a last-ditch effort to stop the project, but it was another group that filed for the injunction Friday. Instead, Mr. Liman and Mr. Stork have appealed to the Chilmark zoning board, with a meeting scheduled on Wednesday, Oct. 25, at 5 pm.

Several people listed as plaintiffs in the original court filing did not actually sign on, but were included due to a clerical error. The 11 people who did seek the injunction were: Paul Hornblower of Chilmark, Zachary Lee of Chilmark, Chris Fischer of Chilmark, Greg Worley of Edgartown, Minah Worley of Edgartown, Thomas Bena of Chilmark, Will Sawyer of Cambridge, Rosalie Hornblower of Cambridge, Grace Barrie of Oak Bluffs, Thomas Burns, Jr of Dedham, and Astrid Burns of Dedham.

The injunction request was filed on the basis that the project violates chapter 91, the Massachusetts Public Waterfront Act — purportedly the oldest law of its type in America — which, among other things, protects wetlands from environmentally harmful structures.

Peter Alpert, a Ropes and Gray attorney who also represents Squibnocket Farms, has insisted in previous interviews that the state Department of Environmental Protection (DEP) has already ruled on the structure. He told The Times this week in an email, “There’s no reason we can see for it to change its mind.”

Mr. Larkosh, attorney for the plaintiffs, told The Times on Tuesday that he is collaborating with the Boston firm Rubin and Rudman on the case.

Mr. Larkosh said the case focuses on the argument that the defendants didn’t file a request for a determination of applicability with regard to chapter 91 when given the opportunity to do so by the DEP in 2016. In other words, they had the opportunity to have the DEP make a definitive evaluation on chapter 91 and they opted for a cursory evaluation, Mr. Larkosh said.

“I think they took a short cut,” he said, adding that they might not have liked the answer they got back if they had made the request. Mr. Larkosh said he hopes Judge Nickerson rules quickly “to stop environmental damage that’s ongoing.”

No mention of court in report to selectmen

At Tuesday’s selectmen meeting, Chilmark zoning board of appeals administrator Chuck Hodgkinson made no mention of the renewed legal issues.

He told the board that 3,500 cubic yards of sand pulled from the Menemsha dredging operation and now stockpiled in a mound at Peaked Hill will be used to form a barrier dune between the Squibnocket Beach and Squibnocket Pond, in addition to replenishing the beach sands. During his report on Squibnocket, Mr. Hodgkinson made no mention of the Liman-Stork appeal to the zoning board or did he mention Wednesday’s hearing on an emergency injunction to halt construction in Squibnocket.

“The site has been cleared. It’s a neat site,” Mr. Hodgkinson reported. “All the erosion protection measures are in place. I think the first pole was driven in today, so things are progressing on the causeway.”

The revetment RFP was issued last week, he said. Four off-Island and three on-Island contractors have responded, he said. They will meet Thursday at 11 am in town hall for a project review and then take a site walk at Squibnocket. The bids are due Nov. 8 at 4 pm, he said. On Nov. 13, selectmen are scheduled to select the winning bidder. “We hope to have a contract for you to sign on Dec. 5,” he said.

Mr. Hodgkinson said he will seek an additional $100,000 at the November special town meeting, bumping the total budget for the revetment and parking lot work to $434,000.

He told the selectmen that he hopes to hear this month about a $400,000 grant from the state.
“If we get that grant, the money has to be spent before June 30 of next year, 2018, by the end of this fiscal year. So if we have further delays and we do get that grant, it will put that at risk,” he said.

The selectmen announced at the same meeting this week that they would place an article on the special town meeting warrant asking voters if they wish to stay with the current long-term lease of Squibnocket Beach or own it outright, an enticing option borne from negotiations with the Vineyard Open Land Foundation and Squibnocket Farm Inc.

“There are a lot of powerful people who want this to go through,” Mr. Larkosh said.

Ultimately, the Wampanoag Tribe of Gay Head (Aquinnah) may be a factor in the project’s outcome, Mr. Larkosh said. He suggested that tribe officials may have discovered something at the site to block construction.

“The Tribe continues to monitor the Squibnocket Causeway Project to protect our cultural concerns,” tribal historic preservation officer Bettina Washington wrote in an email to The Times. “In general, we do not share the results of our monitoring with the public unless we consider the information as a means to educate the public about the history of Wampanoag peoples lifeways.”

Town counsel Ronald Rappaport declined to comment on the injunction proceedings, as did plaintiffs Paul Hornblower and Thomas Bena.

Editor’s note: Story updated to correct the list of plaintiffs.