Updated Fri., Oct.27, 1:19pm*
On Friday afternoon, Judge Gary Nickerson denied the emergency injunction sought by opponents of a bridge-like structure under construction that will replace a dirt causeway.
In his three-page decision, Judge Nickerson ruled flatly and categorically against the plaintiffs who sought to stop work by contractor C. White Marine on behalf of Squibnocket Farms.
“With due consideration and reflection as to the arguments of counsel,” wrote Judge Nickerson, “their voluminous memoranda and exhibits, and the view, this court orders that the motion be denied.
“The record at hand strongly suggests the project at hand will result in great public benefit,” the decision reads, “because concurrent with the completion of the project, the town and our defendants will undertake substantial improvements to the oceanfront beach and the manner in which residents access the beach. Relocation of the subdivision road will enable the restoration of natural coastal geologic forces to the benefit of the environment and the public.”
The Squibnocket causeway project has had a complicated and fraught history. Conceived as a way to maintain access to homes in danger of being cut off as sea levels rise, the proposed roadway has had vocal opponents among the nearby residents. The potential ownership of the beach, which is currently leased by the town of Chilmark, has hung in the balance. As the project was about to get started last week, a group of plaintiffs filed a complaint, seeking to stop construction. Last week, Judge Nickerson visited the site.
Dan Larkosh, attorney for the plaintiffs, called the judge’s ruling “discouraging.” However, he said the decision does not rule out a possible “administrative remedy” with the Massachusetts Department of Environmental Protection (DEP) at some point. He expects his clients to pursue such a possibility. He also said that should DEP find that the project violates Chapter 91, they could order the causeway structure be modified or dismantled.
“The applicants are really proceeding at their own peril,” Mr. Larkosh said. In a statement later emailed to The Times, Mr. Larkosh elaborated on his clients’ position.
“The court’s order failed to address the crucial issue,” he wrote, “which is whether or not the Squibnocket Pond bridge project requires a license under Chapter 91 (the oldest environmental statute in the country). In fact, as the order concedes, the defendants do not have a Chapter 91 license, and the defendants also did not make a request for a determination of applicability. As Chapter 91 specifically prohibits the driving of piles within the historic area of the Squibnocket Pond without a license, environmental damage under the statute was established (consider also toxic automotive fluids entering the pond from vehicles using the bridge). My clients are good citizens, courageous people, advocating legitimate environmental and public safety concerns. Although such concerns are typically addressed by the proper authorities in advance, here we have a project moving towards completion with no building permit, no planning board approval, and, of course, no environmental license under Chapter 91. My clients remain steadfast in their commitment to resolve these issues for the benefit and protection of both the environment and the entire community.”
Proponents of the bridge praised the court’s ruling.
“We are of course happy about Judge Nickerson’s decision, but it is not surprising,” Peter Alpert, attorney for the defendants, wrote in an email to The Times. “The plaintiffs’ allegation that this project, which has been so extensively and exhaustively reviewed by so many expert environmental agencies, will cause ‘significant damage to the environment’ was not only absurd on its face, but insulting to the many good and earnest people in government who have worked on the permitting process. The judge saw … that the construction process is immaculate, that the causeway will be low to the ground and set back from the pond, and that in the end the restored beach will be gorgeous.”
“The words of the judge in his decision clearly state that the projects at Squibnocket are in the public interest and have been thoroughly vetted by all relevant local and state committees and agencies,” Chilmark selectman James Malkin wrote in an email. “I would hope that this puts an end to the efforts of the well-meaning opponents of these projects which will provide access, beach, and parking at Squibnocket for our town.”
The 11 people who sought the injunction were Chilmark residents Paul Hornblower, Zachary Lee, Thomas Bena, and Chris Fischer; Edgartown residents Greg Worley and Minah Worley; Oak Bluffs resident Grace Barrie; Cambridge residents Will Sawyer and Rosalie Hornblower; and Dedham residents Thomas Burns Jr. and Astrid Burns.
A meeting is scheduled Nov. 15 before the zoning board in Chilmark on an appeal by David Stork and Doug Liman, opponents of the structure who have questioned the absence of a building permit. Mr. Stork and Mr. Liman are appealing a letter issued by building inspector Lenny Jason, who wrote that a building permit isn’t required.
*This story was updated to include remarks from Daniel Larkosh, the attorney for the plaintiffs.