The question of whether the Martha’s Vineyard Regional High School (MVRHS) will apply for a special permit for the athletic field project is up in the air, as counsel for the Oak Bluffs planning board has concluded that the board does not have the authority to require one.
At a meeting of the planning board on Sept. 23, town attorney Michael Goldsmith said the planning board does not have the option of requiring any applicant to apply for a special permit.
“That’s not your function,” Goldsmith said.
He stressed that the building inspector is the “gatekeeper” for permitting decisions such as this, and the building department would be the only entity that could actively require a special permit.
The planning board does, however, have the option of requesting the high school to apply for a special permit, but it is not required to apply.
Goldsmith said MVRHS maintains its legal opinion that it need not apply under any entities review process (including the building department), but that position is in conflict with Goldsmith’s opinion that the building inspector would be able to require a special permit under the Water Resource Protection Overlay District (WRPOD) bylaw, having to do with construction over a sole-source aquifer.
“The district has reached a different conclusion, that [WRPOD] doesn’t apply, and it appears to me that they would be prepared to go forward with the project at their own risk, essentially,” Goldsmith said.
Although the Dover Amendment does restrict a planning board site plan review to elements of zoning such as parking and dimensional restrictions, Goldsmith said, it is his view that a court (if it came to that) would ultimately rule that it is permissible for the appropriate permitting authority (the building inspector) to require a special permit under the WRPOD even under the Dover, which provides certain zoning exemptions to educational institutions.
Goldsmith noted that he doesn’t think there would be any negative implications for the board if they chose not to request a special permit under the WRPOD bylaw, and any decision made by the board would be purely advisory.
If a special permit review process were to take place, the planning board would not be able to place any undue conditions on the project that go above and beyond the conditions of the Martha’s Vineyard Commission, unless significant scientific evidence is uncovered that warrants further environmental restrictions, according to Goldsmith.
In any case, neither Goldsmith nor the district counsel have been able to find any precedent where an educational institution has gone to court for building over an aquifer district.
If the WRPOD bylaw is not applied during the planning board review process under a special permit review, it will come up during the building official’s final review of the project.
If the building department decides that the school district does need a special permit and the district decides to go forward with its legal position, it would have the right to appeal the decision to the zoning board of appeals, Goldsmith said.
“Then from the zoning board of appeals, to a court. Conversely, if the building official said, ‘You don’t need a special permit, go forward with your project,’ it’s conceivable that another party with zoning authority could appeal that decision to the zoning board of appeals,” he said.
That person or entity would have to be an abutter, an abutter to an abutter, or someone with a zoning injury, according to Goldsmith. “It could also be this board,” he added, or any board with zoning standing.
He reiterated that absent additional environmental evidence that the project would impact the aquifer, a judge may rule that any further conditions applied by the planning board or any other entity or individual would be “unreasonable.”
“Again, this has not been digested by the judicial system over the years — we are in new territory here,” Goldsmith said.
Planning board member Bill Cleary said he is more comfortable with Goldsmith’s original guidance limiting the board’s scope of review under the Dover.
“From what I have seen, there is no scientific evidence that has been presented that the aquifer is at risk,” Cleary said. He made a motion suggesting that the district’s application as it exists is complete, and that the board not pursue a special permit review.
Board member JoJo Lambert said she believes the board should request a special permit under the WRPOD, while board member Erik Alpert said he wishes to stick with the limited approach of parking and dimensional restrictions.
Planning board chair Ewell Hopkins, who has remained vocal in his assertion that the planning board should use “all the tools” it has available, said the fact the board has limited scope of review means it should work under all applicable laws “to the fullest extent that we can in a responsible manner.”
“If the applicant chooses not to apply under a special permit, I think that is to be duly noted in the record for the building official and any other authorities. But I don’t believe we self-impose restrictions and limit what authority we do have,” Hopkins said.
A motion put forward by Cleary to restrict the planning board’s review and determine that the school district’s application is complete failed in a 2-2 vote, with Cleary and Alpert voting in favor, and Lambert and Hopkins voting in the opposition. Board member Mark Crossland recused himself at the outset of the review process, and has not yet returned requests for comment by The Times as to why he recused himself.
Superintendent Matt D’Andrea told The Times by phone on Sept. 28 that he is looking to speak with Hopkins to discuss possible next steps. “I am new to this process, so I am going to have to find out from him what the next steps are,” D’Andrea said.
On Sept. 24, Hopkins sent a letter to D’Andrea asking whether the district would comply with the planning board’s request for a special permit application. “The OBPB will proceed with your application once you have replied in writing to this letter of inquiry, as your response will determine the scope of our proceedings,” Hopkins said.
