MVRHS swaps lawyers; files appeal

Updated 4:30 pm

The Martha’s Vineyard Regional High School (MVRHS) committee swapped lawyers for its appeal of the Oak Bluffs planning board decision to deny a special permit for a track and synthetic turf field project. 

At an earlier MVRHS committee meeting, officials approved the hiring of land use attorney Mark Bobrowksi, and agreed to pay him out of the high school’s legal line. Committee member Kris O’Brien said at Friday’s special committee meeting that there was a conflict of interest with the lawyer, so new legal counsel must be chosen. The conflict was never specified.

In a 5-4 vote, the board hired Mead, Talerman & Costa.

Within minutes of their decision to hire the firm, an appeal was filed with Land Court, according to public records. In the appeal, attorney Brian Winner wrote that the planning board overstepped its authority in denying a special permit for the field project. 

“Section 8.2, in sum, requires only that the board find that ‘groundwater quality resulting from on-site waste disposal and other on-site operations will not fall below federal or state standards.’ The board nevertheless denied the Special Permit (a motion to grant approval failed: two votes for, two against, and one abstention). Although there was no majority in favor of denial, the board’s written decision mysteriously recites only grounds for denial, and contains no statements whatsoever on behalf of the two members who voted in favor of the project. The decision principally cites concerns regarding Per- and Polyfluoroalkyl Substances (“PFAS”) which the board, or once at least two of its members, stylizes as an ‘open space’ issue,” the appeal states. “Although the Project is unquestionably an educational use which enjoys the protections of G.L. c. 40A, § 3, the so-called “Dover Amendment,” and which is an allowed by-right use under the Town’s Zoning Bylaws, the Board denied the Project, citing unfounded and unsubstantiated concerns well outside the scope of its authority. The Decision is wholly contrary to the intent and purposes of the Dover Amendment which, subject to certain limited exceptions not applicable here, exempts such projects from prohibitive local zoning bylaws and processes. The board’s actions and decision patently run afoul of the Dover Amendment.”

In the 12-page appeal, which includes an additional 21 pages of addendums, the attorneys cite the approval by the Martha’s Vineyard Commission, the expert testimony given, and the testing done on the synthetic turf fields as part of the process. The appeal asks the Land Court to annul the decision and to declare that the field is a protected use under the Dover Amendment, that the zoning provisions relied upon are “inapplicable and/or are otherwise unreasonable,” that the project doesn’t require zoning relief, and that the project “may proceed by-right.” It also asks that the school district be awarded attorneys’ fees by the town.

How the attorneys were hired

A motion to rescind authorization to hire Bobrowski was unanimously approved, and then it was up to school officials to decide on a new attorney who would not have a conflict. Rather than specifying the attorney or firm they will be using, O’Brien said she wanted to leave the name of their preferred legal representative out of the meeting, and simply move forward in retaining counsel and seeking the appeal. 

“Rather than specifying a specific firm and tying our hand, should there be another hiccup,” O’Brien said, “I just feel as though, if there is another hiccup even after the appeal, then we have to come back and reconvene the committee, and it stalls the process. I am trying to be considerate to the committee as well.”

Committee member Kim Kirk said she thought the motion would have to be similar to the motion to hire Bobrowski, which includes entering into an engagement with that specific lawyer or firm to pursue the appeal. 

Committee member Roxanne Ackerman said she felt as though some officials are being casual about the deadline to submit the appeal, and stressed that she is not in favor of suing the town. “There are other options here. What happened to the motion to take the money from our legal line at the high school? There are just too many unanswered questions,” Ackerman said. 

She wondered whether the new lawyer the high school is considering will be fully vetted for conflicts, and said she is concerned about legal counsel being influenced by the synthetic turf industry. 

Committee member Robert Lionette stressed the importance of transparency throughout the appeal process, and said if there is a firm that the school is presently engaging or preparing to engage, that information should be shared out. “Whether this has been concretized or not, we need to be forthright with what we are doing,” Lionette said. 

Member Kathryn Shertzer recalled some back-and-forth at a previous meeting about whether an executive session would be appropriate for the preliminary conversation of an appeal. She said that even in an executive session, officials were very guarded about the information they were discussing. “Peter Sumners [MVRHS attorney] was advising us about that information. I personally am less in favor of sharing it. Given our time situation, I don’t want another conflict to magically arise,” Shertzer said.

Lionette said there shouldn’t be any kind of shortcutting in the process of rehiring legal counsel, and any decision to change firms should come back to the committee to undergo a formal procedure. He added that the 40 to 80 hours of estimated time the school is anticipating paying the lawyers for (with a pay ceiling of $30,000 for 80 hours of work) is “very conservative,” and he would like to see a more realistic approximation of what that kind of commitment would look like.

O’Brien suggested reconvening the committee if the legal expenses for the appeal approach the $30,000 ceiling. “Then we can take a look at the situation and go from there,” O’Brien said. 

But committee member Skipper Manter said it’s a slippery slope when a committee begins to raise the spending cap for an appeal. “At what point do you throw in the towel? If we spend $30,000, do we ask the committee to commit to another $30,000 once we get to that limit? Usually, once you commit, nobody wants to stop, because then you’ve wasted a whole lot of money,” Manter said. “I am uncomfortable with this whole procedure. There is a reality here that, once you step into it, the majority will very likely not want to step out of it.”

Sam Hart, coordinator of special projects for MVRHS, said the six Island towns finally have a revised funding formula within the regional agreement. They are planning on submitting the agreement to the Massachusetts School Building Authority (MSBA) as part of the onboarding process that could shepherd the high school through a major building project. The MSBA could also provide significant funding for a new or overhauled school.

“My concern is whether not with this victory, we might want to think about some of the collateral damage that might be done by an appeal like this,” Hart said. “I don’t know how long it will take, but I see this as potentially having a significant negative impact on the MSBA process. How do we deliver on this bigger picture for our students? If there is a way to do that without this appeal process, I think we might want to explore that.”

Ultimately, Kirk ended up sharing out the name of the law firm that is being retained by the high school — Mead, Talerman & Costa. To her understanding, the terms of the contract are the same, and the hourly rate of $375 still applies. It is unclear the specific conflict that prevented the committee from moving forward with Bobrowski, but according to Kirk, the new law firm has already conducted a conflict check, and they found no conflict.

The vote to retain the new law firm passed by a hair, 5-4, with Shertzer, O’Brien, Mike Watts, Lou Paciello, and Kirk voting to approve, and committee chair Amy Houghton and members Manter, Ackerman, and Lionette voting against the motion. 

Updated to include the appeal being filed.  –Ed.