At a status hearing in Massachusetts Land Court in the case of Martha’s Vineyard Regional High School v. the Town of Oak Bluffs Planning Board over the planning board’s rejection of a special permit for a synthetic turf field at the high school, it became clear that the MVRHS attorney is hanging the case on the so-called Dover Amendment. The status hearing was held virtually, and The Times obtained a copy of the recording from the court.
The Dover Amendment is a state law that allows properties with an educational component to bypass zoning bylaws for building projects that would typically require town permits.
Brian Winner, the attorney for MVRHS, announced his intent to file for summary judgment as it relates to Dover. Winner’s argument is that if the court rules Dover is in play, then discussion of per- and polyfluoroalkyl substances (PFAS), the forever chemicals that prompted the Oak Bluffs planning board decision to not allow a synthetic turf field in the town’s water overlay district, is outside the bounds of what the planning board could consider.
The deadline for the summary judgment motion was set for Jan. 13. Once that’s filed, Michael Goldsmith, who is representing the planning board, will be given 30 days to respond. Once both filings are in, Judge Kevin Smith will set a hearing date.
Goldsmith questioned how PFAS and the potential for contamination could be “teased out” by the court — eliminating the scientific concerns that PFAS may leach into the groundwater and contaminate it.
Smith appeared skeptical about Winner’s motion. “You’re saying under this special permit bylaw, if it doesn’t apply, that the school district could put up — make up a hypothetical — anything that could hurt the groundwater and this court can’t consider that?” Smith asked. “Does that mean the school board can do anything it wants with respect to construction on this field? I’m not sure it goes that way, does it, Mr. Winner?”
Winner said the school district’s argument is that under Dover, the planning board was outside of its jurisdiction in rejecting the special permit based on the water overlay district. He went on to say that the PFAS issue was well vetted with “voluminous materials” before the Martha’s Vineyard Commission, and that should be considered by the court. “That’s a very high hurdle. They’re very strict,” Winner said of the MVC.
But Goldsmith responded by pointing out that it was a split decision by the MVC. What he didn’t say is that for the first time in the commission’s history, those who opposed the field drafted and then ultimately decided not to provide a minority opinion on the application.
Science about PFAS with relation to synthetic turf fields continues to emerge. Most recently, the City of Boston issued a ban on synthetic turf fields.
Goldsmith said the planning board contends that PFAS will leach off the field into the soil and ultimately into the Island’s sole-source aquifer. “We think the planning board has the legal authority,” he said.
Goldsmith agreed to the summary judgment in the hopes of expediting the process, bearing in mind that taxpayers are footing the bill on both sides of this case. He predicted the case costs will quadruple if it goes to trial.
Smith, also mindful of that, offered a speedy, two-day trial, but both attorneys said they would need time to retain and prepare experts for trial.
During the status hearing, both sides indicated they have gotten discovery from the other, and are satisfied with that process, even though there are a few “loose ends.”