A land court judge has ruled against the Oak Bluffs planning board for rejecting a request for a special permit from the Martha’s Vineyard Regional School District to build a synthetic turf athletic field.
The decision follows a lengthy battle between the high school committee and the planning board, who, in their refusal grant the school a special permit, had cited concerns over per- and polyfluoroalkyl substances (PFAS) — a class of chemicals dubbed “forever chemicals” that have been detected in artificial turf fields.
Judge Kevin T. Smith ruled Tuesday that the planning board acted “beyond its authority” by taking groundwater protection into its argument when denying the project.
The court agreed with the school district, whose appeal in court has relied heavily on the Dover Amendment — legislation that allows properties with an educational component to bypass certain zoning bylaws — to make their case in the controversial Martha’s Vineyard Regional High School v. the Town of Oak Bluffs Planning Board.
But the planning board has refuted the Dover Amendment argument, saying the legislation is outdated, as it predates the formation of the U.S. Environmental Protection Agency (EPA), enactment of the Safe Drinking Water Act and Clean Water Act, and recent revelations on the dangers of PFAS.
The planning board also argued that the school had misrepresented the term “open space,” which it says is “distinct from the Dover Amendment’s purpose of protecting educational uses from discrimination through municipal housing.”
Though “protection of groundwater is of critical importance to any municipality, particularly when that municipality is on an island in the Atlantic Ocean,” Judge Smith’s decision states, the court is “constrained by the language of the Dover Amendment and the cases that have construed it. The Legislature has limited the application of local zoning bylaws to an educational use to dimensional controls, only. The wisdom of this limitation, under these circumstances, is not for this court to question.”
Per Smith’s decision, officials with the planning board and school committee are “ordered” to collaborate on a written joint status report to be submitted to the court within thirty days of this decision.
How we got here
Two years after the Martha’s Vineyard Regional High School committee voted in favor of adding an artificial turf field to its planned athletic facility, the project was approved by the Martha’s Vineyard Commission in 2021.
A special permit required for construction of the proposed field was later denied by the Oak Bluffs planning board, after coming under lengthy review. That decision was made in May of last year.
The high school committee then pursued litigation, appealing the board’s decision.
Last month, the school came before the Martha’s Vineyard Commission once again, to request an extension on the project’s approval.
Per the commission’s August 27, 2021 decision, MVRHS had exactly two years to begin construction.
Because the special permit was not granted for said construction, the school had not been able to do any work on the project.
Commissioners subsequently agreed to allow the project’s initial approval to be extended until 60 days after the lawsuit reached resolution — either after the judge’s ruling and the expiration of any appeal period or following the stipulation of dismissal with the court.
Tuesday’s ruling now means that the school will be able to return to the commission for review. The commission will decide whether to allow for additional extension of the field project, along with potentially deliberating on whether, and to what extent, the project has an impact on regional development.
Following Tuesday’s ruling, Oak Bluffs planning board chair Ewell Hopkins told The Times that although he’s disappointed, he will be advising the board to follow the court’s decision. But Hopkins noted that Judge Smith’s decision does not mean the field project can go forward.
“He didn’t say ‘approve the application,’” the planning board chair said. “[The judge] said ‘work within these parameters,’ and we will work within these parameters.”
Hopkins also said that the lawsuit before the judge didn’t consider the science of PFAS or the potential dangers of the synthetic field contaminating the town’s drinking water; instead, it focused on zoning, ultimately ruling that the Dover Amendment takes precedence over environmental concerns.
While Hopkins says the board won’t be challenging Tuesday’s ruling in land court, he did re-emphasize the problem with relying on a state law that predates major environmental regulations. Similarly, science surrounding PFAS and how it could impact humans and the environment is still a fairly new field, which is changing and updating in real time.
“We got a ruling yesterday that the planning board, and local zoning, can only protect water quality concerns to a certain degree,” he said.
Hopkins is now calling for a town-wide discussion regarding Oak Bluffs water quality and turf fields.
Already, the town’s water district has detected levels of PFAS, and the town’s health board has considered a town-wide moratorium on synthetic turf fields, out of concern for PFAS. The health board earlier this year ultimately decided to wait until a ruling from the judge on the high school field.
Hopkins is also challenging state lawmakers to come up with a solution for what he says is the misuse of the Dover Amendment, as it has come into play for various Island projects in the past.
“It’s time for state senator Julian Cyr and state rep Dylan Fernandes to look at the use of this state law and whether or not they are okay with it,” Hopkins said, noting that Cyr is the chair of a state task force looking at the issues surrounding PFAS.
For the school committee, the next steps of the process will be discussed at upcoming meetings.
Members of the high school committee did not respond to a request for comment. Superintendent Richie Smith spoke to The Times before the news broke of the land court decision.
“Both the strongest proponents and opponents of the project want something done,” Smith said. “This is an issue that has such passion around it. Operating our schools, we need to do so with trust… That’s been my challenge as a superintendent, to support getting what everybody knows is a necessary project for our kids.”
Last week, he declined to share a preferred outcome, but said that he valued the process. “In some ways the process is more important than the outcome, because a good process does result in a good outcome.”
Smith also acknowledged the imposition the project has placed on the island. “The worry that people have is legitimate, and I acknowledge the worry,” said Smith. “We are only as smart and as good as our current science, which we know is flawed. Right now, the science says that the products used, anything in them is de minimis, but we wouldn’t know if in 10 years that will still be the case. And that is the worry and the core of the fight, and I get that.”
He acknowledged that the conflict has radiated through the community and created an “environment that has gotten so toxic or challenging, that people are very reluctant to work together, and that is a regret,” the superintendent said.
Sam Houghton and Jenna Bernstein contributed to this report.