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But the planning board has refuted the Dover Amendment argument, saying the legislation is outdated, as it predates the formation of the U.S. Environmental Protection Agency (EPA), enactment of the Safe Drinking Water Act and Clean Water Act, and recent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.
Now what?
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.
This will get the comments fired up! Wish the school cared more about education than sports. Regardless of the field type the odds of any island kid going pro or even getting a good scholarship because they played on plastic is negligible. Meanwhile we have a falling down High School that’s an embarrassment. The jock sniffers won, the parents who focus on education lost. That’s how it goes out here.
That’s quite an interesting and new perspective on the issue of – providing our student athletes with a workable solution to meet their need for a facility that meets the needs of all high school athletics. Are you implying the students can’t care about athletics and about their schoolwork?
I think John meant that if the school paid as much attention to updating reading instruction, that would be good, because a school’s first job is to bring all students up to their reading potential. Having extra curriculars like sports and music is a bonus. I’m a parent who tried to gather support for adding modern reading programs for students of all ages and professional instructors to boot, but the final word was, “reading programs are not in the budget.” They offered us outdated and ineffective tutoring and subsequent special ed placement. Instead, we took our kid to a real reading program off-Island, and after 6 weeks she returned to school, left special ed and became a top reader. Then she was able to join sports and play in band. That’s how it was for us and the 35 or so families who followed us off-Island for reading programs. Maybe that fell out of fashion since covid, after which many other students fell behind in their reading skills. Where’s the extra reading programs to make up for the covid shutdowns? I was told, “that’s not in the budget.” But plastic turf, yeah.
Such a truly binary view of the world. You are either a jock sniffer or favor education. I don’t suppose any of those science kids could interpret the data about the testing of the existing field compared to the tested materials of the proposed field. Ooooooh. Even a jock sniffer could put the data side by side and conclude the turf has less pfas. What about the sludge coming from the waste water plant. Anyone ask about pfas levels in that? No! Why? Because it is an inconvenient fact that the stuff has more pfas than the proposed field. How about a septic system. Nothing to see here! Seriously. Board of health. Now everyone is going to run to you to stop this field. Based upon what? Go test the septics you keep approving. And holy smokes. How about that pfas concentrator that is the food waste composter. Guess what would happen if you tested that stuff that gets sent out for distribution across the island. Yuck. More pfas. If you want to stop it you have to do better than chasing a synthetic turf field that barely has measurable levels. And OB wants this thing over the WRPOD. No joke.
John,
You’re way off base. It’s not about going pro. There are many student athletes who graduate from this high school & go on to play (D1,2 & 3) college level sports. I have three sons who fit this category. Here on the Vineyard student athletes are @ a huge disadvantage when coming from an environment where they have such extremely poor playing conditions. The current sports @ the MVRH athletic fields is deplorable. Athletics teach individuals the skills needed to be successful in this contemporary, highly challenged world we now live in. Athletics provide for a well rounded education in high school & college having personally experienced this.
There’s many sports offered by the school that don’t require playing fields. A good athlete can also excel on those teams and perhaps get a scholarship. They can also work hard for an academic scholarship which in the long run will have a much greater benefit to them as well as society in general.
They can also work hard for an athletic scholarship which in the long run will have a much greater benefit to them as well as society in general.
Pro sports is very lucrative.
Being a sports star is more important than being an academic star to the vast majority of Colleges and Universities, high schools too.
Sports that require a field should be offered.
Sports that require a gymnasium should be offered.
Sports that require a track should be offered.
Sports that need ice should be offered.
Sports that need water should have a pool.
Just to be fair.
To the surprise of absolutely no one…..
Now who has been spending tax payer money? Can we at least get an apology from Everyone who Asked that the school
Board stop the appeal. That somehow, they alone were increasing the tax payers dollars by appealing the planning boards decision. The planning board overstepped and now They the school board members are vindicated. The Dover Amendment is an important tool used by educational facilities and will be a necessary tool to building the new High school. I Could not be happier for the school committee and their desire to have a ruling to clarify this. It’s been clarified.
The Dover amendment was passed in 1950
when virtually every school in the country
was using asbestos and lead paint as building
materials.
No vindication whatsoever for stupidity.
Mr. Axel, I suggest you look at the top 20 students graduating from MVRHS each year. You will find a remarkable mix of achievement in academics, athletics, and the arts. The arts, athletics and academics offer lessons that support each other, not detract from each other. Well rounded students who can think critically, act with compassion and empathy, and express themselves with grace is where we should be focused…if you don’t see the role that athletics plays you’re not looking carefully enough.
You obviously glossed over my comment. I think sports can be important and the high school offers most that don’t involve a playing field. Have your kid try a new sport- think outside the box ( of a playing field)
Should kids be able to play the sport they want?
Do you know of any high schools that do not have a playing field?
Even Falmouth Academy has playing fields, perhaps you have seen them, they are very well done.
No more Vineyard Nantucket football game?
Change it to diving?
Is it impossible to create synthetic turf that contains no PFAS?
James— from what I can tell about all the testing
that has been going on, it is possible, and based on
all the test results on this particular product, it is
pretty much PFAS free.
It bothers me somewhat that the main opposition to
this has been to focus on a nonburger. PFAS do not seem
to be a problem. There are many other reasons to
oppose this. We should be focusing on them.
A massive set back for Mother Earth 🌍
In your opinion! You’re welcome to it but know there are hundreds here who disagree with your opinion. We actually followed the science provided by actual experts in this area and they all agreed that the field actually isn’t going to affect the aquifer.
Do you sell any products with pfas in them? Why? Because the wealthy want them? Wave that flag but please back it up with actual behavior change. Then let’s talk your agenda.
You mean the GMO grass seed, chemical fertilizers, peticides and herbicides, lots of water and gas for the mowing machines.
Netherlands banned all fake fields, lots of soccer goalies were coming
down with cancer from toxins being kicked in their face from players shoes.
the shoes scuff the field and release the toxins.
Fake is never better than real grass field.
let nature be nature.
Elizabeth– thank you for that information.
I checked — you are absolutely correct.
I found this short video. Full disclosure-
I have yet been able to verify all of the
speaker’s claims. While he doesn’t mention PFAS,
he does mention arsenic, benzyne, carbon black,
various heavy metals, lead, mercury and other carcinogens.
https://www.youtube.com/watch?v=eRp8tb71Etw
So one has to wonder why the Netherlands, who have
been playing on these fields for years are now banning them ?
And I have to wonder why these school board members
are so hell bent on getting this crap into the lungs of our
children. It it just to save a little money ? It’s actually quite
debatable as to whether it actually will in the long run.
Now, if I was a conservative, I would go by the conservative
playbook, attack them personally, and invent wild unsubstantiated
conspiracy theories. But I’m a liberal– I won’t do that.
But I would like to hear from a few of these people about
why they are so willing to accept multiple risks to the health
of our children.
We know there are higher injury rates, we know they will be
exposed to various airborne substances, we know that natural
biological processes will not be able to deal with the fecal matter
from all sorts of passing wildlife, we know we will have to use
some sort of chemical compounds to deal that, and we know
there is a high probability that none of this will ever actually get
“recycled” , and we know the environmental consequences of
the manufacturing, transportation and installation.
What’s the motive ?
Elizabeth
1. The Netherlands did mot ban all turf fields their professional soccer leage did.
2. The statement that soccer goliers are getting cancer from turf fields has been refuted through testing done by the states of Washington, California, New York, Connecticut and Washington. The country of Norway did a comparison of urine taken from one group that played on synthetic turf and another group that have nevrr played on turf.
There was no difference in the levels of carcigonens found.
This is unbelievable. Dover needs to go. Overwhelmingly, the community has spoken and does not want the PFAS field. Apparently the school is tone-deaf and didn’t get the protest denial of their budgets this year? The integrity of our ISLAND-WIDE water source is more important than sports, if our water source becomes contaminated, it not only effects property values but none of us will have a tenable water source. It is also toxic for the kids who play on it. The obvious clear and sustainable solution to the current fields needing to rest has already been presented (and works in other similar situations), it is to rotate playing to the various fields around the island. The entitlement of the school trying to shove (and use our taxpayers dollars to do it) what is not wanted, sane or safe down our throats is appalling.
I’m baffled by your “Overwhelmingly, the community has spoken and does not want the PFAS field.” What are you referring to? The 200 up island people who voted not to fund the school or the same 200 people who want the names of large donors so they can attack them and their businesses. Your statement is no where near being a fact. There were over 800 signatures on a petition supporting the field. That’s 800 to 200, doesn’t support your claim. And BTW the testing on the products being used don’t contain harmful chemicals, please read the reports.
Can you please provide proof of this statement “PFAS field” all the testing that was done said the PFAS were too small to even count. The field at the OB school tested many times higher. What are you going to do about the PFAS in the grass fields? Seems as though it’s the responsible thing to install the synthetic that doesn’t have PFAs. Your comment lacks scientific support.
Apparently we failed to recall the people we elected.
So the judge ruled in favor of the School Board, based on a technicality; that is, that the Dover Amendment could not be challenged by local entities in any way other than with regards to zoning issues.
That doesn’t have anything to do with the wisdom of installing an enormous plastic field with a very time-limited useful life. And it avoids the issue of the emerging science on PFAs.
Who among the zealous supporters of this field volunteers to have the school committee drop the field onto their property ten years from now, to stay there for all eternity?
Steve
The selected field is 100% recyclable, there is a plant in PA in operation now.
The judge ruled in favor of the School Committee based on law.
It’s a judge kind of thing to do.
Both sides think they’re right and both sides cherry pick their own facts to prove they are right. Meanwhile the children lose and the taxpayers lose. Seems like everyone loses here in one way. Time to accept the verdict and move on to our next end of the world problem.
Both sides are people.
when I was in 9 thru 12 he played football, hockey, and golf… I loved sports and hated academics…. In all of my achievements on the course and on the ice nothing compared to the fourth period playing football on a crappy field, soaking wet , covered with mud, where you could not tell your teammates from the other team. It wasn’t like “eew gross… I wish I was home playing Minecraft… I hated artificial turf… it was like a different game… it was a plastic game…it lost its connection to the earth… In team sports I truly learned to
respect and shake hands with an opponent, win or lose… you also learn to acquire a level of skill which is relative to dedication, patience and being able to look at yourself as another person would, a life skill which is invaluable in the future years for success and happiness… and above all you learn that you can’t do it alone…. Go Team!!!
Steve
The selected field is 100% recyclable, there is a plant in PA in operation now.
I’ve been thinking about how to respectfully make this comment for a while, so I apologize in advance if this isn’t as respectful as some would like. This reply is directed at the countless people throughout the years in the synthetic vs. natural grass debate that have started their comment with “when I” , “I used to,” “when my kids played in high school” or anything similar. Yes, you are absolutely correct time was different, but things change. Technology changes. Football was once placed with leather helmets, lacrosse with wooden heads and shafts, baseball with wooden bats. I think most that play these sports now would argue that these advancements have made the sports better. As such, field technology has changed as well. I’m sure you believe that because you played in mud or on crappy grass fields this built character, but that just isn’t the norm these days. The bottomline is that the student-athlete on Martha’s Vineyard are falling behind their peers. Synthetic surfaces at high schools are the standard these days. These fields aren’t unique and they are not a luxury. A synthetic field is not intended for only those going pro or aspiring for a Division 1 scholarship. Synthetic fields are the expectation. Why?? It’s simple. High schools with limited resources (field, manpower, funding, etc.) can play game after game after game on a synthetic surface. You can play during and after rain storms without worrying about destroying the field for the next team coming on the field. You can play in the dead of winter. Lastly, please remember that this project also includes a synthetic track. I’m sure many would say, “well, I used to run on a cinder track”. Again, this is ancient technology any all of the above still applies, EXCEPT that the MV track and field team has not viable place to practice right now because their track was condemned. So, while this years long debate is happened about the field, the track & field student-athletes have had no place to go.
Things aren’t as good as good as I remember.
They never were.
Dear Mr. MacArthur,
I can appreciate your point of view, I really do. As you said “ things change”, yes they do, sometimes for good and sometimes not.
The proliferation of micro plastic is a problem.
The expectation of playing on a plastic field by the sport world is a problem, and is forcing our school commitee and coaches to understandably want one for our MVRHS athletes. It’s a vicious cycle of who has one of these fields and who doesn’t. Communities and althetes are starting to rejects plastic turf.
Unfortunately we have found ourselves on the precipice of this debate . In the 1970’s long before goverments began enforcing environmental laws, grassroot action to preserve our natural resources and local habits was implemented using the global term ,” think globally , act locally”, hoping to inspire town planners , educational systems and capitalists alike to take necessary small actions to first impact their home environment and second add to the global environmental health. Sadly we are losing this battle. Drinking straight from the tap is impossible in to many communities and bottled water just adds the the plastic problem. Micro plastic can be found in the air, human blood, breast milk ,food and the water we drink. The health affects are not good for our future adults .This is not about one field , this is about being part of the problem, which we all are , but MVRHS is not private property or an individual business, it’s run and funded by the people who live here .
In 1972 Ted Kennedy wanted to create a land trust to protect the Vineyard and Nantucket, he failed but the MVC was born from those preservation interests. In my humble opinion the MVC failed it mission by approving this project . This plastic field is low hanging fruit for unnecessary plastic that will degrade each year it sits in sun, ,ice , rain and use. It will then become tiny , shredded micro plastics that will never go away. I believe these plastic fields will be banned in the near future and moratoriums put in place as well as many of the plastic things use knowingly and unknowingly, will be banned by the DEP and EPA, our current consumption is simply unsustainable. In the meantime an island wide moratorium on plastic turf should be implemented by the MVC as soon as possible . Unfortunately the judge just made it harder for any Massachusetts local government to stand up to a school board and the turf industry’s wishes, despite their mission to protect the communities local water source .
Grassroots activism has changed things for millennia , I have hope .
All excellent point Rebekah. My post was not debating the science or possibility of environmental impact. My point was to all those who think that because they had a certain experience on mud or grass that the current student-athletes should also or can do without a synthetic surface. The “I walked uphill 2 miles in the snow both ways to school” argument isn’t valid in my mind.
We can and should debate the science and possible environmental impact.
From a former MV friend only yesterday discussing our local situation, learned that the Buffalo Bills football team requested that their artificial turf be removed as they appeared to sustain more serious injuries than on softer natural ground…..Just saying.
Ok….can I help clarify some things. 1. All turf fields are not the same, so stop lumping them into one mold. Pro football turf fields are not the same as the field being proposed here. The NFL likes a faster game, thus their fields are harder and less forgiving. 2. Crumb rubber isn’t being used here as an infill, therefore, the heat issues associated with those fields doesn’t apply here. Natural organic pine is the proposed infill which, in our humid environment, will stay cooler. 3. Modern era sports. Back in “the day” sports like field hockey and lacrosse were all played on grass. Today, these games are being played almost entirely on turf. “Back in the day” our stadium field was only used by football, today it is used by 3 football teams, 2 soccer teams and 4 lacrosse teams. It gets over used. Field hockey can’t use our stadium field because of the divots created by football and soccer would virtually make it unplayable. 4. PFAS was virtually undetectable in the testing that was done. There is more PFAS in the current soils that what this field has in total, and it was determined that PFAS wouldn’t leach, by EXPERTS. 5. Injuries. I have found several articles showing virtually no difference between grass and turf injury rates, I have shared them here. One commenter here loves to use the University of Houston article, that is one article, in medicine, one article doesn’t create an absolute. I can share one article that shows that turf fields are actually safer. Anecdotal evidence in not evidence. 6. No chemicals are needed to clean the field. Ultraviolet light, which there is plenty of, will kill all germs. Geese won’t go on the field because there is nothing to eat so our athletes will no longer need to land in goose droppings like they do today. In addition, only alcohol can be used in case of a bodily fluid spill, as per the MVC. Lastly, it has now been proven by a court of law that, yes, the planning board chair acted outside of his scope, thus, proving the school committee was in the right and no special permit is needed. Any and all monies spent on this appeal lies solely on the responsibility of the planning board. Issue the building permit and let’s get this thing built. The track team has been waiting patiently because their track needs to be replaced, TODAY. Thank you.
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