MVC Powers Eyed by Court

Did the Commission Correctly Act in Refusing Gas Station? Is There ‘Tunnel Vision'? Judge Will Decide

By JULIA WELLS
Gazette Senior Writer

The unique power of the Martha's Vineyard Commission to hear evidence, weigh facts and use judgment in deciding whether to approve or deny development projects went on trial last week in the Tisbury Fuel Services case, which will now go to a superior court judge for a decision.

The six-day civil trial ended on Tuesday in the Edgartown courthouse. A ruling is not expected until late in the year.

This marks the first time an appeal of a DRI decision has come to a complete trial in the 30-year history of the Vineyard commission.

Did the commission correctly weigh benefits and detriments when it voted to deny a gas station project for the busy State Road corridor in Vineyard Haven two years ago? And can a superior court substitute its judgment for that of the commission?

These are the key questions in the case.

"This case is about what the Martha's Vineyard Commission should be doing and is doing … and whether there is some kind of tunnel vision that the Martha's Vineyard Commission has adopted where supposed concerns about traffic have overwhelmed what they should be looking at, such as the soundness of the local economy," declared Stephen Schultz, a partner at Engel & Schultz in Boston who represented the plaintiffs.

"This is about the standard of review, and we argue that the standard of review is if there is ample evidence on both sides the court should defer to the local board," said Eric T. Wodlinger, a partner at Choate Hall & Stewart who defended the commission in the case.

On its face the case is simple enough: After an exhaustive DRI review process, in December of 2002 the MVC voted 8-3 to deny a plan to build a three-pump gas station on High Point Lane, adjacent to the old Coca-Cola plant on State Road in Vineyard Haven.

Traffic congestion, the need for better planning along the State Road corridor, environmental concerns about more trucks hauling gasoline through Falmouth and onto the Vineyard were all cited as concerns by members of the commission.

The gas station developers appealed the decision in court.

Held during a special sitting of Dukes County Superior Court last week, the trial unfolded like a recap of the public hearing. Reams of traffic statistics and a proposal to sell discount gasoline formed the core of the plaintiffs' case, while the defense argued that the traffic statistics were flawed and that the plan to sell discount gasoline was outweighed by other negative factors.

"This is a significant proposal to promote the growth of the local economy. . . . It's a good proposal. . . . We are talking about developable land, privately owned in a business district. Something is going to get built on this land," said Mr. Schultz in his closing argument on Monday.

Mr. Schultz painted the developers as the champions of working-class Islanders.

"The court has heard evidence that 22 per cent of households on the Island earn less than $25,000 a year, the court knows that a nurse who lives in Aquinnah and has to get to the Martha's Vineyard Hospital to work, she has to drive 50 miles round trip. . . . If someone needs to go fishing to put a meal on the table, they are going to have to take the air out of their tires and use a considerable amount of gasoline to drive out on the beach. These people could all benefit from buying cheaper gas," he said.

Mr. Wodlinger said later that the case turns simply on the standard for judicial review.

"A local board has local expertise and is familiar with the local conditions, and all we needed to show was that there was evidence going both ways and we believe that a judge should show deference to the local board," he said, adding:

"Our conclusion is that looking at the evidence, it's clearly a mixed bag. We are not questioning the issue of discount gasoline, but you don't make land use decisions based on economic benefits, you make land use decisions based on land use impacts. The commission was looking at all the evidence."

Mr. Wodlinger submitted two cases to support his position: one involving a DRI appeal in a Cape Cod Commission commercial development case, and a Vineyard case where a trial began but was never concluded. In that case - the appeal of the first Herring Creek Farm development plan - there is pertinent language in a ruling on a motion for summary judgment.

"The plaintiffs will have the burden of proof, I am not to substitute my judgment for that of the commission," said the Hon. Margot Botsford, an associate justice of the superior court, in the August 1997 ruling.

"This will be one of the first [MVC] court cases that will be decided on fact rather than issues of law," Mr. Wodlinger said.

"The commission is supposed to look at ‘available alternatives' - there were no available alternatives that were better than this site. This is a state of the art proposal with environmental protection that is unprecedented on the Island," Mr. Schultz said in his closing statement.

Created by a special act of the state legislature in 1974, the MVC is vested with unique powers to review commercial and residential development projects. The commission also has the power to create special overlay planning districts accompanied by special regulations, known as districts of critical planning concern. The younger Cape Cod Commission was modeled after the MVC.

The MVC legislation states that in an appeal of a DRI decision, a superior court "shall annul the determination of the commission if it finds that the decision is unsupported by the evidence or exceeds the authority of the commission."

Mr. Schulz said he believes the standard needs testing.

"The view of the commission, which has been unchallenged to date, is that an appeal of the Martha's Vineyard Commission is no different than a zoning board of appeals. We disagree with that. We would argue that you don't give the deference that you give a zoning board," said Mr. Schultz.

"It's clearly a case where there is mixed evidence. . . . The commission weighed the evidence and made its decision, and as far as we're concerned it's their call," Mr. Wodlinger countered.

The Hon. Bertha Josephson presided over the trial. Final briefs in the case will be due 30 days after the preparation of the transcript, which will not be ready until August 1 at the earliest.

A ruling is not expected until late fall.