Court Upholds MVC Decision

Judge Supports Regional Agency Against Tisbury Fuel Service in First Trial for Commission; Developers Vow to Appeal

By IAN FEIN

A superior court judge last week upheld the unique power and regulatory authority of the Martha's Vineyard Commission, ruling alongside the regional planning agency in an appeal from the developers of a proposed Vineyard Haven gas station.

The Hon. Bertha D. Josephson found that the evidence in the case supported the commission's December 2002 decision that the detriments of the Tisbury Fuel Service project - namely, adding significant traffic to the already congested upper State Road corridor - outweighed the proposed benefit of discounted gas for Island residents.

Developers of the proposed gas station offered a 30-year pricing plan for Vineyard residents with savings of up to 59 cents per gallon.

"The evidence well establishes that the proposed reduction in cost to residents would save money for those Island residents who purchased their gasoline at [Tisbury Fuel Service]," Judge Josephson wrote in a 14-page decision released last week. "However, an artificial cost reduction to some Island residents is not a benefit of the magnitude or type that outweighs the disadvantages posed by the project."

The Tisbury Fuel Service case is significant in that it marked the first time in the commission's 30-year history that an appeal of one of its decisions went to a complete trial. No commission decision has ever been overturned on its merits.

MVC executive director Mark London said in a prepared statement this week: "Certain people, such as those rare applicants whose projects are denied, like to suggest that the commission's decisions are arbitrary.

"In my experience, the commission makes its decisions in a more balanced, careful way than any board that I am familiar with."

West Tisbury resident Sean Conley, one of a number of partners in the Tisbury Fuel Service project, this week said that he was shocked by the superior court decision.

"It's like living in Alice in Wonderland out here - everything's upside down," Mr. Conley said. "It's amazing how an impartial judge could come up with that [decision]. It's like it was written by the commission."

The developers now plan to take their case to the Massachusetts Court of Appeals.

"We're going to persevere; we're not going away," Mr. Conley said this week. "This is too important to the Island and to Vineyard Haven. It's something that's going to help many, many people."

The Tisbury Fuel Service project was the last in a series of State Road gas station proposals that the commission denied between 1998 and 2002. All refueling stations trigger commission review as developments of regional impact (DRI).

After the commission turned down the project by a vote of 8-3, the developers appealed the decision to Dukes County Superior Court and argued that the commission exceeded its authority. Judge Josephson in spring 2004 presided over a six-day civil trial in the Edgartown courthouse, and sat in on a special hearing in Springfield last month when the plaintiff presented supplemental evidence.

In her decision, which is written in simple and straightforward language, Judge Josephson sided with the commission on nearly every aspect of the case.

She cited a lack of clear evidence for the need of another gas station on the Vineyard, and found that the Tisbury Fuel Service project would not significantly contribute to the overall Island economy. She also ruled that the proposed location for the project - on High Point Lane, near the Tisbury Park and Ride lot - was neither essential nor desirable, and that other sites on the Vineyard could better absorb the additional traffic generated by a gas station.

"Based on the credible expert opinion presented, I find that the proposed project would impair safety on State Road, by adding to the congestion on a critical traffic corridor and creating unacceptably long traffic delays for motorists," Judge Josephson wrote.

Boston attorney Eric T. Wodlinger, who has represented the commission for roughly 25 years and defended it in this case, said he was pleased but not surprised that the court sided with his client.

"The standard of review in a case like this is: Could a reasonable commission come out as they did?" Mr. Wodlinger said. "The answer was pretty obvious from the beginning."

Mr. Conley this week disputed the court's findings. He said that while there were 15 Island gas stations in 1970, the Vineyard has only nine today. The Tisbury Fuel Service station would also promote growth of the Island economy, Mr. Conley said, by providing residents with a minimum savings of $500 per year.

He argued that the State Road location could help alleviate traffic congestion at the busy Five Corners intersection by attracting customers away from Beach Road, where the only two current Vineyard Haven gas stations are located.

The supplemental evidence Mr. Conley presented to the court last month addressed the proposed connector road that would link State Road to Edgartown-Vineyard Haven Road and change the patterns of traffic congestion in the area. Judge Josephson in her decision did not give much weight to the additional information.

"While the materials suggest that a connector road may result at some point in the future from the steps taken by the town, whether the connector road will come to fruition and the form it may take are not known," Judge Josephson wrote.

Mr. Wodlinger this week chose not to speculate about the developers' prospects for the case at the court of appeals, but asserted that the superior court judge showed proper deference to the commission decision.

"Judges tend to defer to the local experience and knowledge of the commission, if they do their job properly," Mr. Wodlinger said. "The nice thing is that these decisions are not made in Boston, they're not made in Washington - they're made right there in Oak Buffs in the Olde Stone Building," he continued.

"And that's the way it should be."