More dust kicked up this week around the athletic fields project at the Martha’s Vineyard Regional High School, with the Oak Bluffs planning board asserting its right to review the plan, and the Martha’s Vineyard Commission releasing a draft “minority” opinion that was crafted outside a public meeting and never formally presented to the commission.
The $7 million phase one plan by the high school to overhaul its athletic fields — including a 100,000-square-foot artificial turf main field — has been a flashpoint for debate and controversy in the Island community. After an exhaustive review this spring and summer, in July the MVC approved the plan as a development of regional impact (DRI). The vote was 10-6, and the approval came with conditions.
Later the commission grappled for weeks with its written decision, a final step in the DRI review process.
This week the stage shifted to the Oak Bluffs planning board, where the fields plan is under discussion for possible review, an ordinary step in the MVC process. The fields project lies in the Oak Bluffs Water Resource Protection District, a special overlay district. Projects in the water protection district need a special permit from the planning board. But the fields project has an added wrinkle, with the high school covered by the Dover Amendment, a state law that allows religious and educational groups more latitude to skirt local bylaws.
At a meeting Wednesday night, planning board chairman Ewell Hopkins said the high school still must obtain a special permit from the town.
“Even though it was a very thorough review, the commission’s expectation is that the town, being the permitting authority, would take their decision and complement it where it was necessary, based on the specific . . . concerns the town has,” Mr. Hopkins said.
In a six-page opinion written at the request of Mr. Hopkins, town attorney Michael Goldsmith agreed that the town had the right to require a special permit, but he also cautioned that the Dover Amendment limits the scope of the town’s authority over the project.
“The board may not use [the water protection bylaw] to deny MVRHS’ proposed use and may not unreasonably condition MVRHS’ selection of location or materials,” Mr. Goldsmith wrote in part.
Mr. Hopkins has raised specific concerns about possible effects on the aquifer from microplastics and chemicals in the turf fields — a subject that also saw exhaustive review by the commission during public hearings.
Mr. Goldsmith warned the planning board that imposing conditions that go beyond the scope of commission conditions might not survive a legal challenge.
“It is my judgment that . . . a reviewing court would likely find that more stringent conditions than those imposed by the MVC to be in excess of the board’s authority,” he wrote.
On Wednesday night, planning board members disagreed over how to proceed.
Board members Bill Cleary and JoJo Lambert resisted the idea of further scrutinizing the fields project.
“There’s been enough time and money spent,” Mr. Cleary said. “It was one of the most vetted applications in the history [of the MVC], and I respect that process,” he added. “I just feel that
there’s no benefit to the applicant, no benefit to the town, no benefit to the board to pursue this.”
Ms. Lambert echoed Mr. Cleary, saying she was not sure what the town could add to the process.
Finding no consensus, the board agreed to invite Mr. Goldsmith to its next meeting to seek further advice.
Meanwhile in yet another twist, on Wednesday MVC chairman Joan Malkin publicly released a draft report that had been prepared on behalf of the six commissioners who voted against the fields project.
The six-page report, stamped “draft” throughout, was created outside a public meeting and was never adopted by the commission.
But the prospect of a dissenting report was discussed at multiple meetings of the full commission between late July and early September. Commission bylaws allow for a dissenting report, although none has been issued in recent memory.
At a Sept. 7 meeting, Ms. Malkin informed the commission that after preparing a draft report, she and the five other dissenting commissioners had deliberated outside of scheduled commission meetings and decided not to file it, referring it to as “the minority report that never was.”
“Our greatest concern was that the report might do harm to this institution that we are either appointed or elected to serve, and it increasingly seemed to us, as we discussed it further and further, that it would turn out to be divisive and polarizing rather than inclusive,” she said. “And so, in the end, we have chosen not to file a minority report, believing that it could set an unfortunate precedent. And whatever convictions originally motivated us, we look to the future to make sure that our voices are heard. So that is the end of that little saga.”
However, the saga continued when the MVC received requests under the state public records law to disclose the draft report.
In releasing the draft report Wednesday, Ms. Malkin said the MVC believed it was not legally required to disclose it.
“However, the commission believes that producing the document now would further transparency and trust in the MVC and would enable the commission to concentrate its efforts on other pressing matters before it,” she said in an email.
The Massachusetts Open Meeting Law prohibits deliberations by a quorum of public officials outside a public meeting. The six dissenters do not constitute a quorum of MVC members. However, the Massachusetts attorney general strongly discourages deliberations by smaller groups outside a posted meeting.
“When less than a quorum meets (and it is not a subcommittee of the public body), it is not considered a ‘meeting’,” the attorney general states in an explanation of the open meeting law on the state website. “Nevertheless, we caution public bodies about meeting when a quorum is not present . . . when a sub-quorum discusses a topic, which is then shared with a quorum outside of a meeting, it may be considered improper deliberation . . . The attorney general recommends that a public body that does not achieve a quorum for a particular meeting consider postponing the meeting until a quorum is present, rather than proceeding with an informal discussion.”
Louisa Hufstader and Noah Asimow contributed reporting.
