Moshup Trail Legal Victory
By Brendan O'Neill, Executive Director of VCS

Environmental legal defense is a necessary part of the Vineyard Conservation Society’s mission. For more than a decade, VCS has fought to defend the wild moorlands of Moshup Trail against developers intent on building a subdivision access road through this fragile and rare resource. That case is moving forward in the Massachusetts Land Court. (to donate to the VCS legal defense fund and protect special places like Moshup Trail visit us online at www.vineyardconservation.org)

Most recently, in a related case, the Supreme Judicial Court of Massachusetts held in February that the developer’s land is NOT exempt from zoning changes adopted by the Town. The high court rejected the developer’s challenge to special zoning overlay district regulations, called Districts of Critical Planning Concern (DCPC), regulations promulgated by the Martha’s Vineyard Commission and adopted by the Town. The decision strengthens VCS position in the Land Court road-access litigation. We welcome the court affirming that the area clearly contains natural and cultural resources of regional and global significance, and that the Aquinnah DCPCs serve a critical purpose in protecting the Island of Martha’s Vineyard.

VCS has led the fight to preserve the wild moors of Moshup Trail in Aquinnah since 1980, when VCS facilitated the purchase of a strategic parcel near the Gay Head Cliffs, and worked to designate the area as a Critical Planning District. The conservation land through which developers seek access was preserved over a ten-year period starting in 1995 at a cost of more than three million public and private dollars.

It consists of rare coastal heathland habitat—more than 90% of which has been eradicated worldwide. “Fragmentation effects” – road building and house development – are primary threats to the integrity of these heathlands. The conservation work at Moshup Trail is far from complete. The interest and cooperation of owners of undeveloped parcels in the area will be critical. Ultimate success will depend on their willingness to consider gifts or sale of land or Conservation Restrictions (CRs) on their land. VCS stands ready to facilitate that process.

EXCERPTS FROM THE DECISION

The reason of (the MVC’s enabling statute’s) being is to import regional – island-wide and Statewide – considerations into the protection of the land and water of Martha’s Vineyard, consideration which, the Legislature could believe, the towns themselves had not and would not severally bring to bear.

Nothing in the (MVC enabling statute) permits a landowner to appeal from the commission’s designation of specific areas on Martha’s Vineyard as DCPCs. An action in the nature of certiorari may be brought…(but) plaintiffs action was untimely.

The plaintiffs argue that the impact of the DCPCs is to restrict the use, enjoyment, and development of their property. While this may be true…we conclude that (the statute allowing challenge of a municipal ordinance) does not serve as a mechanism by which a landowner can challenge the designation of a DCPC.

PRESS RELEASE
March 30, 2009
RE: First Brochure of West Tisbury Ancient Ways
Contact: Ann Bassett, committee chair 508-693-9301 Harriet Bernstein 508-696-7186

***Hot Off The Presses: A Map of West Tisbury Ancient Ways***

The ByWays Committee of West Tisbury has produced a map and brochure that identifies many of the ancient ways of the town.

For the past two years, the committee, chaired by Ann Bassett, walked many of the town’s ancient ways, studied historical maps and learned the history of these old roads. The committee clarified what protection is in place for these ancient ways and worked with the Planning Board and the Martha’s Vineyard Commission to begin to protect what has not been protected.

Most of the island can be accessed by these trails. Ancient ways are old roads that date back to Colonial days. They are commonly used by walkers, equestrians and bicyclists and experience little or no motor vehicle traffic. Also referred to as cart paths, these roads are often recessed, indicating continual use over a long period of time.

Protection of an ancient way guarantees public access on foot, hoof or bicycle and limits or restricts use by motor vehicles. Town protection conserves the rural character of these trails and retains a link to the community’s cultural past.

Protected ancient ways are classified as “Special Ways. The Martha’s Vineyard Land Bank maintains all Special Ways and assumes liability. Watcha Path and Old Homes Hole Road are two of West Tisbury’s special ways presented in the brochure.

The brochures are available at Town Hall, the West Tisbury Library and other places in town.

Other committee members include Jeanne Barron, Cynthia Aguilar, Ashley Hunter, Nina Meyer, Rez Williams and Harriet Bernstein.

Click here to download the brochure in pdf format.

Why Moshup Matters
Brendan O’Neill, Executive Director of the Vineyard Conservation Society

The Legend of Moshup is an ancient creation story from the Wampanoag oral tradition. It tells of the giant Moshup, the personification of the immense forces of nature, deciding to settle here after a long journey, and dragging his foot to separate Martha’s Vineyard from the mainland and plow up the Cliffs of Gay Head. Scraps from his dinner table are the fossilized bones and teeth of ancient life forms found there. The vast appetite of his cook fires is evidenced in the layers of petrified wood and coal visible in the cliffs and the treeless expanse that is Moshup Trail.

Today, geologists offer corroboration. At the terminus of its long journey, the Pleistocene glacial advance halted here some 10,000 years ago. It deposited alluvial plains to the east, rocky moraine to the west, and, in an extraordinary event, plowed up ancient strata laid down in a primordial sea, exposing 60 million year old cretaceous clays and 100 million year old lignite coal deposits at the Gay Head Cliffs.

Beneath the cliffs stretches the expanse of Moshup Trail, a wind-blasted, salt-spray-stunted, drought-prone place. Traveling along the Trail, one experiences the wildness of this largely unspoiled landscape. Its open moors are recognized as an exceptionally rare type of habitat called the Northeast Coastal Heathlands, home to species adapted to, and molded by, the prevailing harsh conditions. They include the Spotted turtle, Nantucket shadbush, Arethusa orchid, the Northern Harrier Hawk, and a diversity of invertebrate species. Ecologists call Moshup Trail the most significant unprotected, undeveloped habitat in the New England region.

But conditions are unforgiving, and life there is tenuous. Additional stressors like development are not tolerated well. The most pressing threat to heathlands is habitat fragmentation in the form of road building, house construction, and impacts associated with human habitation like lights and noise and pets. The result is that more than 90 percent of all coastal heathlands habitat in the northeast United States has been lost, due largely to land development.

Because of Moshup Trail’s relative isolation, conservation of the precious natural heritage and spectacular scenic resource at Moshup Trail is still possible. The people of Aquinnah, together with Island conservationists, have been working for decades to seize that opportunity.

During the 1970s, the town worked with the Vineyard Conservation Society – VCS – and the Commonwealth to adopt coastal wetland regulations. In 1980, a strategic property near the cliffs was purchased, with more than half the money coming from town residents. Soon after, the town successfully designated 186 acres along Moshup Trail as a special zoning overlay district, a District of Critical Planning Concern (DCPC), later expanded to include the entire town.

During the 1990s, VCS facilitated the conservation of nearly 40 acres of this heathlands habitat. The Moshup Sanctuary was assembled through donations of land, purchases of visually and ecologically critical parcels, and voluntary conservation restrictions on private holdings.

Most recently, the emphasis has shifted to legal defense of these conservation gains. Would-be developers of landlocked lots adjacent to the conserved lands are seeking to force subdivision access through the conservation lands. VCS and others are committed to vigorously defend this special place that so many have worked so hard over so many years to conserve.

The seeds of the dispute were planted more than a century ago. In 1862, the Massachusetts General Court passed an Act Establishing Gay Head as a District, changing the way the state related to the Wampanoag’s ancient communal system of land tenure. Ownership of enclosed lands was recognized, common lands were divided, and hundreds of small lots were created and deeded to local Wampanoag people. Many of these “set-off” lots were later conveyed out of tribal hands. Nearly one hundred and fifty years later, some of the lots have been conserved, but others located in the heart of the Moshup Heathlands remain vulnerable to development.

Last month’s Supreme Judicial Court decision upholding the zoning authority of the town and the DCPC power of the MV Commission was a major victory. We hope that, by working with all the landowners in the area, perpetual protection can be secured for this wild but quite fragile place for the benefit of future generations of Island residents and visitors

Moshup’s Trail: Latest Developments

For 28 years, the Vineyard Conservation Society has been leading the fight to preserve the wild moors of Moshup Trail in Aquinnah. The effort began when VCS facilitated the purchase of the strategic MacDiarmid parcel near the Gay Head Cliffs, and worked to have the Martha’s Vineyard Commission designate the area as a District of Critical Planning Concern. More than 90% of this coastal heathland habitat has been eradicated worldwide, due largely to habitat fragmentation in the form of road building, residential construction, and related development impacts.

Over the years, through purchase and donation, VCS has protected a number of parcels originally created in the 1870’s and “set off” for then-members of the Wampanoag Tribe. Now, we are fighting a series of lawsuits against individuals owning adjacent landlocked properties, who are intent on forcing access through our conservation land for their own benefit. Specifically, the Massachusetts Land Court is examining the question of whether, based on the record, there was a clear intent back in the 1870’s to create easements over the “Set-Off” parcels for the benefit of the landlocked parcels. Only if such intent can be demonstrated would the court consider establishing an easement.

Having expended nearly three million public and private dollars to conserve 38.4 acres of globally rare habitat, VCS is determined to defend these conservation gains. We see no validity to the proposition that an easement for the benefit of others exists through our conservation lands. We will continue to pursue our case in the courts, and hope for resolution in the coming year. Please consider a special contribution to support this critical work.

For the VCS Conservation Almanac
May 30, 2008

We at Sheriff’s Meadow are writing this open letter to the island community in order to further clarify recent actions that have taken place on Foundation land that have been the cause of great concern to numerous people. We are sorry for the distress that this has caused. We would like the opportunity to explain our property stewardship procedure to you.

When SMF acquires a property we undertake a thorough inventory of the plants and animals, birds, moths and the types of habitat that exist upon it. We also pay close attention to the donor’s intentions and any state or local regulations and from all these parts compile a management plan that suits that particular property. The plans might range from doing essentially nothing and letting the natural flow of succession occur, to stepping in to maintain, or in some cases restore, meadows and natural sand plain habitats. There are numerous ecologically accepted ways to achieve the latter objective. These include cutting down trees, mowing brush and grasses, burning fields, removing plants and grazing livestock. Each property defines which means are appropriate for it. Burning, for instance, would not be acceptable in the field at the southern end of the Caroline Tuthill Preserve as it is too close to development. In other instances, when we have plans to mow and burn a field grown in with viburnum and huckleberry, the removal of some of those plants prior to burning may be appropriate. When woody vegetation is transplanted, we replace the soil with sand, the preferred substrate for sand plain grasses. Many of the native grasses and plants we want to encourage thrive on impoverished soil – on better soils, they will lose in competition to non-native grasses.

In the case of both of the properties in question, the field at the Caroline Tuthill Preserve and Priscilla Hancock Meadow, we have as a clear objective the preservation and maintenance of open fields. We have not had the manpower nor machinery in place to do this on our own. In our obligation and need to manage our properties, we have had ongoing relationships with respected, professional landscape contractors. When it is appropriate to remove trees and invasive species, and/or conduct mowing as part of the management plan, we have at times entered into handshake arrangements with contractors. Those arrangements allow the contractors to take a number of species that have marketable value in their business in return for mowing and clearing on the property. Except in the case of our long standing, annual ‘free tree day’ at Nat’s Farm, we do not deal with, or normally know, the identity of landowners who may be receiving any of the trees or plants removed from our property.

That said, while the recent occurrences of tree and shrub removal may have been in accordance with our internal management plan, there were numerous areas of omission and a lack of oversight. We take these errors seriously. We apologize to our supporters, to those who have entrusted their properties to us, and to all the conservation-minded citizens of Martha’s Vineyard. We have heard particular distress about “strip-mining,” using one paper’s choice of words, from another island property and we want it to be clear that that property is not owned or controlled by us. Unfortunately, the decision to feature the photograph highlighting the sod removal on the front page has made that image the photographic poster child of the story.

What is now important is how Sheriff’s Meadow reacts and learns from this experience. Our new Executive Director, Adam Moore, had already called a halt to this type of arrangement before the present incident became public, and has prepared a draft outlining new written procedures to govern our practices in stewardship matters that involve third parties. Those procedures will be presented to the Board of Directors for review and adoption. We have mapped and photographed the affected areas and are developing a remediation plan. Adam and our President, Steve Crampton, have met with Tim Simmons of the Massachusetts Natural Heritage and Endangered Species Program. We have promised the Foundation’s full support in implementing and overseeing restorative efforts if they are called for.

We would be pleased to hear from you. If you have any questions, suggestions or criticism for Sheriff’s Meadow, please do telephone Adam at (508) 693-5207, or email him at moore@sheriffsmeadow.org.

Sincerely,
Emily Bramhall
Vice-President

May 23, 2008
Legislative Victory for Land Conservation Congress Passes Conservation Tax Incentive for Family Farms and Ranches

GREAT NEWS! Following similar action in the House, the Senate last night voted to overturn the President's veto of the Farm Bill. Despite an earlier procedural glitch, the final bill emerged as expected with our conservation tax incentive now enacted for two more years. After an arduous uphill battle and the prospect of defeat only a few weeks ago, our national coalition now has a hard-earned reason to celebrate. This puts back in place the incentive that had expired January 1st with the exact same terms, that is, raising the deduction for donated conservation easements form 30 to 50% of adjusted gross income—and 100% for farmers and ranchers—and extending the time period for using the deduction from 6 to 16 years. We cannot thank everyone enough who made this victory possible—every single person who made a phone call, visited their Member of Congress, financially supported the campaign, or otherwise played their part at the local, state and national level. This has been a true community effort which would not have been possible without our national coalition and the help of many land trusts. Although our work is not done and we still need to make the incentive permanent, this is as far as we could possibly get this year. Thank you for your hard work that made renewal of this powerful tax incentive possible. For more information, please visit www.lta.org

In the Courts

This summer, the Vineyard Conservation Society won a major legal victory in the form of a favorable ruling from the state Ethics Commission. The precedent-setting decision marked the end of our seven-year struggle
to stop private golf course proliferation on the Island.

VCS is unique among Island conservation groups in using legal defense as an environmental protection strategy. No less than four golf course developments were proposed for Mar­tha’s Vineyard over the last decade, and during the ensuing “golf wars,” VCS testified frequently before the Martha’s Vine­yard Commission (MVC), the Island-wide planning agency which reviews such developments of regional impact.

Thanks in part to VCS advocacy, three of the properties slat­ed for development were ultimately acquired for conserva­tion, while the only golf course to be approved was required to eliminate pesticides and scale back fertilizer use. Despite these significant environmental victories, however, one trou­bling piece of unfinished business remained.

Back in the year 2000, golf developers leveled conflict-of-interest allegations against certain VCS board members who also served on the MVC, or had spouses who served on the MVC. The essence of the accusation was that VCS was a “business” with a “financial interest” in the outcome of the review process, because our advocacy campaign would bring us increased visibility and economic support. Preposterous though the charges were, the individuals in question felt obliged to resign from the VCS board so as not to endanger their ability to participate in the official MVC review.

Meanwhile, VCS requested an Ethics Commission opinion on the issues involved, not only to show up the speciousness of the claims, but also to forestall the use of similar tactics in the future, both here and in other communities in Mas­sachusetts. Our overarching concern was with the potential chilling effect on public service: if board members of non-profit advocacy organizations are unable to serve freely on municipal and state boards and agencies, civic involvement suffers as a result.

The first Ethics Commission decision, issued in 2002, vin­dicated the former VCS board members, stating that they could participate in review as long as VCS had no financial interest.  But the opinion didn’t address the broader question of whether VCS could be considered a “business organiza­tion” within the meaning of the conflicts statute.
VCS filed an appeal which, two years later, resulted in our being permitted to request a further ruling from the Ethics Commission to rule squarely on the “business organization” issue. We submitted that request in 2004, and finally this Au­gust received the ruling which affirmed the VCS position in its entirety.
In particular, the Ethics Commission rejected the insidious argument that a non-profit environmental watchdog like VCS actually functions as a business with presumptive finan­cial interests sufficient to trigger conflict-of-interest laws. In­stead, the ruling stated that VCS board members serving on government panels can take part in all decisions coming be­fore them, as long as they disclose their VCS affiliation when reviewing projects that VCS has a significant advocacy inter­est in. The ruling should have broad application to similarly situated nonprofits around Massachusetts.

While we were confident of ultimate victory in this matter, it was frustrating that we had to expend such large amounts of time and money, and had to wait so long for a final result. It stands as a good lesson, however, in how the legal process is routinely used as a weapon in land-use controversies today. It also points to the need for VCS to be ready for the next fight, and to the importance of having a committed mem­bership prepared to support that readiness. This protracted battle substantially depleted our legal defense resources, and we urge everyone who believes in this aspect of our mission to make a special gift to VCS this year to help us rebuild our environmental defense capability.

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