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Moshup Trail Legal Defense


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 moorlands of Moshup Trail in Aquinnah against developers intent on building a subdivision access road through this fragile and rare resource. These wild moors have been eradicated in more than 90% of their historical range, due largely to land development. The primary threat to heathland habitat is “fragmentation” in the form of road building and house construction.

Launched with a $500,000 state grant and supported by private foundations and public donations, 38.4 acres have been conserved at a cost of nearly $3 million. In 2013, the Kennedy (Red Gate Farm) gift added several key parcels to the Moshup Sanctuary. The fate of other parcels (including several of conservation interest) remains unsettled, pending the outcome of litigation involving access to these lands.

Some owners of these landlocked parcels seek access for development purposes by building roads through the conservation land, believing they have the right to do so. VCS has taken the position that no “implied easement” or “easement by necessity” exists over our land, and that such development would fragment the habitat and erode a conservation foothold won through substantial outlay of public and private dollars.

An original trial court judgment in our favor (2001) was appealed by the parties seeking access. After review by the appeals court, the matter was returned to the lower court in 2005 with instructions to determine whether easements exist over the conservation land: “it is the proponents’ burden to prove the existence of an implied easement. Necessity alone does not an easement create.”

In March, 2011, the trial court ruled again in our favor, finding that no easements exist over the conservation land. The parties seeking access filed an appeal of the trial court’s decision, resulting in the most recent opinion, in January 2015. The 2-1 decision by a three judge panel of the state Court of Appeal reversed the previous findings, a significant setback for conservation efforts.

Believing that we have an obligation to defend the gains made to-date, and that the odds were in our favor (based on the previous track record of the case and the strongly worded dissent written by the Hon. Peter W. Agnes, Jr.), we appealed the decision to the Supreme Judicial Court. In April, 2016, the SJC found in our favor in a strong decision that should ensure the conservation gains at Moshup Trail will be secure and permanent.

Funding for the Moshup Trail Project has come from many private donors, the Edey Foundation, the Helm Foundation, the Abraham and Ruth Krieger Foundation, the Scheuer Family, the Cedar Tree Foundation, the Sweet Water Trust, and the Commonwealth of Massachusetts Executive Office of Environmental and Energy Affairs.

A Victory for Conservation: Thoughts on an Earlier Decision

In a related case, several years ago the Supreme Judicial Court held that this 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), which are promulgated by the Martha’s Vineyard Commission and adopted by the Town. The decision strengthens the 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.

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.

VCS has led the fight to preserve the wild moors of Moshup Trail in Aquinnah since 1980, when we 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.

The endangered orchid Arethusa bulbosa, photographed at Moshup Trail