You Need a Massachusetts Real Estate Attorney to Navigate Special Zoning on Martha’s Vineyard

A property owner seeking to build in a historic area will need the assistance of an experienced Massachusetts real estate attorney. Some of the procedures available to landowners whose plans are blocked by local restrictions are non-judicial in nature, but they may be even more complex than the court process. The Appeals Court in the case of Therese M. Hall & others vs. Martha’s Vineyard Commission & another, No. 13-P-626, rendered a decision that left a disappointed family with a glimmer of hope of being able to develop their land, if they were to use one of these quasi-judicial avenues.

In the 1960s, the Hall family acquired approximately 125 acres of undeveloped land near five ancient paths or ways within Edgartown and West Tisbury on Martha’s Vineyard. The paths and ways are known as Ben Tom’s Road, Middle Line Path, Pennywise Path, Tar Kiln Road, and Watcha Path. The Hall family collectively owns about 68 percent of the area adjoining the paths and ways, almost none of which has been developed.

Any plans to develop their land must first go through the Martha’s Vineyard Commission (MVC). By St. 1977, c. 831 (Act), the Legislature empowered the MVC as a regional commission with authority to regulate the lands and waters of Martha’s Vineyard. The Act authorizes districts of critical planning concern [DCPC] status, inter alia, for “an area which possesses unique natural, historical, ecological, scientific, or cultural resources of regional . . . significance.” St. 1977, c. 831, § 8.


The guidelines and by-law recognized the historic and tribal origins of the ways as cart paths and walkways and seek to preserve their current recreational use and future availability for walking, bicycling, or horseback riding, without restriction or obstruction by private landowners. The by-law created a protected zone lying within 20 feet of the centerline of each way, prohibited enlargement or paving of the way, the removal of vegetation, and the creation of fences, walls, obstructions, or excavations within the way, and limited motor vehicles to specific segments. The by-law authorized exceptions from those restrictions by special permit, if the regulations would otherwise deprive a landowner of all use of the land.

In October 2007, the Halls brought suit in the Superior Court challenging the special ways designation by the MVC and the zoning by-law restrictions by the town. In 2011, the Superior Court issued a narrowly construed ruling in favor of the Halls that rested on the supposed criteria of public access as a prerequisite for including the ways in a DCPC. The  court found there was no public access and consequently the ways could not be included in the DCPC.  The MVC and the town of Edgartown appealed from the judgment of the Superior Court vacating the designation of five “Special Ways” by the MVC.

The three-judge Appeals Court, reversed the Superior Court ruling in favor of the Hall family, and returned the case to the  Superior Court, finding that the town of Edgartown and the MVC properly created a DCPC with regulations to restrict access and development of the five special ways adjacent to the Hall family property. The Appeals Court ruling did not provide public access or public rights to the road, but only maintained the public interest in the road, keeping the DCPC regulations in place. The Appeals Court held out some hope, however, observing that the Act and the DCPC process do not leave the Halls completely deprived of legal remedies. As an alternative to judicial review, the Legislature has included in the Act the DRI administrative permit process for authorization of land development within a DCPC. (St. 1977, c. 831, § 15).

It can be a grueling process for a property owner to wend their way through the maze of zoning regulations, especially in such a highly desirable yet historic area as Martha’s Vineyard. The guidance of an experienced Massachusetts real estate attorney is essential.

As experienced Massachusetts real estate attorneys, Pulgini & Norton can help you with all of your real estate legal needs. If you have a question regarding your property rights, give us a call today at 781-843-2200 or contact our office online, and we can help legally clear the way for you.

More Posts:

Living off the Grid and Real Estate Law, Massachusetts Real Estate Lawyer Blog, May 14, 2014

How a Real Estate Lawyer Can Help You With Zoning Restrictions, Massachusetts Real Estate Lawyer Blog, April 9, 2014



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