Citing a need to preserve old roadways that provide a vital link to the Island's past, the Martha's Vineyard Commission on Thursday unanimously agreed to nominate five ancient ways in Edgartown for inclusion into a special byways protection zone that could limit their use and future development.
Although the decision means only that the commission will consider the nomination during a public hearing within the next 60 days, it also triggers an immediate temporary moratorium on development around the five ancient ways.
If the commission agrees to add the roads to the special byways district, the moratorium will be extended until a vote at either a special town meeting in the fall or the annual town meeting in April.
Benjamin Hall Jr., an Island attorney whose family owns land off Ben Tom's Road, one of the ways nominated for inclusion in the protection zone, appeared before the commission on Thursday and argued that the boundaries of the five ancient ways were poorly defined. He urged commissioners to hold off on the vote.
But after hearing reports from several Edgartown officials that the Hall family had removed several trees along Ben Tom's Road, commissioners agreed that time was of the essence.
"There is an urgency to protect these paths. There is clearly one person who is clear cutting the area along one of the roads and removing the tree stumps . . . we really need your help on this," said Edgartown selectman Michael Donaroma, who appeared before the commission to support the nomination, formally made by the Edgartown planning board.
The ancient ways nominated include an approximate half-mile stretch of Ben Tom's Road, a 1.25-mile stretch of Pennywise Path, a one-mile stretch of Middle Line Path, a stretch of Tar Kiln Road of just under one mile, and an approximately 1.25-mile stretch of Watcha Path.
Each of the five ancient ways date back to the 1600s and 1700s, and are believed to have been used as cart paths of that era.
Historians believe many of the ancient ways were traced over paths previously established by the native Wampanoags. Middle Line Path and Pennywise Path were both significant enough that they were used to define early property lines. Tar Kiln Road is a reminder of the Island's nautical past, named for the colonial industry of extracting pitch from pitch pines for use in waterproofing ship hulls.
Watcha Path skips along the upper reaches of the south shore great ponds and is also the only east-west route south of the Edgartown-West Tisbury Road. In 1990, West Tisbury protected its portion of Watcha Path by designating it a special way.
The Edgartown planning board earlier this summer unanimously voted to nominate the five ancient ways to be added to the town's existing special ways district, which falls under the regulatory umbrella of the Martha's Vineyard Commission Island Road District of Critical Planning Concern (DCPC).
The Island Road district was established in 1975 and was one of three original Islandwide DCPCs nominated and designated by the early commissioners. The road DCPC includes both major roads and ancient ways.
In the major roads zone, the protection area stretches from 200 feet of the center line; the ancient ways zone protects to within 20 feet of the center line. The Island Road district regulations were amended in 1999 to add a new special ways zone for Edgartown which included a segment of Dr. Fisher Road.
The nomination submitted by the planning board last week states in part: "In addition to being visible reminders of how previous generations of Vineyarders have gotten around the Island and which places were significant to connect, today these ancient ways are enjoyed recreationally. They provide neighborhoods with paths to enjoy the outdoors and to exercise. They also link neighborhoods and provide an alternative to using automobiles for some trips."
The concept of an ancient way is indigenous to the Vineyard, where the pathways are still used for walking and horseback riding much the way they were hundreds of years ago. Some of the ways run through backyards and are unmarked, while others have become so well-traveled by automobiles there is little to distinguish them from other recently created dirt roads on the Island.
Watcha Path and Pennywise Path, for example, have been widened between 12 and 20 feet in some sections and have subdivisions fronting them. Unlike some other ancient ways, these two roads actually provide property owners access to their land.
Island Road district regulations prohibit a designated ancient way from being blocked or obstructed, paved or widened. They also ban construction of fences, walls, structures or obstructions as well as the removal of existing vegetation, except to keep the special way from becoming overgrown.
The regulations also state that ancient ways should be used only for nonmotorized transportation and recreational use, except in the case where previous vehicular right of way exists. It is unclear if this would prevent people from driving their cars to access their property.
On Thursday, commission chairman Douglas Sederholm said it was not the commission's intent to deny a property owner access to his or her land. "We're simply trying to protect these ways, not shut anyone out," he said.
The Edgartown planning board has already taken steps to ensure property owners retain access. Following a public hearing on July 31, the board voted to attach a letter to the nomination stating that the wording of the existing special ways bylaws needs to be modified to take into account the differences among the five nominated ways and to ensure that the rights of property owners are considered.
Mr. Hall, whose family owns land that fronts approximately one mile of Ben Tom's Road, said he does not believe the commission has the authority to deny vehicle access to ancient ways. He also said placing limitations on vehicular traffic contradicts what the paths were originally intended for.
"When people use the term ancient ways they are trying to romanticize them and blur the reality of what they were originally created for. Remember, these were cart paths, and were used primarily for travel and transport. Over time, the mode of transport has evolved from the horse and buggy to the automobile," he said.
Mr. Hall said he worried putting restrictions on the roadways could hinder emergency vehicle access.
Mr. Hall said his family plans to build at least one home on the property off Ben Tom's Road, although there are no immediate plans. He also rejected claims that his family had indiscriminately clear-cut trees along the ancient ways.
Mr. Hall said his family was clearing the way for the installation of a water main and was exercising its property rights when they removed some trees along Fisherman's Knot Road. "The way it has been described you would think that we bulldozed the entire area," he said.
Mr. Hall also said town officials used illegal dumping along the ancient ways as an excuse to stop vehicular traffic and block his family's property from development.
"[Some officials] used this general sense of good intentions for their own political gain. There was this rush to judgment because some trash was being dumped and now we are talking about limiting the public's right to access a road that traditionally has been in the public domain," Mr. Hall said.
Roger Becker, a member of the planning board who appeared before the commission on Thursday, said yesterday there was much work to be done to take into account the difference among the five nominated ways while also protecting property owners' rights.
He said the intent of bylaw is to protect the ways, and he conceded that a big part of that is limiting or banning vehicular access. But in the case of the five ancient ways up for nomination, the bylaws could be modified to allow current property owners to continue to access their property by car.
"I hope people understand that this is still very much a work in progress. The last thing we want is for people to gear up for a fight and line up on either side of this issue. We have a lot of work to do, and we will sit down and come up with the best plan possible," Mr. Becker said.