The Boston Pops concert at Ocean Park in Oak Bluffs was a highlight of summer last year, and with an attendance figure of 5,000 people it ranked among the most attended Island event of the season.
Building on last year’s success, promoters this year want to expand the concert to include food and alcohol sales and also have a longer running time from early afternoon to late evening. They also want to put up high barricades along Seaview avenue to control crowds and to block people from watching the concert for free along the road and town beach.
In response to the expanded event, selectmen earlier this month asked town counsel Ronald H. Rappaport to research a number of legal questions about the concert, including the front and center question of whether a private entity can use a public park for a profit-making event.
Mr. Rappaport appeared before selectmen Tuesday and provided some surprising answers to some of these questions: chief among them that the town cannot in fact allow a private company to use a public park unless there is a clear and equal public benefit.
Mr. Rappaport said holding the Boston Pops concert at Ocean Park raises serious legal questions because it denies members of the public their legal right to enjoy the park.
“The public is being excluded for almost a full day from a park for which they have a right to walk across and enjoy . . . if the public is to be excluded from Ocean Park, there must be a corresponding public benefit,” Mr. Rappaport said.
Mr. Rappaport said promoters for the Pops concert last year — the Festival Network — appeared to fulfill their obligation to provide a public benefit last year by making a donation to repair the bandstand in the center of Oak Bluffs. The promoters also donated a portion of their proceeds to the reconstruction and expansion of the Martha’s Vineyard Hospital.
Promoters this year do not plan to make a donation to the town or the hospital, and instead plan to offer premium concert seating to various nonprofits at face value. The organizations can then sell the tickets at a higher price and keep the difference.
The plan was outlined to selectmen by promoters and Island businessmen Herb Putnam and Rick White last week.
This week Mr. Rappaport said it was difficult to determine if the plan meets the necessary public benefit threshold. In general, he said, calculating what constitutes a public benefit can be difficult.
“The devil is in the details . . . I don’t want to prejudge this proposal, but I have real concerns,” the longtime town attorney told selectmen.
Mr. Rappaport said his verbal opinions are preliminary and he intends to give the board a written opinion.
Mr. Rappaport said he also had legal questions about the use of Sunset Park for the annual Oak Bluffs Monster Shark Tournament. The tournament is unofficially headquartered each year in a large circus-style tent that is put up in the center of Sunset Park.
Barbara Hoyle, an opponent of the shark tournament, told selectmen last week that she had uncovered a restriction for Sunset Park which appeared to ban the use of tents. Ms. Hoyle said she researched town documents dating back to 1870 because she thought there was a law preventing alcohol from being served in the park. Although she could not find such a law, she did find a deed restriction which prohibits structures from being put up in Sunset Park.
Mr. Rappaport told selectmen that he had also come across the covenant still in effect which prohibits the building of structures in Sunset Park. He said town building codes define a tent as a structure if it is greater then 120 square feet or holds more than 10 people, which would apply to the tent annually used for the shark tournament.
“It would seem this [covenant] would not allow tents in the park . . . even though it is a temporary structure it is still considered a building [under town building codes],” Mr. Rappaport said.
Mr. Rappaport also said town parks can be used for public parking when doing so would prevent an overflow and improve safety. However, all parking fees collected cannot go to the event organizer or to a charity; the fees must instead go directly into the town’s general fund, Mr. Rappaport said.
While selectmen and other town officials agreed there were important legal issues that need to be addressed, they also seemed confident that an agreement could be reached to ensure the Boston Pops concern would go on as scheduled this summer.
The general consensus was that the town should be better compensated for allowing the park to be used for the concert.
“There was a general feeling that the town gave away a prime piece of real estate last year [for the concert],” finance board member Bill McGrath said. “I would like to see the town charge a flat fee for the use of the park and then receive a percentage of ticket sales.”
Selectman and board chairman Kerry Scott agreed.
“It is a wonderful event, nobody would dispute that. But we have to make sure there is something in it for Oak Bluffs,” she said.
Selectman Roger Wey noted that the event has already grown substantially.
“Things have changed a lot in just one year. Here they are talking about closing down Seaview avenue and taking over the park earlier in the day. It all comes down the money for [the promoters], so I think it’s okay to ask what’s in it for us,” Mr. Wey said.
Selectman Duncan Ross agreed.
“I think Ron Rappaport put the ace back up our sleeve. If they want to use the park they will come in and sit down with us to work out a plan.”
Mr. Rappaport said selectmen should ask the Festival Network to come up with a written proposal that would outline everything they want to do and also explain the public benefit.
While town officials agreed the Boston Pops was largely good for the town, resident Richard Coutinho said he felt the event did not fit the small town character of Oak Bluffs.
“Whatever money you’re making, it isn’t worth it. They already want it bigger then last year and next year they’ll want even more . . . this isn’t the Oak Bluffs I grew up in,” Mr. Coutinho said.