The town of Chilmark will go to the state’s highest court to block a group of riparian owners on Squibnocket Pond from using herbicides to control phragmites.
Acting on the advice of their town counsel, the Chilmark selectmen voted Tuesday night to appeal a Massachusetts Land Court ruling that upholds a plan by the homeowners to use herbicides to control the invasive plants in the pond.
Town counsel Ronald H. Rappaport recommended that the town petition the Supreme Judicial Court to take the case rather than going through the state appeals court.
“I just assume get to the supreme court and see if they’re willing to take it,” Mr. Rappaport said.
Six riparian homeowners calling themselves the Squibnocket Pond Organization have been at odds with the town over the issue. A year ago the herbicide plan was approved by the town conservation commission and the state Division of Fisheries and Wildlife to apply Rodeo to 20 phragmite colonies on the pond. Later the building inspector refused to issue a permit for the project citing a town bylaw that prohibits the use of herbicides around Squibnocket Pond. Last spring the zoning board of appeals upheld the building inspector, and the homeowners appealed the decision in land court.
The summary judgment ruling in favor of the landowners was issued Jan. 8 by the Hon. Gordon H. Piper.
Mr. Rapapport told the selectmen Tuesday that the dispute goes broadly to the heart of two key issues: herbicide use on the Vineyard, which has been the subject of much public discussion in recent months over NStar’s plan to resume spraying to control vegetation around power lines, and also the legal issue of a town’s ability to create regulations to control pesticides.
Given the case law in the matter, he said the land court ruling was not unexpected.
The decision referenced a 1985 state SJC decision involving the town of Wendell, which found that the state pesticide law superceded local law, Mr. Rappaport said. He said the Squibnocket Pond overlay district was adopted five years later, in 1990.
The town created the special protection district for Squibnocket following a 62-page study from the Marine Policy Center in Woods Hole which found that the pond is the most fragile Great Pond on the Island because it does not breach to the sea.
“It found that Squibnocket Pond was significantly threatened and that the town should take significant proactive steps to enact zoning to protect the pond and the attorney general upheld it,” Mr. Rappaport said.
“What’s put in the pond, stays in the pond,” he added.
He also said: “Most of our bylaws don’t come out of lengthy studies.”
Reached by telephone Wednesday, Charlie Parker, a member of the Squibnocket Pond Organization, said the land court ruling speaks for itself.
“I thought the judge’s decision was extremely clear and unequivocal and unambiguous, I was extremely impressed with the level of preparation,” he said.
On Tuesday Mr. Rappaport also told the board that a private donor has agreed to pay for part of the appeal. Town executive secretary Timothy Carroll said Wednesday morning that the donation will come from the Jewish Communal Fund of New York.
Mr. Rappaport further suggested that the town put a home rule petition question on the annual spring ballot asking the state legislature to allow the town to regulate pesticides around the pond.
He said given all the discussion about the NStar issue, other towns may want to join the cause with their own petitions.
“Other towns may want to join so the role of municipalities is protected and preserved,” Mr. Rappaport said.
“I think it’s going to be a huge case,” selectman Bill Rossi said.