The oldest fishing shack in Menemsha that has been the subject of an emotional year-long debate in Aquinnah now figures in a lawsuit in Dukes County superior court. An Aquinnah resident has filed a complaint alleging that the town selectmen breached a contract by rescinding a vote to allow her to lease the land under the shack.
The case involves a tangle of small town relationships as well as issues of law pertaining to property rights and contracts.
At issue is one of six lease lots along Menemsha harbor. The towns of Aquinnah and Chilmark own the land and lease the lots to commercial fishermen.
Wendy Swolinzky, who has run a boat rental business from one of the lots for about 15 years, filed a lawsuit in December against the Aquinnah selectmen collectively and also board chairman Beverly Wright individually.
Ms. Swolinzky leased what is known as Lot B from the town, and conducted her business from a small office in a shack in a neighboring lot, Lot A. The 240-square-foot shack was built around 1865 and sits at the head of the harbor on Boathouse Road. It is the oldest Menemsha fishing shack, surviving the hurricane of 1938.
Camille Rose owned the shack, but in December 2012 the selectmen decided not to renew Ms. Rose’s lease. They said at the time that Ms. Rose was flouting the rules by sharing the shack with Ms. Swolinzky.
In an added wrinkle, about nine-tenths of the shack property is in Chilmark, but the two towns have had an understanding that Aquinnah has jurisdiction over the land.
In January 2013, according to minutes from the Aquinnah selectmen, selectman James Newman suggested that the board allow Ms. Swolinzky to swap her lease from Lot B to Lot A. The board voted unanimously, 3-0, at their Jan. 22 meeting to enter into a lease agreement with Ms. Swolinzky for the lot. The switch also increased Lot A’s water frontage to 70 feet and reduced frontage for Lot B to 35 feet. The meeting minutes said the available lot would be offered to the first person on a lengthy waiting list.
About three months later, at an April 23 board meeting, the board voted 2-0 to rescind the decision, with Mr. Newman abstaining. Ms. Wright said she was concerned about moving lot lines and that any available lots should go to those on a waiting list. The lease for Lot A ended up going to Vernon Welch.
According to the complaint filed by attorney Robert Oberkoetter, Ms. Swolinzky moved forward after the first vote and entered into a written contract with Ms. Rose to purchase the Lot A shack for $30,000. The complaint argues that the board breached its agreement with Ms. Swolinzky and alleges that she sustained substantial business losses for her summer season. The vote to rescind the agreement took place seven days before the start of the 2013 summer season.
The complaint further alleges that Ms. Wright “intentionally interfered” in Ms. Swolinzky’s relationship with the town by coordinating the rescission of the board’s vote, adding that the lease ended up going to Mr. Welch, who is related to Ms. Wright by marriage.
In a coda to the entire affair, the selectmen voted 2-0 last December to take possession of the shack and reconfirm Mr. Welch’s lease.
The superior court complaint requests that the board live up to the agreement and if not, the decision should be in favor of the plaintiff, with an amount given to be decided by a jury.
Daniel Perry, a New Bedford attorney who is representing Aquinnah as special counsel in the case, filed a motion to dismiss the lawsuit. He argued that Ms. Swolinzky cannot prove the existence of an enforceable lease and other claims are not tenable against a town and its employees.
He said the vote by the selectmen to enter into a lease with Ms. Swolinzky was not a lease or an enforceable agreement, but rather provided a procedural framework for the two groups to execute a contract. He also said Ms. Wright filed a disclosure with the state ethics commission about the potential conflict of interest.
The motion to dismiss was the subject of a short hearing last Friday at the Edgartown court house. The Hon. Tina S. Page, associate justice of the superior court, presided over the hearing.
In court, Mr. Perry said Massachusetts state law gives selectmen the power and discretion to lease town property and under what terms.
“They didn’t enter into a contract, they voted to enter into a contract,” Mr. Perry said.
He also said a successful lawsuit would have to prove malice by the selectmen. “It’s not easy to sue a public board just because you are disappointed,” he said.
Mr. Oberkoetter argued that the town had already entered into a contract. “I respectfully request that you keep this lawsuit on track,” he said.
On April 15, Judge Page denied the motion to dismiss the case, writing that it cannot be held that it is certain that the plaintiff is entitled to no relief.
“While the defendants’ arguments do have some merit, they are best suited and should be raised during a motion for summary judgment,” she wrote.
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