In the first regulatory review under its own maiden government since the superior court decision on sovereign immunity last year, the Wampanoag Tribe of Gay Head (Aquinnah) this week permitted itself to build a 6,500-square-foot community center off Black Brook Road in Aquinnah.
The community center will be built around a wetland.
The project will not come under review by any town land use boards or the Martha's Vineyard Commission, but instead was reviewed solely by the land use commission for the tribe - a super-board established five years ago as the tribe formed its own government. The land use commission has the power of a planning board, a conservation commission and a zoning board of appeals all rolled into one. The relationship between the tribe and the land use commission is close - the members of the commission are all members of the tribe save one, and two members of the commission are also paid staff for the tribe.
The review of the community center project comes as a landmark court case on sovereign immunity winds its way toward review by the Massachusetts Supreme Judicial Court.
Last year a superior court judge found that the Wampanoags cannot be sued because of sovereign immunity. The court dispute dates back to March of 2001 when the tribe built a small shed and a pier at its shellfish hatchery fronting Menemsha Pond without obtaining a building permit.
The implications of the case go well beyond the borders of Aquinnah, the second smallest town in the commonwealth and home to the only federally recognized Indian tribe in Massachusetts.
After a public hearing on Monday afternoon, the tribal land use commission voted to approve the community center project with a short list of conditions, most of them aimed at protecting and restoring the wetland that will be disturbed by the building project.
Among other things, the project will take advantage of a special provision of the Massachusetts Wetlands Protection Act that allows for replicating a wetland when it is destroyed for a building project.
Wetland replication is extremely unusual on the Vineyard.
The community center project exceeds the height limit under town zoning rules and also a structural density requirement under town zoning, but the tribal land use commission granted variances to the project. The vote to grant the variances was not explicit, but tribal planner Durwood Vanderhoop said later that the vote to approve the project included the variances by implication.
The vote was 4-0 with one abstention. Mr. Vanderhoop, who is a member of the commission, sat for the hearing but abstained from the vote because he is also the agent for the applicant, which is the tribe.
"We needed a large space to gather as a community, as a people, a space to share as a people," Mr. Vanderhoop said during the hearing, held early Monday evening in the large meeting room of tribal headquarters off Black Brook Road. The hearing's centerpiece was a presentation by James Decoulos, environmental engineer for the project.
The project abuts both a wetland and the Black Brook, which is subject to special regulations under the state Riverfront Protection Act. Mr. Decoulos described the plan to direct runoff from the site away from the wetland, and he also described the plan for wetland replication. "We are, as in most places in Aquinnah, surrounded by wetlands and we are meeting all the requirements of the state act," he said.
The community center will include a gymnasium and kitchen facilities, and the building will be tied into the wastewater treatment system for the tribal housing community, also located off Black Brook Road.
The building will be framed in steel but sheathed in white cedar shingles with a cupola on top. Mr. Vanderhoop said the building will not be visible from Moshup Trail. The plan also calls for building a large athletic field with a ball park and a soccer green. The estimated cost of the project is $1.2 million; labor worth about $500,000 will be provided by the Air Force reserve, which will send a series of teams to the Vineyard to build the community center beginning next month. The tribe also obtained a $500,000 Indian community development block grant from the Housing and Urban Development (HUD) program, which will pay for building materials and architectural plans, and a $200,000 road funds grant from the Bureau of Indian Affairs, which will pay for road construction and engineering fees.
A small group of town officials attended the hearing, including two selectmen, a member of the planning board and a member of the conservation commission.
After the presentation the land use commission voted to approve the project.
Mr. Vanderhoop said yesterday that site work was already under way, and he expects the project to be completed by mid-July.
Architects for the project are Maurice O'Connor and William Sullivan, partners in Sullivan and O'Connor in Oak Bluffs.
Town affairs in Aquinnah are far from simple these days, and many events have been colored in recent months by the sovereignty case. The state supreme court agreed to hear the appeal two months ago, and the case is now on track for arguments, possibly by early summer. A ruling could come as early as this fall.
Under pressure from tribal members, late last year the Aquinnah selectmen voted not to pursue a town appeal of the case. Two other town groups have formally appealed, including a group of taxpayers and a group of abutters. The state attorney general has also intervened in the case, and the Martha's Vineyard Commission and the towns of West Tisbury and Chilmark have filed friend of the court briefs.
Meanwhile, the tribe has begun to take the first steps toward developing its own land use regulatory review process, although the tribal government lacks many things normally associated with government, including any provision for public access to records.
The community center project is also marked by some unusual bedfellows. Mr. Decoulos, the environmental engineer hired by the tribe for the project, has also been suing the town of Aquinnah for years in a complicated property rights case. The case centers on an attempt by a group of developers to open up access to a vast area of landlocked lots off Moshup Trail.
Three years ago a Massachusetts land court judge dismissed the central claim in the case, but Mr. Decoulos and other plaintiffs are appealing. In recent pleadings, attorneys for Mr. Decoulos tried to bring the Wampanoags into the land claims case as defendants, arguing that the tribe does not have sovereign immunity.
When the town selectmen voted to abandon the court appeal of the sovereignty case, they announced that they would begin talks with the tribe in an effort to develop some kind of agreement for the tribe to adhere to local zoning rules.
Michael Hebert, chairman of the selectmen, has been the board spokesman for the talks, which have gone on behind closed doors.
Mr. Hebert said this week that he was pleased at the public hearing.
"I think it's encouraging that they followed a process that we have been working on - they notified abutters and town boards about the meeting. I felt that was a positive thing," he said.