[MassHistPres] Springfield HC loses vinyl windows case

[Marcia Starkey]

Ralph, This decision could have ramifications beyond Springfield. Do you 
have a list of submitted expert testimony (in person or published) used by 
the HDC for this case? Who represented the city and the HDC? Marcia Starkey, 
Greenfield
----- Original Message ----- 
From: <slater at alum.rpi.edu>
To: <masshistpres at cs.umb.edu>
Sent: Wednesday, July 19, 2006 10:21 PM
Subject: [MassHistPres] Springfield HC loses vinyl windows case


A homeowner in one of Springfield's districts appealed the denial of
a hardship petition to install vinyl windows to superior court. The
historic commission lost the case. I've attached it below.

This is a very troubling decision because of a few key assertions in
it.

First, the judge called the position "absurd" that the need to
replace windows is a condition that is not specific to the homeowner.
The homeowner did not claim his windows were in bad condition, he
claimed that they were not energy efficient.

The judge essentially claimed that the lack of insulating value of
the old windows was a hardship. The judge also took at face value the
ridiculous claim of a Home Depot representative that older windows
lose "96% of energy while new windows lose 4% of energy".

The petitioner claimed that to install windows with raised grids
would cost an absurd $2,321 per window, including $800 more per
window to have exterior grids. To my recollection he did not provide
the quote in writing, although the judge did seem to be quoting from
something. We did not take this quote at face value, however the
judge apparently did.

The Home Depot representative testified that the state has mandated
that replacement windows must have a maximal thermal transmittance of
0.44, and while there is an exception for "for true divided light
windows that are being replaced with "like kind" units", he said that
the only windows sold in MA that are in compliance are double-pane
windows.

The discussion turned to the color (off-white) of the windows.
Unfortunately we focused too much on this, and didn't realize that
our guidelines specifically allow off-white as a window color in this
district. Unfortunately the judge pounced on this as a key piece and
ignored the fact that the guidelines do not allow vinyl.

The judge then definitively ruled that internal grids do not
"interfere with the statue governing historic districts".

As far as I can tell, this is disasterous for Springfield because it
sets the following precedents:

1) Energy efficiency alone is a hardship.

2) Single quotes must be accepted at face value even if they appear
bogus.

3) Vinyl is not a reason to deny a petition.

4) We can't require external grids on windows.

I'm flabbergasted at this ruling. Does anyone have any advice?

Ralph Slate
Springfield Historical Commission

====

COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT
SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2005-00973
TANIEL V. SANTOURIAN vs.
SFRINGFIELD HISTORICAL COMMISSION
ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS


This is an appeal, pursuant to G. L. c. 40C, of an order of the
Springfield Historical Commission (the "Commission") denying the
plaintiffs, Taniel V. Santourian's ("Santourian"), petition for a
Certificate of Hardship to install vinyl, double hung windows,
without raised grids on the front of his Victorian Row house. For the
reasons set forth below, the plaintiffs motion is ALLOWED, and the
Commission's decision is ANNULLED.

Santourian owns 11.5 Mattoon Street, which is a Victorian Row house
located in a historical district of Springfield. On September 15,
2005, Santourian filed a request with the Commission to replace nine
windows of his Mattoon Street property with vinyl double hung sash
windows.1 The dimensions of the windows on the first floor are 36"
wide by 81" high and those on the second floor are 49" wide by 74"
high.

During the hearing, Santourian submitted documentation that showed
the difference in pricing between windows with external grids and
windows with internal grids.2 Charles Moore ("Moore"), the District
Manager of Home Depot, testified as to the difference in the cost of
the windows.

The estimates provided by Home Depot for Anderson replacement windows
were $5,898.00 for vinyl clad and $12,387.00 for vinyl clad wood
windows. Moore stated that single pane windows have less insulating
value than double pane windows. Finally, Moore said that in order to
replicate the look of the mullions (or grids) on the windows would
increase the cost by $800.00 per window.

The Commission voted, four to two, to deny Santourian's petition for
hardship, reasoning that he 1) failed to propose windows with raised
grids as found on the street, 2) provided no options for vinyl
windows with raised grids or their cost, 3) provided no hardship
documentation on why he could not install vinyl windows with raised
grids, and 4) proposed a light colored window.

According to documents prepared by the Springfield Historical
Commission, the agency is charged with establishing rules and
regulations in order to "preserve and promote Springfield's historic
assets." To this end, the Commission has established and continues to
enforce strict guidelines for the "preservation of this
architecturally delightful area." As such, "any change to the
exterior of a building ... which can be seen from a public street...
must be approved by the Commission prior to beginning any work."

The relevant portions of the guidelines established by the Commission
regarding windows states as follows:

"Windows of this period are double hung and fitted with large panes
of glass and, if replaced, should duplicate the original. Movable
window sash should be dark with acceptable colors being matte black,
off-white, slate gray dark brown and gray/brown. Wooden window frames
should be similar in color to the window sash with acceptable colors
being deep shades of gray, brown and green or matte black, off-
white."

In a G. L. c. 40C appeal, the plaintiff has the burden of proving
that "owing to conditions especially affecting the building or
structure involved, but not affecting the historic district
generally, failure to approve an application will involve substantial
hardship, financial or otherwise, to the applicant and whether such
application may be approved without substantial detriment to the
public welfare and without substantial derogation from the intent and
purpose of this chapter." G. L. c. 40C, § 10(c). The purpose of the
chapter is to:

"promote the educational, cultural, economic and general welfare of
the public through the preservation and protection of the distinctive
characteristics of building and places significant in the history of
the commonwealth and its cities and towns or their architecture, and
through the maintenance and improvement of settings for such
buildings and places and the encouragement of design compatible
therewith." G. L. c. 40C, § 2.

In its hearing brief, the Commission asserts that the "need to
replace windows is not a condition which especially affects the
plaintiff's house." This position is absurd. The evidence presented
to the Commission clearly established that the current windows
essentially have no insulating value. Although it does not take an
expert or one with any scientific acumen to determine that an older
window will not provide the same or similar protections as those
built in the 21st century, Moore did testify that a single pane
window loses 96% of energy while double pane windows lose only 4% of
energy.

Furthermore, the Commission has ignored or minimized the financial
burden advanced by the plaintiff. The Commission claims that the
plaintiff failed to provide hardship documentation "on why he could
not install vinyl windows with raised grids." According to the tape
of the hearing and the documents presented to this court, the
plaintiff did present evidence that the difference between installing
windows with grids4 and those without would amount to over $800.00
per window. The plaintiff stated to the Commissioners that "if he had
an orchard of money," said installation would not be a problem.
Hence, the Commission's justification for denial of this petition
appears to be unreasonable and unwarranted by the evidence.

Moore testified that new state regulations have been adopted
regarding replacement windows. The regulations state in pertinent
part, "replacement windows for existing low-rise residential
buildings are required to have a maximum thermal transmittance of
0.44 . . ." See 780 Code Mass. Regs. 3407.   While there is an
exemption for true divided light windows that are being replaced with
"like kind" units, Moore stated that the only units sold in the
Commonwealth are double pane windows in compliance with and as
described in the regulations.

The Commission also bases its denial on the fact that the plaintiff
seeks to install windows that are off-white in color. This claim
merely underscores the Commission's arbitrary approach to this
matter, since the guidelines state that off-white is an acceptable
color for windows in this historical district.

Finally, this court cannot state that the installation of windows,
with internal grids would interfere with the intent of the statute
governing historical districts. The windows proposed by Santourian
are compatible with the original design. Admittedly, they are exact
replicas of the original windows. Nor will they distract from the
beauty, characteristics, and architecture of historic Mattoon Street.
Santourian is merely attempting to maintain his property in a
financially feasible manner that is consistent with the historic
nature of the area. These two objectives are not and should not be
mutually exclusive.

ORDER

For the foregoing reasons, the plaintiff's, Taniel V. Santourian's,
motion for judgment on the pleadings is ALLOWED and the decision of
the Springfield Historical Commission is ANNULLED.
Tina S. Page /
Associate Justice of the Superior Court
DATED: 21 June 2006


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