[MassHistPres] What to do when a house is almost demolished?

[Dennis De Witt]

Betty

See below:

Dennis De Witt
Brookline

On Dec 30, 2007, at 12:55 PM, Dcolebslade at aol.com wrote:

> A house in the historic district (an 1806 farmhouse) has been  almost
> completely demolished.  Only the front and parts of the side  
> facades  exist.  It is
> owned by an individual.  He was given a  Certificate of  
> Appropriateness to
> alter the house (add a dormer) but not to  demolish it. The  
> building inspector has
> placed a cease and desist order - the  third one so far - two of  
> which were
> ignored.
One would think that if the scope of the work radically done exceeded  
the scope of the building permit (leaving aside the CofA) the  
inspector could impose a fine based on that, in addition to whatever  
could be imposed thru 40c.  Can he?  Has he?   In the case of a  
plastic fence put up without either a CofA or a building permit  
(which is required for fences here) our building inspector threatened  
to imposes a fine (which I believe is issued in the form of a  
"ticket") of $300/day, which I think is the maximum that we are  
allowed to impose.  I'm not sure why that amount is limited vs the  
higher amount allowed under 40c.  It quickly got the offender's  
attention and the fence was replaced.  Not as egregious as your case,  
to be sure, but this individual was a very tough nut and nothing else  
had worked.  It also had the advantage that the building commissioner  
had his ticketing and enforcement mechanism already in place, whereas  
we would have had to start form scratch.  In addition perhaps  
(unfortunately) a judge might be more inclined to severely enforce  
the writ of a building commissioner vs that of an LHD commission.   
One has heard stories of judges unwilling to enforce severe penalties  
imposed by what a defense lawyer might characterize as "taste police"
>
> What legal course does Chapter 40C give the local historical   
> commission to
> deal with the owner of this property?
>
> Some questions:
>
> (1) Can the Commission rescind the existing Certificate because of   
> this
> action? The building no longer exists as it was, so the approved   
> alterations (say
> of putting on a dormer) cannot be carried out.
Seems semi-irrelevant but ask your town council
>
> (2) Can the Commission require that the applicant rebuild the  
> house  as it
> was (outward appearance) even though the materials for the most  
> part have  been
> destroyed?
One would have thought so.  That could be called like kind repair.
>
> (3) Can the Commission refuse to allow a building to replace this   
> one on the
> property?
First resolve the violation.  That part of that process would have to  
include design review of what happens next -- if it is anything other  
than like-kind repair.  Probably allowing nothing for ever would be a  
"taking"
>
>
> (4) Can the Commission "fine" the owner for this action?
Town counsel can advise on the process but the language of 40c seems  
clear

Section 6. Except as the ordinance or by-law may otherwise provide in  
accordance with section eight or said section eight or nine, no  
building or structure within an historic district shall be  
constructed or altered in any way that affects exterior architectural  
features unless the commission shall first have issued a certificate  
of appropriateness, a certificate of non-applicability or a  
certificate of hardship with respect to such construction or alteration.

Section. 13:  Whoever violates any of the provisions of this chapter  
shall be punished by a fine of not less than ten dollars nor more  
than five hundred dollars. Each day during any portion of which a  
violation continues to exist shall constitute a separate offense.
>
> (5) The Westport Demolition Bylaw states that in case of  
> demolition  without
> approval, any further building activity on that property can be   
> prevented for
> 2 years.  This article of the bylaw covers all buildings on  the local
> historic inventory. What would be the disadvantages of imposing  
> that  penalty?

It would seem likely that 40c, which is potentially much stronger,  
trumps Demo Delay in a case like this.  Although the 2 year delay is  
certainly something else to hold over the person's head when  
negotiating a resolution in the context of 40c.
>
>
>
>
> Any ideas that you have would be most welcome.
>
> Thank you.
> Betty Slade, Westport
>
>
>
>
>
>
>
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