[MassHistPres] Hardship question

[KChase at ci.somerville.ma.us]

Chris et al,

Thank you so much for the input.  It coincides with my interpretation that
basic due diligence would reveal the restriction and that ignorance is no
excuse.  While I am not an expert at finding my way around the Registry of
Deeds website, I was able to locate it.  I expect that if the homeowner, or
the real estate agent did not notify the new owner(s), then someone else
should have caught it doing the title search. 

However, with the incorrect name listed, I wondered whether the Applicant
could say that they could by-pass the Commission because the listing was
invalid and the restriction did not apply despite the fact that the
restriction is tied to the property and not to the particular owner.

Kristi Chase

-----Original Message-----
From: Chris Skelly [mailto:Skelly-MHC at comcast.net]
Sent: Thursday, January 11, 2007 10:14 AM
To: KChase at ci.somerville.ma.us; masshistpres at cs.umb.edu
Subject: RE: [MassHistPres] Hardship question


Hi Kristi, this project does not meet the test of a hardship.   A lack
of knowledge on the part of the property owner is no grounds for
hardship any more than lack of knowledge that the speed limit is 65mph
when we get pulled over on the interstate highway.

Regarding recording local historic districts at the Registry of Deeds,
typically, a local historic district designation would not show up in a
chain of title.  MGL Chapter 40C requires that the map is recorded at
the registry of deeds.  However, there is no requirement that the
grantor/grantee index at the registry of deeds refer to the map.  

While I think there are plenty of things that a local historic district
commission can do to keep things like this from happening, they don't
always work.  I think "entering local historic district" signs are
probably the most effective for making sure new owners are informed.  

Ultimately, it is up to any buyer to investigate local ordinances or
bylaws at their city or town hall such as local historic districts,
zoning, scenic roads, demolition delay, wetlands or board of health
regulations.   

Christopher C. Skelly
Director of Local Government Programs
Massachusetts Historical Commission

-----Original Message-----
From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of
KChase at ci.somerville.ma.us
Sent: Wednesday, January 10, 2007 5:16 PM
To: masshistpres at cs.umb.edu
Subject: [MassHistPres] Hardship question

An Application (for Hardship?) has come into the Commission for
replacement
windows.  The owner bought the house in 1996 and claimed that he did not
know that the property was listed as an an LHD until his contractor went
in
to pull a permit.  Staff investigation of the Registry of Deeds website
has
shown that the property was listed under a misspelling of the original
owner's name and therefore may not have been findable by the current
owner
or his agent.

Does this constitute a "hardship" that is applicable to a particular
property as defined by Chris Skelly's e-mail of November 2004? 

"Under the Massachusetts General Law, the granting of a certificate of
hardship will be based on "conditions especially affecting the building
or
structure involved, but not affecting the historic district generally."
In
other words, the hardship must be unique to the applicant's property and
affect it in a particular manner. It cannot constitute a condition which
generally afflicts other property within the district.  For instance, a
fire
escape may be essential on a particular building in order to keep the
building up to fire safety codes.  That would be a specific condition
affecting a particular building and might warrant the granting of a
certificate of hardship.  A certificate of hardship for vinyl siding is
not
a specific condition affecting a particular building.  All the buildings
in
the district have the same condition - they all need protection from the
weather and vinyl siding is inappropriate on all buildings found in the
district." 

Thanks,

Kristi Chase
Preservation Planner
Historic Preservation Commission
City Hall
93 Highland Avenue
Somerville, MA  02143

617-625-6600 x2500

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