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

[Chris Skelly]

Betty, 

Violations in a local historic district that include a demolition don't
happen very often but they do happen.  As can be imagined, they are very
challenging for all parties involved.

The existing Certificate of Appropriateness for the dormer should not be
rescinded.  Rather, the applicant needs to prepare an application for a
certificate that includes the demolition work that has now already
occurred.  The Historic District Commission should hold a public hearing
and review the application as if the work had not yet commenced.  If the
application is found inappropriate by the commission, the Historic
District Commission does not issue the certificate for the demolition.
At that point, the historic district commission requires the owner to
submit an application for the recreation of the historic structure.  

It is best not to confuse the enforcement provisions of your demolition
delay bylaw which include the construction moratorium.  Demolition delay
bylaws are typically excluded from local historic districts entirely and
for good reason. A demolition delay bylaw can only delay a demolition.
Furthermore, in this case, the historic district commission has the
ability to deny any application considered inappropriate - indefinitely.
Since the building was demolished through a violation of the bylaw, the
historic district commission may decide that the only application that
will be considered appropriate is the recreation of the structure.  If
that is the only application that will result in the issuance of a
certificate, then that is likewise  the only building permit that can be
granted one, five or ten years from now.  

Again, you really don't want a 2 year moratorium on construction here.
You want to provide a means of allowing a reconstruction of the
demolished building to progress as quickly as possible.  A recreation is
far from ideal but when a building is demolished through a violation of
the bylaw, it is one of the few avenues available.  Of course, it is
possible that another building could be considered appropriate but that
is a decision for the historic district commission.  

It is essential that a demolition violation in a local historic district
is managed swiftly and firmly.  

MGL Chapter 40C Section 13 includes language on violations and
enforcement.  
Chapter 40C: Section 13. Jurisdiction of superior court; penalty. 
Section 13. The superior court sitting in equity for the county in which
the city or town is situated shall have jurisdiction to enforce the
provisions of this chapter and any ordinance or by-law enacted hereunder
and the determinations, rulings and regulations issued pursuant thereto
and may, upon the petition of the mayor or of the board of selectmen or
of the commission, restrain by injunction violations thereof; and,
without limitation, such court may order the removal of any building,
structure or exterior architectural feature constructed in violation
thereof, or the substantial restoration of any building, structure or
exterior architectural feature altered or demolished in violation
thereof, and may issue such other orders for relief as may be equitable.
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.

Since the separate offense continues until the "substantial restoration"
of the building is complete, the daily fine adds up and is a useful
deterrent to demolition without a certificate.  

A fine can also be established through a separate local bylaw known as
non-criminal compliance.  In either case, your board of selectmen,
building inspector and town counsel must be consulted on how this
situation will be handled.

Good luck and please keep me up to date on how things are progressing.  

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
Dcolebslade at aol.com
Sent: Sunday, December 30, 2007 12:55 PM
To: masshistpres at cs.umb.edu
Subject: [MassHistPres] What to do when a house is almost demolished?

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.
 
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.
 
(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?
 
(3) Can the Commission refuse to allow a building to replace this  one
on the 
property?  
 
(4) Can the Commission "fine" the owner for this action? 
 
(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?
 
 
 
 
Any ideas that you have would be most welcome.  
 
Thank you.  
Betty Slade, Westport
 
 
 
 



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