[MassHistPres] hardship demolition application

Thu Dec 10 15:43:09 EST 2009

On this sidebar quorum question, with respect, our Town Counsel (more
than none of them) has indicated that while a quorum is preferable, it
is not necessary to a continuance.

A board that has continued a public hearing to a specific date and time
certain, but which learns that it will (for real and defensible reasons)
be unable to muster a voting quorum on that next date, needs only to
have one member of the board (usually the Chair) show up at the
appointed time and place to announce (including to any members of the
public who might be in attendance) that the hearing in question has been
continued again to a new date and time certain.

So that second continuance does not require that a quorum of the
membership be present to vote the continuance, though that should always
be the way to proceed if a quorum is in fact possible.  The paramount
issue (for this sidebar question) is the need to maintain unbroken the
chain of continual public access to the hearing. 

Jonathan Tucker
Planning Director
Amherst Planning Department
4 Boltwood Avenue, Town Hall
Amherst, MA  01002
(413) 259-3040
tuckerj at amherstma.gov    

-----Original Message-----
From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Chris Skelly
Sent: Thursday, December 10, 2009 2:02 PM
To: masshistpres at cs.umb.edu
Subject: [MassHistPres] hardship demolition application

Of course, they can't vote to continue if they don't have a quorum.  

Also, MGL Chapter 40C requires a decision within 60 days.  It isn't
possible
to just continue indefinitely.  If the applicant has not agreed to the
further time in writing, the commission has to make a determination
within
60 days of the filing of the application.  If the commission shall fail
to
make a determination within such period of time the commission shall
thereupon issue a certificate of hardship.

Interestingly, they can't issue any certificate (including a certificate
of
hardship) if they don't have a satisfactory number of appointed members
on
the commission to take a vote.  If the commission can't issue a
certificate
and MGL Chapter 40C requires a certificate before receiving a building
(demolition) permit, the question really is - how does the applicant
obtain
a building (demolition) permit after all this.  Chris.

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 D. Mauch
Sent: Thursday, December 10, 2009 12:17 PM
To: masshistpres at cs.umb.edu
Subject: Re: [MassHistPres] MassHistPres Digest, Vol 46, Issue 16

I would post a meeting to be held by December 15th and then vote to  
"continue it," indefinitely citing the need for further information  
regarding the particular agenda item.  That way you've complied with  
the clock, but reset the thresholds.  Contact the Ethics Commission  
and let them know of the matter immediately and request their  
intervention.

On Dec 10, 2009, at 12:00 PM, masshistpres-request at cs.umb.edu wrote:

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>   1. hardship demolition application (wwheelwright at juno.com)
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> ----------------------------------------------------------------------
>
> Message: 1
> Date: Thu, 10 Dec 2009 00:13:29 -0500
> From: wwheelwright at juno.com
> Subject: [MassHistPres] hardship demolition application
> To: masshistpres at cs.umb.edu
> Message-ID: <20091210.001329.1028.11.wwheelwright at juno.com>
> Content-Type: text/plain; charset=us-ascii
>
>
> To Chris Skelly and members of the listserve,
>
> The Board of Selectmen and the present owner of the property jointly
> filed a hardship application with the Sherborn Historic District
> Commission on December 1 to demolish the Richard Smart House and Barn,
> which abut the Town Offices in the Local Historic District, and which
> will be purchased by the Town on or before Feb 1, 2010. The Dec 1  
> filing
> starts the clock ticking for the HDC, requiring a meeting which must  
> be
> held by Dec 15 to decide if the application requires review, a public
> hearing by Dec 29, and a determination by the HDC by Feb 27. If the
> choice of this very difficult time of year to require meetings and
> encourage public participation seems intentional on the part of the
> Selectmen, keep reading.  There is more to this story.
>
> The Selectmen have tried every way they could to ensure that the HDC  
> will
> allow the buildings to be demolished. Following an unsuccessful  
> attempt
> at Town Meeting last Spring to have the property removed from the
> district, the Selectmen failed to re-appoint members, one of them the
> chairman, after the Commission indicated that it would be unlikely to
> permit demolition. Since June 15 all appointments to the Commission  
> have
> been held up, except for one new member handpicked by Selectmen to
> represent them as abuttors-to-be, a move ruled to be legal by Town
> Counsel. Strangely another abuttor, who is on the HDC but was not up  
> for
> reappointment,  has been told he cannot participate or vote. Yet  
> another
> member resigned citing the pressure from the Selectmen and has not  
> been
> replaced. So, having gutted and demoralized the HDC and then filed the
> application to coincide with the holidays, no quorum will be the  
> outcome
> for the review by Dec 15, the first deadline. Do any of you know if  
> that
> means a default for the HDC on Dec. 15 and an automatic hardship
> certificate?
>
> In the event of a Dec 15 default , does anyone know of  possible pro  
> bono
> legal assistance for the HDC to help with immediate further steps  
> such as
> an injunction to prevent immediate tear down? The Selectmen control
> access to Town Counsel.
>
> The Sherborn Historical Commission thanks you in advance for your good
> information and suggestions.
>
> Susie Wheelwright
> Sherborn Historical Commission
> ____________________________________________________________
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