[MassHistPres] hardship demolition application

Fri Dec 11 08:13:42 EST 2009

If the Board of Selectmen is unwilling to provide the historic district
commission with access to town counsel and the historic district commission
is concerned over the actions of the board of selectmen or other legal
matters, the historic district commission can still write to the town
counsel directly expressing their concerns.  

The letter, on HDC letterhead, should be cc'ed to the board of selectmen.
While this may not provide a response from town counsel, it will at least
put on record the concerns of the historic district commission to town
counsel.  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 Dennis De Witt
Sent: Thursday, December 10, 2009 5:06 PM
To: MHC MHC listserve
Subject: Re: [MassHistPres] hardship demolition application

I don't see any grounds for an executive session here, unless litigation is
contemplated.  That would violate the open meeting law.

I think Chris is right about people continuing to serve until replaced

I would be very concerned that Hardship will be triggered by inaction,
regardless of the reason for the delay.

It may well be worth a confidential conversation with the ethics commission
re possible BoS conflict of interest -- re appointments to a commission to
affect the outcome of a particular issue in which the BoS has a stake by
causing the commission to not be able to perform its duties.

Dennis De Witt

On Dec 10, 2009, at 4:41 PM, p schneider wrote:

> I suppose it depends on just how the ordinances are written. In Worcester
a time limit is mandated for decisions both for demolition delay waivers or
certificates of appropriateness. If the Commission does not vote within the
time limit, constructive approval of the application is granted. The
Commission cannot circumvent this by a continuance on its own initiative.
However, if the continuance is requested by the applicant the clock stops.
We often suggest that the applicant request a continuance if we need more
information and the applicant usually follows the suggestion because the
alternative is that with limited info we would vote against the application.
> 
> However, I see no way (at least under our ordinances) of stopping the
clock if we can't get a quorum.
> 
> Peter Schneider
> Worcester Historical Commission
> 
> 
> Tucker, Jonathan wrote:
>> 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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>>> Today's Topics:
>>> 
>>>  1. hardship demolition application (wwheelwright at juno.com)
>>> 
>>> 
>>> ----------------------------------------------------------------------
>>> 
>>> 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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