[MassHistPres] MassHistPres Digest, Vol 40, Issue 22
Dennis De Witt
djdewitt at rcn.com
Mon Jun 8 09:37:12 EDT 2009
Pat I'm not sure what you mean by "the decision of an historic
commission cannot overturn a
decision of that historic commission" -- I assume that was a typo.
Its my understanding that 40c allows for two types of appeal:
a) appeals to the courts, in which case (I believe) the facts remain
those established in the original hearing and the appeal is against
the bases on which that decision was made.
b) an optional additional process that can be adopted for
"appeals" (which are not true appeals) to a panel constituted by the
regional planning commission. This is an additional alternate to, not
a substitute for, a direct appeal to the court. With this optional
process the case is heard de novo by the panel -- i.e. as if the
original hearing had never occurred. It provides, in effect, two
bites at the apple. The decision of that board can then be appealed
to the courts, as above.
Some years ago a Brookline LHD homeowner attempted to have Town
Meeting to add that optional provision to Brookline's by law. It was
strongly opposed by our town counsel because he said he didn't want to
be put into the position of defending the decision of a non-Brookline
panel -- one not appointed by our selectmen and whose actions were not
predictable -- if it was appealed to the courts. Perhaps partly
because of the person who proposed it, the article had no support at
any level, including from within the two then-existing LHDs and it was
defeated.
I now understand the following (which you know) from Susan:
[Marblehead's LHD falls] "under Chapter 101 of the acts of 1965
and Chapter 46 of the Bylaws of the Town of Marblehead. .
. . homeowners appeal to the BoS"
"Appeals don't happen often. In fact since I've been on the board 4
or 5
years, only once...which was the same homeowner for the same request.
The
Board tries to have the old windows preserved but when they cannot, the
Board allows replace in like kind, and appropriate to the time period
of the
house, single pane true divided lite. In some instances the Board has
allowed the double pane but only when the home sits far from a public
view.
This house however is right on the street with no set back and is a mid
1700s home/cottage.
"There are 5 members of the BoS and I believe a vote of 4 is needed to
overturn our decision. However, on his last appeal, he got a 3-2 vote
3 to
keep the decision and 2 to overturn."
I wonder what other precedents there are for the rulings of any sort
of BoS appointed board or commission to be appealed to a BoS? There
seems to be nothing like that in Brookline.
Dennis De Witt
Brookline
On Jun 8, 2009, at 8:08 AM, Pat Patrick wrote:
> Hello Dennis, and thanks for your reply regarding an appeal to the
> BOS in
> Marblehead. Thanks Sue for posting your message.
>
> Dennis, are you bringing into question the 40C inclusion that says, to
> paraphrase, that the decision of an historic commission cannot
> overturn a
> decision of that historic commission. It looks like that to me, and
> I am
> puzzled too.
>
> Looking forward to your answer.
>
> Pat Patrick
> Chair, Marblehead OHDC
>
> James M. "Pat" Patrick
> OldTownRepair
> 2 Pleasant Court, Ground Floor Office
> Marblehead, MA 01945-3310
> 781-631-5145 (P)
> 781-639-8024 (F)
> pat at oldtownrepair.com
> www.oldtownrepair.com
>
>
> -----Original Message-----
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> Sent: Sunday, June 07, 2009 12:00 PM
> To: masshistpres at cs.umb.edu
> Subject: MassHistPres Digest, Vol 40, Issue 22
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> Today's Topics:
>
> 1. Double pane windows - Appeal (Susan Bragdon)
> 2. Re: Double pane windows - Appeal (Dennis De Witt)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Sat, 6 Jun 2009 12:30:27 -0400
> From: "Susan Bragdon" <sbragdon at comcast.net>
> Subject: [MassHistPres] Double pane windows - Appeal
> To: <MassHistPres at cs.umb.edu>
> Message-ID: <06ae01c9e6c4$19845050$4c8cf0f0$@net>
> Content-Type: text/plain; charset="us-ascii"
>
> Dear all:
>
> Marblehead's Old & Historic District Commission's decision not to
> allow
> double pane windows in the district in a particular house is being
> appealed
> to the Selectmen on Wednesday June 10 (for the second time). The
> homeowner
> has gotten himself a three page spread article in this week's
> Marblehead
> Reporter (you can search for it online if you like) which of course
> depicts
> him as the victim and the OHDC as the bad people. This homeowner is
> bringing with him to the appeal A LOT of friends and neighbors in the
> district and putting much pressure on the Selectmen. I am writing
> to ask if
> anyone can spare an evening and attend in favor of not allowing the
> double
> pane windows on this house (which was built in mid 1700s and is
> right on the
> street) (and is being rehabbed as the owner has owned it for more
> than 20
> years and let it go into major disrepair). Or speak to the historic
> importance of the single pane true divided lite windows.
> I am hoping that some other Districts will come and preservationist
> and
> historians. Marblehead has the most concentration collection of
> pre-revolutionary homes. This will be precident setting and may
> forever
> change the look and feel of our historic homes and perhaps yours next.
> If you can come and speak in favor, please e-mail me at sbragdon at comcast.net
> and let me know. In the alternative, a letter to the Selectmen
> would also
> be welcomed. Many Thanks.
>
> Susan Bragdon, Marblehead
>
>
>
> ------------------------------
>
> Message: 2
> Date: Sat, 06 Jun 2009 14:19:12 -0400
> From: Dennis De Witt <djdewitt at rcn.com>
> Subject: Re: [MassHistPres] Double pane windows - Appeal
> To: MHC MHC listserve <masshistpres at cs.umb.edu>
> Message-ID: <0161DE73-C828-4036-8E9A-23B2FB49AEBF at rcn.com>
> Content-Type: text/plain; charset=US-ASCII; format=flowed; delsp=yes
>
> On what basis can he appeal to the BoS? Is that some peculiar feature
> of your bylaw? Is this a 40c district?
>
> Dennis De Witt
> Brookline
>
>
> On Jun 6, 2009, at 12:30 PM, Susan Bragdon wrote:
>
>> Dear all:
>>
>> Marblehead's Old & Historic District Commission's decision not to
>> allow
>> double pane windows in the district in a particular house is being
>> appealed
>> to the Selectmen on Wednesday June 10 (for the second time). The
>> homeowner
>> has gotten himself a three page spread article in this week's
>> Marblehead
>> Reporter (you can search for it online if you like) which of course
>> depicts
>> him as the victim and the OHDC as the bad people. This homeowner is
>> bringing with him to the appeal A LOT of friends and neighbors in the
>> district and putting much pressure on the Selectmen. I am writing
>> to ask if
>> anyone can spare an evening and attend in favor of not allowing the
>> double
>> pane windows on this house (which was built in mid 1700s and is
>> right on the
>> street) (and is being rehabbed as the owner has owned it for more
>> than 20
>> years and let it go into major disrepair). Or speak to the historic
>> importance of the single pane true divided lite windows.
>> I am hoping that some other Districts will come and preservationist
>> and
>> historians. Marblehead has the most concentration collection of
>> pre-revolutionary homes. This will be precident setting and may
>> forever
>> change the look and feel of our historic homes and perhaps yours
>> next.
>> If you can come and speak in favor, please e-mail me at
> sbragdon at comcast.net
>> and let me know. In the alternative, a letter to the Selectmen
>> would also
>> be welcomed. Many Thanks.
>>
>> Susan Bragdon, Marblehead
>>
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