[MassHistPres] Window Decisions

Fri Nov 6 23:36:19 EST 2009

A homeowner petitioned the SHC to install vinyl windows in place of 
wooden windows on a Mattoon St. in Springfield, a street of 1860-1880''s 
townhouses that are built almost right up to the sidewalk. The homeowner 
had a single quote that listed the price of windows with exterior grids 
would be $12,387 for nine custom wooden windows, and that in vinyl with 
grids between the glass, the cost would be $6,000. He claimed that was a 
hardship.

The SHC voted to deny the petition because the petitioner:

1) failed to propose windows with raised grids as found on the street,
2) provided no options for vinyl windows with raised grids or their cost,
3) provided no hardship documentation on why he could not install vinyl 
windows with raised grids, and
4) proposed a light colored window.

The judge first accepted as fact the claim that single pane windows lose 
96% of energy while double pane windows lose 4% of their energy. She 
also completely misinterpreted the "owing to conditions especially 
affecting the building or structure involved, but not affecting the 
historic district generally" clause by essentially saying that since the 
property has a condition, then by definition it affects the property.

We have always taken that clause to mean that things like "I don't want 
to have to paint my house" is not a hardship because every house in the 
district is affected by this condition. Likewise, "I want new modern 
windows to save on heat" is not a hardship either, because every old 
house has the same condition. She specifically said:
> In its hearing brief, the Commission asserts that the "need to
> replace windows is not a condition which especially affects the
> plaintiff's house." This position is absurd. The evidence presented
> to the Commission clearly established that the current windows
> essentially have no insulating value. Although it does not take an
> expert or one with any scientific acumen to determine that an older
> window will not provide the same or similar protections as those
> built in the 21st century, Moore did testify that a single pane
> window loses 96% of energy while double pane windows lose only 4% of
> energy.
The judge also ruled that the cost difference of $6,000 for vinyl to 
$12,000 for the plaintiff's other quote was a financial burden to the 
plaintiff, that the $12k quote should have been accepted as evidence -- 
but we all knew was not the best possible quote because we've seen so 
many proposals come in front of us.

The judge then took, as fact, the contractors claim that only 
double-paned windows are allowed to be installed under Massachusetts 
building code.

She then used what appears to be a typo in our guidelines against us. 
Our guidelines stated:

"Windows of this period are double hung and fitted with large panes of 
glass and, if replaced, should duplicate the original. Movable window 
sash should be dark with acceptable colors being matte black, off-white, 
slate gray dark brown and gray/brown."

The plaintiff had windows which were labeled in a catalog "off-white", 
meaning that they were one tick away from white. Our guidelines said 
"movable window sash should be dark", but then said "off-white" in the 
acceptable color list, which matched his catalog entry.

Finally, she said:

> Finally, this court cannot state that the installation of windows,
> with internal grids would interfere with the intent of the statute
> governing historical districts. The windows proposed by Santourian
> are compatible with the original design. Admittedly, they are exact
> replicas of the original windows. Nor will they distract from the
> beauty, characteristics, and architecture of historic Mattoon Street.
> Santourian is merely attempting to maintain his property in a
> financially feasible manner that is consistent with the historic
> nature of the area. These two objectives are not and should not be
> mutually exclusive.
So she basically said that grids between the glass do not detract from 
the window design in a historic district.

I've enclosed the entire decision below.

Ralph Slate
Springfield, MA

COMMONWEALTH OF MASSACHUSETTS
TRIAL COURT
SUPERIOR COURT DEPARTMENT
CIVIL ACTION NO. 2005-00973
TANIEL V. SANTOURIAN vs.
SFRINGFIELD HISTORICAL COMMISSION
ORDER ON PLAINTIFF'S MOTION FOR JUDGMENT ON THE PLEADINGS

This is an appeal, pursuant to G. L. c. 40C, of an order of the
Springfield Historical Commission (the "Commission") denying the
plaintiffs, Taniel V. Santourian's ("Santourian"), petition for a
Certificate of Hardship to install vinyl, double hung windows,
without raised grids on the front of his Victorian Row house. For the
reasons set forth below, the plaintiffs motion is ALLOWED, and the
Commission's decision is ANNULLED.

Santourian owns 11.5 Mattoon Street, which is a Victorian Row house
located in a historical district of Springfield. On September 15,
2005, Santourian filed a request with the Commission to replace nine
windows of his Mattoon Street property with vinyl double hung sash
windows.1 The dimensions of the windows on the first floor are 36"
wide by 81" high and those on the second floor are 49" wide by 74"
high.

During the hearing, Santourian submitted documentation that showed the 
difference in pricing between windows with external grids and windows 
with internal grids.2 Charles Moore ("Moore"), the District Manager of 
Home Depot, testified as to the difference in the cost of the windows.

The estimates provided by Home Depot for Anderson replacement windows 
were $5,898.00 for vinyl clad and $12,387.00 for vinyl clad wood 
windows. Moore stated that single pane windows have less insulating 
value than double pane windows. Finally, Moore said that in order to 
replicate the look of the mullions (or grids) on the windows would 
increase the cost by $800.00 per window.

The Commission voted, four to two, to deny Santourian's petition for 
hardship, reasoning that he 1) failed to propose windows with raised 
grids as found on the street, 2) provided no options for vinyl windows 
with raised grids or their cost, 3) provided no hardship documentation 
on why he could not install vinyl windows with raised grids, and 4) 
proposed a light colored window.

According to documents prepared by the Springfield Historical 
Commission, the agency is charged with establishing rules and 
regulations in order to "preserve and promote Springfield's historic 
assets." To this end, the Commission has established and continues to 
enforce strict guidelines for the "preservation of this architecturally 
delightful area." As such, "any change to the exter
ior of a building ... which can be seen from a public street... must be 
approved by the Commission prior to beginning any work."

The relevant portions of the guidelines established by the Commission 
regarding windows states as follows:

"Windows of this period are double hung and fitted with large panes of 
glass and, if replaced, should duplicate the original. Movable window 
sash should be dark with acceptable colors being matte black, off-white, 
slate gray dark brown and gray/brown. Wooden window frames should be 
similar in color to the window sash with acceptable colors being deep 
shades of gray, brown and green o
r matte black, off-white."

In a G. L. c. 40C appeal, the plaintiff has the burden of proving that 
"owing to conditions especially affecting the building or structure 
involved, but not affecting the historic district generally, failure to 
approve an application will involve substantial hardship, financial or 
otherwise, to the applicant and whether such application may be approved 
without substantial detriment t
o the public welfare and without substantial derogation from the
intent and purpose of this chapter." G. L. c. 40C, § 10(c). The
purpose of the chapter is to:

"promote the educational, cultural, economic and general welfare of
the public through the preservation and protection of the distinctive
characteristics of building and places significant in the history of
the commonwealth and its cities and towns or their architecture, and
through the maintenance and improvement of settings for such
buildings and places and the encouragement of design compatible
therewith." G. L. c. 40C, § 2.

In its hearing brief, the Commission asserts that the "need to
replace windows is not a condition which especially affects the
plaintiff's house." This position is absurd. The evidence presented
to the Commission clearly established that the current windows
essentially have no insulating value. Although it does not take an
expert or one with any scientific acumen to determine that an older
window will not provide the same or similar protections as those
built in the 21st century, Moore did testify that a single pane
window loses 96% of energy while double pane windows lose only 4% of
energy.

Furthermore, the Commission has ignored or minimized the financial
burden advanced by the plaintiff. The Commission claims that the
plaintiff failed to provide hardship documentation "on why he could
not install vinyl windows with raised grids." According to the tape
of the hearing and the documents presented to this court, the
plaintiff did present evidence that the difference between installing
windows with grids4 and those without would amount to over $800.00
per window. The plaintiff stated to the Commissioners that "if he had
an orchard of money," said installation would not be a problem.
Hence, the Commission's justification for denial of this petition
appears to be unreasonable and unwarranted by the evidence.

Moore testified that new state regulations have been adopted
regarding replacement windows. The regulations state in pertinent
part, "replacement windows for existing low-rise residential
buildings are required to have a maximum thermal transmittance of
0.44 . . ." See 780 Code Mass. Regs. 3407. While there is an
exemption for true divided light windows that are being replaced with
"like kind" units, Moore stated that the only units sold in the
Commonwealth are double pane windows in compliance with and as
described in the regulations.

The Commission also bases its denial on the fact that the plaintiff
seeks to install windows that are off-white in color. This claim
merely underscores the Commission's arbitrary approach to this
matter, since the guidelines state that off-white is an acceptable
color for windows in this historical district.

Finally, this court cannot state that the installation of windows,
with internal grids would interfere with the intent of the statute
governing historical districts. The windows proposed by Santourian
are compatible with the original design. Admittedly, they are exact
replicas of the original windows. Nor will they distract from the
beauty, characteristics, and architecture of historic Mattoon Street.
Santourian is merely attempting to maintain his property in a
financially feasible manner that is consistent with the historic
nature of the area. These two objectives are not and should not be
mutually exclusive.

ORDER

For the foregoing reasons, the plaintiff's, Taniel V. Santourian's,
motion for judgment on the pleadings is ALLOWED and the decision of
the Springfield Historical Commission is ANNULLED.
Tina S. Page /
Associate Justice of the Superior Court
DATED: 21 June 2006

Pat Patrick wrote:
> The Marblehead Old and Historic Commission's denial of a citizen 
> application for double glazed replacement windows within the Districts 
> was appealed to the Board of Selectmen twice by the same applicant.  
> The selectmen upheld the decision both times by majority vote of 3 to 
> 2.  When I was on the commission, and preparing for the second appeal, 
> town's attorney did not refer to any case law that I can recall.  Her 
> name is Lisa Meade, and her office is in Newburyport MA.  She would be 
> a good contact if legal advice is needed.
> What was the Springfield decision?  Anyone??
>
> Pat Patrick
> Marblehead
> On Nov 6, 2009, at 7:58 PM, masshistpres-request at cs.umb.edu wrote:
>
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>> Today's Topics:
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>>    1. appeals of window decisions (Dennis De Witt)
>>    2. Re: appeals of window decisions (M Fenollosa)
>>
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>> ----------------------------------------------------------------------
>>
>> Message: 1
>> Date: Fri, 06 Nov 2009 13:05:47 -0500
>> From: Dennis De Witt <djd184 at verizon.net>
>> Subject: [MassHistPres] appeals of window decisions
>> To: MHC MHC listserve <masshistpres at cs.umb.edu>
>> Message-ID: <70217F39-5456-4977-A3FF-92AB83524EB0 at verizon.net>
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>>
>> Does anyone know the status of the Springfield window decision?  Was
>> it appealed by the town?
>>
>> Have there ever been any other cases involving windows that were
>> appealed and ruled on?
>>
>> I guess, of that matter, how much case law is there involving appeals
>> of LHD Commission decision that were made consistent with published
>> guidelines?
>>
>> Dennis De Witt
>> Brookline
>>
>>
>> ------------------------------
>>
>> Message: 2
>> Date: Fri, 06 Nov 2009 14:23:57 -0500
>> From: M Fenollosa <mmt.fenollosa at verizon.net>
>> Subject: Re: [MassHistPres] appeals of window decisions
>> To: Dennis De Witt <djd184 at verizon.net>
>> Cc: MHC MHC listserve <masshistpres at cs.umb.edu>
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>
> James M. "Pat" Patrick
> OldTownRepair
> 2 Pleasant Court, Ground Floor
> Marblehead, MA 01945
> (P) 781-631-5145
> (F) 781-639-0824
> (Em) pat at oldtownrepair.com
> (Web) www.oldtownrepair.com
>
>
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