[MassHistPres] Authority of Historical Commission/HDC under Chapter 40C

[Chris Skelly]

Betty, I think you mean Chapter 40C, Section 7 where it states:

The commission shall not make any recommendation or requirement except for
the purpose of preventing developments incongruous to the historic aspects
or the architectural characteristics of the surroundings and of the historic
district. 

The previous part of Section 7 states:

In passing upon matters before it the commission shall consider, among other
things, the historic and architectural value and significance of the site,
building or structure, the general design, arrangement, texture, material
and color of the features involved, and the relation of such features to
similar features of buildings and structures in the surrounding area. In the
case of new construction or additions to existing buildings or structures
the commission shall consider the appropriateness of the size and shape of
the building or structure both in relation to the land area upon which the
building or structure is situated and to buildings and structures in the
vicinity, and the commission may in appropriate cases impose dimensional and
set-back requirements in addition to those required by applicable ordinance
or by-law.

The Section 2-Purpose of MGL Chapter 40C states:

The purpose of this chapter is to promote the educational, cultural,
economic and general welfare of the public through the preservation and
protection of the distinctive characteristics of buildings 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. 

 

I don't see a distinction between incongruous and inappropriate.  So, if the
commission considers Chapter 40C in its entirety, you are performing your
duty by denying applications that are determined inappropriate or
incongruous to the district.  

 

I think you would be in hot water if you were making any requirements on the
applicant for reasons OTHER than preventing incongruous developments.  

 

Christopher C. Skelly

Director of Local Government Programs

Massachusetts Historical Commission

220 Morrissey Boulevard, Boston, MA 02125

Ph: (617) 727-8470 / Fax: (617) 727-5128

 <mailto:Christopher.Skelly at state.ma.us> Christopher.Skelly at state.ma.us

 <http://www.sec.state.ma.us/mhc/mhcidx.htm>
http://www.sec.state.ma.us/mhc/mhcidx.htm

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From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Dcolebslade at aol.com
Sent: Wednesday, December 08, 2010 10:02 AM
To: masshistpres at cs.umb.edu
Subject: [MassHistPres] Authority of Historical Commission/HDC under Chapter
40C

 

An applicant, a lawyer, applied for a certificate of appropriateness for an
addition to a very small building sited very close to the Main Road.  She
also wanted to put clad windows and artificial materials on the new
addition.  The commission believed it was not an appropriate addition and
did not approve of  the artificial materials.  The published guidelines so
state.  The applicant had two preliminary reviews where it was clearly
stated that the size of addition she was contemplating was not appropriate.

 

At the first preliminary review before presenting her plans she noted she
was a lawyer, that the courts did not favor historical commissions/HDCs and
so on.  She suggested that if the historical commission/HDC did not approve
her plans she could take the commission to court.  However she did come back
with a smaller addition in the second preliminary and then a different, but
similar size addition for the public hearing.  Her application has been
denied.

 

Her argument was that the legislature had added the lines of Article 7,
19-22, to curtail or limit the authority of the historical commission in
their considerations which are described in Article 7, lines 1-18.  She
argued her plans were not incongruous because there were so many different
"styles" in the historic district and that in the past, former commissions
had  allowed larger additions behind buildings. She seemed to be stating
that the word "incongruous" outweighs "appropriateness".  

 

I would very much appreciate hearing from the MHC and from you your opinions
on if, and if so, how much, the authority of the Historical Commission/HDCs
can be interpreted to be "limited" by Article 7, 19-22.  

 

Thank you,

 

Betty Slade

Westport

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