[MassHistPres] Court cases

[Ralph Slate]

I have an update on this issue after speaking with a city attorney. He 
said that MGL specifies that an appeal of a historic commission decision 
can be heard "de novo", which means that instead of reviewing the 
commission's decision, the judge would hear the case and judge it on his 
merits, substituting his opinion for the commission's. The attorney said 
that two judges indicated that they didn't see what the big deal was for 
an 8 foot high front yard fence around an empty lot which served as a 
parking lot, so he recommended that we settle the case because he 
thought we would lose.

Our attorney said that "de novo" cases are rare because they are very 
expensive from a legal perspective - witnesses would be subpoenaed, 
documents would be reviewed, etc. In this particular case, the plaintiff 
was an attorney, and the lot in question was the parking lot for his 
office complex. He actually subpoenaed all historical commission minutes 
and cases decided involving the construction of fences, he floated the 
concept that when the district was created (in 1972) the property owner 
was not notified, and that we needed to supply proof of notice, and he 
also claimed that if we couldn't find the 1972 minutes from our city 
council creating the district, the entire district was null and void.

I suspect that our law department didn't really want to spend any more 
time on this matter.

Ralph

On 9/6/2010 7:54 PM, Pat Patrick wrote:
> In similar cases, the judge's sole responsibility and authority is to
> adjudicate on the merits of the case, not a personal opinion.  It sounds to
> me like the judge was saying it seemed OK to him; work it out through
> mediation or a similar process.
>
> Why didn't your lawyer explain this to you?  Your options and the judge's
> authority should be clearly explained to you.  Probe a little deeper and see
> if the judge was saying to work it out.
>
> Keep us posted please.
>
> Pat Patrick
>
> James M Patrick
> OldTownRepair
> 2 Pleasant Ct., Gr. Fl. Shop
> Marblehead, MA 01945
> 781.631.5145 P
> 781.639.8024 F
> pat at oldtownrepair.com
> www.oldtownrepair.com
>
>
> Message: 1
> Date: Sat, 04 Sep 2010 12:05:45 -0400
> From: Ralph Slate<slater at alum.rpi.edu>
> Subject: [MassHistPres] Court cases
> To: MassHistPres MA<masshistpres at cs.umb.edu>
> Message-ID:<4C826E59.2060207 at alum.rpi.edu>
> Content-Type: text/plain; charset=ISO-8859-1; format=flowed
>
>    I was a little surprised to hear our city attorney recommending that
> we accept an unpalatable settlement in a court case where a property
> owner appealed the SHC's denial of a front yard fence on an empty lot.
> Our attorney said that the judge in the case basically said that he
> didn't think there was anything wrong with the fence, so he felt we
> would lose the case.
>
> I was under the impression that appeals to decisions did not trade the
> opinions of historical commissions with the opinions of judges, that
> historical commissions could set their own standards as long as they
> were consistent with the statute. Yet here, we had a judge basically
> saying that he thought the front yard fence was OK even though the SHC
> has explicit guidelines that say that front yard fences are not
> permissible (and this was an eight-foot high front yard fence).
>
> Does anyone have any perspective on this?
>
> Thanks,
>
> Ralph Slate
> Springfield Historical Commission
>
>