[MassHistPres] Question about Demo Delay Fees

[Dennis De Witt]

The person to ask is Town Counsel, but there are are lots of things that can be done by rule making within the framework of the by-laws under which you operate.  Without addressing this particular question, typically laws are not like contracts in which all of the terms of the contract are spelled out (with those not stated being subject to case law).  Try picking your way through the generalized language of 40c and you'll see what I mean.  Rather they are a framework onto which appropriate rules and regulations can be "attached" so to speak.  Bylaws should include a clause that permits the writing of rules and regulation.  R&Rs should not restate the by-laws but rather fill out the gaps in the armature provided by the bylaw.  If the R&R paraphrases the bylaw then you risk having an applicant choosing between the most favorable version of a clause -- i.e. that in the by-law or that in the R&R.

Brookline's Preservation Commission has 15 pp. of R&R, including 3+pp. relating to Demo Delay and 5pp. relating to LHDs.  (this was written after 20 years of operating w/o one!)  

There is also specific language about LHD fees but in addition it's LHD by-law, which for a combined commission is its general bylaw, says:
The Commission shall adopt rules and regulations for the conduct of its business, not inconsistent with Chapter 40C of the General Laws, or with the purpose of this By-law.

and its DD bylaw says

The Commission may from time to time adopt such rules and regulations as are necessary to administer the terms of this bylaw. The amount of the fee for costs associated with the administration of this bylaw shall be established, and may be amended from time to time, by the Board of Selectmen.
.  
Dennis De Witt



On Jan 23, 2011, at 4:47 PM, Marcia Starkey wrote:

> Greenfield also needs to address this question.  (The Planning Board here has the fee schedule in its Rules & Regulations.)  Could this be a legal avenue even if there is no reference to fees in the bylaw?
>  
> Marcia Starkey, Greenfield HC
>  
> From: masshistpres-bounces at cs.umb.edu [mailto:masshistpres-bounces at cs.umb.edu] On Behalf OfKathryn M. Greenfield
> Sent: Friday, January 21, 2011 3:37 PM
> To: Wendy Bawabe; masshistpres at cs.umb.edu
> Cc: 'James Boudreau'; Linda Juanouskas; Don Therrien; Bob Norris; Trish Shepherd
> Subject: Re: [MassHistPres] Question about Demo Delay Fees
>  
> Wendy, 
> The Town of Reading's demolition delay bylaw says, "The applicant shall be responsible for costs associated with the mailing, posting or publishing of the required notices."  The language was added to the bylaw as an amendment passed by Town Meeting.  
> We don't happen to have need for assessments of historical significance in connection with demolition, as our bylaw only applies to structures which have already been deemed historically or architecturally significant; so the consulting/assessment is paid for by other means (grant, local funds, etc.) in advance of potential demolition.
> (My guess would be that any fee language relating to the applicant would need to be/should be in your bylaw.)
> 
> Kathy Greenfield
> Chairman
> Reading Historical Commission
> 
> From: Wendy Bawabe
> Sent: Friday, January 21, 2011 2:55 PM
> To: masshistpres at cs.umb.edu
> Cc: Don Therrien ; Linda Juanouskas ; Bob Norris ; 'James Boudreau' ; Trish Shepherd
> Subject: [MassHistPres] Question about Demo Delay Fees
>  
> The Town of Norwell currently has a 1-year demolition delay by-law.  Often the Norwell Historical Commission hires architectural historians or other experts to inspect historic properties that have applied for demolition to assess their historical significance.
>  
> The Commission would like to have the demolition permit applicant pay for these consulting fees and, perhaps, for the costs of postage and printing that are associated with the demo delay process.
>  
> Do any other Historical Commissions in Massachusetts require the demolition applicants to pay fees?  If so, how was this fee process initiated (town meeting, Board of Selectmen)?
>  
> Please advise,
>  
> Wendy Bawabe
> Norwell Historical Commission
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