[MassHistPres] a useful new NCD by-law

[Dennis De Witt]

Last fall Brookline Town Meeting approved innovative enabling legislation for NCDs and a by-law creating the Hancock Village NCD.  180 days after the bylaws were passed in Town Meeting both have now been approved by the A.G.  All town bylaws must be approved by the A.G.  The normal time is 90 days.  In unusual circumstances -- such as this where the owner raised challenges -- the period can be extended.  City ordinances need not be similarly vetted by the AG.  To put it simply, the basis for the challenge was case law which holds that if a municipality normally broadly regulates something through zoning (i.e. under MGL 40A) it cannot then regulate that same thing though some other law.  A similar challenge was unsuccessfully made to Lincoln's NCD bylaw.  Altho, in a lengthy opinion, the AG did not accept that claim with respect to Brookline's NCD by-law, it is reasonable to anticipate that it might be subsequently challenged further in court by the owner.  

Hancock Village is a post WW-II garden apartment complex with excellent site and circulation planning --- the Olmsted firm was involved.  It is on a former golf course with interior open spaces built around puddingstone outcrops and a greenbelt buffer zone along one edge.  A majority of the project is in Brookline.  The rest, not included in the NCD, is in Boston.  Altho not evident, it was planned so that no building crosses the Brookline/Boston line.  The architecture is a conservative modernism with neo-Regency details emblematic of the immediate pre-and post-war period.  The buildings and site are remarkably intact and well maintained.  Originally the Boston part also had a very early, well designed, mixed use local retail center on VFW parkway.  Unfortunately it was rebuilt some years ago.

This enabling NCD bylaw is an innovative preservation tool that in some situations may be more useful than an LHD.  Unlike some NCDs it is not inherently an LHD lite, altho it has the flexibility to allow individual NCDs of various types to be created under it.  It has an advantage over LHDs in that they are not particularly useful with respect to landscapes and viewsheds and they are limited to reviewing what is visible from a "public way."  This is a large site traversed by a single public street, although there is public land along one edge.  In addition to the usual architectural design review, the enabling by-law allows design review of features visible beyond the usual public way limitations and allows review of regrading, ledge removal, removal of trees above a certain size, circulation patterns, designated landscape planting, and paving with impervious materials.   

The creation of this by law has been a learning experience and it may be useful to pass along a little background about NCDs.

-- Brookline's NCD bylaw were passed under the home rule amendment to the state constitution.  That is the same general authority that is normally used for demo delay laws. 
-- There are not many places with what might be considered NCDs in Mass.  NCD laws or ordinances have been created in four ways.
a) under special legislation (e.g. Boston) -
b) under MGL 40c, the LHD enabling legislation (truly being examples of LHD-lite) 
c) under MGL 40 A, zoning
d) under Home rule

-- Special legislation would now probably be considered only under exceptional circumstances. 
-- 40c is a known quantity -- requires 2/3 vote to pass
-- 40a (zoning) presents all the inherent problems of zoning -- requires 2/3 vote to pass . It is subject to Dover.  It is subject to appeal to the Zoning Board of Appeals.  For large properties the existing zoning (status quo pre-NCD) can be locked in for many years by the filing of a paper sub-division -- even if the sub-division is never used.

There are only four previous places with NCDs under home rule -- two cities and two towns
-- Cambridge -- by far the oldest, with the most districts ranging from the very "lite" and large Mid-Cambridge district to the LHD-like Harvard Sq. district.  The Cambridge enabling bylaw is worth a very close study.  In many respects it is very well crafted in the way it draws upon certain administrative aspects of 40c and the city's zoning code.  It also includes a provision (copied in some other place) which, like zoning and unlike 40C, provisionally puts the NCD rules into effect from the moment a district is proposed until it is accepted or rejected by the city council.  It also includes a provision for creating single property NCDs, called "landmarks," which cannot be inherently vetoed by an unwilling owner.  (That would not be possible in Wellesley or Lincoln.)
-- Northampton -- an odd, very brief law for the downtown based on an illustrated guidelines book and the classification of buildings by "types".  Probably not a useful model for most places.
-- Wellesley -- the incredibly lengthy and thus administratively inflexible enabling bylaw is a mess showing the effect of too many cooks stirring the pot, with commission members serving terms of different lengths and property owners able to opt out so that a district could look like swiss cheese -- generally not a good model for anyone.  However, it's applicability language is a bit broader than 40c's narrow "public way" limit, although what that might mean in practice isn't entirely clear.  The guidelines for its only district to date would seem to allow the sort of vinyl siding job that strips away all features -- but they would also seem to allow review of non-architectural elements beyond the scope of 40c.
-- Lincoln -- there is only an enabling bylaw but no district yet.  In some respects similar to Wellesley but better drafted.  It's applicability clause is narrower than Wellesley's altho still possibly broader than 40c's.

Here is a link to a page with the Brookline enabling by-law and Hancock Village NCD by-law
http://www.brooklinema.gov/index.php?option=com_content&view=article&id=1019:hancock-village&catid=342:projects&Itemid=485

On that page click on 
Enabling Legislation
Hancock Village NCD Legislation

Dennis De Witt
Brookline


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