[MassHistPres] Demo delay court challenges?

Tue Jul 23 09:42:34 EDT 2013

Ralph, There was a court challenge to demolition delay right from the start
in the 1980s.  It is interesting as it involves the Cambridge Historical
Commission and requiring the building inspector to comply with the city
ordinance.  I would note the section below about the home rule amendment to
the state constitution.  Due to Massachusetts being a home rule state since
1966, no state enabling legislation is required for a demolition delay
ordinance such as the MHC model.  I would also point out that the attorney
general’s office reviews local bylaws.  Of the 134 demolition delay
bylaws/ordinances in Massachusetts, the vast majority are from town
government and were approved by the attorney general’s office.  I can
provide additional material for you on this subject.  Please feel free to
give me a call.  Chris.

Christopher C. Skelly

Director of Local Government Programs

Massachusetts Historical Commission

220 Morrissey Boulevard, Boston, MA 02125

Ph: (617) 727-8470

Cell Phone: (413) 834-0678

 <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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SUPERIOR COURT CIVIL ACTION NO. 87-1522

CITY OF CAMBRIDGE, CAMBRIDGE HISTORICAL COMMISSION, MID CAMBRIDGE
NEIGHBORHOOD CONSERVATION DISTRICT COMMISSION, and CAMBRIDGE RENT CONTROL
BOARD, Plaintiffs vs. JOSEPH J. CELUCCI, as he is the BUILDING COMMISSIONER
for the CITY OF CAMBRIDGE, Defendant

MEMORANDUM OF DECISION AND ORDER

This is a motion for summary Judgment- In the underlying action, plaintiffs,
the City of Cambridge ("City"), the Cambridge Historical Commission
("Commission"), the Mid-Cambridge Neighborhood District Commission ("NDC")
and the Cambridge Rent Control Board ("Board") seek declaratory relief in
the form of an order to compel the City of Cambridge Building Commissioner
("Building Commissioner"), Joseph J. Cellucci, defendant, to comply with
ordinances of the City of Cambridge regulating the demolition of buildings.

The parties agree and the court finds there is no genuine issue as to any
material fact. What remains at issue is whether as a matter of law the
Building Commissioner must provide the plaintiffs an opportunity to review
and approve or reject an application for demolition pursuant to City of
Cambridge Code, Ordinances 965, 966, and 1002 (see Appendix), prior to the
Building Commissioner's issuance of a demolition permit. (This issue remains
and is likely to be repeated even though the demolition of the building
giving rise to this controversy has already occurred and no application for
a demolition permit is pending. Despite the absence of a current
controversy, both parties agree that the issue is not moot. This court
concurs.  See Superintendent of Worcester State Hospital v. Hagbeg;, 374
Mass. 271, 274 (l978), Karchman v. Worcester, 364 Mass. 124, 136 (1973))

Defendant contends that these city ordinances are subordinate to the
preemptive authority of the state building code which sets up a
comprehensive scheme to regulate the construction, demolition and alteration
of buildings within the Commonwealth.'' G-L. c. 143 §§93-100.  As provided
in that statute, the Building Commissioner is empowered on the local level
to enforce the building code, G.L- c- 143 §3 & 3A.  The city ordinances in
controversy limit the Building Commissioner's discretion and establish more
restrictive criteria for the issuance of demolition permits (see Appendix).
Accordingly, defendant holds that the specific provisions in the ordinances
conflicting with the state building code are invalid.

Each of the ordinances subject to this controversy are designed to promote
specific objectives the City has sought to regulate. The City's authority to
pass these ordinances is firmly established in the Home Rule Amendment,
Mass. Const. Art. 89 §6 and the Home Rule Procedures Act, G.L. c. 43B.
There is no challenge to the validity of these ordinances other than those
provisions allegedly in conflict with the state building code.

City Ordinance 966, which incorporates Ordinance .926 authorizes the Board
to regulate the rental housing market in the city. No controlled rental unit
may be removed from the market unless the Board after a hearing grants a
permit. City of Cambridge Code, Ordinance 966 §l©. Removal from the market
includes demolition.  City of Cambridge Code, Ordinance 966 §l(b)(4)(ii).
Therefore, the Building Commissioner's discretion to issue a demolition
permit cannot be exercised until the Board first determines whether the unit
can be removed from the market.

The power to control rents must include by implication the power to make
reasonable regulations governing removals from the rental housing market.
Flynn v. Cambridge, 383 Mass. 152, 158 (1981). The court finds and rules
that this portion of the ordinance is reasonably related to the regulation
of rental housing in the city. The cooperation of the Building Commissioner
to delay issuance of a demolition permit until after the removal permit is
granted by the Board is necessary to keep interested parties from
circumventing the Board's regulation and thereby undermining the purposes of
the ordinance. Moreover, the ordinance does not affect the Building
Commissioner's discretion to deny a demolition permit once the Board has
allowed a removal permit. The Building Commissioner may make his own
assessment independent of the Board's determination.  Therefore the
ordinance is not in conflict with the discretionary authority provided the
Building Commissioner in G.L. c. 143 §§3 & 3A.

The Court finds the same conclusion after examining City Ordinances 965 and
1002. The former applies to buildings fifty years or older, the latter
applies to buildings located within designated neighborhood conservation
districts. Both ordinances protect buildings which distinctly represent
architectural, cultural, political, economic or social history of the city.

City of Cambridge Cole, Ordinance 965, §2-147 (J)(l) and Ordinance 1002
§2-147(k)(1). To these ends, the Building Commissioner is required to
forward a copy of each application for a demolition permit to the Historical
Commission or when appropriate, the NDC, to determine if the building is one
which reflects the attributes the ordinance seeks to preserve. City of
Cambridge Code, Ordinance 965 §2-147 (j)(3.2). If a building is considered
to be preferably preserved, no demolition permit will be issued for six
months to allow the respective commission an opportunity to find a party
willing to purchase the property and preserve, rehabilitate or preserve it.
City of Cambridge Code, Ordinance 965. §2-147(J) (3.5). If no one is found,
a demolition permit will be granted by the Commission provided other
provisions of the ordinance have been met.

The Court finds and rules that the provisions in Ordinances 965 and 1002
which delay the issuance of demolition permits until after the Historic
Commission and/or the NDC has taken steps to preserve the structure are
reasonable and necessary. The Building Commissioner's interpretation of the
state building code is not challenged by either ordinance. Without
defendant's cooperation the success of these ordinances will be seriously
threatened.       

Therefore, for the reasons stated above, plaintiffs' motion for summary
Judgment is allowed.

ORDER

For the reasons stated above, it is hereby ORDERED that plaintiffs' motion
for summary Judgment is ALLOWED and defendant is ordered to comply with City
Ordinances 965, 966 and

1002.

Katherine Liaqos Izzo

Justice of the Superior Court

Dated: March 18, 1988

From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of slater at alum.rpi.edu
Sent: Monday, July 22, 2013 9:45 AM
To: masshistpres at cs.umb.edu
Subject: [MassHistPres] Demo delay court challenges?

Have any communities had their Demo Delay laws challenged in court? 

The Springfield Historical Commission Springfield is trying to draft a Demo
Delay ordinance; we proposed legislation based on the MHC's Demo Delay
model, and sent it to the city's law department for review.

An attorney there told us that he didn't think that the law would survive a
court challenge because it is not based on an underlying state ordinance
(such as MGL 40C). He completely rewrote the ordinance in such a way that he
thinks it could be rooted from MGL 40C. 

I'm surprised at this because it is my understanding that over 100
Massachusetts cities and towns have Demo Delay ordinances similar to the MHC
model. 

I have to figure that such laws would have been tested in the courts years
ago. The attorney was concerned that the law, as written, would be
considered an unauthorized taking of private property.

If anyone has experiences to share, I'd appreciate it.

Thanks,

Ralph Slate
Chair
Springfield Historical Commission 

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