[MassHistPres] Permitted provisions of an original local historic district bylaw?

[David Feigenbaum]

Friends

Does Chapter 40C allow for the original local historic district bylaw that
a town meeting will adopt to contain additional jurisdictional exclusions
from review beyond the cafeteria menu of exclusions specifically recited in
section 8 (color of paint, small business signs, etc.)?

The statute says very little about what may or may not be included in the
bylaw. In fact, on this point of the jurisdiction of the local historic
district commission to review proposed alterations and new constructions,
all the statute says (section 8) is that the bylaw can exclude from the
commission's authority "one or more of the following categories" and then
it provides the explicit cafeteria menu of items 1 through 8.

On the other hand, nowhere in the statute does it say that the bylaw cannot
provide for other exclusions. In fact, the statute (section 3) permits
*amendments *to the bylaw that "are not inconsistent with the provisions of
this chapter", which seems pretty broad.

And the commission itself can, after a hearing, limit its own jurisdiction
even as to topics that are not among the cafeteria menu (see section 8b) as
long as they do not cause "substantial derogation from the intent and
purposes of this chapter." (Note that is not a provision that refers to the
bylaw itself but rather to a rulemaking proceeding of the commission.)

My inference from all of this is that the *original *bylaw itself can
enumerate additional jurisdictional exclusions beyond the cafeteria list as
long as they do not derogate from the intent and purposes of the chapter.
As an example, could the *original *bylaw provide that the choice of
material used for roofing on a house would be outside of the commission's
jurisdiction?

Can someone enlighten me (a total neophyte) on this general issue?

David Feigenbaum
unaffiliated
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