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

[Jim Wald]

Sure, those are just examples that the law provides as representative of 
common practices (see also the MHC guidelines on setting up a local 
district).

The great thing about local districts is that they are, well, local: 
best suited to fine-tuned representation of a community's interests 
given its general preferences and the nature of its particular 
historical resources.
Some places, which consider their resources to be of great 
rarity/importance and often uniform or closely related character, 
regulate very heavily. Nantucket and New Orleans (two of the earliest 
historic districts in the nation) come to mind. In the French Quarter, 
for example, you will see permits on building fronts stating "This 
permit is for the replacement of the upper and lower sashes ONLY of the 
2nd floor middle window on the Dumaine elevation . . . The original 
window frame will not be removed and the new sashes will match existing 
in size, attainment, profile, color (white), etc." I have seen others 
specifying not only the exact type of paint (e.g. oil etc.), but also 
the brand and the exact color name and code number.

Again, that is a district whose character is unique and which has been 
remarkably preserved, so protections are high.

In Nantucket, the issues are different, and rules aren't quite so 
stringent, but they are much stronger than in most of Massachusetts. 
Nantucket, for example, DOES regulate color: 
http://www.nantucket-ma.gov/DocumentCenter/Home/View/4841 (I've often 
wanted to imagine that they even regulate the varieties of roses that 
one can plant by the front fence, but I know it's not true. :)  However, 
they do issue general landscaping guidelines).

But even there, for example--speaking of roofs and the like--there are 
allowances for solar. The state policy (MGL Ch 40 A, Sect IA) is to 
encourage use of renewables and urge historic district commissions to 
find ways to accommodate this goal when feasible; for example, material 
and placement that render it least obtrusive.

I could imagine a district in which all the houses had, say, slate or 
cedar shake roofs, in which case a community might decide that this 
distinctive character needed to be preserved through regulation. But 
again, that's the point: the law provides a list of things typically 
excluded (and Mass Historical offers guidance on what to exclude and 
why), but ultimately, each community decides for itself. Even Nantucket 
allows some leeway in roof material but does specify the acceptable 
types (wood, asphalt, slate, fiberglass shingle)--as well as a narrow 
range of colors.

http://www.nantucket-ma.gov/DocumentCenter/Home/View/4813

Here in Amherst, we simply say that we do not regulate roof color.

I think that one need not assume that the choice is a stark alternative 
between leaving most everything subject to review and needing explicitly 
to exclude a great many things. That is, I think one does not need to 
worry that failing to exclude something would subject any work of that 
sort to intrusive regulation and a cumbersome process. Any major 
construction project has to present plans and get a building permit 
anyway, so here in Amherst, we review permit applications and 
applications for certificates of appropriateness and in most cases 
promptly issue the latter. 
(https://www.amherstma.gov/DocumentCenter/Home/View/18458)


Jim Wald
Amherst Select Board Liaison to Historical Commission
Past Chair, Amherst Historical Commission


On 26/08/2014 21:09, David Feigenbaum wrote:
> 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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