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

[Tom Ehrgood]

The Amherst Local Historic District Bylaw excludes from the scope of the Bylaw, thereby eliminating the need for approvals, alterations of exterior architectural features that do not require a building permit, except that the permanent removal of any architectural features does require an approval even if a building permit is not required.  This building permit limitation: a) enables us not to be bogged down with insignificant changes; b) eliminates a lot of confusion about when permitting is required; and c) enabled us to link Certificate of Non-Applicability reviews and determinations to the building permit application process in such a way as to streamline decision-making and approvals.  

 

Tom Ehrgood

Chair, [Amherst] Dickinson Local Historic District Commission

 

From: masshistpres-bounces at cs.umb.edu [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of David Feigenbaum
Sent: Tuesday, August 26, 2014 9:09 PM
To: masshistpres at cs.umb.edu
Subject: [MassHistPres] Permitted provisions of an original local historic district bylaw?

 

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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