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

[Dennis De Witt]

It is my impression from the MGL 40c LHDs being created, that 40c bylaws limiting the scope of reviewability beyond the innumerated list of opt-out options (such as paint color) are extremely rare.  Only one example in a south shore town immediately comes to mind.  

Admittedly, as a matter of practice or in their design guidelines, some LHC commissions cut more slack (perhaps to put it politely) — e.g. the vinal siding in downtown Plymouth or (altho not a 40c district) the very unfortunate quality of replacement windows to be seen along the Old King’s Highway.  

Nantucket too, of course, is not a 40c district — nor the Vieux Carré in New Orleans.

I would suggest that overall we have a great advantage in having 40c as a more or less predictable statewide standard.  Weakening it beyond the minimum standard of accepting all the opt-out options seems poor policy.  

If the only district that will pass in a town is an LHD-lite, then investigate a home rule (not 40A) NCD — it can be anything you want or need (including the possibility of reviewing things that a 40c cannot).  And it also only requires a majority vote, not ⅔.  

But let's not neuter 40c.

Dennis De Witt
Brookline Neighborhood District Commission


On Aug 27, 2014, at 6:42 PM, Jim Wald <jwald at hampshire.edu> wrote:

> 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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