[MassHistPres] Permitted provisions of an original local historic district bylaw?
Jim Wald
jwald at hampshire.edu
Fri Aug 29 14:17:07 EDT 2014
I think we are all agreeing on some important things and displaying
different understandings and emphases regarding others.
The MHC guide to Establishing Local Historic Districts says"The Historic
Districts Act is broadly written to allow communities great flexibility
in developing local historic district bylaws and ordinances." So I agree
that I would agree with David that the language of the law leaves room
for options. But for that same reason, I don't think that "The statute
needs work." All laws need some interpretation, but I think this one is
generally quite clear.
However, I would also agree with the thrust of Dennis's response. The
concluding point of my previous email is quite in harmony with his
closing admonition: "let's not neuter 40c." My point was simply that one
*can* make revisions to what is suggested in MGL--the wording clearly
allows that--but one should have a high bar and practical reason for
doing so. Thus my point that one should not see the choice as between
extremes of inclusion or exclusion. (I myself would not want to exempt
roofs from review.)
Here in Amherst, we had quite a discussion about the details of our
bylaw as we were drafting it. We all agreed that it should not be too
cumbersome, but when some voices pushed for ever shorter timelines and
more and more exclusions, others had to point out that, if one went too
far in that direction, what was the point of having a bylaw? what real
protections were we actually conveying? In the end, after many, many
months, we opted for: a bylaw that is basically the same as the template
that MHC offers. The standard things are excluded, and everything else
is subject to review: but we were satisfied that the process of review
would be expeditious, and that was the key: a transparent process that
the public will trust.
So, the template is just that: something that by definition can be
modified, but by its nature is also designed to capture as much of what
is needed as possible. In most cases, it serves pretty well pretty much
as it is, which is why, as Dennis says, most of our ordinances look
pretty similar.
I should also say for David's benefit: Don't forget: any
proposal--including the recommendations for the bylaw--has to be
submitted to MHC for review before it comes back to your locale for the
final public input and approval process. But the Massachusetts
Historical Commission is a partner in all this even apart from that
official role: people such as Chris on MHC are very happy to help all
along the way, a generous source of expert advice.
Jim Wald
Amherst Select Board liaison to Historical Commission
past chair, Amherst Historical Commission
On 28/08/2014 11:00, David Feigenbaum wrote:
> A reasonable point of view. But the legislature had the option to make
> it clear that the cafeteria menu of possible exclusions were the only
> ones permitted in the bylaw. They don't seem to have done that. The
> statute needs work, not only on that point but on some others.
>
>
> On Thu, Aug 28, 2014 at 10:38 AM, Dennis De Witt <djd184 at verizon.net
> <mailto:djd184 at verizon.net>> wrote:
>
> 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
> <mailto: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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