[MassHistPres] LHD commission refuses proposed new construction?
Jim Wald
jwald at hampshire.edu
Thu Jul 31 04:12:07 EDT 2014
Well, at this hour, off the top of my head, it occurs to me that the
corresponding or negative case is well established in law, as is the
more general principle of protecting an ensemble of historic resources.
Here, Connecticut cases come more readily to mind because at least one
set an important precedent, and also because I happened to be reading
around in related material.
(1)
In the important case of Abraham A. Figarsky et al. v. Historic District
Commission of the City of Norwich (1976), a property owner challenged a
local historic district commission in Connecticut. He had been ordered
to make repairs to his house and refused to do so, preferring to
demolish. The Commission denied the demolition request on the grounds
that the elimination of his structure would compromise the district as a
whole by exposing a view of unattractive adjacent commercial premises
(McDonald's etc.) The plaintiff felt the decision constituted a taking
and contended that this was "vague aesthetic legislation."
The local statue read in part:
"In passing upon appropriateness as to exterior architectural
features the commission shall consider, in addition to any other
pertinent factors, the historical and architectural value and
significance, architectural style, general design, arrangement,
texture and material of the architectural features involved and *the
relationship thereof to the exterior architectural style and
pertinent features of other structures in the immediate
neighborhood*." [emphasis added]
The Connecticut Supreme Court upheld the actions of the Commission.
http://aalto.arch.ksu.edu/jwkplan/cases/figarsky.pdf
The ruling upheld the principle that the public interest did not require
that the building in question itself be of significance if its
preservation contributed to the maintenance of the overall character of
the district.
(2)
The more general principle of preserving a streetscape or historic
ensemble is affirmed in Smith v. Zoning Board of Appeals, 227 Conn. 71,
84 (1993).
Here, an owner proposed to divide a property into 3 building lots. The
local historic district commission rejected the subdivision plan on the
grounds that erection of a new structure near the street would disrupt
the historic pattern of homes with sweeping lawns running down to the
street.
The trial court concluded that the board had the authority to
consider the historic streetscape for three reasons: the provisions
of the town's subdivision regulations, the statutory and town policy
in favor of historic preservation and a restriction contained in the
plaintiffs' deed. Section 6-260 provides that the purpose of the
subdivision regulations is to "[fjurther the orderly development of
the Town in accordance with the Town Plan of Development." Because
the town plan has "as one of its `Basic Objectives' the preservation
of historic resources," the trial court concluded that the board
acted within its authority in considering the historic streetscape.
Additionally, § 6-266 (a) (20) of the Greenwich Land Use Regulations
specifically permits an evaluation of historical factors, noted in §
6-266 (a) (19), in subdivisions located "within the coastal zone."
Furthermore, the town's subdivision regulations are consistent with
public policy favoring historic preservation
[227 Conn. 79]
that is contained in General Statutes § 7-147a et seq. and § 6-307
of the Greenwich Land Use Regulations. Finally, a restriction in the
plaintiffs' deed states that "`[s]aid premises are conveyed subject
to ... [r]egulations imposed by reason of the fact that the premises
are part of a historic district as established by the Town of
Greenwich....'"
The trial court affirmed the board's conclusion that the plaintiffs'
subdivision proposal would impair the historic streetscape. The
trial court reasoned that "[t]he Smiths' side of Strickland Road is
characterized by homes on lots with sweeping front lawns. The
plaintiffs plan to convert their front lawn into a building lot and
construct thereon a house with the thirty feet by forty feet
footprint, and setbacks of twenty-five feet from the front property
line, twenty feet from the south property line, and fifteen feet
from a line of trees. These exhibits show that construction of a
house on the front lawn would drastically alter the streetscape, and
support the Board's conclusion in that regard."
Finally, the trial court considered the plaintiffs' argument that
"the denial of their plan constitutes a taking of property without
due process of law." The court noted, however, that "[t]he Board
rejected this claim, concluding that because other alternatives for
development of the property exist, the plaintiffs were not deprived
of their development rights. The defendant Board argues that [the]
plaintiffs have failed to establish a diminution in the value of
their property as a result of the decision, and further, only one
proposal has been rejected, not all proposals."
It was a complicated case involving both historic preservation
legislation and subdivision regulations, but to make a long story short:
the appellate court reversed the initial decision, and then a Supreme
Court review reversed the appellate decision. Among the significant
points was the affirmation that regulation of public health and safety
included the environment, which in turn included preservation of
historic resources.
http://www.leagle.com/decision/1993298227Conn71_1296.xml/SMITH%20v.%20ZONING%20BOARD%20OF%20APPEALS
So (again, I happened to be looking more at Connecticut rather than our
own Massachusetts) it seems to me that there may be a considerable body
of opinion regarding cases very similar to yours.
As for Massachusetts in general, the state guidelines for establishing
historic districts
(http://www.sec.state.ma.us/mhc/mhcpdf/establishinglocalhistoricdistricts.pdf)
explain :
Local historic districts have three major purposes as stated in
Massachusetts General Law,
Chapter 40C:
. to preserve and protect the distinctive characteristics of
buildings and places
significant in the history of the Commonwealth and its cities and towns;
. *to maintain and improve the settings of those buildings and places;**
**. to encourage new designs compatible with existing buildings in
the district*. [emphasis added]
The sample bylaw contained therein includes:
56 . Establishing Local Historic Districts
8.2 In the case of new CONSTRUCTION or additions to existing
BUILDINGS or
STRUCTURES, the COMMISSION shall consider the appropriateness of the
scale, shape
and proportions of the BUILDING or STRUCTURE both in relation to the
land area
upon which the BUILDING or STRUCTURE is situated and in relation to
BUILDINGS
and STRUCTURES in the vicinity. The COMMISSION may in appropriate
cases impose
dimensional and setback requirements in addition to those required
by applicable statute or
bylaw.
This refers mainly to the features of the building itself (as in Mr.
Feigenbaum's hypothetical case of an appropriate structure), but it does
also refer to setbacks and the like.
In the case of Amherst: this could very well have been an issue
regarding construction on the two lots at the intersection of Gray and
Main Streets below the sweeping lawn of the Hills Mansion. In fact, it
was in part concern for the protection of this viewscape that finally
motivated some citizens to join the Historical Commission and Town staff
in pressing for our first local historic district legislation, with
which you and I have been involved. In the present case, as you know,
the Commission found that the actual proposed new construction (no one
knew at the outset what might have been put forward) was not unduly
intrusive, but the impact on neighboring buildings and viewscapes was
definitely a legitimate factor for consideration.
As for Amherst and the larger question of change: well, you and I and
Messrs. Tucker and Malloy may be for both preservation and change, but I
am not sure we can extend that generalization to the whole town.
Conservative communities elsewhere attempt to deny evolution. Our
liberal community in Amherst sometimes seems to want to reject change
and development, tout court. One is simply preposterous--the other,
frustrating. Fortunately, in the latter case, there is a middle ground,
and we can strive for consensus. But I digress.
Jim Wald
Amherst Select Board
Liaison to Historical Commission and Local Historic District Commission
On 29/07/2014 22:05, Tom Ehrgood wrote:
> Is no change at all allowed in Camelot? Vonnegut's bugs in amber? In
> Amherst, we see change as inevitable.
>
> Tom Ehrgood
> Chair, Dickinson Local Historic District Commission
>
> On Jul 29, 2014, at 15:58, "David Feigenbaum"
> <david.feigenbaum at gmail.com <mailto:david.feigenbaum at gmail.com>> wrote:
>
>> Folks--
>>
>> I would be grateful for help with the following scenario:
>>
>> A small local historic district (let's call it Camelot LHD) has a
>> picturesque street with a few houses on both sides that are
>> significant to the district architecturally and historically. The
>> street was part of a late 19th century planned community.
>>
>> One house owned by a guy named (for reasons that will become
>> apparent) Reardon rests at the back of the lot with its historic
>> front facade facing the picturesque street across a long front lawn.
>>
>> Reardon sells his house and lot to a guy named (for reasons that will
>> also become apparent--I think you know where I am going with
>> this) Frontenac, a developer.
>>
>> Frontenac decides to split the lot in two along a dividing line that
>> runs across the front lawn parallel to the street and then to build a
>> second house on the newly created front lot. Assume that under the
>> relevant zoning bylaw there is no question that Frontenac has the
>> legal right to create the new lot and to build the proposed new house
>> on the lot (setbacks are met, etc.) Assume also that the proposed
>> house is (considered in a vacuum) architecturally appropriate for the
>> district.
>>
>> But here's the rub. The new house will obscure a good portion of the
>> facade of the original house from view from the street and will
>> disrupt the uninterrupted sweep of the historic park-like lawns that
>> run in front of several houses along the street.
>>
>> In other words, taking all circumstances into account, permitting ANY
>> house to be built on the front lot will likely significantly hurt the
>> architectural and historic character of the district.
>>
>> My questions:
>>
>> 1. Are there any examples of LHD commissions in Massachusetts
>> refusing to give a certificate of appropriateness for the building of
>> ANY house of any kind or size on a lot in such circumstances? Or in
>> any other circumstances for that matter? If so, were they able to
>> make the refusal "stick?"
>>
>> 2. Is there any case law on either side of the issue?
>>
>> Thank you for your help.
>>
>> David Feigenbaum
>> unaffiliated citizen
>>
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