[MassHistPres] Penalties??

[Jim Wald]

That's a very good question. I honestly don't know the specifics of the 
aftermath--just that the demolition permit was denied and the case is 
always cited as an important precedent rejecting the view that 
preservation constitutes a taking and thus adding to the body of case 
law affirming the right of government to regulate property for these 
purposes.


Local historic districts *do* have considerable regulatory powers, which 
is what distinguishes them from demolition delay, which, as you say, can 
only postpone undesirable action and in general lacks real teeth.

True, most local district commissions don't themselves have actual 
enforcement powers, but a town official such as the building inspector 
exercises that power for them.

Our Amherst district bylaw, for example, provides that

    11.3  Whoever violates any of the provisions of this Bylaw shall be
    punishable by a fine of up to $300.00 for each offense. Each day
    during any portion of which such violation continues to exist shall
    constitute a separate offense. 


Our town demolition delay bylaw likewise includes a $ 300 per day 
penalty for illegal demolition or demolition by neglect:

    -
    13.710
    Any owner of a building and/or structure subject to this Bylaw who
    knowingly acts to demolish
    said building and/or structure, or damage a portion of a building or
    structure in a way which
    increases its likelihood of total failure, without first obtaining a
    building permit for demolition
    in accordance with the provisions of this Bylaw, or who likewise by
    some causative action
    contributes to the deterioration of said building or structure
    during the demolition review
    period, shall be in violation of this Bylaw and subject to
    enforcement by a
    noncriminal complaint pursuant to the provisions of M.G.L. Chapter
    40, Section 21D, as
    amended.

    13.711
    Notwithstanding the provisions of Section 11.45, the fine for any
    such violation
    shall be threehundred dollars ($300.00) for each offense. Each day
    the violation exists shall constitute a
    separate offense until the demolished building is rebuilt or
    recreated as directed by the
    Historical Commission, or unless otherwise agreed to by the Commission.

    13.712
    Notwithstanding the above, this section does not create an
    affirmative obligation to maintain a
    property

Depending how an offense is defined, that could add up quickly. And one 
could in principle be forced to rebuild a structure. So far, though, it 
has not been used--and there is of course an appeals process.

So, the demolition delay bylaw can penalize demolition by neglect, but 
it cannot require maintenance above and beyond basic structural 
integrity in the interests of safety.

Again that's where local historic district ordinances come in, and legal 
precedent supports this regulatory power.

The principle that a resident in a district can be required to keep a 
property in good maintenance was affirmed shortly before Figarsky in 
Maher v. City of New Orleans (1975), which upheld the provisions in the 
Vieux Carré (French Quarter) district ordinance such that:

    All buildings and structures in that section of the city known as
    the Vieux Carre Section . . . shall be preserved against decay and
    deterioration and free from certain structural defects in the
    following manner, by the owner thereof . . . (who) . . . shall
    repair such building if it is found to have any of the following
    defects...

The court found

    Once it has been determined that the purpose of the Vieux Carre
    legislation is a proper one, upkeep of buildings appears reasonably
    necessary to the accomplishment of the goals of the ordinance.87 As
    noted above, the responsibility for determining the wisdom of a
    legislative determination is not lodged with the judiciary.
    88

    The fact that an owner may incidentally be required to make
    out-of-pocket expenditures in order to remain in compliance with an
    ordinance does not per se render that ordinance a taking. In the
    interest of safety, it would seem that an ordinance might reasonably
    require buildings to have fire sprinklers or to provide emergency
    facilities for exits and light. In pursuit of health, provisions for
    plumbing or sewage disposal might be demanded. Compliance could well
    require owners to spend money. Yet, if the purpose be legitimate and
    the means reasonably consistent with the objective, the ordinance
    can withstand a frontal attack of invalidity.

    http://openjurist.org/516/f2d/1051/maher-v-city-of-new-orleans 


Jim


On 31/07/2014 13:04, Ellen St.Sure wrote:
> What ultimately happened to the Figarsky house?  Did the Norwich HDC 
> have the punishment-power to force the owner to make repairs?  Giving 
> a legal order is one thing, but if there is no monetary penalty or 
> other punishment for disobeying it, what happens next?  I have the 
> same problem with Demolition Delay laws: they turn out to be toothless 
> tigers when faced with a determined owner who can, at worst, walk away 
> from the historic house he wants to get rid of and have his way, 
> without penalty, via Demolition by Neglect.
>
> Did Figarsky cave in when he lost in court and repair the house -- or 
> not?  Is the historic house still standing 38 years later???
>
> Ellen St. Sure
> Brewster Historical Commission
>
>
> On Jul 31, 2014, at 4:12 AM, Jim Wald <jwald at hampshire.edu 
> <mailto:jwald at hampshire.edu>> wrote:
>
>> 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.
>>
>>
>

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