[MassHistPres] Demolition and state sanitary code

[Tucker, Jonathan]

Glad to hear it.  The principles still apply.

Jonathan Tucker
Senior Planner
Amherst Planning Department
4 Boltwood Avenue, Town Hall
Amherst, MA  01002
(413) 259-3040
tuckerj at amherstma.gov<mailto:tuckerj at amherstma.gov>



From: Sarah White [mailto:swhite at somervillema.gov]
Sent: Tuesday, November 10, 2015 3:59 PM
To: Tucker, Jonathan; massplanners at cs.umb.edu; masshistpres at cs.umb.edu
Subject: RE: Demolition and state sanitary code

This is NOT a Somerville issue, as I noted in my outgoing message. (for the record, this issue occurred in NEWBURYPORT)

In Somerville, we have excellent processes and procedures in place and exceptional working relationships between our departments; these are not problems that I encounter here.
From: Tucker, Jonathan [mailto:tuckerj at amherstma.gov]
Sent: Tuesday, November 10, 2015 3:28 PM
To: Sarah White; massplanners at cs.umb.edu<mailto:massplanners at cs.umb.edu>; masshistpres at cs.umb.edu<mailto:masshistpres at cs.umb.edu>
Subject: RE: Demolition and state sanitary code

Sarah:

The Board of Health and the Building Commissioner violated the spirit, if not the letter, of the law, and it is not up to them to decide whether a city code or zoning regulation should be applied or not applied solely on the basis of cost.

The members of the Somerville Board of Health are appointed by the Mayor (with approval by the Aldermen), and the Building Commissioner serves (I assume) at the pleasure of the Mayor.  I would recommend that the Chair of the Somerville Historical Preservation Commission (SHPC) approach the Mayor directly with the Commission's strong concerns about the degree to which the process for this demolition over-stepped and short-cutted the existing process without informing the other bodies with jurisdiction, and was generally an exercise in bad faith.

As for the state sanitary code, yes, it can override or trump all other concerns.  But its application needs to be reasonable and defensible.  I take your word for it that there was in this case no imminent threat to the public health and safety of the community, or any danger to occupants (because there were no occupants).  This appears to be little more than the Building Commissioner doing someone a favor, or pursuing a misguided 'ideology' of trying to abbreviate or bypass a form of permit review he does not agree constitutes a worthy public interest.

The Mayor will do whatever he does, or not-probably look for some compromise to save everybody's face and prevent a public stramash.  Anticipating that, you might want to discuss with the SHPC whether it would be worth developing and submitting to the Aldermen an amendment to the existing demolition review process in the code that requires the BOH and the Building Commissioner to notify the SHPC, in writing, whenever an emergency demolition has been requested or is being contemplated as an administrative action, and-unless an imminent threat has been documented (not just a judgment call by the Commissioner), to require that issuance of the demolition permit be delayed for a period of time sufficient to allow the SHPC to review the situation, consult with city legal counsel, and take whatever action it deems necessary.  In other words, tighten up the process so that the Commissioner cannot bypass it on the basis of a judgment call or a personal whim.

I hope that's helpful.

Jonathan Tucker
Senior Planner
Amherst Planning Department
4 Boltwood Avenue, Town Hall
Amherst, MA  01002
(413) 259-3040
tuckerj at amherstma.gov<mailto:tuckerj at amherstma.gov>



From: masshistpres-bounces at cs.umb.edu<mailto:masshistpres-bounces at cs.umb.edu> [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Sarah White
Sent: Tuesday, November 10, 2015 1:42 PM
To: massplanners at cs.umb.edu<mailto:massplanners at cs.umb.edu>; masshistpres at cs.umb.edu<mailto:masshistpres at cs.umb.edu>
Subject: [MassHistPres] Demolition and state sanitary code

Hi, there -

For the record, the question that I have does not come from a situation in Somerville.

LOCAL CODE:

A city has a code in its ordinances that allows an historic structure within certain districts of the city to be demolished only with the permission of the ZBA following an advisory review of the Historical Commission (this was done under home rule petition. It is unusual, but it is what it is.)

THE SITUATION:


-          A c.1830 structure housed a hording situation that involved animal waste.

-          All inhabitants of the house vacated the premises - the house was unoccupied.

-          A new owner came in and bout the structure and land very cheaply.

-          The building was determined to be structurally sound by the Building Commissioner and was secured by the new owner.

-          New owner was told by the Building Commissioner to apply for demolition through the process described above.

-          New owner and their attorney presented in front of the city Board of Health (BOH) stating that state sanitary code trumped all zoning code, always.

-          The BOH ordered the Building Commissioner to issue a demolition permit to the new owner.

-          The Building Commissioner issued the demolition permit and the building was demolished yesterday to the surprise of all noted immediately below, none of whom were informed of the pending demolition, even as a professional courtesy.

-          The ZBA, Historical Commission, Mayor, Planning Director, and affected City Councilors were not notified of these decisions or actions by the BOH nor the Building Commissioner.

-          Neither the BOH nor Building Commissioner consulted the city solicitor regarding the veracity of the statements made by the owner's attorney.

-          Since yesterday, the Building Commissioner has informed the Planning Director that he didn't want to send the new owner through the ZBA process since it would be more expense for him and that all decisions would probably lead to the same outcome anyway.

QUESTIONS:

My understanding is that building demolition ordered under the auspices of the state sanitary code is done to protect people from imminent danger. Since the building was structurally sound, unoccupied, and secured, this building and there was no imminent danger to non-existent occupants, can the state sanitary code be invoked in such a way?

Moreover, does a Building Inspector have the prerogative to disregard the processes in place because he thinks that process would be more expensive for an applicant? Is it the Building Inspector's prerogative to assume the determinations that other boards/commissions may or may not come to in this process?

ALL thoughts, questions and constructive comments welcomed.

Sarah M. White
Planner - Zoning & Preservation
Office of Strategic Planning and Community Development
City of Somerville
93 Highland Avenue
Somerville, MA 02143
617.625.6600 x2534
swhite at somervillema.gov<mailto:swhite at somervillema.gov>


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