[MassHistPres] Can a town circumvent the historical commission?

[Tucker, Jonathan]

Ralph:

Amherst's Demolition Delay bylaw includes a provision permitting emergency demolition "if a building or structure poses an immediate threat to public health or safety due to its deteriorated condition."  That's fairly specific, and does not stretch to include the absence of a protective fence, or the like.

It goes on to establish a process for reviewing an emergency demolition request that includes field inspection of the site by the Building Commissioner, Town Engineer, Fire Chief, Historical Commission Chair and two (2) other members of the Commission.  It requires the Building Commissioner to make a specific finding that 1) the condition of the building or structure poses a serious and imminent threat to public health and safety, and 2) there is no reasonable alternative to the immediate demolition of the building or structure.  If not, then the Building Commissioner can refuse to issue the permit.  In either event, the Commissioner submits a brief written report to the Historical Commission describing the condition of the building and the basis for their decision.

See the following link (p. 116):

https://www.amherstma.gov/DocumentCenter/View/36741. 

As with discretionary permits under zoning, sometimes the best way to control something is to allow it, but require it to go through a carefully-considered process that requires the application of criteria and allows the imposition of conditions.  So one solution would be to seek to amend the language of your local historic district regulations.

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


-----Original Message-----
From: masshistpres-bounces at cs.umb.edu [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Ralph Slate
Sent: Wednesday, November 30, 2016 9:57 PM
To: MassHistPres MA
Subject: [MassHistPres] Can a town circumvent the historical commission?

I am wondering if anyone knows of any legal decisions involving Section
9 of MGL 40C:

Nothing in this chapter shall be  ... construed to prevent the meeting of requirements certified by a duly authorized public officer to be necessary for public safety because of an unsafe or dangerous condition.

Specifically, what precisely is an "unsafe or dangerous condition"?

In Springfield, the building commissioner declared a house in a local historic district to be "unsafe, dangerous and a threat to public safety", and the city then demolished the building without filing for a certificate from the Springfield Historical Commission. The declaration was made in September, and the demolition was done today.

I can find no specific language that seems to explicitly allow such a circumvention of MGL 40C - it would seem that there could be several ways to "meet requirements", whatever they may be, because of an unsafe or dangerous condition (i.e. erecting a fence).

Thanks,

Ralph Slate
Springfield, MA
******************************
For administrative questions regarding this list, please contact Christopher.Skelly at state.ma.us directly.  PLEASE DO NOT "REPLY" TO THE WHOLE LIST.
MassHistPres mailing list
MassHistPres at cs.umb.edu
http://mailman.cs.umb.edu/mailman/listinfo/masshistpres
********************************