[MassHistPres] does anyone have knowledge of historic commissions right and process to appeal before the state court

Tue Feb 21 13:53:49 EST 2017

Sally:

The power struggle you are experiencing may not be able to be resolved by appeals to higher powers, but let's see what we can find.

CPA Statute - I disagree with your town counsel in two ways.  First, the actions being taken are not simple maintenance.  The CPA defines maintenance as follows:

'''Maintenance', incidental repairs which neither materially add to the value of the property nor appreciably prolong the property's life, but keep the property in a condition of fitness, efficiency or readiness."

I think it can be demonstrated that the actions proposed under this project (stripping, repainting, replacement of deteriorated portions of columns and clapboards) do materially add to the value of the property and do appreciably prolong its life.  To try to argue otherwise is nonsensical.

Instead, these actions qualify as "Rehabilitation" under the definition provided by the Community Preservation Act:

'''Rehabilitation', capital improvements, or the making of extraordinary repairs, to historic resources . . . for the purpose of making such historic resources . . . functional for their intended uses including, but not limited to, improvements to comply with the Americans with Disabilities Act and other federal, state or local building or access codes; provided, that with respect to historic resources, ''rehabilitation' shall comply with the Standards for Rehabilitation stated in the United States Secretary of the Interior's Standards for the Treatment of Historic Properties codified in 36 C.P.R. Part 68 . . . ."

Wirth respect to the National Park Service standards for "Rehabilitation" under the CPA, they can be found here:

https://www.nps.gov/tps/standards/four-treatments/standguide/rehab/rehab_standards.htm

Two sections specifically applying to paint color in your circumstances:

"4. Changes to a property that have acquired historic significance in their own right will be retained and preserved."

and 

"6. Deteriorated historic features will be repaired rather than replaced. Where the severity of deterioration requires replacement of a distinctive feature, the new feature will match the old in design, color, texture, and, where possible, materials. Replacement of missing features will be substantiated by documentary and physical evidence."

So, if #4 above is applicable, that will be based on the history of your library building.  You indicate that the building is currently painted white ("the building can remain its white colors"), but that investigation by the consultant has determined that it was originally several other colors.  How LONG has the library been painted white?  Some quick investigation into the photographic and operational archives in the library's records will answer that question.

If the building has been white for a very long time, then a claim could be made that the white color--a common 'correction' for the color of older houses during the Colonial Revival period and since--has established some historic validity of its own.  If, however, it can be demonstrated that the white color is a 20th century 'adjustment', then I think your commission has grounds for citing NPS standard #6 above as a basis under the CPA statute for requiring that the building be restored to its original color scheme. 

Everybody Has to Follow the Rules - Secondly, your town counsel can't pick and choose among statutes.  If CPA funds are being used, then the CPA statute applies, the CPC's procedural guidelines apply.  Further, the local historic district process is a process conducted by the local historic district commission, and not something that can be run remotely by others.   Town counsel does not have the authority to issue certificates of appropriateness for local historic districts.  They can argue before a local historic district commission that they believe a project should be issued such a certificate, but they are not authorized to pre-empt or conduct that process themselves.  The local historic district guidelines are applied to specific circumstances by the local historic district commission, and they always include room for the application of the judgment by the commission.  They are not inflexible, eternal stand-alone standards that others get to apply.  It makes no sense to me that your town counsel used them as the basis for anything.  Only the local historic district commission--and NOT town counsel or the select board or the town administrator or anybody else--should have been asked to review the project and issue a certificate of appropriateness.  That's how it works.

If some compromise cannot be brokered between the various parties, then this project may need a redo that sends it back to your CPC and maybe even back to town meeting.  And the possibility exists that the CPA funding will simply be lost.  The whole question of defining the nature of this as an historic preservation project under CPA should have been resolved in a process involving all of the parties long before it got to this.  Your CPC has a Historical Commission representative, and your CPC's own guidelines require that projects be reviewed by appropriate town boards before being submitted (see bolded section):

http://www.harwich-ma.gov/sites/harwichma/files/file/file/cpc_selection_criteria_copy.pages-2016.pdf.

So why wasn't this flagged early on?  No historic preservation CPA projects should proceed without having first gone before the Historical Commission for review, an advisory recommendation, and an assignment of relative historic preservation priority (among the historic preservation projects proposed) prior to being considered by your CPC.  And all of that should have been done before the funding ever got onto a town meeting warrant or went to town meeting for appropriation.  You figure the details out up front, not after you get the money.  Either the town ignored or violated its own process, or something else went wrong.

As for the question of to whom your Commission could appeal, it might be worth talking to the CPA Coalition with respect to the difference between maintenance and rehabilitation, or to MHC.  But I wouldn't expect a lot of help in either place, and you run the risk of the Coalition siding with DOR lawyers who might side with the it's-just-maintenance folks.  Your Commission could always hire its own lawyer, if it has the resources.

But I would start by carefully sifting through all of your applicable local statutes and the history if this project to see how the process should have been conducted, to figure out how this project got this far without going through an appropriate review by all parties.  Those gaps or missteps could then be the basis for challenging the validity of the CPC process and asking the CPC for reconsideration.  If your Historical Commission wants to have a meaningful role in reviewing historic preservation CPA projects, the members will need to stand their ground in the face of angry library trustees and insist on having it.  They could start by asking to hold a joint meeting with the CPC to talk about gaps in the process, and, if no joy is found there, proceed to discussions with the Town Administrator and Select Board.

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 

-----Original Message-----
From: masshistpres-bounces at cs.umb.edu [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of sally urbano
Sent: Thursday, February 16, 2017 11:47 AM
To: masshistpres <masshistpres at cs.umb.edu>
Subject: [MassHistPres] does anyone have knowledge of historic commissions right and process to appeal before the state court

Hello,
   Our library in conjunction with the town filed a cpc project and received a positive vote at town meeting.  The library contracted an architectural preservation firm to write an assessment and the proposal. The building is on the National Register and within a local historic district. The project is labeled as a preservation project . Interesting that the preservation is mainly on the columns. The rest of the money is for light chemical stripping replace/repair clapboards as needed and paint. Initially CPC turned the project down on maintenance vs. preservation. The CPC was pressured into revisiting their decision and then approved the project.. No one appeared before the historic commission until after all this was completed. Now the rub. The town and the library trustees want the building white as opposed to the historic colors that have been lifted. My understanding is that as a preservation project it must go before the Historic Commission for it colors based on Department of the Interior guidelines. The town stepped in before the hearing on the colors was even visited by the historic commission and submitted a certificate of appropriateness backed by town counsel that says that painting it is a maintenance issue and the building can remain its white colors. Legal used the local historic district guidelines to make this decision.

This seems wrong to me and undermines our Historic Commission.  What recourse would they have legally and with whom should they engage as I am certain the town would not approve any other legal opinion.

Any thoughts or personal knowledge?

Sally Urbano
Harwich, Ma
individually

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