[MassHistPres] Demolition Permits vs. Building Permits

[Dennis De Witt]

Marylin

I wonder if there aren't several different issues here.

First, with respect to when building permits are issued, in Brookline a building permit could not be issued until all zoning issues had been addressed, so that part of the scenario you outline could not occur.  Specifically, in Brookline an applicant submits plans to the building department which perhaps 90% of the time for a new building issues a rejection letter because there is at least some special permit required.  Brookline has a notoriously detailed and lengthy zoning bylaw.  The applicant then goes to the planning board for advisory review and then automatically to the ZBA for approval.  No permit can be issued prior to any required zoning approval.  

Second, in Brookline the building department will review any application involving demolition and if it meets the requirement for full or partial demolition it will be passed along to the Preservation Commission.  If a stay is ordered, the building department cannot issue a permit until after the stay has been lifted.  Specifically, the demolition delay bylaw states:
No permit for the demolition of a building shall be issued other than in conformity with the provisions of this by-law, notwithstanding the provision of other codes and by-laws applicable to demolition of buildings and permits issued therefore. . .
Note that it says "permit for the demolition of a building” not “Demolition Permit.”  It was written that way because there is or was a state provision for a “demolition permit” as opposed to demolition under a building permit.  As I recall a “demolition permit” is applicable only to full demolitions where the building and its foundations are entirely razed to four feet below grade.  I am unaware of such a demolition permit normally being used in Brookline as almost all projects also involve new construction.

Third, and someone can correct me if I’m wrong, to lock in the existing zoning it is necessary only to have applied for the permit, not to have received it.  That was the basis upon which an applicant sued Brookline to allow demolition in an LHD that was created during a stay, because he had applied for demolition before the LHD was created — his argument was that that rule applicable to 40A was also applicable to 40C.  The judge disagreed, because 40C is not a type of zoning — nor, I’m sure, is demo delay.

None of the above is to say that the applicant cannot go through the zoning review process during a demo delay, unless there is a provision forbidding it — assuming such a provision would even be possible under MGL 40A.  

Lastly, unlike some places, in Brookline once the stay has expired, demolition can proceed, even if the replacement has not been fully permitted.

Dennis De Witt
Brookline


> On Jul 14, 2017, at 1:41 PM, M Fenollosa <mmt.fenollosa at verizon.net> wrote:
> 
> Hello, everyone --
> 
> We are interested in knowing the procedures followed by building departments in those towns that have a separate demolition delay bylaw.  Does your building department wait until the demolition permit can be issued (because the criteria for preferably preserved are not met or the delay period has elapsed) before issuing a building permit for the proposed replacement building? We have just learned that our building department issues building permits routinely, notwithstanding historical commission review under our demolition delay bylaw, because developers want to know that they will be able to build according to their plans before going to all the other departments for permits and variances. If other roadblocks (such as demo delay) are imposed, the building department routinely extends the building permits to accommodate the delay.
> 
> This has become an issue because our zoning rules were just amended, changing certain dimensional provisions for projects.  A developer came into a HC meeting requesting a demolition permit; we denied it, imposing our 12 month delay.  But because the building department (unbeknownst to us) issued an earlier building permit, he will be grandfathered under the older, less restrictive provisions of the zoning code after the demo delay period has elapsed.
> 
> Our demo delay bylaw is very specific -- it says no demolition  permit can be issued until the HC notifies the building department that the demolition delay bylaw criteria have been met.  It never occurred to us that this language would not restrict the issuance of a building permit as well.
> 
> We would be grateful for any information you could share - 
> Thank you!
> 
> Marilyn Fenollosa
> 
> Lexington Historical Commission
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