[MassHistPres] Questions about individual commissioner conversations with potential COA applicants

[Ralph Slate]

There is another pitfall to avoid here - what is known as ex-parte communication with commissioners.


Historical commissions are quasi-judicial bodies. The public is legally entitled to have input in the approval process via public hearing, and there is a presumption that the public's input is considered before deliberation. 


I think that it might be permissible for a commissioner to provide input to an applicant, with the caveat that the input is not a guarantee of the vote. I think there would be serious open meeting law issues if a quorum of commissioners provided input, even if done serially, coordinated solely by the applicant.


A different approach might be to provide detailed guidelines, which need a public hearing to be adopted, that can be referenced by applicants. 


Ralph Slate
Springfield, MA


On Thu, 14 Feb, 2019 at 1:35 PM, Judy Neiswander <jneiswander at gmail.com> wrote:
 

To: mhc preservation listserv

The Dedham HDC offers the following assistance to COA applicants on the town's website:



The HDC strongly encourages applicants to meet with its representatives to review their project prior to submitting an Application for a Certificate of Appropriateness. The Commission will gladly offer advice to those property owners who are considering making alterations to their historic properties.  


In practice, what happens is that an individual commissioner may be contacted by a potential applicant, often a friend or neighbor, who asks for assistance with preparation of the COA application. When asked about appropriate materials, design, etc., the commissioner may offer in good faith an interpretation of the guidelines that they believe will be acceptable to the commission as a whole. When the completed application, based upon this advice, comes before the commission it can sometimes be rejected when the majority of members disagree with the interpretation, causing conflict within the commission and delays for the applicant. Have other commissions found ways of handling these requests for individual, pre-application consultation in a more standardized fashion? Is the consultation always offered by the commissioner with the most architectural expertise? Are the results of the commission's decision always sent in written form or are they sometimes shared in private conversations? Are there legal issues involved in these types of communications? 


Many thanks,


Judy Neiswander
Commissioner
Dedham Historic Districts Commission/Historical Commission 
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