[MassHistPres] Exemption issues

[Dennis De Witt]

If it was done after the creation of the LHD and you can document that, then you can require a retroactive certificate.  However, as a practical and PR matter, if it was done by a previous owner, then that can present issues of perceived unfairness/overreach.

The above not withstanding, here is the relevant section of Brookline’s Rules & Regs.

Dennis De Witt

Section 2. Non-conforming conditions

a) The Commission shall accept the “grandfathered” condition of any building at the time of the creation of an Historic District even if said building may incorporate work inconsistent with its Guidelines for which no Building Permit can be documented.

b) In the event that an allegation is made that work requiring a Certificate of Appropriateness has been done at an unknown time without such Certificate, Staff shall endeavor to document by whatever means may be available whether the work existed at the date the Historic District came into existence. If the Commission determines that said work post-dates the creation of the Historic District, it may require an application for a retroactive Certificate of Applicability. The transfer of ownership or of control of a property since the date when such work was completed shall not constitute “grandfathering” of said work.

c) If an existing violation or violations are present on a property that is the subject of an application for a certificate of appropriateness, the Commission may deny the application on that basis, if the property owner fails to modify the application to include acceptable curative action, or the Commission may approve the application subject to a condition requiring the property owner to cure any existing violations. Such conditional approval may: (i) require the property owner to cure any such violations before a building permit is issued for the work requested in the application, (ii) allow the curing work to proceed contemporaneously with the application work, or (iii) provide for some combination of (i) and (ii). The Building Commissioner may issue a stop work order should he or she believe that the curing work is not occurring in the approved manner or if so requested by the Commission upon it making a similar determination. As used herein, "existing violation" means a previous change to the exterior architectural features of a structure that was effected without a certificate of appropriateness from the Commission under circumstances that required such a certificate to be issued, as determined by the Commission.



> On Aug 12, 2020, at 2:39 PM, George Triantaris <geo.triantaris at hotmail.com> wrote:
> 
> Thanks.  Yes I agree. However we are talking about cases where there was no approval but say it was done 5 or 10 years ago and was not caught at that time. 
> 
> George 
> 
>> On Aug 12, 2020, at 2:37 PM, Dennis De Witt <abtdewitt at rcn.com> wrote:
>> 
>>  With or without amending the by-law, I believe that under 40c you can not force someone who must replace something, say a vinal window, to use wood if the vinal was in place at the creation of the LHD (or was later changed with commission approval).  It is grandfathered.
>> 
>> Dennis De Witt
>> Brookline
>> 
>>> On Aug 12, 2020, at 12:38 PM, George Triantaris <geo.triantaris at hotmail.com <mailto:geo.triantaris at hotmail.com>> wrote:
>>> 
>>> Harvard, like many towns, based its historic district bylaw on the commonwealth example, and includes an exemption for changes that are deemed to be “ordinary maintenance, repair or replacement of any exterior architectural feature…which does not involve a change in design, material or the outward appearance thereof.”  We are working on updating our rules and have realized that in a situation where an undesirable feature exists (e.g. vinyl siding or plastic shutters) and the homeowner seeks to replace it in kind we would not be able to correct the past mistake.  Of course if the change was made without permission the commission could have tried to have it corrected at the time but we are concerned about situations where the change was made long ago and was not addressed.  Has anyone encountered this?  Any idea on how to get around it without amending the Bylaw?  
>>> 
>>> Many thanks,
>>> 
>>> George Triantaris, Secretary, Harvard Historical Comssion
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