[MassHistPres] Architectural Preservation District Appeals Process In Jeopardy

[Richard McGrath]

The Lunenburg Architectural District Commission is seeking informed opinion
and advice on a warrant article which is to be voted on at town meeting on
May 1st. We would also like to know if any other APDCs have an appeals
process similar to ours, or otherwise, and their justification for having
such a process, and how it is working for them. We welcome any other ideas
or experience with such an issue that we have before us.

The Town adopted a Village District Bylaw, opening up the entire historic
center of town, which is also a National Historic District, to business
development. In order to protect the historic character of the town center,
the Planning Board wisely  created a strong Architectural Preservation
District which covers the Village District. The APD bylaw supersedes the 18
month demolition delay bylaw and gives the APDC the power to deny a
demolition of a contributing property 75 years or older in the APD. An
appeal  may be made to the APDC on its decision. If the decision stands,
the next step would be to sue the APDC in court.

The town owns three historic buildings in the center of town. One, a 12000
sq ft. brick school built in 1929, which has been vacant for 15 years and
is undergoing demo by neglect, in violation of town bylaw, and is in danger
of being demolished for a park planned by the Selectboard.

 Article 24: The article reads "To see if the Town will vote to amend the
General Bylaws, Chapter 113, entitled Architectural Preservation District,
Section 13, entitled "Appeal procedure,"by adding the following new
sentence to the end thereof:"

"As an alternative but not necessarily as a substitute for such an appeal,
with respect to any building or property owned by the Town of Lunenburg, a
party aggrieved by the APDC's denial of a certificate to alter the same
may, after a period of no earlier than 3 months and no later than 12 months
after said action, petition any Annual or Special Town Meeting to, by
majority vote, to override the same, if deemed to be in the public interest.

A Selectman, who wishes that the school be torn down argues that," Every
person, organization, or entity who comes before a town board or body for a
decision, has a right to appeal that decision. Certain Property appeal
rights are with the Zoning Board of Appeals, but nearly all appellate
rights are through Mass General Court. Although Citizens have the best
intentions when they create laws, history reveals that those laws sometimes
infringe upon others protected rights or were made erroneously. As
such, any decision made by the APDC can be appealed through court--but
since all of you act as agents of the town in your capacity as members of
the APDC, the lawsuit would be filed against the town of Lunenburg.

The Selectboard has the sole responsibility of defending the town in court,
and makes all decisions related to legal strategy with town counsel. So if
the APDC is sued for a decision you make, the Selectboard has to decide how
to respond to that lawsuit. And those decisions can include pursuing the
case all the way through to defend the Board's decision, or settling it at
some earlier point. Similarly, if the APDC believes that someone is
violating a bylaw, the ultimate recourse is to sue that person in court for
violating the town law. The Selectboard would have to approve that lawsuit
and oversee the legal strategy of the case.

All this works well for every person and business, until we involve Town
property.

If the APDC comes to the Selectboard and decides that a town building in
the district has been demolished by neglect, for example, and wants to
compel the town to get its act together and repair the building, by court
order, the Selectboard would have to approve going to court to get the
order. Which, I daresay , no one anywhere would go to court to get an order
against oneself. And I can't imagine that any Selectboard member would vote
to get a court order against the town. This means that in practice, the
enforcement mechanism is the bylaw itself and the expectation for elected
officials to behave in accordance with the rules and bylaws of the town. As
elected officials, we are always answerable to the people and can be
recalled.

Similarly, if the Selectboard felt aggrieved by an APDC decision , as it
has the right to, the Selectboard would have to file suit against the APDC,
which means filing suit against the town. And the Selectboard would be both
plaintiff and defendant. I can't imagine any Selectboard now or in the
future, that would waste taxpayer money to take itself to court.  So, in
imagining a circumstance in which the town votes to, for example, tear down
the old primary school--and if the APDC says no--the Selectboard can either
(a)ignore the APDC and follow the will of the people as voted upon and
appropriated, (b) ignore the will of the people as voted upon and
appropriated and follow the decision of the APDC, or (c) sue itself. How
can one serve two masters?

What the article the Selectboard proposed will do, is resolve the obvious
potential impasse and create a realistic appeal process for the Town. No
this was not done in anticipation of the APDC denying a future
application........................

The Lunenburg APDC views the warrant as an effort to weaken the bylaw which
was created to protect and preserve, as stated in the APD bylaw, the town
owned property as well as private structures. Also a Selectboard member
made a comment at a recent selectboard meeting that the general public
should have the same right as the town government to appeal  at a public
meeting an APDC decision on their privately owned property. We view this
warrant article as the first step in dismantling the APDC 's authority, and
so the preservation of the Architectural Preservation District, as well as
the National Historic District.

We would appreciate any help to address this issue clearly.

Regards,
Richard McGrath, Chair, Lunenburg APDC
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