[MassHistPres] The case of the solar panels and the historic First Parish church in Bedford, Mass.

[Dennis De Witt]

It would be good to hear from an atty re "the judge’s requirement that only “information that was before the Commission” at the time of the hearing was allowed to be considered.”  I am under the impression that it is common for appeals cases not to retry the matter (e.g. by considering additional evidence) but only to consider the record of original procedure in light of statute and precedents.

Dennis De Witt
Brookline

> On May 20, 2021, at 10:25 PM, <swermiel at verizon.net> <swermiel at verizon.net> wrote:
> 
> The case of the solar panels and the historic First Parish church in Bedford, Mass.
>  
> Recently I learned about a troubling case of a historic district commission determination being overruled in Superior Court, which to my recollection had not been mentioned on this listserv. The judge required the HDC to issue a certificate of appropriateness for the installation of solar panels on a historic church. Why did this happen? As I looked into the case, I found other points that concern me. Here is a summary of the case and my concerns; this is based on my reading of publicly available court records and newspaper articles.
>  
> Very briefly, the case involved the First Parish church in Bedford, Mass. (1816-17), located in the Bedford Historic District. This district is not a 40C, but was established in 1964 under a separate act, the text of which is not as clear as 40C. The church is also a contributing resource in a National Register district. 
>  
> In 2016, the congregation (FP) proposed installing solar panels on the roof of the church and some newer additions. This proposal was on the agenda of three meetings of the Bedford Historic District Commission (BHDC). The BHDC turned down the request, on the grounds that “the installation of solar panels on the roof would be highly visible and incongruous to the historic aspect of the Church and its architectural characteristics.”
>  
> FP immediately appealed the decision in Middlesex Superior Court. About a year later, it sent a memorandum to the court to support a motion for summary judgment. In December 2017, the judge ordered the BHDC to provide more information regarding its decision. The BHDC complied, but the judge dismissed the explanations as deficient. In July 2018, he ruled that the BHDC had acted arbitrarily and exceeded its authority, and the certificate must be granted. The town appealed the court’s decision, but in December 2018, withdrew the appeal. First Parish installed the panels in 2019.
>  
> Observations
> The literal-mindedness of the judge and plaintiff suggest a lack of understanding of, certainly sympathy for, the work of the BHDC. For example, the lawyers for FP claimed a roof is not an “exterior architectural feature” and thus exempt from review. Also, the design guidelines for the district have a single sentence regarding solar panels. FP’s lawyers asserted that since FP planned to install the panels as described in this sentence, it complied with all that was required. Strange, to my mind, was the judge’s requirement that only “information that was before the Commission” at the time of the hearing was allowed to be considered. This harks back to earlier cases, but it’s still puzzling. The purpose of a historic district, for example Bedford’s, “is to promote the educational, cultural, economic and general welfare of the public though the preservation and protection of buildings, places and districts of architectural and historic significance.” This is not life and death. In doing its work, a commission cannot act in an arbitrary way, but it seems to me a fuller explanation of a decision inevitably would involve words not mentioned at a hearing where an application is denied.
> Another troubling aspect of this case is that FP defines environmentalism as reducing fossil fuel consumption in a building, such as from heating. The project involved replacing the roofing on the church (which evidently had to be replaced anyway), installing 92 new solar panels, discarding existing equipment (and I assume buying new equipment), and eventually discarding the solar panels (after 25-30 years). A project like this should be assessed for its overall impact on the environment taking into consideration GHG emissions connected with the production of materials, transportation, construction, disposal of materials and equipment, as well as energy use in building operation. This is the life cycle assessment concept. So, it may be that in this case the solar panel project will reduce GHG emissions more than would maintaining existing services to the end of their service life, but maybe not.
> In this connection, a group with which the FP is involved, Massachusetts Interfaith Power & Light, pushes solar panels for houses of worship, along with insulation and changing heating/cooling equipment. Are they experts in appropriate treatments for historic buildings? It would certainly be a good thing if owners of historic properties hired architects, engineers, and other consultants who have a practice working on historic buildings.  
> Are there general lessons to draw from this case? With respect to HDC processes, one takeaway might be to document reasons for a denial as thoroughly as possible. With regard to environmental concerns, more education about the care of old buildings is needed, which stresses that reducing fuel use is not the be all and end all of sustainability. Historic buildings contribute so little in the way of GHG emissions. Buildings overall contribute directly a smaller portion than other sectors: 13%, compared to transportation (29%), industry (23%) and electricity generation (25%). There are treatments for old buildings (storm windows, attic insulation, owner behavior, etc.) that can reduce energy consumption and avoid damage to their integrity. 
>  
> Sara Wermiel
> Construction historian/historic preservation consulting
> Jamaica Plain, MA
>  
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