[MassHistPres] Historic Districts - records retention

[Tad Heuer]

I had also responded off-list to John, but the below thoughts may also be
useful to others.  (Although not intended as legal advice, for context I
practice municipal and zoning law in my day job.)

The Municipal Records Retention Schedule is certainly the place to start,
but there are some nuances to the MRRS.  First, the actual text of the MRRS
requires that certificates (although not denials) be retained by the HC or
HDC for "1 year following lapse of certificate."
https://www.sec.state.ma.us/arc/arcpdf/Municipal_Retention_Schedule_20200406.pdf.
Under Massachusetts law, lapse of a permit generally occurs only upon
nonuse, meaning that a certificate that applies to an existing structure
that is continuing to benefit from the grant of the certificate would seem
to necessitate retention under the MRRS.

Second, note that the MRRS has different sections for HC/HDCs and Town
Clerks.  The provision on page 85 applies specifically to the HC or HDC
*itself*, and *not* to the Town generally.  In the described circumstances,
it is arguable that the Town Clerk is for all intents and purposes merely
acting as the HC/HDC's agent in holding these certificates, so one option
may be to simply ask that the Clerk return them to the HD/HDC's control
instead of disposing of them.  (The HC/HDC could also make a public record
request of the Clerk for all such records in the Clerk's possession, which
would in practice allow the HC/HDC to retain the materials and avoid having
them lost.)

Third, as noted above, the MRRS has different sections for obligations of
municipal boards and Town Clerks, even with respect to the same records.
For instance, the MRRS expressly requires Town Clerks to "permanently"
retain all records of the ZBA or special permit granting authority (SPGA)
filed with the Town Clerk (pages 65 and 66), even though the issuing boards
themselves can dispose of their own copies of those same records within a
few years (e.g., page 36).

In contrast, the MRRS does not reference what a Town Clerk is to do with HC
or HDC records in its possession (one way or the other).  However, it would
surprise me if the Secretary of the Commonwealth -- which maintains the
MRRS -- concluded that a quasi-judicial determination involving an interest
in land required by statute to be filed with the Town Clerk needs to be
permanently retained if from a ZBA or SPGA, but could be disposed within
two years if from another permit granting authority like an HDC.

My guess is the SOC has simply never been asked this question in the
context of the MRRS.  However, \since MHC is within the office of the SOC,
this is perhaps a situation where MHC might be able to provide some
assistance in navigating the internal bureaucracy to obtain an expedited
answer from the SOC as to what the MRRS requires.

Best,
Tad Heuer
Former Chair, Wellesley Historical Commission

On Thu, Sep 23, 2021 at 8:31 AM Doherty, Jennifer (SEC) <
jennifer.doherty2 at state.ma.us> wrote:

> Hi all,
>
> I replied off-list to John but others might be interested. The Secretary
> of State provides for Certificates of Appropriateness and other historic
> preservation records in this municipal records retention schedule
> <https://www.sec.state.ma.us/arc/arcpdf/Municipal_Retention_Schedule_20200406.pdf>
> (PDF), beginning on page 85. It states that COAs may be disposed of one
> year after the certificate lapses.
>
> Thank you,
>
> Jenn
>
>
>
>
>
> *Jennifer B. Doherty*
>
> Local Government Programs Coordinator
>
> Massachusetts Historical Commission
>
> 220 Morrissey Boulevard
>
> Boston, MA 02125-3314
>
> Office: (617) 727-8470
>
> Remote: (617) 807-0685
>
> Jennifer.Doherty at sec.state.ma.us
>
>
>
> *From:* MassHistPres <masshistpres-bounces at cs.umb.edu> *On Behalf Of *Susan
> Fletcher
> *Sent:* Wednesday, September 22, 2021 11:52 AM
> *To:* Amy D. Finstein <adf9u at virginia.edu>
> *Cc:* MHC MHC Listserve <masshistpres at cs.umb.edu>
> *Subject:* Re: [MassHistPres] Historic Districts - records retention
>
>
>
> I would look at the public records requirements.  It has been my
> experience that it requires a lot more than just a 2 year retention.
>
>
>
> On Sep 21, 2021, at 3:15 PM, Amy D. Finstein <adf9u at virginia.edu> wrote:
>
>
>
> I would inquire with the city's legal counsel as to the legality of this
> from a record-keeping perspective and as relates to maintaining records of
> approved changes, etc.
>
> It seems to me that the Commission cannot fulfill its duty of stewardship
> and oversight if it no longer has records of past approvals/denials/similar
> to guide future deliberations.
>
>
>
> Digitization might be a good solution if there is infrastructure for
> digital record-keeping. But I would be loath to get rid of that level of
> institutional records.
>
>
>
> All best,
>
> Amy Finstein
>
> HDC Chair, Framingham
>
>
>
> On Tue, Sep 21, 2021 at 2:42 PM Betty Slade <dcolebslade at aol.com> wrote:
>
> If it is a space issue and is legal to dispose of them then how about
> scanning the pages and keeping copies for the Commission and the town
> clerk.
>
>
>
> Betty Slade
>
> Westport
>
> CPC chair
>
>
>
> In a message dated 9/21/2021 9:21:11 AM Eastern Standard Time,
> jworden at swwalaw.com writes:
>
>
>
> This is an inquiry to historic district commissioners.  Under Ch. 40C,
> certificates of appropriateness, non-applicability, and hardship, as well
> as denials, are to be filed with the city or town clerk – the only official
> custodian of record for actions of the commission. In Arlington we have
> been filing these oddments with the  town clerk ever since the  first
> district was established in 1977.  In recent years, this might have
> resulted in ~50 pages per year.
>
>
>
> Our new town clerk (who seems to want to change everything) proposes to
> dispose of all certificate more than two years old.  We are not happy about
> such a policy.  What is the policy in your city or town?
>
>
>
> Thank you,
>
>
>
> John Worden, Arlington Historic Districts
>
>
>
> *John L. Worden III, Esq.*
>
> *27 Jason Street*
>
> *Arlington, Massachusetts 02476*
>
>
>
> *(617) 957-9195 - mobile*
>
> *(617 227-1961 -  fax*
>
>
>
>
>
>
>
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