[MassHistPres] Demolition delay ordinances - running with specific properties

[Dennis De Witt]

Let me add a few thoughts.

It is important to distinguish, as Jenn does, but perhaps with a little more emphasis, that demo delay is different than an LHD in that it is only temporary and if waited out has zero residual effect.  

LHDs very often include some owners who do not want to be included.  Comparably, not everyone in a zoning district agrees with a zoning change that occurs.  I’m not an atty. but I think there is a lot of Mass case law on that  and it is my understanding zoning case law has been applied to the operative question of whether and when some act or law constitutes a “taking”  in some non-zoning contexts.

Also, outside the context of Federal courts and questions such as free speech and religious liberty, I am inclined to wonder how much land law case law from other state courts would be applicable here.  My experience suggests that the political and state level legal climate re “property rights” (for instance concerning development of wetlands) in a libertarian southern state can be rather different than the norm in the generally somewhat more communitarian climate of New England.

I will note that Brookline has an 18 month delay for NR properties vs 12 months for non-NR properties.

All that said, politically, I can’t imagine a town meeting passing a demo delay exclusively for town owned properties.  Wouldn’t that seem like a town vote of no confidence in the officials that the town itself had elected?  

Dennis De Witt
Brookline



> On Jul 18, 2022, at 1:05 PM, Doherty, Jennifer (SEC) <jennifer.doherty2 at state.ma.us> wrote:
> 
> Hi Sandra,
> The MHC does not recommend adopting a categorical-based demolition delay bylaw, like you describe here – Town-owned buildings, those listed on the National Register. This is very limiting and does not provide a lot of opportunity to preserve buildings in the community. In addition, there have been concerns raised in other states about due process challenges to using the National Register for local review, although these are usually around applying local historic district/design review standards to National Register-listed properties. Essentially, the National Register has no local control built into it, and applying local control to these properties is not what a property owner consented to when they consented to listing.
>  
> The MHC recommends an age-based bylaw; that is, all properties over 50 years old, or constructed before a certain date, are subject to review. The date used is the assessor’s date. The age-based date is flexible (communities across the state have 50 or 75 years, 1900, 1945, etc.), although as 50 years is a standard in the preservation field, that is often used and recommended. This allows for a wider application of the bylaw and, if you use a “years old” threshold, it automatically updates every turn of the calendar year, protecting a new group of properties.
>  
> If you have any additional questions, please let me know,
> 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 <mailto:Jennifer.Doherty at sec.state.ma.us>
>  
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>  
> From: MassHistPres <masshistpres-bounces at cs.umb.edu <mailto:masshistpres-bounces at cs.umb.edu>> On Behalf Of Sandra Fawn
> Sent: Monday, July 18, 2022 12:47 PM
> To: masshistpres at cs.umb.edu <mailto:masshistpres at cs.umb.edu>
> Subject: [MassHistPres] Demolition delay ordinances - running with specific properties
>  
> Hello everyone,
>  
> Our town, Orange, does not have a demolition delay ordinance and I was told by the town clerk that a demo delay article was "overwhelmingly voted down" in 2003.
> The Historical Commission would like to prepare a new article for demo delay and the thought is to have it specific to town-owned properties. The reason for this is that the Town has demolished several town-owned properties in the recent past (wonderful historic properties!) and there was nothing the citizens or Historical Commission could do to delay or stop these demolitions.
> In addition, if there was a demo delay ordinance specific to town-owned properties, then properties "taken" by the town that are of historical significance could be protected to some degree.
>  
> Questions - does anyone, any Town or City, have a demolition delay ordinance which is specific to certain areas of the town or to government-owned property?
> We have a National Register District - does anyone have a demo delay ordinance that is specific to listed, National Register, properties?
>  
> I appreciate any input.
>  
> Thank you,
>  
> Sandra Fawn, Chair
> Orange Historical Commission
>  
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