Town and County of Nantucket

Board of Selectmen • County Commissioners

Timothy M. Soverino, Chairman
Douglas L. Bennett
Michael A. Glowacki
Finn Murphy
Bruce L.Watts

16 Broad Street
Nantucket, Massachusetts 02554
Telephone (508) 228-7255
Facsimile (508) 228-7272
www.nantucket-ma.gov

C. Elizabeth Gibson
Town & County Administrator

January 12, 2005

DECISION OF BOARD OF SELECTMEN ON APPEAL OF HISTORIC DISTRICT COMMISSION CERTIFICATES OF APPROPRIATENESS FOR GREAT HARBOR YACHT CLUB

For the reasons stated below, the Board of Selectmen ("the Board") hereby annuls Historic District Commission ("the Commission") Demolition Certificates of Appropriateness 44237, 44458, 44459,44460,44581 ("the Certificates") and remands the Certificates to the Commission for further consideration in accordance with this Decision. A Certificate of Appropriateness may be overturned if "it is based on a legally untenable ground, or is unreasonable, whimsical, capricious or arbitrary." Gumley v. Board of Selectmen of Nantucket, 371 Mass. 718, 724 (1977).

1. We see the Board of Selectmen as the place of last resort within town government to make sure the decisions of the town regarding Historic District matters are in good order, properly documented with a record sufficient to withstand subsequent litigation and judicial review. Yet in the hearing on this appeal, it appears that factual disputes, discrepancies and omissions exist in the record of the Commission's proceedings, including without limitation the so called "transcripts" (apparently tapes of the meetings were transcribed by someone who did not certify their work and who was not present at the hearings and appears unfamiliar with the identity of speakers that often spoke simultaneously with each other) and very spare minutes of the Commission's hearings on the Certificates. The record of the Commission's proceedings -at least in the form presented to us by the Commission - is incomplete and inadequate to allow this Board to determine that the Commission made the necessary findings in support of its issuance of the demolition Certificates. Also, during its hearing on these appeals the Board heard conflicting testimony from the appellant, the applicant and the Commission concerning the factual basis for the Commission's approval of the Certificates. Such discrepancies and the incomplete and inadequate record indicate that the Commission's approval of the demolition Certificates is not properly documented: therefore we must find such approval is unsupported by the evidence of record.

    

2. The factual discrepancies and omissions in the record of the Commission's proceedings make it impossible for the Board to determine whether the Commission properly made a necessary preliminary finding that the structures to be demolished are "non-contributing" structures. No such finding by the Commission can be identified in the record of the Commission's proceedings in this matter. Section 6 of Chapter 601 of the Acts of 1955 as amended ("the Act") states that" [n]o building or structure within the Historic Nantucket District shall be razed without first obtaining a permit approved by the [Commission], and said Commission shall be empowered to refuse such a permit for any building or structure of such architectural or historic interest, the removal of which in the opinion of said Commission would be detrimental to the public interest of the Town of Nantucket ..." The demolition provisions are separate and distinct from the new construction or alteration provisions of the statute. Notwithstanding the broad powers granted the Commission to deny demolitions whenever such is "detrimental to the public interest ofthe Town", the Commission has adopted a policy guideline to guide it in reaching approvals of demolitions. The structures at issue are located in the Core Historic District on the highly visible waterfront. Appendix C of Building With Nantucket In Mind, entitled "Demolition Policy" ("the Demolition Policy") states as follows:

   "STANDARDS FOR APPROVAL: The Commission shall not grant approval of a request for demolition of a protected structure or any portion thereof unless the Commission determines, upon clear and convincing evidence, that one of the following circumstances applies:

   (a) the structure is not a significant structure; or,

   (b) the structure is a protected structure only by reason of its presence within the Historic District and is non-contributing to the District."

   The Demolition Policy defines a protected structure as "[a]ny significant structure which the Commission determines is in the public interest to preserve or rehabilitate rather than demolish." The Demolition Policy defines a significant structure as "[a]ny structure within the Historic District of Nantucket Island which is in whole or in part fifty years or more old and which is or has been designated by the Commission to be a significant structure after a finding by the Commission that the building is either:

   (a) importantly associated with one or more historic persons or events, or with the broad architectural, cultural, political, economic or social history of the Island or the Commonwealth; or,

   (b) historically or architecturally significant (in terms of period, style, method of building construction, or association with a famous architect or builder) either by itself or in the context of a group of buildings."

   The Demolition Policy defines a contributing structure as "[a] structure which adds to the District's sense oftime, place and historic development."

   The record of the Commission's proceedings as previously noted, are incomplete and hard to follow, and we cannot find in the record itself enough evidence to indicate that the applicant satisfied his burden of producing clear and convincing evidence that the structures to be demolished are not significant structures or that the structures are protected structures only by reason of their presence within the Historic District and are non-contributing to the District. To the contrary, from what we see in the record, the evidence of record indicates that the structures are in whole or in part over fifty years old and may have important historic associations and historic significance. The lack of documentation in the minutes or proceedings of the Commission showing such clear and convincing evidence from the applicant indicates that the removal of the structures could be "detrimental to the public interest of the Town of Nantucket". Also, as mentioned above, the record is unclear as to whether the Commission made a finding that the structures to be demolished are not contributing structures; such a determination if so voted appears to be required to be recorded in the minutes of the meeting (G. L. c. 39, s. 23B, where all votes of a governmental body are to be recorded in the minutes), but the few minutes of meetings submitted to the Board do not expressly contain such a vote. The Commission's approval of the demolition of the structures without making such a finding renders the Certificates not in compliance with the Commission's own Demolition policy.

3. The Commission's position at the hearing that more than 50% of the structures to be demolished had already been modified, if that is the Commission's reason for issuance of demolition certificates, is unsupported by the evidence of the record presented to this Board. As noted above, the record is incomplete and hard to follow, appearing inadequate to support the necessary findings. The available evidence of record indicates that-the structures are in whole or in part over fifty years old and may have important historic associations and historic significance. The available record of the Commission's proceedings -again this Board can only rely on the record of the proceedings as presented to the Board - does not support a finding that more than 50% of the structures to be demolished had been modified.

    

4. Finally, the record of the Commission's proceedings indicates that a member of the Commission who had not attended all of the Commission's hearings voted on these matters. The records of the Commission's votes on these Certificates of Appropriateness indicate that five members of the Commission voted: Dirk Roggeveen, Linda Williams and Dawn Hill in favor and John McLaughlin and Valerie Norton against. The records of the Commission's hearings indicate that Dawn Hill did not attend all sessions of the hearings. Relevant Massachusetts court decisions indicate that the vote of a member of the Commission who missed one or more hearing sessions is invalid. Jeffries v. Conservation Commission of Milton. Norfolk County Sup. Crt. C.A. No. 02-2160 (June 2, 2004); see also, Mullin v. PlanningBoard of Brewster. 17Mass. App. Ct. 139, 141-143 (1983). The Jeffries Court stated that "the only legally valid votes in this case were by the two members who had attended all four hearings. ... There was not a majority of valid votes in favor of approval, and the court must therefore annul the Commission's action. ..." Without Ms. Hill's vote the votes would be a tie, 2-2, not a majority of valid votes in favor of approval. The appellants assert that the hearing missed by this member was crucial to the development of their responses to these applications. In view of the emphasis placed on that hearing by appellants and the fact that an alternate member sat during that hearing and is available to vote by reason of attending all the hearings, in view of the perception by appellants oflack of fair play in such shifting of personnel, in view of the developing case law regarding attendance of members of regulatory boards at hearings, the Board therefore remands these matters to the Commission for re-voting by such members of the Commission as have attended the missed hearing date and the alternate member, or if necessary, for rehearing. The Board does not intend to take the position that every member of every Town board must attend every meeting. However, here the hearing session at issue was sufficiently central to the development of the appellants' case so that the absence was not de minimus.

For all of the reasons stated above, the Board hereby finds that the Commission's actions were based on legally untenable grounds, or are unreasonable, whimsical, capricious or arbitrary and therefore annuls the Certificates and remands the Certificates to the Commission for further consideration in accordance with this Decision.

(Signed)

Timothy Soverino

Bruce Watts

Finn Murphy

Douglas Bennett