38 Mass. App. Ct. 447 | Mass. App. Ct. | 1995
Lead Opinion
This dispute between a landowner and the historic district committee of Barnstable (local committee) has already encompassed two administrative hearings, a review by a judge of the District Court, and an appeal to the Appellate Division of the District Court.
The landowner — John H. Harris — wanted to demolish several older buildings on his acre lot and build a new residence. The existing buildings, none of which, by common consent of the parties, has any historical significance, consist of a residential house, a detached garage and another out
Harris applied to the local committee for a certificate of demolition to remove the old buildings and for permission to build a new Cape Cod style home with an attached three-car garage. The committee approved both applications. During the reconstruction, Harris determined that the old garage was structurally sound and decided to convert it into a shed or studio. After a public hearing, the local committee denied Harris a certificate of appropriateness that would have enabled him to keep the shed on his lot. It also disallowed two design features of the house: a sky light and the garage doors.
Harris then exercised his rights under § 11 of the Act by appealing from the local committee’s decision to the regional historic commission (commission). After a hearing, the commission reversed the local committee’s decision regarding the skylight and the garage doors. As to the shed, Harris did not fare as well: the commission found that the local committee “did not act in an arbitrary, capricious or erroneous manner” by denying Harris’ application for a certificate of appropriateness.
Thereafter, Harris exercised his rights under the second paragraph of § 11 of the Act by appealing to the District Court of Barnstable. A judge of that court found facts and concluded that the local committee wrongly denied Harris the certificate of appropriateness for the shed.
The same judge who had heard the case reported it to the Appellate Division, which, finding no error of law, dismissed the report. The commission appeals from the judgment of the Appellate Division.
At the heart of the dispute between Harris and the local committee is whether the size of Harris’ new home combined with the shed, as an accessory building, was too large com
As might be expected, Harris’ evidence on the point differed from that of the commission. An architectural designer testified that the word “massing” cannot be defined architecturally, but that he understood the term to mean a building’s three dimensional qualities such as height, width and length as well as a building’s articulation, configuration and fenestration. He rendered an opinion that the mass of this property would not be inconsistent with other older buildings in the area. He also testified that numerous other properties in the immediate area have accessory buildings.
After observing the property from the vantage point of Old King’s Highway (Route 6A), the judge found the house barely noticeable and the shed completely hidden from view. From Harris Meadow Lane, he found that the lower grade of the lot minimized the visual impact of the house. The old
The authority of a District Court judge when reviewing the commission’s decision is “analogous to that governing exercise of the power to grant or deny special permits” under local zoning regulations. See and compare Gumley v. Selectmen of Nantucket, 371 Mass. 718, 719 (1977).
Further, he found that there was “little indication at the appeal hearing (and nothing in writing from the [local] Committee) as to how the shed/studio did not conform to the Historic District Commission mandate.” “[Findings which rest on a view are sometimes unassailable, unless the record is made to reflect the particular observances which underlie the findings.” Consiglio v. Carey, 12 Mass. App. Ct. 135, 138 (1981). We conclude that the judge’s findings have adequate support in the record.
A principal purpose of the Act is to harmonize buildings located in the historic area and to suppress the obviously incongruous. Sleeper v. Old King’s Hy. Regional Historic Dist. Commn., 11 Mass. App. Ct. 571, 574 (1981). We do not construe the Act as requiring that the architectural and cultural motif be frozen at a particular moment in the history of Cape Cod. The mandate of the Act is not that one sort of design or configuration be preserved to the exclusion of another, but that the cultural heritage in its entirety be preserved.
We conclude, therefore, that there is no rational basis for the district committee’s decision. See Howe v. Health Facilities Appeals Bd., 20 Mass. App. Ct. 531, 534 (1985).
Order dismissing report affirmed.
“This court’s review is on the District Court report,” Anderson v. Old King’s Hy. Regional Historic Dist. Commn., 397 Mass. 609, 611 (1986), including the written decision and findings of the trial judge and pleadings
For a more detailed discussion of the function and procedures of the commission, see Sleeper v. Old King’s Hy. Regional Historic Dist. Commn., 11 Mass. App. Ct. 571 (1981).
Section 10, in pertinent part, reads as follows:
“In passing upon appropriateness, the committee shall consider, among other things, the historical value and significance of the building or structure, the general design, arrangement, texture, material and color of the features, sign or billboard involved and the relation of such factors to similar factors of buildings and structures in the immediate surroundings. The committee shall consider settings, relative size of buildings and structures, but shall not consider detailed designs, interior arrangement and other building features not subject to public view. The committee shall not make any recommendations or requirements except for the purpose of preventing changes in the exterior architectural features obviously incongruous to the purposes set forth in this act.”
A building is incidental or accessory if it is (1) subordinate and minor in significance and (2) attendant or concomitant to the principal structure. Harvard v. Maxant, 360 Mass. 432, 438 (1971).
The Nantucket Act provides: “Any person or the Historic District Commission, aggrieved by a decision of the board of selectmen, may appeal to the Superior Court sitting in equity for the County of Nantucket; . . . The court shall hear all pertinent evidence and determine the facts and upon the facts so determined, annul such decision if found to exceed the authority of the board or make such other decree as justice and equity may require.” St. 1970, c. 395, § 12.
The Old King’s Highway Act seems to go further by giving the District Court power to “modify either by way of amendment, substitution, or revocation, the decision of the commission and . . . issue such superceding approval or denial of the application with such condition as said district court in its discretion deems appropriate. . . .” St. 1973, c. 470, § 11, as amended by St. 1975, c. 845.
Dissenting Opinion
(dissenting). Before setting out my reasons for disagreeing with the majority’s conclusion that “[t]here seems no rational basis for the committee’s decision in this instance,” it is important to consider the roles of the committee, the commission, and the District Court in determining whether the plaintiff may keep his shed.
As mandated by § 10 of the Act, “In passing upon appropriateness, demolition or removal, the committee shall determine whether the size, features, demolition or removal . . . involved will be appropriate for the purposes of this [A]ct.” That purpose, as set forth in § 1, is to promote the general welfare through “the preservation and protection of build
The committee had originally approved the demolition of a detached shed and the construction of a new house with an attached three car garage. After the fact, that is, after the house and garage were built, the plaintiff wanted to retain the shed, but the committee refused permission.
As a person aggrieved by a local committee’s determination, the plaintiff appealed to the regional commission. Recognizing that its “initial function is not to exercise its independent judgment on the facts, but rather to determine whether the local committee erred in some respect,” Anderson v. Old King’s Hy. Regional Historic Dist. Commn., 397 Mass. 609, 611 (1986), the commission, after hearing, up-, held the committee with regard to the shed. In its decision, the commission noted that the committee had explained its denial by pointing out that the original plan “de-emphasized the massing and size of the home,” that, in any event, new construction of three car garages are discouraged, and that the three car garage and additional outbuilding were “just too much.” The representative of the committee also testified before the commission that the “ultimate issue was not design, per se, but historic compatibility.”
As stated in the report to the Appellate Division, there was evidence before the judge from a consultant in historic preservation that outbuildings were built in the post-World War II period and that such buildings did not exist at the turn of the century. The consultant noted that the original application was for the demolition of a single-family house with detached outbuildings and their replacement with a single-family house with an attached garage. Now sought, was a single-family house with an attached garage and with a detached outbuilding. In her opinion, this design was not appropriate to the historic character of the area.
The District Court judge did not dispute the consultant’s testimony. Indeed in his report setting forth the relevant evidence, he indicated that the evidence “tended to show” what he summarized as the consultant’s testimony. In his findings, which under § 11 of the act are conclusive, the judge primarily discussed the limited visual impact of the shed-studio and noted that “it appears to be more of a characteristic of the older homes to have an outbuilding.” The judge did not explain what his reference to “older homes” meant, and, except for noting the consultant’s testimony, he did not in any way discuss the historic compatibility of the lot’s buildings with the tradition of the county in the early days.
In its entirety, § 1 of the Act entitled “purpose” reads as follows: “The purpose of this [A]ct is to promote the general welfare of the inhabitants of the applicable regional member towns so included, through the promotion of the educational, cultural, economic, aesthetic and literary significance through the preservation and protection of buildings, settings and places within the boundaries of the regional district and through the development and maintenance of appropriate settings and the exterior appearance of such buildings and places, so as to preserve and maintain such regional district as a contemporary landmark compatible with the historic, cultural, literary and aesthetic tradition of Barnstable county, as it existed in the early days of Cape Cod, and through the promotion of its heritage.”
“This court’s review is on the District Court report just as was the review by the Appellate Division.” Anderson v. Old King’s Hy. Regional Historic Dist. Commn., 397 Mass. 609, 611 (1986),