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OUR HISTORIC PRESERVATION LAW…


Reading law is no fun. That is why many of us push through our daily lives without ever so much as taking a peek at our town website to look for certain laws that have major impact on our lives. So for those who are interested in historical preservation for any reason; whether you are a resident of one of our districts or whether you wonder about the role of the Historical Commission in the renovation of our Town Hall, let us take a peek at our Town Bylaw on historic preservation: Chapter 48.

cartoon-law-1But first here’s the bottom-line:  The Historical Commission is given two levels of responsibility. The first level of responsibility is quasi-judicial and applies only to historic districts. Here, the Commission has the authority to review all changes to the exterior architecture of a building and to determine the appropriateness of the change. The determination of the Commission is legally binding on the property owner. The second level of responsibility is advisory and non-binding. It applies to all historic properties in the town. Here, the Commission is responsible for providing advice to property owners (including the town for the public historic properties) on all aspects of historic preservation for the interiors and exteriors of the buildings, on techniques, finances such as capital planning, applying for grants, etc, 

Here are the details.

We’ll skip over the first four sections of Chapter 48 of the Bylaw which deals with organization and other matters. Section 5 deals with Powers and Duties of Commission. The first paragraph reads as follows:

The Commission shall have all the powers and duties of an historic district commission as provided by M.G.L. Chapter 40C, and subsequent amendments thereto, and any other powers given to the Commission by vote of the Town Meeting of the Town of Harvard pursuant to M.G.L. Chapter 40C, Section 10(i). The Commission shall also have the powers and duties of an historical commission as provided by Chapter 40, Section 8D, and shall be entitled the “Harvard Historical Commission.”

Note that there are only two sentences in that paragraph.  The first says that the Commission has the powers and duties of an historic district commission as described in MA General Law Chapter 40C. This section of our Town Bylaw goes on to repeat the key parts of MGL Chapter 40C that pertain to the regulatory powers of the Commission in administering historic districts which include the authority to conduct public hearings to make their determinations, the authority to impose fines and to appeal to the Superior Court to enforce its determinations. A most important element of this regulatory authority is that it is limited to ”  …review and render a decision of appropriateness on all proposed new construction, reconstructions, alterations, relocations and demolition of all exterior architectural features of buildings and structures.” This provision of the bylaw gives the Commission the authority to withhold building permits, to assess fines and to appeal to the Superior Court  to enforce its findings.

The second sentence adds the second level of responsibility defined by MGL Chapter 40, Section 8D and which basically is… “the responsibility for the preservation, protection and development of the historical or archaeological assets of the town.” This responsibility is all-encompassing and covers all aspects of historical preservation. It gives the Commission the authority to raise money, accept gifts on behalf of the town, conduct research, make recommendations to the Board of Selectmen for the protection of historical places, to secure the information regarding discoveries of new historical or archaeological sites, enter into contracts to further historical preservation.  It is important to know that there is no mention in the 600 words of this paragraph about enforcement, about assessing fines for failure to act on a determination of the Commission, nor about petitioning the Superior Court for enforcement of the law. This responsibility is purely advisory.

The distinction between these two levels of responsibility is important because we must be clear as to whether a finding of the Commission is legally binding or not.

In short, our Historical Commission in Harvard has a quasi-judicial responsibility with respect to the exterior architecture of all historical properties in its historic districts. In addition, it has an advisory responsibility with respect to all aspects of historical preservation for all historical places in our town of Harvard.

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