Historic District Commission
Minutes
Land Use Meeting Room
October 20, 2009
Members present: Acting Chair Jason Berger, JB; Steve Sample, SS; Elaine Steinert, ES
Chair Ken Fowler, KF; Jim Harwood, JH
Staff present: Mary Albertson, Town Planner, MA; Peggy Ammendola, Land Use Clerk, PA
Merritt 2004 LP, Re-application for demolition at 100 Church Street, Map 43 Parcel 86.
Chair Ken Fowler and Jim Harwood recused themselves.
Kenneth Margolin, attorney from Newton, MA who represents Mr. Merritt was present as well as Mr. Merritt. (Mr. Merritt did not have representation for his application heard by the Commission last March.) Bill Thornton, Building Commissioner for the Town of Lenox was also present.
There were two citizens present.
Before making his presentation, Mr. Margolin handed out to the members a packet which included a diagram and pictures of the subject property and stated that his impression of the previous series of hearings was that the Commission was hostile toward the applicant’s request to tear down the building. (Mr. Margolin has listened to the audios of the previous hearing.) He told the Commission that they have the power of judges and asked that the members have an open mind to the legal arguments he would be presenting.
Mr. Margolin proceeded to explain that he had applied for all three certificates, Certificate of Applicability, Certificate of Non-Applicability and Certificate of Hardship, but that the Commission no longer has any authority in this matter due to the fact that after the last hearing, the Building Inspector convened a Board of Survey which has concluded that the building is unsafe, unused and uninhabitable in its current condition and has issued an order that this building should be either repaired or demolished. Mr. Margolin stated that this is an ongoing order in which the property owner has the obligation to choose to repair or demolish the structure. Attorney Margolin referenced Chapter 40 C, Section 9 in his arguments and said that the Commission cannot prevent the property owner from making his
choice.
JB responded that if the attorney doesn’t feel that the commission has jurisdiction, either the Commission could agree to that, or Town Counsel could give that recommendation, but that if the Commission does not have jurisdiction, then there is no reason for the Commission to hear this matter. JB also disputed Mr. Margolin’s claim that the Commission was hostile or inclined to force Mr. Merritt to keep the building, but rather the Commission was here to do their job.
SS said that, as no one on the Commission is an attorney, the Commission should consult with Town Counsel.
Mr. Margolin stated that the Commission, under Chapter 40 C, has 60 days to render a decision from date of filing for the Certificates requested, and that if the Commission did not render a decision by that time, the Certificate of Hardship is automatically issued. Mr. Margolin said that when he filed the applications, the courtesy was extended at his request to schedule the hearing on October 20, 2009. He agreed to extend the 60 day period by an additional 14 days, but would not grant any further extension. (The Town Clerk received the filing on August 10, 2009.)
JB left it up to Mr. Margolin as to whether or not he wished to proceed with his presentation since Mr. Margolin did not feel that the Commission had jurisdiction. Mr. Margolin chose to proceed subject to a “reservation of rights”, which he explained does not concede to the Commission that they have jurisdiction over this matter.
Mr. Margolin presented his legal arguments, stating that the Board of Survey has taken this matter out of the purview of the Historic District Commission. He discussed the opinions rendered by the individual members of the Board of Survey which were that the building was unsafe and should be made safe or demolished as soon as possible. He argued that structure failed through no fault of Mr. Merritt, but because of the original construction. Reconditioning the structure would require starting over, and the existing corridor heights do not meet present day code. Lenox does not have a Minimum Maintenance Bylaw, and even if it did, according to Mr. Margolin, such a bylaw would not require an owner to “spend a fortune” when the original structure was not built to last. Mr. Margolin
stated that in the last two decades, only owners of two structures have been ordered to demolish a building, therefore rebuked a Commissioner’s statement from the first hearings that there were people who would intentionally neglect a structure to then be allowed to demolish the structure. Mr. Margolin concluded that this is a rare situation in which the Town’s public safety officials have asked that the building be demolished to protect public safety officials and “I beg you to heed my arguments.” He thinks that a Certificate of Appropriateness should be given.
When asked by the Commission, Mr. Thornton said if a structure was not in the Historic District, a property owner would have until noon of the following day to comply with an order from the Board of Survey.
Mr. Margolin agreed that Nov 12, 2009 would be the final date for the Commission to make a decision regarding the applications filed for Mr. Merritt’s property. The Commission will seek the advice of Town Counsel.
Public comment:
Suzanne Pelton, a member of Lenox Historical Commission and former member of the Historic District Commission said that the Commissioners did take an oath to preserve and protect the structures in the district and that the owners of the structures are obligated to take care of them. She stated that within the state of Massachusetts, Historic Districts try to find someone who is willing to preserve a structure in need of repairs. Ms. Pelton said that she is a part of a List Serve and that she has asked the 700 members their opinions of this matter and she said that many of the responses have been that their Districts do not allow demolition without knowing what would be built in place of structure. She asked that the Commission take the time in between now and date of decision to find
evidence of courts denying demolition. She also asked if Mr. Merritt could prove financial hardship. She claimed that there is someone who is willing to preserve the building. Mr. Margolin responded that no offer has been made to buy and that the responsibility of the Commission is to preserve and protect the District.
Kristen Kennedy, a resident on Tucker St. asked what plans Mr. Merritt has for post demolition. Mr. Merritt had filed a letter with the Commission outlining his plans and this was read aloud. Mr. Margolin said that anyone who wanted to put up another structure within the District would have to come before the Commission for review and approval.
SS asked Mr. Margolin if his client would be interested in putting in a deed restriction. Mr. Margolin answered in the negative, and further explained that there is nothing in the HDC’s bylaw that says that another building of similar size and structure has to be put in the demolished structure’s place.
A letter dated October 4, 2009 from George Jordan was received and read into the record Mr. Jordan suggested that the Commission tour the property inside and out to fully examine the applicant’s request to demolish this building.
ES made a motion to continue the hearing to November 2, 2009 at 5:30 pm to enable the Commission the time to get advice from TC. SS seconded the motion and the Commission voted to agree 3-0. Public comment can still be made at that hearing.
Mr. Margolin made a request to have Town Counsel’s opinion in writing as well as the decision of the Commission.
Gennaro Gallo, 15 Franklin Street (Map 43, Parcel 82). Cover the stairways and walkways that are located from the ground floor to the second floor apartments located above Prime.
Jim Harwood joined the Commission to hear this application. Other’s sitting were JB, ES and SS.
Making the presentation was Gennaro Gallo. He provided a sample of the shingles, and said that the supports used would be what the code requires. A roof had been covering the stairways before. He said that he needed his roof to keep the neighbor’s snow off of his stairways. He also said that it was virtually impossible to keep the ways clear without a covering.
Building Commissioner Bill Thornton was also present. He said that there is a section of the Building Code that the stair ways are to be kept free from ice and snow, but doesn’t say that it has to be covered, but if the roof is done it should be done to ensure that it is not an issue for the neighbor next door.
A letter dated October 20, 2009 from Spiro Grigoropoulos of 9 Franklin Street was received. Mr. Grigoropoulos is a direct abutter to this property and he is very concerned and opposed to covering of the walkways and staircases stating he fears that the coverings will result in the run off of rain, snow and ice into his fire escape, walkway and basement. This runoff, he feels, will be a safety hazard for his employees and customers, and potentially could have a financial impact if damage occurs that would necessitate repairs to his property.
Noting that there is significant concern from neighbor, JB said that it is more the building commissioner’s responsibility than the HDC’s.
Mr. Gallo said that this is not meant to put ice on his side, but is willing to correct if that happens. Mr. Thornton stated that if this request is approved he would take care of the code issues.
SS made a motion to approve the application, using picture provided by Jerry Gallo as the example of west side of his building (not the drawing that was in the application). ES seconded the motion and the Commission agreed 4-0.
JH made a motion to adjourn and ES seconded the motion. The Commission voted to agree 4-0. The meeting was adjourned at 7:40 pm.
Respectfully submitted,
Peggy Ammendola
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