Historic District Commission
Minutes
Land Use Meeting Room
March 18, 2014
Members present: Chair Jason Berger, JB; Lucy Kennedy, LK; Ken Fowler, KF; Mark Smith, MS
(MS is a Planning Board member who is filling in tonight for the vacant position left due to the death of Steve Sample.)
Due to an extended illness, Elaine Steinert (ES) will be out until further notice.
Staff present: Peggy Ammendola, PA
The meeting was called to order at 5:30 pm.
In attendance were the following: Jim Biancola, Olga Weiss and Kate McNulty-Vaughan. Mr. Biancola is a volunteer with the Historical Commission and Olga Weiss is the Chair of the HC. Ms. McNulty-Vaughan is the Chair of the Planning Board.
Historic Markers Relative to a Proposed Zoning Bylaw Change
JB asked for clarification on this agenda item as he was not at the previous meeting of March 4th.
LK responded by giving a brief review of the history regarding the project initiated in 2010 by the Historical Commission to install Historic Markers. (On August 3, 2010, the HC appeared before the HDC to present their project and informed the HDC that the Building Inspector was not clear as to whether the plaques were signs or not. Excerpt from the HDC minutes: “If it is a sign, there is a question as to whether each person whose structure is qualified for a plaque, must apply individually for a permit or if there could be a blanket permit.”)~~The Building Commissioner has now stated that the zoning bylaws do not include historic markers. On March 4, 2014, the HDC approved four markers for four public buildings; however they cannot be installed until zoning bylaws are amended to include the
markers. The Planning Board has proposed an amendment for town meeting to allow historic markers:
Amend Section 5.2.4 Signs in All Districts by adding the following:
7. All Historic Building Markers approved by the Historical Commission. Markers for public buildings must also be approved by the Board of Selectmen and Markers within the Historic District must also be approved by the Historic District Commission.
LK said that she and others feel that having to get approval from the Historic District Commission for 32 more markers slated for installation in the Historic District is cumbersome; therefore the requirement for HDC approval should be dropped from the proposed amendment.
JB responded that the suggestion to remove signs from the purview of the Historic District Commission has been discussed several times, as recent as about 1 ½ years ago, but it was decided against. To eliminate signs, he said, would require the HDC bylaw to be amended, which is a complicated process. On the other hand, he said, the HDC has in place a relatively quick process for reviewing changes proposed within the District. In the case of the proposed historic markers, the approval being sought would be only for the location of the marker. JB offered to discuss with the Historical Commission ways to make it easier for their submission of applications for the 32 markers. (For the four recently approved markers for public buildings in the District, only one application was required.) JB stated that as far as the HDC is concerned, the marker is a sign, and the HDC can’t take a sign, refer to it by another name, i.e., “historic marker” and delegate the HDC’s authority to another
Commission.
Mr. Biancola said that this specific sign, a historic marker, would be controlled by a thorough procedure managed by the Historical Commission, and he believed the after a public hearing, the HDC has the authority to allow such a specific sign. This is a request to exclude a “particular sign”, not signs in general. He referred to the Historic District Bylaw, 3.3 d., a section relative to the powers and duties of the HD Commission, which reads:
The Commission may determine from time to time after public hearing that certain categories of exterior architectural features, colors, structures or signs, may be constructed or altered without review by the Commission without causing substantial derogation from the intent and purposes of this chapter.
JB said that Section 3.3 d. refers to MGL 40c Section 8, and prior discussion, almost 2 years ago, was centered on if the HDC could delegate their authority or if an applicant could avoid the review of the Historic District Commission. This matter was referred to Town Counsel, who stated the HD bylaw did not allow. The following is the text of the letter dated August 20, 2012 from Town Counsel to the Town Planner, Mary Albertson:
RE: Historic District/Signs
Under MGL. c. 40, unless a Town has adopted an ordinance or by-law providing that the authority of a Historic District Commission does not include the construction or alteration of signs within the District, the matter must be reviewed by the Commission. Without such a by-law, a sign may not be constructed or altered within the historic district without review by the Commission.
Ms. McNulty-Vaughan requested that both the question raised by Ms. Albertson and the response from Town Counsel be provided. JB read Town Counsel’s letter aloud, and said that he did not have the question posed by the Town Planner to Town Counsel. Note: On March 19th JB forwarded via email to everyone, a copy of Town Counsel’s response as well as a copy of an email dated August 15, 2012 from the Town Planner to him stating the need to get Town Counsel’s opinion regarding HDC’s jurisdiction. Within this email the Town Planner stated she felt that “Town Counsel would advise that the HDC cannot abdicate its review of signs”.
Ms. Weiss said that the Historical Commission did research on how other communities deal with historic markers and she said that they found that many have “by right” historic signs which permits these signs to be installed without the review and process of the HDC. JB responded that the issue is not whether or not the historic marker is a viable project. The issue, he said, is if it is possible to allow the markers without an amendment to the HD bylaw? JB doesn’t think this can be done, and he doesn’t understand why the HC feels the process of submitting an application is so complicated.
KMV said that Section 3.3.d, the HDC allows the exemption requested by the Historical Commission after a public hearing, and further commented that what is written in a bylaw is taken at face value unless challenged in court. KMV also stated that Town Counsel contradicted herself in her letter which was read aloud by JB. JB disagreed with her opinion.
JB said that he was appointed by the Board of Selectmen to uphold the HDC Bylaw, which is written for everyone equally. He suggested that Section 3.3.d be read in the context of Chapter 40 C and argued that the HDC is required to review signs and asked KMV for a suggestion on how the HDC could exclude one category of signs, as the bylaw doesn’t differentiate between signs, and permit an applicant to avoid review.
KMV responded that a public hearing for a particular type of signage would suffice. She read the following from the Historic District Bylaw “Purpose”:
The purpose of this Bylaw is to promote the educational, cultural, economic and general welfare of the public through the preservation and protection of the distinctive characteristics of buildings and places significant in the history of Lenox, or significant for their architecture, and the maintenance and improvement of settings for such buildings and places and the encouragement of design compatible therewith.
KMV feels that changing the Historic District Bylaw would be a sensible action to take for a specific situation.
JB asked if there is a mechanism to allow a specific sign to avoid the process that everyone else must abide by. He asked why there should be an exemption, and asked if it was a hardship for the Historical Commission.
Mr. Biancola stated that it is a “pain in the neck” for the HC to go through the application process for 32 markers.
JB repeated that he doesn’t see how the HDC Bylaw could be changed for one specific thing. Mr. Biancola, Ms. Weiss, and Ms. McNulty Vaughan all declared that they are not changing the bylaw.
Mr. Biancola asked what was the purpose of Section 3.3 d. He believes that MGL supersedes local bylaw.
Mr. Biancola re-read Section 3.3.d. of the HD Bylaw “The Commission may determine from time to time after public hearing that certain categories of exterior architectural features, colors, structures or signs, may be constructed or altered without review by the Commission without causing substantial derogation from the intent and purposes of this chapter. He emphasized that this says: “certain categories of signs” and not “signs, signs, signs”.
He added that a historic marker is a category of signs in which it is a well-known fact that many bylaws have exempted from HDC review as long as another commission is handling the review.
JB responded to Mr. Biancola’s reference to “categories” and said referred to Chapter 40 C, Section 8 and quoted from Paragraph “a” of that Section:
A Commission may determine from time to time after public hearing that certain categories of exterior architectural features, colors, structures or signs, including without limitation any of those enumerated under paragraph a, which lists 8 items.
JB explained that when the Historic District was created, this Section provided the option to exclude or keep specific things, and these 8 items are the “categories” listed and the creators of the Lenox Historic Bylaw chose to include signs as requiring review by the HDC. Without a specific exclusion by the town of signs, the HDC must review all signs. This, he said, is what Town Counsel was referring to in her letter of August 20, 2012.
Mr. Biancola asked JB if he would consider changing the HD Bylaw. JB responded that he would consider anything, but there must be a reason.
JB feels that if the HC can provide applications for the 32 structures on which the HC wants to install historic markers, the Commission could process them all in a one and a half hour meeting. This process would be handled just like any other application is handled by the HDC whereby abutters will be given at least a 14 day notice. In this case, since the markers are all exactly the same with the exception of the content, the only matter to be reviewed would be the location of the installation.
JB reiterated the responsibility of the HDC and said he is not in opposition, but that his focus is on what the bylaw says and what it expects of him as a public servant. The Historic District Bylaw requires the Commission review all signs. Changing the Bylaw may result in having to exclude all signs from review. This process is complicated, but the application process is simple and not an economic hardship. First the application is submitted, the abutters are notified and the application is reviewed by the HDC. There is no cost to the applicant. JB stated that for the historic marker program, the owner of the structure would not have to personally appear before the Commission.
KF said that JB has a more critical and more educated eye than he does, but KF feels this sign and the intention is different than other signs. He believes Section 3.3.d allows to have a single meeting, for this specific sign, and the markers could be given a blanket approval. LK said that the Historical Commission has guidelines that the markers have to meet. There is an involved process of sending out the packet of information regarding the marker to the “building rep”, verifying that the content of the marker is correct, potential placement of the marker, and meeting with the rep to determine the placement.
JB asked the others how the HDC could give blanket approval when the HDC doesn’t know where the sign will go. LK stated that it would be a collective approval of a single sign in multiple locations with the public hearing process.
JB then asked how this would differ from a business owner wanting to place a sign in a relatively appropriate place.
Mr. Biancola said he understands JB’s commitment of not wanting to break the law as a public servant. LK concurred, but added she understands JB would not want to set a precedent either. JB said he is concerned about setting a precedent, as every applicant should follow the same process.
JB suggested that the HC put together one singular application and for each sign give up to two possible locations for placement, and if the building owner disagreed with the two potential locations, a single application could be presented. All requests could be reviewed at one meeting which would be a quick process. Mr. Biancola and LK said there was a substantial amount of work that the HC must do to bring everything together up to the point of the installation of the sign therefore they would like to avoid the additional step of having to come before the HDC to present an application for each sign.
Ms. McNulty-Vaughan asked JB to make a motion as she considers this is a very small thing relative to other boards in which an applicant has to get approval. She compared the HDC’s approval process to the ANR in the Planning board where abutters are not notified. She added that Mr. Biancola had researched many towns and found that several have written in a direct exemption for historic markers. JB pointed out that those exemptions cited were in zoning bylaws, not historic district bylaws.
Ken Fowler suggested that due to the questions raised, and the belief that the Town Counsel’s letter of August 20, 2012 was not addressing the specific issue of the historic markers, the HDC should resubmit to Town Counsel its question on this specific issue. Ms. McNulty-Vaughan argued that it is not necessary for the HDC to go to Town Counsel as Town Counsel should not be asked to make a decision for the Commission. She said the Commission should have confidence in their decision and if someone disagrees, they can take it to court.
LK described this as possibly just an administrative process issue. The HC would have the set of guidelines for the sign, including the location, and request a blanket approval. If the homeowner wants the placement of the sign outside of the HC guidelines, e.g., seven feet above the ground, but not more than 15 feet above the ground, only then would the application be reviewed by the HDC. A public hearing would be held which would cover the issue of notification of abutters. This, she said, would not be going around the HD Bylaw, but would be a special administrative procedure. At the public hearing, the HC could show the sign and outline the guidelines.
JB suggested the process which is already in place takes less time and added that he is still not sure there is a mechanism allowing the HDC to make this change. He said that he has researched this on his own and Town Counsel has said that there isn’t a mechanism to allow and doing so is circumventing a bylaw everyone else is required to follow. He offered to check again with Town Counsel. JB said he felt no one would appeal, as most decisions aren’t appealed, but the Commission is obligated to uphold the bylaw. He asked if the Building Commissioner would require a Certificate of Appropriateness. Ms. Weiss said that Mr. Thornton had said he needed something specific from the HDC and she feels this process would be acceptable to him.
LK made a motion that the HDC have a public hearing to review the process to be provided by the HC to allow the installation of historic building marker signs as approved by the HC on how ever many buildings are identified for now or in the future within the Historic District and the guidelines should include where the signs will be placed and to recap the size, material and copy length of the signs and that the public hearing be held in lieu of notifying abutters. KF seconded the motion.
LK said the immediate action of her motion is to have a public hearing to have the HC present their proposed guidelines and sign at the earliest possible date in which the guideline replacement are reviewed with potential abutters, i.e., general public that would constitute approval for placement of historic plaques in the District. This she said would be adequate notice to abutters.
The Commission voted to approve 4-0.
Approve minutes:
September 17, 2013 JB, SS, ES-Tabled until ES returns.
Note: The following minutes were approved by invoking the “Rule of Necessity”.
October 15, 2013 KF made a motion to approve the minutes and LK seconded the motion. The Commission voted 3-0-1 to approve. MS abstained.
November 5, 2013 LK made a motion to approve the minutes and KF seconded the motion. The Commission voted 3-0-1 to approve. MS abstained.
December 3, 2013 KF made a motion to approve the minutes and LK seconded the motion. The Commission voted 3-0-1 to approve. MS abstained.
March 4, 2014 KF made a motion to approve the minutes and LK seconded the motion. The Commission voted 3-0-1 to approve. MS abstained.
Other Business:
This involved follow up on previously approved applications.
PVI Lenox Village, Map 43 Parcel196, 68 Main St., On November 5, 2013, the HDC approved this application, but it was just realized that LK had failed to sign the Certificate of Applicability. LK added her signature.
67 Church Street, LLC, 67 Church St., Map 43 Parcel 181. Request to remove the grills on the large window which will create a display window. LK advised the Commission that at the March 4th meeting in which she chaired, the HDC approved the installation of picture window with a vote of 2-1, which does not constitute approval, but all three Commissioners signed approving the Certificate of Applicability. Subsequent to that meeting, the applicant spoke with JB and said that at the hearing the Commissioners told the applicant that his request was granted, and the signatures assured him of that approval, therefore he considered his application approved.
67 Church Street, LLC, 69 Church St., Map 43 Parcel 180. Request to add new signage. LK advised the Commission that at the March 4th meeting, the HDC told the applicant that a sign requested was larger than the six square feet allowed. It was determined subsequent to that meeting that the sign was within the guidelines.
LK made a motion to adjourn. KF seconded the motion and the Commission voted to agree 4-0. The meeting was adjourned at 6:40 pm.
Respectfully submitted,
Peggy Ammendola
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