Historic District Commission
Minutes
Land Use Meeting Room
June 3, 2014
Members present: Chair Jason Berger, JB; Ken Fowler, KF; Lucy Kennedy, LK; Linda Messana, LM
Staff Present: Peggy Ammendola
Also present were Planning Board members Kameron Spalding and Kate McNulty-Vaughan; Olga Weiss and Jim Biancola of the Historical Commission.
JB welcomed LM as the newest member of the Commission. She is serving as the Planning Board’s representative to the HDC.
Cassandra Sohn, 69 Church St., Map 43 Parcel 180, new signs for two separate businesses.
Ms. Sohn presented her application for signage at her art gallery and her studio where she will provide photography services. She described the signs and positioning.
KF made a motion to approve both sign applications as presented. LK seconded the motion and the Commission voted to approve 4-0.
Public Hearing to determine whether Historic Building Marker Signs, given prior approval by the Historical Commission, may be excluded from review by the Historic District Commission under Section 3.3 (d) of the Lenox Historic District Bylaw. Continued from May 20, 2014. The hearing was re-opened at 6:15 pm. (LK is a member of the Historical Commission.)
To bring LM up to date, JB explained why this issue is being brought to a public hearing. He explained that the Historical Commission has been working on a project since 2010 to add historic building markers to a number of historic buildings which are located in the Historic District. Since the mission of the HC is to preserve and protect the historical assets of Lenox they felt it would be beneficial to bring attention to the historic properties by identifying them by name and the date the structure was built.
There have been two issues that have slowed the Historical Commission’s attempt at bringing their project to fruition. This first issue involved the Zoning Bylaw. In January 2014 the Building Commissioner, Bill Thornton, advised the Historical Commission that per the existing zoning bylaw, markers were not allowed. This is the reverse of what Mr. Thornton had said when the Historical Commission first embarked on the Historic Building Marker Project in 2010. It was realized that before the HC could proceed with their project, the Zoning Bylaw would have to be changed. An amendment was proposed by the Planning Board, and approved at the 2014 Annual Town Meeting and reads as follows:
Section 5.2.4 Signs in All Districts
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
The second issue had to do with the Historic District Bylaw which states all signs within the District must be reviewed by the HDC. This process involves an applicant having to submit an application for a Certificate of Compliance. The Commission would notify direct abutters of a hearing, and the Commission would then review the proposed sign. There is no charge and in most cases the review would be within three to four weeks of the date the applicant filed the application with the Town Clerk. The Historical Commission has been concerned that having to bring each sign before the Historic District Commission for approval would be burdensome. They brought their concerns to the HDC and have continued to debate the issue as to whether or not the HDC could merely exempt the markers from review. An option offered by the HDC was that instead of the Historical Commission having to present an application for each marker, they could submit a “blanket application” of as many as they
wanted to have reviewed at one meeting. This was ultimately done at two HDC meetings. On March 4, 2014, four markers were approved which happened to be for town owned properties. They were: Lenox Academy, Lenox Town Hall, the firehouse and the library. On May 20, 2014, the HDC approved a blanket application for 32 additional markers.
The Historical Commission, anticipating that there are approximately up to 50 more properties eligible for having a historic building marker, have continued to request that these markers be exempt from review by the Historic District Commission. Thus, this was the purpose of this public hearing.
Mr. Biancola proceeded with his presentation to support why he felt the markers should be exempt from review. He provided copies of his 3 page summary detailing information from the last two years and dated April 18, 2014. The document, his perspective on the appropriateness of exempting historic markers from review had been distributed at a previous meeting. It is his opinion that the HDC has the authority to exempt the historic markers from their review and stated that his main goal is to convince the HDC that they have the authority to make that change. With the institution of the change he is proposing, the applicant would submit an application for a “Certificate of Non-Applicability”.
Debate continued on the interpretation of MGL 40C and the Lenox Historic Bylaw Section 3.3.
LK stated that in her opinion it has been found there is a provision in MGL which would allow the HDC to maintain control of all of the things the HDC has control of, but can create a category that is deemed non applicable and therefore does not have to be reviewed. She said that she would not say “historic markers” as she felt that would be “too broad, too vague”. She would say “Historical Commission recommended signs as presented on such and such a date with content and format approved by the Historical Commission”, because it is just “that” sign which would be exempted. LK said she is re-emphasizing and wants to get it on record, that “It seems to me to be very different than having a debate on whether or not we are abdicating our responsibility
for signs. It is a specific sign in multiple places within the Historic District, so I wouldn’t want to give up any more control than that. We have the wherewithal within the law to do that. MGL allows us to carve out a particular category and say it is non-applicable.”
The public portion of the hearing was closed.
LK made a motion to make the historic markers approved by the Historical Commission non-applicable for Historic District sign review. LM seconded the motion.
KF commented that he understands and supports the Historical Commission’s mission and likes the idea that the signs would be part of a walking tour, but added that the HDC has always required anyone wishing a sign to come before the HDC for review, and giving up that authority sets a precedent for others making a similar request. He stated he doesn’t support giving the Historical Commission permitting authority or giving that Commission the ability to “roll through the District” without the purview of the HDC, passing off the HDC’s authority of what it has been charged to do, but he feels the marker project is warranted.
LK argued that it is clear that the HDC is not giving the HC authority over signs in general, but just this sign only. KF responded that this proposal is giving the HC the ability to put this sign up on any building without review or requiring the HC to provide the HDC a list of the buildings.
JB said that he feels the legal issue is the sticking point for the HDC and gave his thoughts about exempting the historic markers from the HDC’s review. He stated that this is a change to the HDC’s bylaw and the HDC had to determine if it has the authority to do so. He said that as an appointed board the HDC has a responsibility and he doesn’t take the legal issue lightly. He explained that MGL 40 C allows towns to create a historic district including the bylaw. He said this state law is the framework from which the town takes its bylaw and it allows a town, in adopting a historic district bylaw, to determine from a list of eight items that are allowed to be excluded from review. In 1975 the town’s people adopted a historic district and created the bylaw and at that time
determined what in MGL 40 C was to be excluded. JB said that it doesn’t seem logical or make sense that a law would allow an appointed board more latitude than the majority of the Town of Lenox.
LM questioned that since the HDC has already approved markers for a total of 36 buildings, why couldn’t the HC simply file an blanket application for whatever number of buildings they wish to have markers and Mr. Biancola said that he was at “the do not care point”, primarily because of the strong opposition by JB.
LK said that she doesn’t read anything which precludes the HDC from excluding from review. She also cautioned that when bylaw is mentioned, it should be clear which bylaw, state or local.
JB reiterated that the state bylaw provides a framework and he believes the HDC can’t deviate from that framework. The HDC is not allowed to exclude any more than what the state allows to exclude. He offered again to consult with Town Counsel, even though he is convinced that Town Counsel addressed the issue about excluding signs in an email to Town Planner Mary Albertson dated August 20, 2012 in which it is stated:
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.
LM asked Olga Weiss how long has the process been to get the approval and she responded that it had been two years. JB clarified that from the time one applies to the review is a 3-4 week process. Only recently did the HDC receive the two blanket applications.
Mr. Biancola said that it wouldn’t be difficult to come in for 12 more. His main goal is to get the HDC to recognize that it has the authority to exempt the historic markers from review, but said the HDC didn’t have to exempt. He asked that the HDC not reject approving an exemption because the bylaw doesn’t allow, because he firmly believes the bylaw does allow.
JB reminded all that at every meeting he has said that he doesn’t have a problem with the historic marker project, but that the HDC has received a legal opinion before and he doesn’t understand how the HDC can find the authority to do something that the majority of the town doesn’t have the ability to do, and without another legal opinion, he cannot in good conscience take on authority that is so far reaching.
LK said that her interpretation of the state and local bylaw is that the HDC is allowed to do this on state level and not precluded from doing it in local law and said that her motion not any abrogation of responsibility, just a blanket authority for that particular shape, content of a sign.
JB feels that the HDC is overreaching its authority and that if the Commission wanted to move forward with something that could in his opinion over reach the Commission’s authority, he believes it should not be done without a legal opinion. He said the Commission represents the town and have been given a charge in writing. He said that as Chairman of the HDC in 2012 asked the Town Planner to bring a question to Town Counsel, and that even though it has been argued repeatedly as to what the question was, the response from the Town Counsel was if it is a sign and there is not something within the bylaw that allows the Commission not to review it, the Commission is to review it. (Town Counsel’s response is on page 3 of these minutes.) In conclusion he stated that the HDC Bylaw calls a sign
a sign, and the proposed historic markers are signs.
Both KF and LM agreed with LK that they do not believe that the HDC would be giving up its authority.
There was disagreement on the motion. JB pointed out that by stating “markers given prior approval by the HC” is giving the HC the authority to permit whatever they wish. LK said that was not her motion. She said that she had made a motion for these specific signs. Ms. McNulty Vaughan said the motion was stated “as presented”. JB disagreed stating that what was noticed stated “given prior approval by the Historical Commission” which could mean “anything given prior approval by the Historical Commission”. LK responded that she would amend the motion as it is the sign “as presented”. She said that she was very, very specific as she did not want to give blanket approval.
LM asked to call the motion.
The Commission voted 3-0-1. JB abstained.
KF made a motion to adjourn. LK seconded the motion and the Commission voted in favor 4-0. The meeting was adjourned at 7:13.
Approve Minutes-May 20, 2014-LK made a motion to approve the minutes and KF seconded the motion. The Rule of Necessity was invoked as one member, Kate McNulty-Vaughan, was serving one time only as the Planning Board representative to the HDC.
Respectfully submitted,
Peggy Ammendola
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