CA: Selectmen tell Historical to stop using documents with ‘potentially illegal’ information

by Beth Melo on August 11, 2021

Post image for CA: Selectmen tell Historical to stop using documents with ‘potentially illegal’ information

Above: Town Counsel interpreted that a section of the Demolition Delay Bylaw the Historical Commission has been relying on doesn’t grant authority to extend delays beyond 90 days, only to shorten it. (image cropped from posted Town Code)

A few weeks ago, I covered a dispute between selectmen and the Historical Commission over handling of the Demolition Delay Bylaw. As I wrote at that time, selectmen were scheduled to get an opinion from Town Counsel on July 22nd. Now, I’m following up on what happened that night.

Town Counsel Jay Talerman explained his reading of a section of the bylaw that requires homeowners to make a “bona fide” effort. Answering questions from selectmen and Historical’s Anne Pfaff, he confirmed that it was up to Historical to determine whether or not the effort was bona fide. But the Counsel opined that the clause only allows the Commission the authority to grant relief to shorten the delay. He disagreed with the Commission’s interpretation that they could restart the process, extending the delay beyond 9 months.

As for why the language states the effort was for “at least nine months”, Talerman said that applicants may have begun efforts and/or discussions with Historical prior to officially starting the process.

The Community Advocate also covered the discussion from that night. According to their article, Talerman opined that orders the Commission had been giving homeowners was “likely” illegal. He was referring to Historical’s requirement that property owners seeking a demolition permit that they must first put their building on the market to see if they can find a buyer to preserve it. 

Based on the opinion, selectmen voted to have Historical instructed to cease use of a document outlining that requirement.

Here is an excerpt from the CA:

Selectmen recently voted to have town counsel instruct the Historical Commission to stop using certain documents related to Southborough’s demolition delay bylaw. They further instructed the town clerk to remove those materials from the town website.

Following a lengthy discussion at a July 22 Board of Selectmen meeting, Town Counsel Jay Talerman also agreed to meet with Town Administrator Mark Purple and the Historical Commission to discuss what the Commission can and cannot ask of property owners under the bylaw.

The back and forth between the two boards over the last few months focused on property on 15 Main St. According to past selectmen minutes, the Commission is telling property owners that they can’t get a demolition permit unless they first put their property on the market. Selectmen argue that’s something that Town Meeting never voted to authorize when it adopted the bylaw in 2015.

At question is language saying it is the “obligation” of the owner to submit a plan to work with the Commission either to preserve the property, in whole or in part or find another buyer willing to do so.

Commission member Jim Blaschke who was in attendance at the July 22 meeting, asked town counsel if it is “unusual,” to require a homeowner to put their property on the market during the nine-month delay period to see if there is a legitimate buyer.

“It’s not only unusual; it would likely be illegal,” Talerman said.

Blaschke said the belief was that if the owner couldn’t preserve a building, someone else might be able to.

“That’s an illegal ask of the homeowner?” he asked.

Town counsel replied that the homeowner cannot be compelled to do anything. The town’s bylaw, he said, is about as far as the town could go “in terms of impinging on the rights of the homeowner.”

Asking owners to engage in an activity they choose not to that costs money is “a step too far,” he said.

You can read the full article here. Click here to view the discussion via the Town’s video of the meeting.

The agenda packet from the meeting included several documents related to the discussion. Click here for internal emails about 15 Main Street’s permit and process, a letter from Historical to selectmen, and more.

{ 3 comments… read them below or add one }

1 Al Hamilton August 12, 2021 at 6:00 PM

We need to address the fiction that the Demolition Delay does not impose substantial hardship on property owners. This is clearly not the case.

1. First, we all know that time is money. A delay of up to 9 months requires the property owner to tie up their capital either in equity or as a borrowing. We all know what the bank would say if we went to them and said. I would like to borrow money today but I will only start accruing interest in about 9 months after I get a demolition permit. Either as interest expense or opportunity cost this is easily measured in the thousands of dollars and probably more.

2. Second, appearing before the board and taking time and resources to make application is not cheap. Given the sums involved it would not be unreasonable for an owner to secure the services of a lawyer and perhaps other professionals. We all know they work for free. Add to that the time invested by the property owner and you again come up with costs measured in thousands of dollars or more.

3. Of course the most egregious of all is the now eliminated requirement to list the property for sale. Given that this would have required a broker and they work on a percentage commission on the order of 6% that would be a clear cost to the property owner

So, it is clear to me that the cost of applying for a demolition permit for an “historic” building is at a minimum in the thousands of dollars and probably more realistically in the 10’s of thousands when all the costs to the property owner are considered.

If the standard is “Asking owners to engage in an activity they choose not to that costs money is “a step too far,”” then the current by-law has next to no validity and we should probably get rid of it and let the owners of “historic” properties be the best judge of the best use of their property.

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2 R Jackson August 13, 2021 at 1:48 PM

If you buy a historic property, it is only common sense that you might have to jump thru hoops and incur expense if/when you then try to tear it down and demolish it. Demolition Delay By-laws exist in many towns and for good reason. The lack of a such protections will come at the expense to all nearby property owners and the neighborhood when the McMansions are built next door on the typical smaller lots. Not so fast on removing protections from those of us who appreciate the historic neighborhoods.

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3 Al Hamilton August 16, 2021 at 4:16 PM

Contrary to popular belief, I am a history buff and believe that we should find a way to preserve important historic structures. I just do not believe that the current system which imposes substantial burdens on the property owner is the way to go. There is a better and fairer way to go. It is based on the principle that those that benefit should be the ones that pay for that benefit.

Clearly, if a property owner had decided to demolish a building that decision is the one that is in their best interest. It is arrogant and dangerous to presume otherwise. If the community benefits from preserving an historic structure then it should be up to the community to provide an incentive for the protection of that structure.

Instead of punishing the property owner by making them pay $10’s of thousands in delay cost, the community should identify the structures that it wants to preserve and in a pro active way purchase “demolition rights” from property owners.

The Historic commission could do an inventory of historic properties and use CPC funds to purchase the “demolition rights” or some other bundle of historic preservation rights. This would be a negotiated agreement leaving the property owner better off (otherwise they would not agree) and preserving the historic structure preserved.

The current by-law punishes the owners of historic buildings (buildings built before 1925) and a good case can be made that this negatively effects the value of these buildings. If you don’t want old buildings knocked down and replaced by modern (more efficient) structures then you ought to be willing to pay for the right to preserve those buildings. If you are unwilling to pay then it really is not important.

A final thought. If you believe global warming is an existential threat (I do) then knocking down old buildings and replacing them with modern energy efficient structures makes a lot of sense. Modern buildings are vastly more energy efficient and use far less fossil fuels for heating and cooling.

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