BEGAL OPINIONS'i
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No. 153L
HASTINGS.MN-LOS ANGELES
:LOGAN.. OH--McGREGOR.TX:.U..S A.
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MICHAEL E. O'BRIEN a LEONARD F. FEMINO
CITY SOLICITOR 5 ASSISTANT CITY SOLICITOR
93 WASHINGTON STREET �`°'u^18" 93 WASHINGTON STREET
and and
81 WASHINGTON STREET CITY OF SALEM ONE BROADWAY
SALEM, MA 01970 MASSACHUSETTS BEVERLY, MA 01915
745.4311 745-4311
744-3363 921.1990
Please Reply to 81 Washington Street _Please Reply to One Broadway
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February 6 ,t1987L I1)
iEP�I P�ANn11NG D r
EP,.
Annie C. Harris , Chairperson
Salem Historical Commission
One Salem Green
Salem, Massachusetts 01970
Dear Ms . Harris :
By letter dated February 5 , 1987 , you .have requested my
opinion -whether or not the Historical Commission must adver-
tise notice of it ' s public hearings and/or meetings in a local
newspaper.
In my opinion, no such newspaper advertising is required.
Unlike the Board of Appeal and Planning Board, the enabling
legislation creating the Historical Commission does not man-
date newspaper advertising of it ' s public hearings and/or meet-
ings . All that is required is notice pursuant to the third para-
graph of Massachusetts General Laws Chapter 40C, Section 11:
In addition, the Historical Commission is a governmental body
and as such must file notice of it' s public hearings and/or
meetings with the City Clerk for posting in City Hall .at least
48 hours (excluding Sundays and legal holidays ) before any such
public hearing and/or meeting pursuant to Massachusetts General
Laws Chapter 39 , Section 23B. I am enclosing copies of both the
aforementioned statutes for your records:
V ry ruly yours
M chael E. 0' i
City Solicitor
MEO/jp
Enclosures
cc: City Clerk
Deborah J. Hilbert
,r
Salem Historical Commission
ONE SALEM GREEN, SALEM, MASSACHUSETTS 01970
February 5, 1987
Mr. Michael O'Brien
City Solicitor
City Hall
Salem, MA 01970
Dear Mr. O'Brien:
In accordance with MGL Chapter 4OC (copy enclosed) , the Salem
Historical Commission is required to hold public hearings in most cases
to review applications for Certificates of Appropriateness, Hardship,
and Non—Applicability. When both the Planning Board and the Board of
Appeal hold public hearings, they advertise in the Salem Evening News
two times, 14 days and 7 days before the hearing. Since the Historical
Commission is operating under a different ordinance, we would like to
know if we are subject to the same requirement.
According to Chapter 4OC, Section 11, "The Commission shall fix a
reasonable time for hearing on any application and shall give public
notice of the time, place and purpose thereof at least fourteen days
before said hearing in such manner as it may determine, and by mailing,
postage prepaid, a copy of said notice to the applicant, to the owners
of all adjoining property and other property deemed by the commission to
be materially affected thereby. . ."
The Salem Historical Commission would like to know if posting our
notice on the City Hall bulletin board in addition to required mailings,
would constitute adequate public notice as required by Chapter 4OC. The
difficulty with advertising in the Salem Evening News is that we have a
very minimal advertising budget and, therefore, the cost must be borne
by the applicant. This is a burden for many homeowners who live in the
historic districts. In most cases, these people are attempting to
maintain and upgrade their properties, but unlike many applicants before
the Board of Appeal or Planning Board, they will not realize any
immediate financial gain to offset the advertising cost.
We would like to get your opinion on this matter to ensure that we
would be operating correctly within the confines of our enabling
legislation if we did not require newspaper advertising. Thank you for
your assistance.
Sincerely,
Ae C. Harris
Chairperson
C1O35
RECEIVED
The Commonwealth of Massachusetts SEP 9 1992
Office of the Secretary of State
Michael Joseph Connolly, Secretary SALEM PLANNING DEPT.
James W. Igoe
Deputy Secretary of State
Supervisor of Public Records
August 26, 1992
Jane Guy, Clerk
Salem Historical Commission
One Salem Green
Salem, Massachusetts 01970
Dear Ms. Guy:
Mark verkennis has asked me to respond to the issues raised in your
July 29, 1992 , letter. I apologize for the unusual delay in
responding to your initial query. You first seek an opinion as to
whether replacement of original materials of a building's exterior
constitutes more than ordinary repair and maintenance, thus
requiring a certificate of appropriateness. As you are aware, local
historic commissions cannot prevent the ordinary maintenance,
repair, or replacement of an exterior architectural feature which
does not involve a change in its design, material, color, or outward
appearance. G. L. c. 40C, § 9 (1990 ed. ) .
Although the replacement of deteriorated architectural features with
in-kind materials may be construed as ordinary repair and
maintenance, extensive replacement could, as you point out,
constitute a change it outward appearance. It is the opinion of the
Massachusetts Historical Commission (MHC) that an historic district
commission could require a certificate of appropriateness in such
instances.
The purpose of requiring a certificate of appropriateness in such
cases should be to minimize the impact of replacing historic
building fabric with new materials, and to encourage repair of
existing fabric where possible. It should be noted that the
Secretary of the Interior's Standards for Rehabilitation provide
that repair may include the limited replacement in kind (or with a
compatible substitute material) of extensively deteriorated or
missing parts of features. Replacing an entire feature is not
recommended where limited replacement of deteriorated elements is
possible. Obviously, there are no absolute thresholds
iso Room 1719,One Ashburton Place,Boston, MA 02108 (617)727-8436
Jane Guy
Page Two
August 26, 1992
concerning the repair and replacement of historic building fabric
which are applicable in all cases. As with any review, the Salem
Historical Commission (Historical Commission) should identify a
property's character-defining architectural materials and features,
and determine what impact the proposed work is likely to have on the
property's overall historic character.
Your next question concerns the Conflict of Interest Law as it
pertains to Historical Commission members. See G. L. C. 268A (1990
ed. ) (provisions of Conflict of Interest Law) . Please be advised
that neither the MHC in particular, nor the Office of the State
Secretary in general, has the authority to provide a legal opinion
on that subject. Rather, you are advised to request such an opinion
from the State Ethics Commission (Ethics Commission) . See G. L.
c. 268A, § 10 (1990 ed. ) and G. L. C. 268B, § (3) (g) (1990 ed. )
(requiring Ethics .Commission to render advisory opinions to those
who are or may be subject to the provisions of G. L. c. 268A) .
Finally, you seek an opinion about the waiver of public hearings
pursuant to G. L. c. 40C, § 11 (1990 ed. ) . Under that section, an
historic commission is required to hold public hearings on
applications for certificates of appropriateness, non-applicability,
or hardship. Notice of such hearings must be provided publicly, as
well as by mailing to those interested individuals described in the
third paragraph of section 11. Id. However, if all parties
entitled to such notice by mailing waive their right to a hearing,
it need not be held. Id. The public hearing requirement may also
be waived by a commission if it deems the proposed work
"unsubstantial in its effect on the historic district" and notifies
interested property owners of the application in a manner prescribed
by Section 11. Id.
Section 11 provides no mechanism for waiving notice of a hearing.
Clearly, those entitled to individual notice may waive that right.
However, the public notice requirement cannot be waived. Thus, a
section 11 public hearing requires fourteen (14) days of public
notice. It should be noted that the mechanism for waiving public
hearings does not appear to be widely used among historic district
commissions. Therefore, I am unable to provide any meaningful
procedures from other communities which go beyond a reiteration of
the language of Chapter 40C.
1. I note that the statute's waiver language is merely permissive.
Presumably, an historic district commission could require a public
hearing even if all relevant parties waive their right to such a
hearing.
Jane Guy
Page Three
August 26, 1992
Please be advised that any action taken by the Historical Commission
at a meeting, even if the meeting is not a section 11 public
hearing, is subject to the Open Meeting Law. G. L. c 39, § 23B
(1990 ed. ) . Therefore, any such meeting is subject to the Open
Meeting Law's notice requirements. Id. Likewise, Historical
Commission business must be conducted in public, unless an executive
session exception applies. Id. As the Essex County District
Attorney's Office has jurisdiction over the Open Meeting Law in the
City of Salem, you are advised to contact that office for formal
advice in this regard.
I hope this opinion is helpful. Please contact this office if you
have any further questions.
Yours truly,
C c �
GEORG E. MALLEY
Staff Attorney
cc: Mark Verkennis
CITY OF SALEM, MASSACHUSETTS
PUNNING DEPARTMENT
t
WILLIAM E.LUSTER ONE SALEM GREEN
City Planner 01970
(508)745.8595,EXT.311
- FAX(508)744-5818
October 6, 1991
Mark Verkennis
Director of Local Government Programs
Massachusetts Historical Commission
80 Boylston Street
Boston, MA 02116
Dear Mark:
The Salem Historical Commission would like an opinion on three
issues outlined below. At your convenience, would you. please
forward them to the appropriate persons in your office for
response.
1 . Extent of Replacing Original Materials - Chapter 40C:9
states, "Nothing in this chapter shall be construed to
prevent the ordinary maintenance, repair or replacement
of any exterior architectural feature within an historic
district which does not involve a change in design,
material, color or the outward appearance thereof. . . " .
The Commission is concerned that, in certain instances,
complete replacement of an architectural feature may go
beyond ordinary maintenance. For example, original
clapboards to older buildings were often irregular and
uneven. A homeowner replacing all facades of such a
building with new clapboards will be using factory cut
boards . While the building may be remaining a wood,
clapboard building with no change in design, material or
color, the outward appearance is actually changing from
looking "old" to looking "new" . However, a homeowner
could argue that it was an "in kind" replacement
deserving a Certificate of Non-applicability due to being
ordinary maintenance Please provide an opinion to what
extent, if any, that replacing original materials would
go beyond ordinary maintenance and would then require a
Certificate of Appropriateness .
2 . Conflict of Interest - As required by Chapter 40C and the
requirements of being a Certified Local Government, the
Salem Historical Commission is made up of professionals
with special interest, competence or knowledge in
historic preservation. The Commission includes two
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lawyers, a developer, a realtor, a carpenter, etc. , and
up until recently, included a registered architect. At
times, an applicant having a professional relationship
with a member, may come before the Commission. During
these discussions, the member would excuse himself from
all discussion and voting. However, the Conflict of
Interest Law appears to be very clear that there should
not be an appearance of Conflict of Interest and the
Commission is concerned that it may appear that in order
to get an easier time before the Historic Commission, a
homeowner should hire the realtor on the Commission to
buy/sell their home, the carpenter on the Commission to
do their exterior woodwork, the architect on the
Commission to prepare their design drawings, etc. While
there have not been any instances where a member was
accused of having a Conflict of Interest, one member had
chosen not to accept work in historic districts due to
the possible appearance of a Conflict of Interest.
However, this is particularly problematic for members,
such as the carpenter, whose work is primarily in
historic districts, and therefore his livelihood. This
is also problematic for a realtor who is constantly
working with homeowners in historic districts . The
Commission is concerned that even if the member excuses
himself, a homeowner could feel that just hiring a member
of the Commission will afford them an easier time due to
the other members approving the work out of loyalty to
the member with the financial interest. The Commission
is concerned with this appearance of conflict, but feels
that should members resign, because they are not
financially able to refuse work in historic districts, we
may no longer be able to satisfy the requirements of
Chapter 40C and the Certified Local Government Program.
The Commission would like your opinion on whether a
Conflict of Interest exists and what actions should be
taken to eliminate any Conflict of Interest.
3 . Waivers of Public Hearings - Chapter 40C is very vague on
the procedure for waiving public hearings . We are
particularly concerned with situations where a home owner
needs to quickly complete work that may not be
insubstantial in its effect on the historic district, and
has missed the application deadline for the next upcoming
public hearing. Enclosed is a form found in old files
which appears to be for use in obtaining signatures to
waive the public hearing from those entitled to notice
thereof. If a homeowner were to come in the day before
a meeting, pick up this form and get the necessary
signatures, would he be entitled to having the Commission
waive the public hearing and having his application heard
at the meeting that following day? Would this negate the
requirement of having notice of this application posted
on an official bulletin board? Are there any written
procedures available from any other communities?
fir'
Thank you for your assistance in replying to these issues . If
' you need further explanation of any of these issues, please do not
hesitate to contact me.
Sincerel
,ane A. Guy
lerk of th Commission
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July 29, 1992
Mark Verkennis
Director of Local Government Programs
Massachusetts Historical Commission
80 Boylston Street
Boston, MA 02116
Dear Mark:
On October 6, 1991, the Salem Historical Commission requested
an opinion on three issues from Massachusetts Historical Commission
staff or legal department. Since several months have past, I would
like to re-request an opinion on these issues . A copy of the
October 6, 1991 letter is enclosed.
Thank you for your prompt reply.
Sincerely, a #
JarrkofGt
feCommission
Cl
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