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HomeMy WebLinkAboutHDC Decision 5/9/201215 Broadway, Siasconset, Map 73.1.3, Parcel 113 DECISION Pursuant to Section 11 of Chapter 395 of the Acts of 1970 ( "Act "), as amended, the Board of Selectmen held a public hearing on May 9, 2012, relative to an appeal filed by Donald W. Pine to a decision of the Nantucket Historic Commission ( "HDC ") decision dated February 23, 2012, in which the HDC denied the application for a Certificate of Non - Applicability filed by the Appellant for the purpose of replacing building sills on a building located at 15 Broadway, Siasconset. At the hearing, Donald W. Pine spoke on behalf of the applicant and Mark Voight, who serves as the HDC Administrator, spoke on behalf of the HDC. The HDC voted to deny the application due to "lack of response" to the Commission's request for further information made at its meeting on January 17, 2012. Specifically, the HDC asked for further information and "proper drawings." The applicant states that in response to the HDC's request, he sent an email to the HDC Administrator on January 20, 2012, in which he stated that the HDC did not have jurisdiction over the project because the project was an "in- kind" "in place" "repair" of three sills, which are not open to view from a public way or street as defined in the Act. The applicant further maintained that the proposed work is on the inner structure of the building and the sills are located 14 inches below ground level. Finally, the applicant argued that because the Act specifically limits the HDC jurisdiction to "exterior architectural features," the HDC had no jurisdiction over the proposed project. Nevertheless, the applicant did provide an additional narrative description of the proposed work but did not provide any additional drawings as requested by the HDC. At the hearing Mr. Voight testified that the HDC, in order to avoid a constructive grant of the application, issued a decision denying the request because the applicant never provided the additional information, including the drawings, which the HDC had previously requested. In response to the email "submission" made by the applicant on January 20, 2012, Mr. Voight responded on the same day, stating that the HDC was seeking drawings which "would include a detailed section of the existing condition which identifies the construction methodology in place and how you proposed to modify it." In response to the additional narrative description of the work provided by the applicant, Mr. Voight responded that a detailed drawing which satisfies the HDC request should be submitted. Mr. Voight also indicated in his email that, without a detailed drawing, the HDC could not verify based on the photographs alone that had been previously submitted, the applicant's claim that the work would be confined to the inner structure of the building. With respect to the jurisdictional issue, Mr. Voight testified that because the Z � p N Z TOWN OF NANTUCKET rn }-' n 4 -� rn BOARD OF SELECTMEN 3 < rn z ° Appeal of Decision of the °o Nantucket Historic District rn CD Commission Relative to 15 Broadway, Siasconset, Map 73.1.3, Parcel 113 DECISION Pursuant to Section 11 of Chapter 395 of the Acts of 1970 ( "Act "), as amended, the Board of Selectmen held a public hearing on May 9, 2012, relative to an appeal filed by Donald W. Pine to a decision of the Nantucket Historic Commission ( "HDC ") decision dated February 23, 2012, in which the HDC denied the application for a Certificate of Non - Applicability filed by the Appellant for the purpose of replacing building sills on a building located at 15 Broadway, Siasconset. At the hearing, Donald W. Pine spoke on behalf of the applicant and Mark Voight, who serves as the HDC Administrator, spoke on behalf of the HDC. The HDC voted to deny the application due to "lack of response" to the Commission's request for further information made at its meeting on January 17, 2012. Specifically, the HDC asked for further information and "proper drawings." The applicant states that in response to the HDC's request, he sent an email to the HDC Administrator on January 20, 2012, in which he stated that the HDC did not have jurisdiction over the project because the project was an "in- kind" "in place" "repair" of three sills, which are not open to view from a public way or street as defined in the Act. The applicant further maintained that the proposed work is on the inner structure of the building and the sills are located 14 inches below ground level. Finally, the applicant argued that because the Act specifically limits the HDC jurisdiction to "exterior architectural features," the HDC had no jurisdiction over the proposed project. Nevertheless, the applicant did provide an additional narrative description of the proposed work but did not provide any additional drawings as requested by the HDC. At the hearing Mr. Voight testified that the HDC, in order to avoid a constructive grant of the application, issued a decision denying the request because the applicant never provided the additional information, including the drawings, which the HDC had previously requested. In response to the email "submission" made by the applicant on January 20, 2012, Mr. Voight responded on the same day, stating that the HDC was seeking drawings which "would include a detailed section of the existing condition which identifies the construction methodology in place and how you proposed to modify it." In response to the additional narrative description of the work provided by the applicant, Mr. Voight responded that a detailed drawing which satisfies the HDC request should be submitted. Mr. Voight also indicated in his email that, without a detailed drawing, the HDC could not verify based on the photographs alone that had been previously submitted, the applicant's claim that the work would be confined to the inner structure of the building. With respect to the jurisdictional issue, Mr. Voight testified that because the exterior wall in question is visible from the street, the HDC had jurisdiction to approve the project. In reviewing the HDC's decision, the Board of Selectmen is mindful of the standard of review for decisions of the HDC, as set forth in Gumley v. Board of Selectmen of the Town of Nantucket, 371 Mass. 718 (1977). In that case, which involved a decision of the HDC, the Court stated that a decision of the HDC cannot be disturbed, either by the Board of Selectmen or by the Court, unless it is based on a legally untenable ground or is unreasonable, whimsical, capricious, or arbitrary. Further, the Board of Selectmen understands that it should not substitute its judgment for the HDC's. This means that even if members of the Board of Selectmen do not agree with the decision of the HDC, the decision should not be disturbed, unless the Board of Selectmen determines after the hearing that the HDC decision was not supported by the facts before the HDC or the HDC's decision was based on factors that are beyond the jurisdiction of the HDC under the Act. Applying that standard of review to this appeal, the Board of Selectmen finds that the HDC incorrectly determined that it had jurisdiction to approve this project and, therefore, the decision to deny the application for a Certificate of Non - Applicability was based on a legally untenable ground. Furthermore, the Board of Selectmen finds that there was more than sufficient evidence in the record before the HDC to conclude that the HDC did not have jurisdiction over the project, and, therefore, the HDC exceeded its discretion in requiring the applicant to submit more detailed drawings of the proposed work. It was uncontested at the hearing that the relevant jurisdiction of the HDC under the Act is limited to the alteration of architectural features on the exterior of buildings that are open to view from a street. The Board further finds that the work proposed by the applicant in this case consists of the replacement of three building sills located approximately 14 inches underground. Accordingly, the work to be performed, when completed, will not be open to public view. Because the work to be performed involves a structural repair to the interior of the building, the Board finds that the proposed work is not an alteration of an architectural feature of the building. Furthermore, even if the work were considered a change to an architectural feature of the building, the HDC would still not have jurisdiction over this project because of the unique facts presented. Section 4 of the Act provides as follows: "Nothing in this Act shall be construed to prevent the ordinary maintenance, repair or replacement of any architectural feature within the Nantucket Historic District which does not involve a change in design, material, color or the outward appearance thereof." The Board finds credible evidence to conclude that the proposed project is an "in- kind" replacement and that none of the work, when completed, will be visible from the street. The Board further finds that the relevant inquiry is not whether the wall in question is visible from the street, but whether the work to be performed below grade will be visible from the street. The Board of Selectmen is mindful of the argument made by the HDC Administrator at the public hearing that under Section 2 of the Act, the HDC is charged with fulfilling the purposes of the Act which includes promoting the general welfare of the inhabitants of the Town and the obligation of the HDC to consider not only the 0) architectural features of buildings, but also the appropriate settings for such buildings. The Board of Selectmen has been supportive of the HDC efforts in carrying out its broad mandate under the Act. In this instance, however, the Board finds that there are limits to the jurisdiction of the HDC, with respect to interior alterations to the structure of buildings and in -kind replacement of architectural features that are not visible from the street. Finally, the Board finds that the HDC exceeded its discretion in requiring the applicant to provide a detailed drawing of the proposed work when the record before the HDC clearly supported the conclusion that the HDC had no jurisdiction over the project. To require an applicant to go through the time and expense to prepare a detailed drawing under such circumstances is not reasonable. The Board would also note that the HDC's requirement for information and drawings showing the construction methodology and other structural components not visible from a street is within the exclusive purview of the Building Inspector as part of the building permit process. Therefore, the Board of Selectmen votes (3 in favor and 2 opposed) to grant the appeal and to reverse the decision of the HDC denying a Certificate of Non - Applicability for this project. The Board orders that this matter be remanded to the HDC with instructions that a certificate of Non - Applicability be issued forthwith. Signed this I(P day of , 2012. Town of Nantucket By its Board of Selectmen PW 4503 82v.1 /1970040011