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Montgomery v. Board of Selectmen of Nantucket

Appeals Court of Massachusetts, Nantucket

March 14, 2019


          Heard: October 2, 2018.

         Civil actions commenced in the Superior Court Department on February 5 and June 24, 2015. After consolidation, the case was heard by Elizabeth M. Fahey, J.

          Jonathan W. Fitch (Andrea Peraner-Sweet also present) for Jeffery Kaschuluk & others.

          Kenneth R. Berman (Sarah F. Alger also present) for the plaintiffs.

          Present: Massing, Neyman, & Ditkoff, JJ.

          MASSING, J.

         This appeal arises out of a dispute between the owner of a historic property in Nantucket and his neighbors over whether the owner may remove an ancillary structure, a barn, from the premises. Over the course of the administrative proceedings and ensuing litigation, relevant officials in Nantucket have taken inconsistent positions concerning the historical significance of the barn. Ultimately, a Superior Court judge held a bench trial on three consolidated complaints for judicial review. The judge found, first, that the neighbors had standing to oppose removal of the barn and, second, that the first decision of the Nantucket historic district commission (commission), denying the owner's application to remove the barn, must stand. On the owner's appeal, we determine that the judge did not err in finding that the neighbors have standing; however, we vacate the judgment and remand with respect to the commission's first decision.


         1. The property.

         The Seth Ray house on North Liberty Street, built in the mid-1700s, is one of the most historic structures in one of the most historic districts of old Nantucket. Seth Ray's cooper shop, where barrels were made to supply Nantucket's whale oil trade, stands on the adjacent parcel. Two structures of lesser pedigree share the same parcel with the Seth Ray house: the barn, completed in or around 1972, stands between the house and the cooper shop, and an antique shop built in the 1930s is located on the other side of the house. The barn and the antique shop were built to match their surroundings in style and materials. Tour guides walking visitors down North Liberty Street point to the Seth Ray house, the cooper shop, and the barn (despite its relatively recent construction) as representative of life in Nantucket at the turn of the Nineteenth Century.

         A barn not being a necessity of life in the Twenty-first Century, even in old Nantucket, the owner[3] of the Seth Ray structures sought to remove the barn from its present location and relocate it to elsewhere on the island. As the first step toward realizing this goal, the owner applied to the commission for permission.

         2. The act.

         In 1970, the Legislature created the Nantucket historic district (St. 1970, c. 395 [the act]), including "the land and waters comprising the town of Nantucket," id. at § 4, and the commission, id. at § 3.[4] The act was adopted "to promote the general welfare of the inhabitants of the town of Nantucket through the preservation and protection of historic buildings, places and districts of historic interest." Id. at § 2. To erect or alter any building or structure in Nantucket, an owner must first obtain a permit from the commission, in the form of a certificate of appropriateness (certificate) . Id. at § 5. In deciding whether to grant a certificate, the commission must consider the effect a proposed alteration would have on the "exterior architectural features which are subject to public view from a public street, way or place." Id. A permit is also required to raze or to remove any building or structure; the act empowers the commission "to refuse such a permit for any building or structure of such architectural or historic interest, the removal of which in the opinion of said commission would be detrimental to the public interest of the town of Nantucket or the village of Siasconset." Id. at § 6. "[A]ny person aggrieved" by a decision of the commission may appeal to the board of selectmen (board), Id. at § 11, and "[a]ny person or the [commission], aggrieved" by a decision of the board may appeal to the Superior Court, Id. at § 12.

         3. The proceedings.

         The commission voted three to two[5] to deny the owner's request to remove the barn. In its first decision, the commission noted that "[t]he streetscape of this area of North Liberty Street has particular historical importance and has been described as iconic," and that although the barn was built between 1972 and 1975, it "has become an important part of the historical context and streetscape of the area." Also, expressing "great concern" and uncertainty about the "potential of a new structure being placed in that space" -- the application did not disclose the owner's plans for the property after removing the barn ---the commission concluded that removal of the barn "would negatively impact the historic character of the neighborhood, the historic value of the existing remaining structure and the streetscape."

         The owner appealed the commission's first decision to the board. The board noted that its review was limited, and that it "must be careful not to substitute its judgment for that of the [commission]." Nonetheless, two members of the board questioned the validity of the commission's determination that removal of the barn would be "detrimental to the public interest," given that it was a relatively recent addition to the property. One board member "questioned the rationale for the decision in light of [the owner's] evidence of numerous other permitted removals of structures which were of allegedly much greater historic significance" than the barn. Town counsel suggested that a closer comparison of the other permitted removals would be necessary to determine whether the denial was arbitrary and capricious. By a vote of four to one, the board issued its first decision, remanding the matter to the commission for a further hearing to consider the "foregoing issues, questions, and comments."

         Opposing the remand order, a group of neighbors, including the owners of the parcels abutting and directly across the street from the owner's property, filed a complaint in the Superior Court seeking judicial review of the board's first decision, followed shortly thereafter by an emergency motion to stay proceedings before the commission. A Superior Court judge denied the motion for a stay.

         On remand from the board, the commission, with different participating membership, took an entirely different view of the barn and its relationship to its surroundings. In its second decision, the commission emphasized that the space occupied by the barn had lain vacant for forty to seventy years before the barn was built, providing the neighbors with an unobstructed view of Lily Pond, and that "[a]nother historic structure" had been moved down the street to "open up Lily Pond vistas as an example of historical context for views of Lily Pond in this immediate area." The commission further noted that the two-story barn was not built "in the same style as the original ancillary one-story structure it replaced," but instead was designed in the gambrel style of the adjacent Seth Ray house. The commission also found that the streetscape had been altered many times over the past century, that the barn "has no historically significant architectural value," and that its removal "would not negatively impact the historic character of the neighborhood, the historic value of the significant remaining ...

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