THOMAS M. MONTGOMERY & others
BOARD OF SELECTMEN OF NANTUCKET & others
Heard: October 2, 2018.
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
Present: Massing, Neyman, & Ditkoff, JJ.
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.
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.
not being a necessity of life in the Twenty-first Century,
even in old Nantucket, the owner 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
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 §
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
commission voted three to two 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."
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."
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.
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 ...