Montgomery v. Bd. of Selectmen of Nantucket
Montgomery v. Bd. of Selectmen of Nantucket
Opinion of the Court
*66This 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 *1249standing 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.
Background. 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
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.
3. The proceedings. The commission voted three to two
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 *69remaining structure or streetscape." Further noting that any speculation regarding the owner's future plans for the property would be *1251improper,
Now the neighbors appealed to the board. In its second decision, the board expressed concern that its prior remand decision "may have involved the [b]oard's substitution of its judgment for the judgment of the [commission] members rather than a decision whether the [commission] decision was arbitrary and capricious." Noting that the Superior Court appeal of the board's first decision had not yet been adjudicated, the board voted to set aside the certificate issued in the second commission decision and instructed the commission "to revisit the application following resolution of the related appeal in Nantucket Superior Court." Both the owner and the neighbors filed new complaints in the Superior Court seeking judicial review of second board decision.
The three complaints for judicial review were consolidated for trial in the Superior Court. In her thorough written findings, rulings, and order for judgment issued after a five-day bench trial, the judge found as a threshold matter that the neighbors had standing to challenge the commission's issuance of the certificate. On the merits, the judge determined that the commission's denial of the certificate in its first decision was not arbitrary and capricious and was based on substantial evidence, and that the board's ruling in its first decision to vacate the first commission decision was improper. Consequently, she concluded that "neither [the second commission decision nor the second board decision] can stand" and annulled those decisions. The net result was that the first commission decision, which denied the owner permission to remove the barn, "remain[ed] in full force and effect." The owner appeals.
*70Discussion. 1. Standing of the neighbors. a. Legal landscape. The act permits "any person aggrieved" by a ruling of the commission to appeal to the board, and "[a]ny person" or the commission "aggrieved" by a decision of the board to seek judicial review in the Superior Court. St. 1970, c. 395, §§ 11-12. Status as a "person aggrieved" is a prerequisite for standing to maintain an appeal under the act. Cf. 81 Spooner Rd., LLC v. Zoning Bd. of Appeals of Brookline,
"A party has standing when it can allege an injury within the area of concern of the statute or regulatory scheme under which the injurious action has occurred." Massachusetts Ass'n of Indep. Ins. Agents & Brokers, Inc. v. Commissioner of Ins.,
The analysis of standing under the Historic Districts Act
The c. 40C definition of "person aggrieved" thus provides standing to owners of nearby property in the same historic district as the structure under consideration, as well as to organizations dedicated to historic preservation. The Legislature recognized that these persons *71and entities have a legitimate interest and a right to be heard to protect the historic integrity of their neighborhoods. Under c. 40C, all of the neighbors here, who live within the same historic district as the property and are either abutters or reside across the street, would have standing.
Determining who is a "person aggrieved" under G. L. c. 40A is far more complex. The Zoning Act allows a "person aggrieved" by a zoning decision to seek administrative and judicial review, see G. L. c. 40A, §§ 13 & 17, but it does not define the term. By judicial construction, "[a] 'person aggrieved' is one who 'suffers some infringement of his legal rights.' " 81 Spooner Rd., LLC,
The "right or interest" asserted by the person claiming to be aggrieved must be one that the governing zoning scheme is intended to protect. 81 Spooner Rd., LLC,
Concerns about the visual impact of a proposed structure on abutting property generally are insufficient to confer standing under the Zoning Act; however, these concerns may warrant standing where the local zoning bylaw specifically provides that visual consequences should be taken into account. Thus, where the local zoning bylaw required the permit-granting authority to consider "[v]isual [c]onsequences" on public ways and properties in the vicinity, an abutter had standing as a person aggrieved to challenge a proposed "towering steeple" atop a temple that would be visible from most of her property, day and night. Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints,
In summary, although the act, the Zoning Act, and the Historic Districts Act all use the term "person aggrieved," the legally cognizable injuries under each are not identical. See Standerwick v. Zoning Bd. of Appeals of Andover,
b. Standing under the act. Standing was a contested issue at trial. The judge took a view and heard substantial testimony regarding the North Liberty Street neighborhood, the property, the barn, and the injuries that the neighbors alleged would attend its removal. All of the neighbors testified about the high value they placed on the historic character of their neighborhood when seen from their homes and from the street when they drive, bicycle, walk, or run by their homes -- and their concern that removal of the barn would damage the neighborhood's historic integrity. The judge concluded that the act required consideration of the visual impact of proposed removal, and that, as abutters, each of the neighbors "qualifie[d] as a 'person aggrieved' because the barn's removal would significantly impact the visual character and quality of their view." The issue of aggrievement is a question of fact for the judge, and the judge's ultimate findings on the issue will not be disturbed unless clearly erroneous. See Kenner,
*73*1254The act is intended to protect the visual consequences of an alteration to the "exterior architectural features" of an existing building or structure -- to the extent that those features are "subject to public view from a public street, way or place." St. 1970, c. 395, § 5. It also protects buildings or structures "of such architectural or historic interest" that, in the commission's opinion, their removal "would be detrimental to the public interest of the town of Nantucket or the village of Siasconset." St. 1970, c. 395, § 6. That is, the act protects visual interests that are connected with preserving the historic integrity of Nantucket and its neighborhoods.
Focusing on the act's stated interest in protecting and preserving historical buildings and exteriors only to the extent that they are visible from public ways, the owner contends that the neighbors' interest in their private views are not protected, or, alternatively, that any diminution of the neighbors' views does not affect them any differently than it affects the general public. In Higgins v. Department of Envtl. Protection,
Unlike the views from the offices in Higgins, the views that the neighbors enjoy coincide with the public views that the act is intended *74to protect. Moreover, the neighbors' regular use and enjoyment of the public ways on which their homes are situated is patently more intensive than the office workers' incidental use of the nearby public waterfront areas in Newburyport. The neighbors' claimed injuries are "personal to [them], not merely reflective of the concerns of the community." Denneny,
In addition to their visual interests, as owners of property located in the Nantucket historic district, the neighbors have "a legitimate interest in preserving the integrity of the district" in which both their properties and the barn are located. Murray v. Board of Appeals of Barnstable,
The act protects the historic integrity of the public views of all of Nantucket, including where the neighbors reside. They sufficiently demonstrated that the removal of the barn would have a substantial effect on the historical character of their neighborhood's "streetscape" (in the commission's parlance) and their own enjoyment of it. That is, they alleged "a particularized harm to [their] own property and a detrimental impact on the neighborhood's visual character." Kenner,
The owner also refers us to a handful of decisions of the Land Court and the Appellate Division of the District Court Department in which residents of neighborhoods were denied standing to challenge a decision of a historic district commission. All of those cases concerned parties that were at some remove from the challenged development; none of those cases involved an abutter. See Kelley,
In Kenner, where the neighbor across the street was denied aggrieved person status under the Zoning Act because the judge found that an addition that would raise the challenged property's roof line by seven feet was de minimis, the appellate court could not say that the *1256trial judge's decision was clearly erroneous.
2. Decisions of the commission and the board. Before we review the judge's determination that the remand order in the first board decision was improper, and that the first commission decision, denying the owner permission to remove the barn, must therefore stand, we address a significant threshold issue. An administrative *76remand order is generally viewed as interlocutory and not appealable. See Wrentham v. West Wrentham Village, LLC,
In reviewing the decisions of the commission and the board, we apply a standard "analogous to that governing exercise of the power to grant or deny special permits." Gumley,
The trial judge concluded that the first commission decision was sufficient on its face, supported by substantial evidence, and not arbitrary or capricious. See Warner v. Lexington Historic Dists. Comm'n,
*77That said, it was within the board's discretion to remand the application to the commission to consider additional facts to inform its deliberations, to provide additional explanation, and thus to ensure a decision that is not arbitrary or capricious.
The second commission decision, finding the barn not to be architecturally or historically significant "upon further consideration of the prior record and consideration of the new materials," like the first commission decision, appears facially valid. But the irregularities in the proceedings noted by the trial judge -- the chair's ex parte communications, her choice of one associate commissioner over another to participate in the decision, and the chosen associate commissioner's switch in vote, see notes 5 and 7, supra-- raises the specter that the commission may have considered improper factors or acted for reasons outside of its mandate. See Clear Channel Outdoor, Inc. v. Zoning Bd. of Appeals of Salisbury,
Accordingly, the judgment is vacated. A new judgment shall enter affirming the second board decision to the extent that it set aside the certificate and remanded the owner's application to the commission. The commission shall consider any application in accordance with the act and consistent with this opinion.
So ordered.
The application was filed by then-owner defendant Michael J. Maitino, working together with real estate developer defendant Jeffery Kaschuluk and defendant Westbay Development, Inc., a corporation owned and controlled by Kaschuluk. Kaschuluk purchased the property from Maitino at some point during the course of the litigation.
The act repealed and replaced St. 1955, c. 601, which had divided Nantucket into two historic districts.
The majority consisted of commissioner John McLaughlin and associate commissioners Jascin Leonardo-Finger and Abigail Camp. The chair of the commission, Linda F. Williams, and commissioner Ray Pohl made up the minority. The trial judge found that Williams had engaged in "entirely improper" ex parte communications with the owner prior to the hearing.
Under the act, the owner would need to apply to the commission for another certificate to erect any replacement building. St. 1970, c. 395, § 5.
Commissioner Linda F. Williams and commissioner Ray Pohl, who had voted in the first commission decision to approve removal, were joined by associate commissioner Abigail Camp, who had voted against removal in the first decision, to form the new majority approving removal in the second commission decision. See note 5, supra. The minority in the second commission decision was made up of commissioner John McLaughlin, who had voted against removal in the first decision, and commissioner Diane Coombs, who had not participated in the first decision. The trial judge found it "more than troubling" that the chair, Williams, had assigned Camp to be the fifth commissioner to hear the case on remand instead of associate commissioner Jascin Leonardo-Finger, who had seniority and would have been chosen in the ordinary course.
The Historic Districts Act enables cities and towns to establish their own historic districts, with discretion to determine the scope of the district and the precise interests to protect. See G. L. c. 40C, § 3. As the Legislature created and has amended the Nantucket historic district through special acts over the years, Nantucket has never needed to resort to using c. 40C.
The relevant regulations defined "aggrieved person" as someone who "may suffer an injury in fact, which is different either in kind or magnitude, from that suffered by the general public" and within the scope of interests protected by the waterways statute. Higgins,
At the other extreme, the neighbors cite cases from other jurisdictions that permit a broad range of persons with interests in the integrity of protected districts to challenge development that might adversely affect those places. See, e.g., Sierra Club v. Jewell,
Neither Gumley nor § 11 of the act supports the neighbors' bald assertion that the board "had only two choices: either affirm [the first commission decision] or annul it. Nothing else."
We are not persuaded by the owner's argument that the second board decision is invalid because it was decided by a two-to-one vote with only three of the five board members participating. The act requires the board's decisions to be "determined by a majority vote of the members of the board," St. 1970, c. 395, § 11, but it contains no requirement that all members of the board participate in the board's decisions. "In the absence of statutory restriction the general rule is that a majority of a council or board is a quorum and a majority of the quorum can act." Clark v. City Council of Waltham,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.