There once was a barn on Nantucket
But the owner wanted to chuck it
He thought moving it shrewd
The neighbors said nah dude
They asked a judge to make him suck it
The Massachusetts Appeals Court ruled today that the Nantucket Historic District Commission has to decide, for the third time, whether to let the owner of a historic property tear down a barn - a barn that was only erected in 1972, unlike another building on the site that dates to the mid-1700s.
Both the owner of the Seth Roy property on North Liberty Street and neighbors wanted the court to decide the matter once and for all, but the court said, no, it's not going to get involved in the sort of small-town politics that have been percolating over the issue since 2014, when the owner of the property - where Seth Roy made the copper strips used by barrels designed to hold whale oil on the whalers that once sailed from the island - asked for permission to move a small barn somewhere else on the island.
The historic commission initially voted to deny his request, even though the barn at the time was only 42 years old, after neighbors complained its disappearance would mar the historic look of the neighborhood on a street where tour guides would point out the property to tourists without noting that the barn was merely designed to look old but wasn't actually old.
The property owner appealed to the town Board of Selectmen, who "remanded" the decision back to the commission to take another look after the owner noted that the commission had approved moving buildings in the past, and that commission concerns about what he might do with the small piece of vacant land that would result were inappropriate because the commission's charge only relates to what happens to existing buildings in the historic district. The commission agreed and, with a different associate member taking place and another member changing her vote, reversed its earlier decision and voted to let the owner move the barn.
As a student of the affairs of well off small towns in Massachusetts could have predicted, the whole thing wound up in court - a Superior Court judge eventually had to consolidate the three lawsuits that burst forth into one.
At issue: Whether the neighbors even had the legal right to appeal a decision based solely on the visual impact of a landowner's proposal and whether there was any funny business in the commission's second vote - and the selectmen's decision to seek it - that would mean the initial decision, to bar the removal of a non-historic barn in a historic district, would be the correct one.
In today's ruling, the appeals court agreed that normally, "the visual impact of a proposed structure on abutting property" is not enough to let neighbors appeal a local decision under the state zoning code, as argued by the property's owner.
But not so fast there, Mr. Landowner, even if the court did agree that a barn is not "a necessity of life in the Twenty-first Century, even in old Nantucket." The court said that an exception comes when a local zoning ordinance - in this case the state law that set up the Nantucket Historic Commission - specifically refers to visual impacts on public ways, and that while the people suing are private landowners, in this case the views out their windows match the one that people on North Liberty Street would see, and they are themselves members of the public when they travel down the road AND residents of an officially designated historic district, so they have legal standing to sue.
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.
But before the neighbors could break out the balloons, the court also said a third review of the whole thing is called for. The court first noted that courts are unwilling to get involved in administrative matters like this, but said:
Given the unusual circumstances of this case, where the unorthodox remand order in the second board decision was
followed by the adjudication of three consolidated Superior Court complaints, culminating in a judicial remand order requiring the commission to deny the certificate, reaching the merits is the prudent course of action.
It continued it saw no problem with the selectmen's first vote to send the initial commission decision back for a rethink, but said the commission has to answer for its second decision:
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 ... raises the specter that the commission may have considered improper factors or acted for reasons outside of its mandate.
So, the court concluded, the commission needs to look at the issue again - but needs to do it correctly this time.