HomeMy WebLinkAboutWinn Historic Appeal Brief (2023.12.15)
Robert L. Brennan, Jr., Esq.
O : 978.965.5885 | C : 617.233.4897
rbrennan@smolakvaughan.com
Main Office: 21 High Street, Suite 310 • North Andover, MA 01845
Cape Cod Office: 255 Main Street, Suite A • Hyannis, MA 02601
WWW.SMOLAKVAUGHAN.COM
December 15, 2023
VIA EMAIL DELIVERY
Town of Barnstable
Planning & Development Department
Attn: James Kupfer, Assistant Director
367 Main Street
Hyannis, MA 02601
Re: Eric Schwaab, et al. v Hyannis Main Street Waterfront Historic District
Petition for Appeal, Winn Development, 307 Main Street
Dear Mr. Kupfer:
I am writing on behalf of my client WinnDevelopment Company LP (“Winn”) in
connection with the above-referenced appeals filed on November 20, 2023, from the
Certificate of Demolition and the Certificate of Appropriateness Decisions of the Hyannis
Main Street Waterfront Historic Commission (the “Commission”), each dated November
1, 2023 (the “Decisions”).
As the applicant for and beneficiary of the Decisions, Winn opposes the appeal on the
grounds that: (1) the appellants are not “persons aggrieved” as that standard is applied
under Massachusetts law, and therefore lack standing to appeal under §112-33(B) of the
Barnstable Zoning Bylaws; and (2) that the appellants have failed to satisfy their burden to
establish that the decisions were either “unsupported by the evidence, or exceed[ ] the
authority of the Commission.” We request that the Committee’s vote and decision
separately address each of these grounds.
Appellants are not “Persons Aggrieved”
Section 112-33(B) of the Barnstable Zoning Bylaw provides:
Any person or persons aggrieved by a determination of the Commission, or by its
failure to act as specified in this article, may, within 20 calendar days after the filing
of such notice with the Town Clerk . . .
The “persons aggrieved” standard is well-settled under Massachusetts law including
M.G.L. c. 40A §§ 7, 8, 11 and 17. As recently affirmed by the Supreme Judicial Court in
Murchison v. Zoning Board of Appeals of Sherborn: standing as an “aggrieved person”
requires “evidence of an injury particular to the plaintiffs, as opposed to the neighborhood
in general,” the claimed injury “must be causally related to violation” and the claimed
injury “must be more than de minimis.” 485 Mass. 209, 214 (2020). This test to establish
“aggrieved person” standing applies equally to both judicial and local appeals. See
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Chongris v. Board of Appeals of Andover, 17 Mass. App. Ct 999, 1000 (1984) (“aggrieved
person status is no less a jurisdictional condition to maintaining an appeal to a board of
appeal under G. L. c. 40A, § 8, than it is to maintaining judicial review under § 17”). Here,
the appellants are not abutters to 307 Main Street, and allege no injury particular to them
as distinct from the village of Hyannis in general. Indeed, the appellants affirmatively
state:
We are aggrieved by the Commission approval of the Project without conformance
to all applicable laws, rules, regulations and guidelines adopted to protect and
preserve the character of our village, Hyannis, and we, its residents. (November 15,
2023 correspondence of Appellants to Hyannis Main Street Waterfront Historic
District Commission)
This admission is conclusive of appellants’ lack of standing and forecloses their standing
to appeal to the Historic Appeals Committee from both the Decision – Certificate of
Demolition and Decision - Certificate of Appropriateness issued to Winn for 307 Main
Street, Hyannis.
Defendants failed to meet evidentiary burdens
In addition to lacking standing, the appellants have failed to meet their burden to establish
that the Commission’s Decisions are either unsupported by the evidence, or exceeded the
authority of the Commission, as required by Section 112-33(B) of the Bylaw. The
standards for issuance of a Certificate of Appropriateness are set forth in Section 112-31(I)
of the Bylaw:
The Commission shall issue a certificate of appropriateness based upon the
application if it determines that the construction, alteration, or demolition for which
an application has been filed will be appropriate for or compatible with the
preservation or protection of the district.
The Commission’s Decision for the Certificate of Appropriateness expressly recited that
Winn’s proposed project, as revised during the hearing process, was “appropriate for the
protection and preservation of the district.” This finding conformed to the limited criteria
for Commission decisions set forth in Sections 112-33(A) through (C) of the Bylaw.
Specifically:
A. In deliberating on applications for certificates, the Commission shall consider,
among other things, the historical and architectural value and significance of the
site, building, structure, setting, or place; the general exterior design, scale, color,
placement on the lot including dimensions and setback, arrangement, proportions,
texture, material of the building or structure; setting, topography, landscaping, and
general appearance of the feature(s) involved and the relation of such feature(s) to
similar features of buildings and structures in the surrounding area; and the position
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of such buildings or structures in relation to the streets or ways and to other
buildings or structures.
B. In the case of new construction or additions to existing buildings or structures
the Commission shall consider the appropriateness of the size, shape, and location
of the building or structure, both in relation to the land area upon which the building
or structure is situated and to buildings, structures, and general setting in the
vicinity.
C. In cases of demolition or removal, the Commission shall consider whether such
demolition or removal of a building, structure, setting, or site element whose
architectural or historical significance contributes to the historic character of the
district would impair the public interest and the general welfare of the people of
Barnstable; whether the demolition or removal of the building or structure would
undermine the purpose and intent of this article, whether the building or structure
has so deteriorated that preservation or restoration is not structurally or
economically feasible, provided that the owner's self-created hardship or failure to
maintain the property in good repair shall not qualify as a basis for the issuance of
a certificate of hardship. The Commission may seek advice from individuals or
organizations in making these determinations.
These are the only criteria prescribed for Commission decisions under the Bylaw. Both
Decisions conform to these provisions, and the Commission’s findings and decisions
expressly recite that they were reached “after consideration of the testimony given and
materials submitted by the applicant members of the public.” The guidelines cited by the
appellants do not override the Bylaw, and the appellants have offered no other support for
their appeal.
As will be presented by Winn at the hearing before this Committee on December 18, 2023,
the materials submitted to the Commission, and testimony in response to questions and
comments from Commissioners at hearings on August 20, 2023, September 20, 2023 and
October 18, 2023, for the Certificate of Appropriateness, each of the requirements of
Section 112-32(A) and (B) were met in support of the Decision. Similarly, the hearing
testimony and materials submitted by Winn met the requirements of Section 112-32(C) as
recited in the decision for the Certificate of Demolition. Indeed, with respect to 307 Main
Street’s existing structure, the record included findings from the Massachusetts Cultural
Information Resource System (MACRIS) noting that the building had been “Altered
beyond recognition” and exhibiting “No style” of note.
The appellants have not articulated a challenge to Commission’s Decisions on the grounds
that they exceeded the authority of the Commission. However, the Commission’s issuance
of both Certificated for Demolition and Certificates of Appropriateness are expressly
provided for in Sections 112-29(B) and (C) of the Bylaw. The only express limit on
Commission action is set forth in Section 112-33(D) of the Bylaw:
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The Commission shall not make any recommendation or requirement except for the
purpose of preventing developments incongruous to the historical aspects or the
architectural and other physical characteristics of the surroundings and of the district.
No argument is advanced by the appellants, nor does there exist any evidence in the record
that the Commission exceeded its authority with respect to either the Certificate of
Appropriateness or the Certificate for Demolition.
In consideration of the above, and additional evidence that will be provided by Winn at the
hearing before the Historic Appeals Committee, I respectfully request on behalf of my
client that the Committee act on consecutive motions finding:
1. The Appellants are not “persons aggrieved” and therefore lack standing to appeal
under Section 112-33(B) of the Bylaw;
2. The Decisions of the Hyannis Main Street Waterfront Historic District Commission
in issuing a Certificate of Demolition for 307 Main Street was supported by the
evidence and testimony presented to the Commission;
3. The Decisions of the Hyannis Main Street Waterfront Historic District Commission
in issuing a Certificate of Appropriateness for 307 Main Street was supported by
the evidence and testimony presented to the Commission; and
4. The Hyannis Main Street Waterfront Historic District Commission did not exceed
its authority in issuing either the Certificate for Demolition or the Certificate of
Appropriateness for 307 Main Street.
Thank you for your assistance and attention to this matter.
Sincerely,
Robert L. Brennan, Jr., Esq.