There is wide misunderstanding of how much discretion the Historic District Commission can use when considering the “appropriateness” of the plans for a new fire station. The confusion is in large part the result of the Town treating approval as a mere formality. Lip service was occasionally paid by couching approval as an “if” but the Town’s actions spoke louder. Officials never consulted the Commission prior to the 2022 Annual Town Meeting or invited a spokesman to address the voters. And despite the time and money involved, no provision was made for the possibility that the HDC would fail to find the facility appropriate for the location.

During the public comments, HDC Commissioner Karen Kalil-Brown read an official statement into the record, which can be found in this site’s Supporting Documents. But a statement of Commissioner Karl Winkler muddied the waters by pledging premature support of the project in flagrant violation of Town Committee rules in an obvious effort to encourage support. Given that the article passed by 2.6667 votes, that obviously could have been a decisive factor.

The scope of the “Powers, Functions, and Duties” of the Commission are spelled out in Section 9 of the Legislative Act of 1964 that established Bedford’s Historic District.  An examination of how that section applies to the project will follow below, within the context of a brief overview of the Act. Words that are particularly relevant to this discussion will be underlined and sections related to overriding a determination of inappropriateness will also be italicized. Readers should bear in mind that the legal usage of the word “shall” is used to “impose a duty on a capable actor.” (A Dictionary of Modern Legal Usage 940-941 (2d ed.,Oxford University Press 1995.) In the following Legislative Act, it should be read as: “Has a duty to…” The words are the words.

 

Acts, 1964. – Chap. 118:  “AN ACT ESTABLISHING A HISTORIC DISTRICT COMMISSION FOR THE TOWN OF BEDFORD, DEFINING ITS POWERS AND DUTIES, AND ESTABLISHING A HISTORIC DISTRICT THEREIN.

• SECTION 1.  Purpose–  To promote the educational, cultural, economic and general welfare of the public through the preservation and protection of buildings, places and districts of architectural and historic significance through the development and maintenance of appropriate settings for said buildings, places and districts as sites and landmarks compatible with the historic traditions and architecture of the town of Bedford.
• SECTION 2.  Establishment of District–  The locations and boundaries shown on a map in the office of the town clerk, dated January 17, 1986.
• SECTION 3.  Definitions–  The meaning of words and terms in the Act.
• SECTION 4. Creation and Organization of Historic District Commission– Details of composition and functions.
• SECTION 5.  Limitations–                                                                                                                                               (a)  Requires a certificate of appropriateness to be issued by the commission before any building or structure shall be erected within the historic district as to exterior architectural features that are subject to view from the street.                                                                                                                                                         (b)  Requires a certificate of appropriateness as to exterior color changes which are subject to view from the street.                                                                                                                                                                                 (c)  Requires a demolition permit to be issued by the commission before demolishing or removing a building or structure within the historic district.                                                                                                             (d)    Relates to signs within the district.                                                                                                                           (e)  Requires that “no landscaping within the historic district, and subject to view from a public street, way or place, except for ordinary maintenance, shall be undertaken until a certificate of appropriateness shall have been issued by the commission.”                                                                        (f)    Requirements regarding building inspectors.
• SECTION 6.  Exclusions– (a) Ordinary maintenance or repair, or actions related to unsafe or dangerous conditions, are excluded. (b)(1) Temporary signs or structures are excluded as if they present no substantial derogation from the intent and purposes of the act.  (b)(2) Real estate signs. (b)(3)  Occupational signs.  (c) Paint changes that do not need a certificate of appropriateness.
• SECTION 7.  Application to be filed with Commission– Excepting cases excluded by section six, applications for all changes under section five are required, together with plans, elevations, etc. as shall be deemed necessary by the commission to enable it to make a determination.
• SECTION 8.  Meetings, Hearings, Time for making Determinations– General requirements of the commission related to meetings and hearings. Determinations shall be made within 45 days after a public hearing. If the commission fails to make a determination within 45 days, the application shall be deemed to have been approved.
• SECTION 9.   Powers, Functions and Duties of Commission–                                                                                 (a)  It shall pass upon: –                                                                                                                                        (1)  The appropriateness of exterior architectural features of buildings and structures to be erected within the historic district wherever such features are subject to view from a public street, way or place.              (2)  The appropriateness of changes in exterior color features of buildings and structures to be erected within the historic district wherever such features are subject to view from a public street, way or place.               (3)  The demolition or removal of any building or structure within the historic district. The commission may refuse a permit for the demolition or removal of any building or structure of architectural or historic interest, the removal of which in the opinion of the commission would be detrimental to the public interest.                                                                                                                                                                                        (4)  The appropriateness of the erection or display of occupational, commercial or other signs and billboards within the historic district…

In passing upon appropriateness, demolition or removal, the commission shall determine whether the features, demolition or removal… will be appropriate for the purposes of this act and, if it shall be determined to be inappropriate, shall determine whether, owing to conditions especially affecting the building, structure, sign or billboard involved, but not affecting the historic district generally, failure to approve an application will involve a substantial hardship, financial or otherwise, to the applicant and whether such application may be approved without substantial detriment to the public welfare and without substantial derogation from the intent and purposes of this act. If the commission determines that the features, demolition or removal… will be appropriate or, although inappropriate, owing to conditions as aforesaid, failure to approve an application will involve substantial hardship to the applicant and approval thereof may be made without substantial detriment or derogation as aforesaid, the commission shall approve the application; but if the commission does not so determine, the application shall be disapproved.

In passing upon appropriateness the commission shall consider, among other things, the historic value and significance of the site, building or structure, the general design, arrangement, texture, material and color of the features… and the relation of such factors to similar factors of sites, buildings and structures in the immediate surroundings. The committee shall consider the appropriateness of the size and shape of the building or structure in relation to (a) the land area upon which the building or structure is situated, (b) the landscaping and planting features proposed by the applicant and (c) the neighboring sites, buildings or structures within the district…

The concurring vote of three members of the commission shall be necessary to make a determination in favor of the applicant on any matter upon which the commission is required to pass under this act.

  (b)  Issuance of approved applications.

  (c)  Procedures in the case of disapproval.

  (d)  Procedure regarding certificate.

  (e)  Procedures regarding recordkeeping.

  (f)   Filing notices with the town clerk.

  (g)  Incurred expenses.

 

IN OTHER WORDS– By directing so much attention to the historic merits of the carriage house and to issues like traffic concerns the Town chose to ignore the key paragraph in the enabling Act that effectively determined the outcome from the start. The HDC commissioners’ design suggestions certainly resulted in making the facility more suitable, but their duty extends to protecting the fabric of the district. 

The renderings unveiled on December 6th showed a pleasant, generic industrial building that is clearly out of place in relation to the sites, buildings and structures in the immediate surroundings. But it is the proposed landscaping and planting features, which replace the trees, gracious lawn, and stone wall with cement, that most clearly result in the substantial derogation to the intent and purposes of the act. That means “the application shall be disapproved” and a different site must be chosen.

Officials were evidently relying on all the misspent time and money to put enormous pressure on the HDC commissioners, hoping to force them to ignore the duty that the words of the Act imposed on them.  That makes this the first time in Massachusetts history that a Select Board has tried to violate its town’s historic district. And hopefully it will be the first and last time Bedford’s Select Board will ask its own appointees to be unfaithful to the law and to their oath.         

                                        

• SECTION 10.  Appeals–  Any person aggrieved by a determination of the commission may, within twenty days, appeal to the Middlesex Superior Court. If the court determines that the commission exceeded its authority, the court shall annul the determination and remand it for further action by the commission. Costs shall not be allowed unless it shall appear to the court that the commission acted in bad faith or with malice. Costs shall not be allowed against the party appealing the determination unless it shall appear to the court that said party acted in bad faith or with malice.
  
• SECTION 11.  Enforcement.
• SECTION 12.  Changes in the Historic District.
• SECTION 13.  Severability of Provisions.
• SECTION 14.  This act shall take effect upon its acceptance by the town of Bedford.