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Gumley v. Board of Selectmen

Citation: 7 ELR 20221
358 N.E.2d 1011/371 Mass. 718, (Mass., 01/13/1977)

In reviewing the authority of the state Historic District Commission, the court affirms the lower court decision which annulled the rejection of a proposed design for a development in an open area near the Old and Historic Nantucket District but reverses the lower court order that certificates of appropriateness be issued to plaintiffs.

When the Commission disapproved the design plan as "incongruous to the Historic Aspects of the Island" and an appeal to the local board of selectmen was denied because of the length of the proposed buildings and their arrangement on open land, the superior court annulled both decisions on the ground that the Commission and the board exceeded their authority. Finding that the reasons given by the Commission and the board were a "subterfuge to cover their objections to any clustered development, whatever the architectural design, in an effort to maintain the open space aspect of Nantucket," the judge directed the Commission to issue certificates of appropriateness to the plaintiffs.

The court first rejects plaintiffs' reservation of federal claims because it was not an issue in the lower court. Next, the court discusses the standard of review under the statute establishing an Historic Nantucket District, St. 1970, c. 395, as amended by St. 1972, c. 708. The court reads this statute in light of the general zoning law, Mass. Gen. L. c 40A, and historic districts statutes, Mass. Gen. L. c. 40C, and applies a standard of review analogous to that governing exercise of the power to grant or deny special permits. The Commission, but not the board, has substantial discretionary power regarding the appropriateness of exterior architectural features and congruity to historic aspects of the district and surrounding area, including an evaluation of the length of the proposed buildings in light of the general design and arrangement relative to existing features. The Commission, furthermore, may not abuse its discretion by decisions based on "peculiar individual tastes." Since plaintiffs do not have an absolute right to the certificates they seek, the Commission's decision may not be disturbed unless it is unreasonable, whimsical, capricious, or arbitrary, MacGibbon v. Bd. of Appeals of Duxbury, 344 N.E.2d 185, 6 ELR 20444 (Mass. Sup. Jud. Ct. 1976).

Applying the MacGibbon test, the court overturns the Commission's decision because the Commission was not authorized to evaluate the "open space" impacts. The Court rejects the superior court's order to issue the certificates, however, because although the Commission may exercise its discretion, it must apply the statutory criteria.

The full text of this opinion is available from ELR (6 pp. $0.75, ELR Order No. C-1108).

Counsel for Plaintiffs
Leonard E. Perry
Perry, Hicks & McCawley
432 County St., New Bedford MA 02740
(617) 996-8291

Counsel for Defendants
Charles A. Goglia, Jr., Town Counsel
King, Goglia & Navins
Wellesley Office Park, 20 William St., Wellesley MA 02181
(617) 237-0150

Braucher, J., joined by Hennessey, C.J., Quirco & Wilkins, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]