[MassHistPres] S1428/H4331 Historic Commissions

Jared Eigerman jeigerman at gmail.com
Sat Jun 14 16:28:49 EDT 2025


Dear Mr. Feldman:



Thank you for sending the AIA’s June 9 submittal to the Legislature about
HD 4331/SB 1428. I am emailing the listserv because this is where I first
learned about the legislation just two days ago, and yet committee hearings
have already begun. Please note that the Deputy State Historic Preservation
Officer wrote us that MHC had *not* been consulted. I am concerned that
writing the AIA back privately will be too little, too late.



Even if the AIA does not itself intend for these bills to preempt the
independent legal authority of Massachusetts cities and towns to regulate
in the area of historic preservation. the _text_ of the bills read that
way. It is the intent of the Legislature that will matter to a reviewing
court, not that of the AIA. To effectuate legislative intent, courts start
with the “plain language” of the statute, and may never reach “legislative
history,” like AIA’s June 9 letter. (See *Six Bros., Inc. v. Brookline*,
493 Mass. 616, 622 (2024).)



Unlike AIA’s June 9 letter or your email today, the bills themselves do not
say that their purpose is to “strengthen the statutory authority and
effectiveness” of local historic districts, nor to offer a “toolkit of best
practices. Rather, their stated purpose is to create *uniformity* in the
Commonwealth.



Many Massachusetts localities regulate in the area of historic preservation
without using MGL Chapter 40C, and through boards other than historic
districts created under MGL Chapter 40. Here in Newburyport, for example,
it has been politically impossible to form an LHD for our 1811-era
downtown, with major efforts failing in the early 1970s and then again 40
years later. Instead, using our home-rule powers, alterations to those
downtown buildings listed as contributory to a National Register district
formed in 1984 are reviewed by our Planning Board following Chapter 40A
(Zoning Act) procedures.



(See *Opinion of the Justices*, 333 Mass. 773 (1955) [it is within power of
Legislature to determine that community should be “beautiful” as well as
healthy]; *Opinion of the Justices to the Senate*, 333 Mass. 783 [aesthetic
controls were valid means to protect Nantucket economy] (1955); *CHR Gen’l,
Inc. v. City of Newton*, 387 Mass. 351, 356 (1982) [zoning is independent
municipal power within Home Rule Amendment’s broad grant of
authority]; *Fabiano
v. City of Boston*, 49 Mass. App. Ct. 281, 286 (2000) [“We reject the
plaintiffs' contention … that the preservation of historic architecture is
not a permissible factor in zoning.”]; *c.f.*, Sturbridge Zoning Ord. s.
300-4.9 [purpose of Historic Commercial District includes maintaining
integrity of character of National Register Historic District].)



I believe that the City of Cambridge, among others, also has non-MGL
Chapter 40C historic districts, administered by commissions that are not
necessarily formed under MGL Chapter 40, Section 8D [“A city or town which
accepts this section *may* establish an historical commission…”]. (See
*Lovequist
v. Con. Comm. of Town of Dennis*, 379 Mass. 7, 12 (1979) [“We do not
consider all ordinances or by-laws that regulate land use to be zoning
laws….”’; *c.f.*, Northampton Munic. Code c. 156-1 [Central Business and
West Street Architecture].)



If the bills pass as written, reviewing courts will have to decide whether
they *impliedly preempt* local laws that regulate in the area of historic
preservation in ways that differ from the “uniform process[es]’” that will
be newly specified in MGL Chapters 40 and 40C:



“[The] preemptive intent may be stated expressly by the Legislature, or it
may be implied where “the purpose of the statute cannot be achieved in the
face of the local [rule].”… (*‘[t]he question...is whether the local
enactment will clearly frustrate a statutory purpose*’).”



(*Six Bros., Inc.*, *supra*, 493 Mass. at p. 624.)



As to local historical *commissions*, MGL Chapter 40, Section 8D would
newly provide that “The further purpose of this section is to establish a
*uniform* process for reviewing requests to demolish or relocate
significant buildings…” What happens if local law authorizes a non-MGL
Chapter 40, Section 8D, historical commission to review such requests?
Could not a court determine that that frustrates a “uniform process?”



As to local historic *districts*, MGL Chapter 40C, Section 2 would newly
provide that:



·       Chapter 40C seeks to preserve and protect historic resources by
establishing a “*uniform* process … for historic district commissions to
review and rule on applications to alter buildings located within [local
historic] districts.”



·       “The further purpose of Chapter 40C is to establish a *uniform*
process for reviewing requests to demolish or relocate significant
buildings.”



Say there is an LHD commission with jurisdiction, what happens if that
commission wants to deny – instead of merely *delay* -- issuance of a
demolition permit?  Could not a court determine that that, too, frustrates
the stated purpose of a “uniform process?”



The SJC’s recent *Six Bros., Inc. *case is about the Commonwealth’s 2018
Tobacco Act. There, the Legislature wrote out exactly what it intended to
preempt:



“This act shall preempt, supersede or nullify any inconsistent, contrary or
conflicting state or local law relating to the minimum sales age to
purchase tobacco products…. This act shall not otherwise preempt the
authority of any city or town to enact any ordinance, by-law or any fire,
health or safety regulation that limits or prohibits the purchase of
tobacco products.”



(*Six Bros., Inc. v. Brookline*, *supra*, 493 Mass. at p. 624.)



But HD 4331/SB 1428 do not include any language like that. Instead, they
speak of the Legislature’s intention to create “uniform process[es].”
 Accordingly, reviewing courts could well determine that by passing HD
4331/SB 1428 the Legislature intended to eliminate the power of cities and
towns to protect historic resources *except* by using the uniform processes
described in Chapters 40 and 40C, as amended.



To many of us, that makes HD 4331/SB 1428 far more dangerous than they are
helpful.



If the bills are simply meant to create *model* procedures for localities
to use at their *option*, then at the very least the bills must provide
that expressly. Right now, they do not.



-          Jared Eigerman, JD, MCP, Newburyport, Mass.



P.S. I’m just writing as a citizen. I do not have any client with an
interest in this matter.
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