On January 27, 2016 the Nantucket Board of Selectmen voted two-to-one to uphold an appeal by neighbors to the HDC's decision in favor of the owners of 13C Street in Madaket. Here's the HDC's response to that vote:
To Board of Selectmen:
The Nantucket Historic District Commission (HDC) objects to and rejects the Decision of the Nantucket Board of Selectmen (BOS), dated January 27, 2016, regarding an Appeal filed by Joseph Freeman and Juliana and Theodore P. Lyman of a Certificate of Appropriateness (COA No. 64611) issued on October 13, 2015 for the property at 13 C Street.
The BOS Decision has numerous problems and concerns, as follows:
1) The Decision of the BOS did not have enough votes to overturn the HDC. The appeal was heard by Selectmen Atherton and Glidden, voting to uphold the Appeal by the neighbors, and Selectman Fee, voting to uphold the decision of the HDC, with Selectmen Holdgate and DeCosta having had to recuse. The deliberations resulted in a two-to-one vote (2-1) to overturn the HDC and uphold the appeal. Pursuant to the state HDC enabling Act (“Act”) three (3) votes are necessary to overturn a decision of the HDC and sustain an appeal. In Section 11 of the Act appeals to the BOS shall be “determined by a majority vote of the members of the Board.” It is well settled law that this language means that at least three (3) votes are needed to overturn the HDC, as there are five (5) members of the BOS. By comparison, for a two-to-one vote (2-1) to be valid, the law would have had to allow for a decision by a majority of the Members of the Board sitting on the matter, or for a majority of a quorum of the Board, or similar, which is not the case in the HDC’s Act. The BOS was advised of this legal issue and the specific language of the Act by Town Counsel at the appeal hearing. Selectmen Atherton and Glidden, a minority of the five (5) BOS members, intentionally ignored said advice of Counsel. This is an abuse of power by the BOS, which Selectman Atherton stated twice was intended to slow down the HDC process and hold up the Applicant’s right to due process and stated that perhaps the Applicant will change their mind. This abuse of process and ignoring of Town Counsel’s advice and opinion on this matter will subject this town to needless litigation costs, which abrogates their fiduciary responsibility to the people of Nantucket irresponsibly. The Act also states that there may be further costs incurred by the town: “Costs shall not be allowed against the [HDC] or the Board of Selectmen unless it shall appear to the Court that the Commission or the Board, in making the decision appealed from acted with gross negligence, in bad faith, or with malice.” This should be of great concern to the people of Nantucket. Contrary to the closing statement in the “minority” BOS opinion filed with the Town Clerk this week, the HDC COA No. 64611 is not vacated as the two-to-one (2-1) vote nullifies the BOS authority to take any action and the COA is to be considered in full force and effect without the need for further litigation or discussion.
2) The appealing party did not have standing. The enabling Act of the HDC provides in Section 11 that appeals of a ruling of the HDC may be taken by any person “aggrieved” by the decision. It is well settled law that the appealing person must show how they or their property are personally aggrieved or damaged by the HDC’s ruling in a way that is different than the impact on the public in general. This particular issue has come to the attention of the BOS in other HDC appeals that have been brought before them over the past year. A private party may not have standing to simply assert that the HDC was wrong and try to act as substitute protector of structures or designs, and in particular substitute their judgment for the HDC’s if a member does not “like” a project’s outcome. In this case, it was not evident at the public hearing that the appellants were able to assert or demonstrate any personal damages or grievance; they simply disagreed with the HDC’s decision and two members of the BOS followed suit. The issue of standing needs to be determined in a court of law, but this grey area provides yet another troublesome aspect exacerbated by the actions of two (2) members of the BOS.
3) The BOS acted outside its authority. The Board of Selectmen can only review HDC appeals under the “arbitrary and capricious” standard, which requires the BOS to uphold the ruling of the HDC unless it is legally untenable or without a reasonable basis. The BOS is not allowed to substitute its judgment for that of the HDC or second guess the merits of the HDC’s decision, regardless of how much they might agree or disagree with it, but that is exactly what Selectmen Atherton and Glidden have done here. The HDC spent several hours in total over several hearings over more than nine (9) months reviewing this project. Many members of the Madaket area were present and allowed to speak and the HDC responded to those concerns resulting in a design that was appropriate for the setting and the neighborhood. Two HDC members even went up the Creek by boat to view the property from the water. It is difficult to find any grounds of arbitrary and capricious given the actual facts of the matter. The two (2) members blatantly disregarded the record and the testimony of HDC members preferring to interpret the “Guidebook”, which is just what it says, a “guidebook”. A comment was made by Selectmen Glidden that it did not matter how long it took to make a decision, it did not mean that it was a good decision. This statement indicates that in his opinion it was a bad design based on his own review of the Guidebook. This is not allowed in this appeal process as proscribed by the Act. The BOS decision notes that its concerns were that the approved design did not use proper “additive massing,” that the expansion overwhelms the original structure, and that the proposal did not follow the design guidelines for Madaket. The BOS has no authority to engage in this kind of design assessment or guideline interpretation, and the BOS’s position on such matters is irrelevant. In the same decision, they state that they are not substituting their opinion for the HDC’s while doing just that. Moreover, the BOS is giving too much weight to guidelines without considering the standard in the Act, which requires the HDC to assess a design based on its appropriateness for the area compared to other houses and otherwise, not in a vacuum compared to generalities or the desires of abutters. The record clearly shows that the HDC considered the neighborhood, setting, design, neighbor’s concerns, heights, footprint, etc. This assessment was clearly done and borne out by the record that Selectmen Atherton and Glidden appear to have ignored. They never attended any of the hearings on this matter nor had any knowledge of the deliberations.  Examples of arbitrary and capricious actions include decisions that 1) fail to follow the legal process, 2) seem reasonable but is based on inaccurate facts, or 3) are outside of the HDC’s jurisdiction and authority.
4) The BOS Decision endangers the entire HDC process. The HDC is an independently elected board, with its own state statute and authority. It is entirely inappropriate for the BOS to interfere with the process and insert itself into the design review in this way. In this case, the HDC followed proper procedure, engaged in over nine (9) months of public hearings, and approved a design that is consistent with the Act and its guidelines. By wading into the interpretation of HDC guidelines and assessing whether the HDC has properly applied them, the BOS is critically undermining the HDC, apparently for political or personal reasons. This shows a level of abject and continuing disrespect for another municipal entity that is beyond what has been seen in the past with different Boards of Selectmen.
5) The BOS is wrong in its assessment of the merits. The structure approved is clearly comprised of two forward gable structures and a connector in the middle, which is a standard style of additive massing. The new addition is carefully designed to leave most of the original structure intact (with no addition over it, for example) and to have the old structure be the most prominent and projecting feature on the water side. Further, the height, length and siting of the proposed building respect the scale and history of the existing structures in the area, especially as seen from the water, with particular attention paid to transitions from the old grid to the newer layout at the bend in Hither Creek. The approved design has a very modest footprint, a tiny second floor, and a linear layout. In addition, it is shorter than or equal to the structures immediately abutting it. Moreover, the approved design is consistent with another design that the HDC approved for the same location in 2007 but which was never built. In its objections, the BOS has selected a few quotes from the HDC’s guidelines and then did not apply them correctly, which is not surprising since it is not their prerogative to do so.
6) The BOS suggests requirements that are not true or consistent with HDC practice. The BOS Decision provides that the HDC should have provided an explanation of its decision. Despite that, an explanation of the HDC’s approval is contained within the expansive and highly detailed record. The HDC is not required to provide such an explanation for approvals, so it cannot be faulted for not doing so. The HDC almost never provides explanations for approvals because the reasoning is in the record. In contrast, the Act requires the HDC to provide written explanations of its denials, which it does in such cases. If the BOS wanted the HDC to explain its decision, more than already in the record and presented at the appeal hearing, the BOS should have requested such.
7) The BOS Decision contains an illegal remand. The BOS has no authority to limit its remand to only the circumstance if the Applicant revises the design to be consistent with the BOS decision. The BOS cannot limit the circumstance of a remand and cannot limit the scope of the application or a future HDC decision. They have no authority to bind the HDC on any future decision under the Act. The BOS cannot prevent the consideration of the current design or other designs, and cannot prevent the HDC from approving such. The BOS cannot prevent the HDC from issuing a thorough explanation or supplementation of the record to support a design. Further, even if the Applicant chose to engage in this remand, it is an entirely subjective to determine as to whether a design is consistent with the BOS Decision. Moreover, the concurrent remand and vacated COA leave the BOS decision unripe, as there is no deadline to hear the remand, so the idea of whether the COA is vacated or remanded is forever uncertain potentially requiring a ruling of Superior Court. It is the position of the HDC that the COA is in full force and effect, the BOS having no legal right to overturn it based upon a vote of two-to-one (2-1), and that there is no legal remand given that vote.
Based upon the foregoing, the HDC, upon a unanimous vote to send a letter to the relevant parties at a duly posted public hearing on Tuesday, February 2, 2016, makes the following decision:
The HDC affirms COA No. 64611 for all purposes for which COAs are to be used, and requests that the BOS immediately issue a corrective Decision to this effect to clarify the record, acknowledging the denial of the Appeal and upholding of the decision of the HDC pursuant to the Act and per Town Counsel’s advice. The HDC will not be hearing this matter on a remand that the BOS has no authority to issue. As the chairman, the HDC authorized me to draft and file this letter with the appropriate parties forthwith.
Linda F. Williams
Members: Linda F. Williams, Chairman; Diane Coombs, Vice0chairman; Kristine Glazer; John McLaughlin; Ray Pohl
Associate members: Abigail Camp; Vallorie Oliver; Matthew J. Kuhnert