Gumley v. Board of Selectmen of Nantucket

• Decision Date: 13 January 1977
• Citation: 371 Mass. 718,358 N.E.2d 1011
• Parties: , 7 Envtl. L. Rep. 20,221 Theodore GUMLEY et al. v. BOARD OF SELECTMEN OF NANTUCKET et al. 1 . Nantucket
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1011

358 N.E.2d 1011

371 Mass. 718, 7 Envtl. L. Rep. 20,221

Theodore GUMLEY et al.

v. BOARD OF SELECTMEN OF NANTUCKET et al. ¹

Supreme Judicial Court of Massachusetts. Nantucket.

Argued Nov. 3, 1976.

Decided Jan. 13, 1977.

Charles A. Goglia, Jr., Town Counsel, Wellesley, for Bd. of Selectmen of Nantucket and another.

Leonard E. Perry, New Bedford, for plaintiffs.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER and WILKINS, JJ.

BRAUCHER, Justice.

Questions are presented under the statute establishing a Historic Nantucket District. St.1970, c. 395, as amended by St.1972, c. 708 (the statute). We read the statute in the light of the more general statutes providing for zoning, G.L. c. 40A, and for historic districts, G.L. c. 40C, and apply a standard of review analogous to that governing exercise of the power to grant or deny special permits. See MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 638--639, 255 N.E.2d 347 (1970). We affirm the judgment of the Superior Court so far as it annuls the decisions of the Historic District Commission (commission) and the board of selectmen (board), but we reverse the order that certificates of appropriateness be issued to the plaintiffs. We further hold that the commission may properly consider the length of buildings, and order the case remanded for further proceedings before the commission.

We summarize the findings of the Superior Court judge. Legislation enacted in 1955 established two historic districts on the island of Nantucket, the Old and Historic Nantucket District and the Old and Historic Siasconset District. St.1955, c. 601, § 3. See Opinion of the Justices, 333 Mass. 773, 128 N.E.2d 557 (1955). A master plan for the town of Nantucket was prepared in 1970. At that time the only controls over land use were subdivision regulations administered by the planning board and historic district regulations admistered by the commission. The 1970 statute expanded the historic districts to cover the entire island. A zoning by-law was enacted in 1972.

The plaintiffs are present and former owners of a twenty-three acre parcel of land in an open area about 1.6 miles from the Old and Historic Nantucket District in the direction of Siasconset. In 1972 the commission issued a certificate of appropriateness for two buildings on the parcel. Those buildings were part of a plan for 100 multifamily dwelling units, but the owner requested certificates for only two buildings because the certificates were valid for only twelve months, and he intended to build only two buildings as models during the year. Building permits were denied by the building inspector because of alleged zoning violations, but the Superior Court judge ruled that because of an effective subdivision plan the parcel was not subject to zoning regulations. After that decision the building inspector still refused to issue building permits until a peremptory writ of mandamus issued in June, 1974. But the buildings were not built.

One of the present owners, an architect, prepared a revised design, based on the architecture of Siasconset fishing village dwellings, to make the development more indigenous, making extensive use of the commission's guidebook. The revised design and modifications of it were the subject of meetings of the commission on April 9, April 16, April 30, May 8 and June 18, 1974. The fourth set of plans submitted by the plaintiffs incorporated eight of nine design changes or details recommended by the commission, and the plaintiffs agreed to the ninth, but no change was made in response to the commission's comment that the buildings were too long--twenty-four buildings eighty-four feet long and thirteen buildings 168 feet long.

On June 14, 1974, the chairman of the commission, as chairman of its design advisory committee, made an adverse report to the commission quoted in the margin. ² On June 18, the commission unanimously accepted that recommendation and disapproved the fourth set of plans as 'incongruous to the Historic Aspects of the Island.' The plaintiffs appealed to the board, and after a hearing the board denied the appeal because of the length of the proposed buildings and their arrangement on the land, finding that their erection 'will be wholly incongruous so as to destroy one of the principal assets of Nantucket.'

The plaintiffs appealed to the Superior Court, and after trial the judge found that the reasons for denial of the application stated by the commission were not the reasons in fact but were manufactured in order to control the use of the land and prevent a large residential development; they 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.' He ruled that the decisions of the commission and the board exceeded their authority, annulled both decisions, and ordered the commission to issue certificates of appropriateness to the plaintiffs. The defendants appealed, and we transferred the case to this court on our own motion.

1. Splitting of the claim. In their complaint the plaintiffs claim that the statute is unconstitutional in several respects, but they 'specifically reserve all claims they have in the Federal Court under the provisions of 42 U.S.C.A. §§ 1983 and 1985(3).' The defendants argue that this reservation requires that the action be dismissed, citing Tsongas v. Secretary of the Commonwealth, 362 Mass. 708, 714, 291 N.E.2d 149 (1972). There we declined to give declaratory relief on a State constitutional question in view of the plaintiffs' reservation of a similar Federal constitutional question, since any answer by us would be incomplete and would not terminate the uncertainty or controversy giving rise to the proceedings.

We think the present case is quite different. Under § 12 of the statute the plaintiffs' remedy by appeal to the Superior Court was 'exclusive.' The Superior Court judge did not pass on any constitutional question, State or Federal, nor do we. The record before us does not show that the defendants sought dismissal in the Superior Court on the ground now asserted. We therefore find it unnecessary to consider the propriety or effect of the plaintiffs' purported reservation. Compare Kaufman v. Somers Bd. of Educ., 368 F.Supp. 28, 37 (D.Conn.1973), and Suarez v. Administrador Del Deporte Hipico De P.R., 354 F.Supp. 320, 326 (D.P.R.1972), with O'Reilly v. Curtis Publishing Co., 31 F.Supp. 364, 365 (D.Mass.1940).

2. The standard of review. The statute provides in § 9 that it shall be 'the function and the duty of the Historic District Commission to pass upon the appropriateness of exterior architectural features . . . wherever such exterior features are subject to public view from a public street or way.' The commission 'shall keep in mind' the statutory purposes, and 'shall consider among other things' several listed factors. It 'shall not consider detailed designs, relative size of buildings in plan, interior arrangement or building features not subject to public view.' It 'shall not make any recommendations or requirements except for the purpose of preventing developments obviously incongruous to the historic aspects of the surroundings and the Historic Nantucket District.' See Opinion of the Justices, 333 Mass. 773, 781, 128 N.E.2d 557 562 (1955), where it is said, 'This last provision is apparently intended to prevent decisions based upon peculiar individual tastes.'

Under § 11 of the statute, appeals may be taken to the board by any person aggrieved by a ruling of the commission, and the decision of the board shall be as determined by a majority vote. ³ Reading the statute as a whole, we think it confers on the commission a substantial measure of discretionary power with respect to 'the appropriateness of exterior architectural features' and congruity to historic aspects of the surroundings and the district. The provision for appeal to the board is not to be taken as transferring that discretionary power to the board. It seems intended either to confine the power of the commission within authorized limits, or to prevent its abuse, for example, by decisions based on peculiar individual tastes. The statutory language does not grant to the board the 'broad powers' formerly found in G.L. c. 40A, § 19, now replaced by c. 40A, § 14, inserted by St.1975, c. 808, § 3. See Smith v. Building Comm'r of Brookline, --- Mass. ---, --- - --- ^a, 328 N.E.2d 866 (1975).

Under § 12, further appeal may be taken to the Superior Court, which shall determine the facts and annul the board's decision 'if found to exceed the authority of such board, or make such other decree as justice and equity may require.' ⁴ The language of § 12 is substantially identical to that of G.L. c. 40A, § 17, inserted by St.1975, c. 808, § 3, The Zoning Enabling Act, and of St.1941, c. 373, § 19, applicable to the board of zoning adjustment of Boston. See Devine v. Zoning Bd. of Appeals of Lynn, 332 Mass. 319, 321, 125 N.E.2d 131 (1955); Bicknell Realty Co. v. Board of Appeal of Boston, 330 Mass. 676, 679, 116 N.E.2d 570 (1953); Co-Ray Realty Co. v. Board of Zoning Adjustment of...