2021 Mass. App. Div. 69

December 3, 2020 - December 15, 2021

Appellate Division Southern District

Court Below: District Court, Barnstable Division

Present: Finnerty, P.J., Cunis & Campbell, JJ. [Note 2]

James Rosenblum for the plaintiff.

Leslie-Ann Morse for the defendant.

FINNERTY, P.J. This is an appeal from the judgment of the Barnstable District Court affirming the decision of the Old King's Highway Regional Historic District Commission ("Regional Commission") to, in turn, uphold the denial of the application by appellant Michael McIsaac ("McIsaac") to the Historic District Committee of Barnstable ("Barnstable Committee") for a certificate of appropriateness to install a solar panel array on his home. In a laudably thorough written decision with specific findings of fact and rulings after a multi-day evidentiary hearing on McIsaac's appeal, the trial judge determined that the Regional Commission did not exceed its authority when it affirmed the decision of the Barnstable Committee. We affirm.

McIsaac's home is located within the Old King's Highway Regional Historic District, which was established by St. 1973, c. 470 ("Act"). [Note 3] Under § 6 of the Act, no structure may be erected within the district without the issuance of a certificate of appropriateness by the town historic district committee of the town within which the proposed structure is to be located. Sleeper v. Old King's Highway Regional Historic Dist. Comm'n, 11 Mass. App. Ct. 571, 572 (1981). McIsaac sought a certificate of appropriateness to construct a solar panel array on the roof of his home. The roof of the home has a high pitch and is close to the roadway, and the solar array would be very visible to those travelling east on Route 6A, a legislatively designated "scenic public way."

A principal role of the Regional Commission is to "promote the general welfare of the inhabitants of the [district] . . . through preservation and protection of buildings, settings and places within [its] boundaries . . . through the development and maintenance of appropriate settings and the exterior appearance of such buildings." Act, § 1. Under § 5 of the Act, each member town of the historical district is authorized to appoint a district committee consisting of five persons. Their role is

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to receive and evaluate applications for certificates ofappropriateness. To assist the district committees, the Regional Commission in 1983 promulgated guidelines that are contained in a bulletin included in the record. According to the Regional Commission's guidelines, each application "shall be judged on the criteria set forth in the Act under Section 10 including therein, but not limited to, historic value and significance, general design, arrangement . . ., relative size and settings." Harris v. Old King's Highway Regional Historic Dist. Comm'n, 38 Mass. App. Ct. 447, 449 (1995), S.C., 421 Mass. 612 (1996). "A committee is to consider the historical value and significance of the structure, the general design, arrangement, texture, material, color, the setting, and immediate surroundings, with a view toward avoiding exterior effects 'obviously incongruous to the purposes set forth in this act.'" Sleeper, supra at 575. Similar elements of appropriateness have been found sufficient to defeat claims of vagueness. Id., citing Opinion of the Justices, 333 Mass. 773, 775, 778-781 (1955), MacGibbon v. Board of Appeals of Duxbury, 356 Mass. 635, 638 (1970), Gumley v. Selectmen of Nantucket, 371 Mass. 718, 722-723 (1977), and North Landers Corp. v. Planning Bd. of Falmouth, 382 Mass. 432, 438-445 (1981).

A person aggrieved by a local committee's decision may appeal to the Regional Commission under § 11 of the Act. The Regional Commission may annul or revise the local committee's determination only if the local committee "exceeded its authority or exercised poor judgment, was arbitrary, capricious, or erroneous in its action." Id. "The regional commission's initialfunction is not to exercise its independent judgment on the facts, but rather to determine whether the local committee erred in some respect. See Gumley v. Selectmen of Nantucket, 371 Mass. 718, 723 (1977)." Anderson v. Old King's Highway Regional Historic Dist. Comm'n, 397 Mass. 609, 611 (1986).

A person who, in turn, is aggrieved by the Regional Commission's decision may appeal under the second paragraph of § 11 of the Act to the local District Court. The judge is directed to hear the pertinent evidence and to find the facts,which are considered "final and conclusive." Id. The standard of review governing the judge is "analogous to that governing exercise ofthe power to grant or deny special permits"under a local zoning bylaw. Gumley, supra at 719, 724. The judge is required to affirm the Regional Commission's decision unless, on the facts found by the judge, the Regional Commission should have concluded that the local committee exceeded its authority, exercised poor judgment, or was arbitrary, capricious, or erroneous in its action. Harris v. Old King's Highway Regional Historic Dist. Comm'n, 421 Mass. 612, 615 (1996), citing Gumley, supra at 723-724. The act permits an appeal from the District Court to the Appellate Division only on issues of law. Act, § 11.

Our review of the trial judge's decision is not de novo. We review the trial judge's decision for errors of law or abuse of discretion. In assessing whether there has been an abuse of discretion, we ask whether "the judge made 'a clear error of judgment in weighing' the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We do not disturb the trial judge's ruling "simply because [we] might have reached a different result" (citation omitted). Antoniadis v. Basnight, 99 Mass. App. Ct. 172, 176 (2021).

The trial judge made extensive findings of fact, which are well-supported by the evidence. In fact, McIsaac, although he takes issue with the trial court's conclusions,

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does not point to any facts found that are not supported by the evidence. One of the requirements the Regional Commission was required to consider under its mandate is the energy advantage of any proposed solar or wind device. There was substantial consideration of the benefits and advantages of solar energy at the local committee hearing, before the Regional Commission, and at the appeal to the District Court. Among guidelines for consideration of alternative energy proposals the Bulletin suggests to applicants are that it have minimal visual impact, that ground level solar panel mountings be used when possible, that vegetation and landscaping be used to minimize the visual impact, and that the structure blend with existing features in the immediate area. The Barnstable Committee, the Regional Commission, and the trial judge concluded that the proposed array would essentially change the style of the structure, a historic structure in a historic area, and the trial judge found that the Regional Commission did not exceed its authority when it affirmed the decision of the Barnstable Committee in denying McIsaac a certificate of appropriateness. McIsaac would have us read into the application of the Act a requirement that the benefits of solar or wind power are trump cards that require the Regional Commission to act favorably on his request. A principal purpose of the Act is to harmonize buildings located in the historic area and to suppress the obviously incongruous. Sleeper, supra at 574.

McIsaac's argument that the court did not consider whether the proposed array was "obviously incongruous to the purposes of the act" is also without merit. The trial court appropriately considered the required analysis under the Act in concluding that the Regional Commission did not exceed its authority. The court was not required to state specifically that the proposed array was "obviously incongruous" to the purpose of the Act. As was noted in Anderson, supra at 610 n.3 and cited in the trial court's decision here, "appropriateness and obvious incongruity have the same meaning." Here, the court found, in agreement with the decision of the Regional Commission, that the proposed solar array would "have the appearance of a billboard" and that it would "essentially change the style of the structure." No other permitted solar array in the district was similar to McIsaac's -- "a highly visible array affixed to a historic structure in a historic area."

McIsaac also argues error in the trial court's exclusion from evidence of photographs of overhead telephone or electrical wires he proffered. There was unchallenged testimony describing the telephone poles and the wires in the district, and their existence was not a disputed issue. The trial judge has discretion to exclude evidence if it is merely cumulative. Commonwealth v. Bonds, 445 Mass. 821, 831 (2006); Fitchburg Gas & Elec. Light Co. v. Department of Telecomm. & Energy, 440 Mass. 625, 641 (2004). McIsaac has failed to show how he was substantially prejudiced by the court's evidentiary ruling.

We find no error of law or abuse of discretion in the trial court's conclusion. The appeal is therefore dismissed.

So ordered.


[Note 1] Richard Alger, William Bohlin, Richard Gegenwarth, Ronald Mgrdichian, Paul G. Richard, and James Trabulsie.

[Note 2] The Honorable Cathleen E. Campbell participated in the hearing, review, and decision of this appeal, but was appointed to the Superior Court prior to the issuance ofthis opinion.

[Note 3] As amended through St. 2007, c. 220.