JOHN H. HARRIS vs. OLD KING'S HIGHWAY REGIONAL HISTORIC DISTRICT COMMISSION.

GREANEY, J. This case is here on further appellate review and requires us to decide whether a District Court judge, who reviewed a decision of the Old King's Highway Regional Historic District Commission (regional commission), properly concluded that the Barnstable historic district committee (local committee) had no rational basis for denying the plaintiff, John H. Harris, a certificate of appropriateness to

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convert a garage on his property into a shed or studio. The judge reported his decision to the Appellate Division of the District Courts which discharged the report. The regional commission appealed. A divided panel of the Appeals Court concluded that the judge had ruled correctly and affirmed the Appellate Division's dismissing the report and sustaining the judge's decision. 38 Mass. App. Ct. 447 (1995). We granted the regional commission's application for further appellate review. We conclude that the regional commission acted properly in upholding the local committee's decision. Consequently, we reverse the order of the Appellate Division and direct the entry of a judgment in the regional commission's favor.

The background of the case is as follows. The plaintiff owns a one-acre parcel of land on Harris Meadow Lane in Barnstable. The plaintiff's land lies within the Old King's Highway Regional Historic District created by St. 1973, c. 470 (Act). [Note 1] The plaintiff applied to the local committee for a certificate of demolition which would allow him to demolish a residential house, a garage, and an outbuilding on his land. (None of the three buildings had any historical significance.) The plaintiff also applied for a certificate of appropriateness which would authorize the construction of a new home with an attached three-car garage. The local committee held a hearing and approved both certificates with minor revisions not in issue on this appeal.

The plaintiff constructed the new house, but, in the course of construction, decided not to tear down the old garage and instead sought to convert it into a shed or studio. The plaintiff applied to the local committee for a certificate of appropriateness for this purpose, which was denied after hearing. The plaintiff appealed under Section 11 of the Act, as amended, to the regional commission which, after hearing, upheld the local committee's decision denying the plaintiff a certificate to

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keep the garage and to convert it into a shed or studio. [Note 2] The plaintiff next appealed under the second paragraph of Section 11 of the Act, as amended, to the Barnstable District Court, where a judge found facts and concluded that the regional commission had erred in upholding the local committee's denial of the certificate of appropriateness for retention of the old garage. The judge reported the case to the Appellate Division which, finding no prejudicial error, dismissed the report. An appeal to the Appeals Court ensued, with our subsequent grant of the regional commission's application for further appellate review.

We now turn to the merits by first outlining the governing law. The plaintiff was required by the Act, as amended, to apply to the local committee for certificates of appropriateness approving the demolition of the buildings on his land, the construction of a new home and three-car garage, and, ultimately, the retention and conversion of the old garage. The local committee is instructed by Section 10 of the Act, as amended, to consider such factors as the historical value and significance of the buildings involved and whether the size, features, demolition, removal, or construction of the buildings will further the purpose of the historic district. Section 1 of the Act, as amended, sets forth its purpose in terms of the promotion of the welfare of the historic district through "the preservation and protection of buildings, settings and places . . . and through the development and maintenance of appropriate settings and the exterior appearance of such buildings and places, so as to preserve and maintain such regional district as a contemporary landmark compatible with the historic, cultural, literary and aesthetic tradition of Barnstable county, as it existed in the early days of Cape Cod, and

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through the promotion of its heritage." [Note 3]

A person aggrieved by a local committee's decision may appeal to the regional commission under Section 11 of the Act, as amended. The regional commission can 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 initial function 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 Section 11 of the Act, as amended, 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 of the power to grant or deny special permits" under a local zoning bylaw. Gumley v. Selectmen of Nantucket, 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

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in its action. Gumley v. Selectmen of Nantucket, supra at 723-724. See Section 11 of the Act, as amended. Appeals from the final judgment entered in the District Court may be pursued to the Appellate Division and to the Appeals Court. These appeals concern only issues of law. [Note 4] See Anderson v. Old King's Highway Regional Historic Dist. Comm'n, supra at 611.

The chairman of the local committee explained to the regional commission that the local committee had denied the final certificate sought by the plaintiff because (1) the local committee had already approved a new three-car garage on the site despite the fact that construction of three-car garages was discouraged; (2) the "sizing, massing and scale" of the plaintiff's final proposed project were "just too much"; (3) "most of the buildings cited by [the plaintiff as similar to his completed project] make very different statements as they address Route 6A [Old King's Highway]"; and (4) "[m]ost of the homes depicted do not have a three car garage with an additional outbuilding." The chairman of the local committee also described plans that had been previously approved by the regional commission and stated that, "while there may be similarities with other houses in the [d]istrict, each house is different, and the ultimate issue [with respect to the plaintiff's completed project] was not design, per se, but historic compatibility." [Note 5] We construe the local committee as

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saying that (1) it had approved the three-car garage with reluctance because of the size and nonhistoric character of the resulting main structure; (2) they would not also have approved the retention of the old garage had this been presented as part of the initial plan because it would result in a large freestanding outbuilding and a large attached outbuilding (three-car garage) on a comparatively small site; and (3) in addition to size, the configuration of the resulting project was an essentially modern one which was not in keeping with the over-all character of the historic district.

The judge took a view of the plaintiff's property and the general area. The judge stated that, although the plaintiff's house was large, a reduction in grade reduced the visual impact of the building from the road. He also stated that the entire project (house, garage, and shed or studio), viewed from Harris Meadow Lane, did not appear any larger than other homes in the immediate area. The judge noted as well that "the adjacent property to the [e]ast [is] an older residence with several out-buildings" and that "along Route 6A in the area of Harris Meadow Lane, there are numerous older homes which have several detached outbuildings." The judge concluded that the action taken by the local committee was "done without any determining principles and therefore can only be described as arbitrary."

We conclude that the basis for the local committee's determination outlined above was reasonable, and that the committee could conclude that, with the addition of the shed or studio, the plaintiff's project went beyond what had been generally permitted (and was desired) in the historic district and was incompatible with the district. The local committee possessed a substantial measure of discretion in deciding whether the plaintiff's applications for certificates of appropriateness were in congruity with the historic district. The local committee was required to balance the conflicting interests of the plaintiff to use his property as he saw fit with the

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rights of others in the district to have the heritage, culture, and physical environment therein (as encompassed in the words "early days of Cape Cod" used in Section 1 of the Act, as amended), preserved reasonably intact. Since the local committee's decision had a rational basis, the judge should not have set it aside.

The order of the Appellate Division dismissing the report is reversed. A new order is to be entered in the Appellate Division reversing the judgment of the District Court and directing the entry of a judgment in the District Court affirming the decision of the regional commission.

So ordered.