Oct 272013

Dear Editor:

The diehard few who stay to the end of our current Town Meeting (the second segment begins at 7:00 p.m. on Tuesday 10/29/13 in the Middle School — Ed.) will be presented with Article 21, which proposes to revise Chapter 153 of Groton’s municipal code. This is the chapter that authorizes our Historic District Commission, the HDC, to preserve the character and integrity of our historic downtown and Farmer’s Row areas.

Article 21 will be championed by HDC Chairman Dan Barton. I had the privilege of witnessing Dan in action during three HDC meetings last year, where I was awed by his aesthetic passion, attention to detail, and depth of knowledge. At Dan’s side will be my good friend and colleague, Bob Collins. I would support almost anything promoted by Dan and Bob, these two local legends and personal heroes of mine. I would expect any collaboration of theirs to bring new levels of awesome to our town. But somehow, this time, when they combined their super powers to bring us Article 21, the result was a steaming pile of failure.

Dan and Bob may tell Town Meeting, as they told the Board of Selectmen, that revisions are needed to align our town by-laws with state statute MGL 40c, the real source of authority for our HDC and all other historic district commissions across Massachusetts. The implication will be that our current by-law is outdated and hasn’t kept up with the changing world around us—except that it actually has.

Chapter 153 has kept Groton law perfectly in synch with MGL 40c since 1964. As the state statute has changed, our by-law has automatically incorporated every new update. As courts have clarified the meaning of the terms and their practical application, our by-law has automatically applied every new precedent. Today, the version of Chapter 153 already in use represents the state of the art in historic district commission code. No other city or town in Massachusetts has a more up-to-date version than ours.

So what will Dan’s and Bob’s revision do? Nothing. Absolutely nothing. If this article passes, we will be adding paragraph after paragraph after paragraph of advisory verbiage with no more legal impact than the random characters your cat creates while sleeping on a computer keyboard.
As a general principle, text that merely advises us about the law should never be inserted into the law. Our laws are long and complicated enough already without extraneous matter that distracts from the text that actually does stuff. But Article 21 isn’t just a sloppy way to write municipal code. Even though these added paragraphs of cruft won’t have any effect on the law, they have great potential to cause harm to the public at large.

Let me reveal a little secret of the legal profession: “settled law” is whatever supports your client’s position, while “legal ambiguities that need to be cleared up” are all the things that support the other side. Bob has done an amazing advocacy job for the HDC, finding every bit of “settled law” that has ever been used to argue for an expansion of HDC authority, while omitting the “legal ambiguities” that tend to preserve the rights of individual residents.

When every argument is framed to be most favorable to the HDC and elevated into the by-law, most homeowners will no longer recognize that text as mere legal opinion. Can Dan require residents to build a fence inside the district because he doesn’t like the looks of something outside the district? Bob says he can, but the courts haven’t yet settled the matter one way or the other. Inserting only the HDC’s position on unsettled points of law will have a chilling effect on residents who will now be fully informed as to the HDC’s claims while remaining ignorant of their own rights and potential counter-claims.

But even if we were to create an assessment of HDC authority that’s absolutely accurate and fair to everyone, it would become less and less accurate over time, with every new bit of case law or statutory revision. Our current code automatically incorporates these changes, but the proposed advisory code would not. Town Meeting would need to revisit this code again and again, or defer that task again and again, until future residents in 2053 might still be relying on outdated advice from 2013.

The HDC and district residents could surely benefit from Bob’s expert knowledge on historic district law, even if Article 21 is voted down. Could a version of Bob’s general guidance be put on the HDC’s web page? Sure. Would it be helpful to have as a brochure at HDC meetings? Of course. Might it be mailed to every household in the historic districts? Why not! Putting general guidance into a format that residents can easily recognize as general guidance will preserve homeowner rights. Doing so will also make that guidance easier to maintain and update, while keeping town by-laws as simple and uncluttered as possible.

A vote of no on Article 21 is a no-brainer.

–Greg R. Fishbone, Main Street Historic District #2