Judge Rebukes HDC And Select Board For Denying Demolition Of Union Street Garage

A Superior Court judge has remanded a Nantucket Historic District Commission decision from 2024 after a 19-month legal battle. The judge determined that the decision, which prevented the demolition of a garage on Union Street, was “facially deficient” and that the HDC failed to give “any reasoning or factual support” for why the demolition would be detrimental to Nantucket’s historic character.

The HDC had previously approved a house on the lot, the construction of which would have required demolishing the garage, three separate times. Judge Daniel O’Shea also wrote that the HDC reversed course on its characterization of the garage, initially calling it nondescript and noncontributing, and then later determining that it was, in fact, significant and contributing.

“The Commission's unexplained reversal does not even attempt to explain how the formerly characterized ‘tiny, nondescript garage’ (which now has modern doors and hinges, a partially collapsed roof and back wall, and decaying asphalt roof shingles and mildewed sidewall shingles) has a ‘uniqueness’ about it that has for nearly 80 years ‘helped define the character and setting’ of historic Union Street,” O’Shea wrote in his ruling. “Moreover, the Commission has explained nothing about its recent flip, from previously calling the garage ‘noncontributing’ to now defining it as a ‘contributing’ structure worthy of invoking the Commission's powers of preservation.”

The remand sends the case back to the HDC, where plaintiffs Steven Russo and Whitney Matthews will once again argue that they should be allowed to demolish the small garage at 43a Union Street. The HDC’s decision was initially upheld by the Select Board, but the Superior Court’s ruling overturns that Select Board decision.

The remand comes at an inflection point for the HDC appeals process. After a high-profile case in which the HDC made the opposite decision and allowed the demolition of the old Nantucket Electric Company building, a decision the Select Board also upheld on appeal, Select Board members suggested changing the appeals process altogether and potentially cutting themselves out of it entirely. Then, another HDC decision, this one blocking a deer fence and grates, was appealed to the Select Board. Again, the Select Board sided with the HDC, and again, they raised concerns about the appeals process. That case is now pending before the Superior Court. The remand also comes on the heels of Nantucket voters supporting a citizen petition from local preservation artisan and carpenter Hollis Webb that would require a supermajority vote of the HDC to authorize the demolition of any structure over 50 years old. Following its approval at the island's Annual Town Meeting in May, Webb's petition now goes to the state for approval.

The pair of high-profile appeals, followed by the Superior Court remand, could push the Select Board to seriously consider the reforms it has recently discussed.

The Union Street case will be heard once more by the HDC this Tuesday. While the HDC can put together more robust evidence and deny the demolition again, O’Shea has already signaled he might be willing to overturn a second denial, given the HDC’s decision to allow similar demolitions in the area.

“The court is troubled by the fact that the Commission has approved the destruction of older structures for similar projects,” O’Shea wrote. “The court has serious concerns that the Commission's current denial may not be ‘warranted by the evidence,’ but until such time as the Commission establishes a record of its reasoning for judicial and appellate review, the court deems it appropriate to annul the decision and remand the matter to the Commission.”

The HDC denied the initial demolition application on the grounds that the garage was a contributing structure to the island’s historic character.

“The uniqueness of this small, mid-century structure (in this area) has helped define the character and setting of one of Nantucket's oldest historic streetscapes (Union Street) for nearly 80 years; as such the structure is deemed by the sitting commission to be a contributing structure,” the HDC wrote in its decision. “The proposed demolition move is therefore denied.”

But Russo and Matthews successfully argued that the HDC’s decision was arbitrary and capricious, alleging that the denial, which came after three separate approvals for the house that would have taken the garage’s place on the lot, rested on a “hairsplitting” argument only devised after objections from neighbors.

“The utter lack of uniform and consistent treatment of similar structures by the HDC demonstrates the HDC's unreasonable, arbitrary, and capricious denial,” the plaintiffs wrote.

The HDC argued that the approval of the building that would take the garage’s place has no bearing on whether or not to allow the demolition.

“There are no implicit HDC approvals. The HDC's previous votes to approve Plaintiffs project with respect to the building of a house had no bearing on the HDC's consideration of the Demolition [certificate of approval] application and thus this was not a reversal of a decision the HDC had already made,” the town wrote in its defense. “[The garage] is a pre-existing nonconforming structure which could not be built today under Nantucket's zoning code. Outbuildings like the 43A Union Street garage were once common on Nantucket, marking the era when cars began to come to the island, but have more recently been removed from their cultural contexts, whether removed or demolished. This garage in particular, has almost no setback from the street, making it a prominent part of the Union Street streetscape and serving as a visual reminder of the historical period on Nantucket from the early to mid-twentieth century.”

O’Shea was more convinced by the plaintiffs than the defendants.

“In its minutes for the October 1, 2024 meeting, the Commission admitted that, at some point, it had approved the demolition of the garage, noting that ‘the structure, despite being originally approved for demolition or relocation, is considered contributing to the historical context ofthe district,’ he wrote. “At trial, Ms. Backus testified that…the notation on the Commission's minutes was simply a mistake. However, despite the existence of yet another questionable ‘mistake,’ the Commission still adopted the minutes.”

Tuesday’s hearing will mark the latest chapter in the long-running saga of Russo and Matthews’ efforts to replace the garage.