[MassHistPres] tax deduction preservation easements

[Dennis De Witt]

As you probably know, there are national organizations offering  
preservation easements -- with a principal inducement to the owner  
(the Grantor) being a federal tax deduction .  Brookline has seen  
three of these, all in LHDs where the easement imposes minimal if any  
additional constraint on the Grantor beyond that already imposed by  
the LHD.  These are facade-only easements, unlike those typically  
granted to organizations like SPNEA (Historic New England) which also  
include the interior.

Under Mass. law these easements must be approved by MHC and by the  
municipality.  In towns it requires a vote of the Selectmen.

Re Brookline's recent easement the Preservation Commission was asked  
by the Selectmen for comment.

No one recalls concerns having been raised concerning the two  
previous easement -- perhaps not surprising given their minimal  
effect.  This one was reviewed, however, in part because the house in  
question had some inappropriate windows.  Three areas of concern were  
identified:

First; The vinyl windows.  It was felt that there could be a  
perception that approval of the easement by the Selectmen on the  
recommendation of the Commission might suggest that vinyl windows are  
acceptable.  In addition, because of a like-kind clause in the  
easement, the vinyl windows and their replacement successors could  
have remained indefinitely.

Second; It was felt that the easement should make it explicit that  
design review must be done by the Commission prior to being done by  
the Grantee (the entity holding the easement).  This was important as  
a general principal -- so that no future owner could argue that the  
easement design review held precedence over the LHD design review --  
and because of the window situation.

Third; It was felt that if the Grantee went out of business there was  
no assurance of what sort of successor organization (if any) might  
inherit the role of Grantee.  It was felt that the Town ought to be  
named as successor in the event of dissolution of the Grantee.

Initially we were told by the Grantee that they had never changed the  
language of their standard easement in Mass. -- and they did not  
volunteer to do so.  After, it was pointed out that the Grantee  
needed the Selectman's approval, which was not likely to happen  
without an acceptable easement, the changes were negotiated and  
incorporated into the easement.  The window language reads in part:  
"Grantor and Grantee agree that at such time that the Property's  
existing vinyl windows require replacement, in whole or in part, due  
to failure of the sash or frames or failure of the seal in the  
insulating glass (i.e. clouding of the glass) or for any other  
reason, such vinyl windows will be replaced with historically  
appropriate windows that are consistent with the Local Historic  
District Guidelines of the Brookline Preservation Commission for new  
construction windows then in effect"

The easement has now been approved.

These were not huge changes, but important ones.  This demonstrates  
that such easements need not be taken as immutable and should be  
thoughtfully reviewed before approval.

Dennis De Witt

PS  just as a matter of curiosity, does any one have experience with  
any of these facade-only tax credit easement having been granted  
outside of an LHD in Mass.?