[MassHistPres] TEA easement clauses

Sat Jan 3 17:50:21 EST 2009

your clauses sound quite thorough and i wish you luck in your preservation commitments...

i think it would be prudent for area realtors to be aprised of historic commission by-laws...

...jade mortimer
heartwood building & restoration
hawley, ma
  ----- Original Message ----- 
  From: Dennis De Witt 
  To: MHC listserve 
  Sent: Monday, December 29, 2008 9:11 PM
  Subject: [MassHistPres] TEA easement clauses

  Brookline's Selectmen recently approved the town's fourth facade easement to be held by the Trust for Architectural Easements (formerly National Architectural Trust) as the easement holder.  The three previous easements were all in LHDs, as is typical with TAE easements.  (During the course of our negotiations with them their counsel told us that 80-85% of their easements are in LHDs.)

  When the last one came up we had requested and got clauses requiring that vinyl windows in that particular house would have to be replaced with windows consistent with our LHD guidelines when the time came to replace them (no like-kind replacement of vinyl with vinyl), that LHD design review would happen first, and that the Brookline Preservation Commission would become the successor easement holder if TAE should ever expire.

  As this most recent easement (for an NR Greek Revival house) was not in an NRD we got an advisory design review role for the Commission written into the easement, as well as a modified version of the successor clause.

  Here are the two clauses that were added to the standard TAE easement language.

  The added language relating to advisory design review begins with "provided however . . . ." in the first paragraph:

  Grantor and Grantee agree to abide by the Change Approval Guidelines attached hereto and incorporated herein as Attachment C, and such Change Approval Guidelines will not be amended without the express written consent of the Massachusetts Historical Commission (the “MHC”); provided, however, that nothing in the Change Approval Guidelines shall limit the Town of Brookline’s right, as set forth below, to provide meaningful comment on any Proposed Modification Request.

   In order to approve this Agreement, the Town of Brookline requires that Grantee shall provide notice to the Brookline Preservation Commission (the “BPC”) of any Proposed Modification Request submitted by Grantor and shall allow the BPC the opportunity to provide Grantee with (a) historic and architectural information regarding the Property and (b) a Statement of Applicability with respect to the Proposed Modification Request of any relevant provision of the BPC’s Design Guidelines for Local Historic Districts adopted by the BPC on October 12, 2005 and attached hereto as Attachment E (“Brookline Guidelines”).  In connection with the Town of Brookline’s notice requirement, Grantor and Grantee hereby agree as follows:

  (i) Grantee shall notify the BPC’s Preservation Planner at the Department of Planning and Community Development, Preservation Division, Town Hall, 333 Washington Street, Brookline, Massachusetts, 02445 (“BPC Staff’) each time it receives a Proposed Modification Request or revision thereto from Grantor. (“PMR Notice”).  The PMR Notice shall be in writing, shall include the Proposed Modification Request form (excluding attachments) and may be sent via email to BPC Staff. 

  (ii) BPC Staff shall have three (3) business days following receipt of the PMR Notice to notify Grantee in writing, including email, that BPC either requests or does not request a copy of the Proposed Modification Request and to indicate which portions or attachments of the request to provide to BPC Staff.  Failure by BPC Staff to respond to the PMR Notice within 3 business days shall be deemed by Grantor to indicate that BPC does not intend to comment on the Proposed Modification Request.  If timely requested, Grantee shall provide a copy of the specified portions of the Proposed Modification Request (“PMR Plans”) to BPC Staff.  The cost of reproduction, if any, shall be the responsibility of Grantor, and all reasonable efforts will be made to deliver electronic copies of the PMR Plans to BPC Staff.  

  (iii) Grantee agrees to review and consider any historic and architectural research or information relating to the Property and the BPC’s Statement of Applicability of the Brookline Guidelines, if such information is provided to Grantee within seven (7) business days following the BPC Staff’s receipt of the PMR Plans. 

  (iv) If Grantee’s final determination regarding the Proposed Modification Request, as may be modified by Grantor, is inconsistent with the BPC’s Statement of Applicability, including subsequent communications between Grantor and BPC Staff, Grantee agrees shall send written communication to BPC Staff providing Grantee’s rationale for issuing a final statement of no objection to Grantor’s Proposed Modification Request.

  Grantee and Grantor hereby further agree and acknowledge that the Property is not subject to the Town of Brookline Preservation Commission and Historic District Bylaw 5.6 as of the date of this Agreement.  Further, as stated above in this Section 1, Grantee’s consent shall only be given if in compliance with standards set forth in Applicable Preservation Laws and such consent may be withheld, conditioned or delayed in the sole and absolute discretion of Grantee. 

  And this is the added language relating to succession:

  c) Grantee agrees that if in the future it shall be required, either for financial or legal reasons, to transfer all or substantially all of its assets to other qualified organizations it shall transfer, assign and otherwise convey its rights under this Agreement to the BPC, assuming that at the time of the transfer, the BPC (i) is a “qualified organization” described in Section 170(h)(3) of the Internal Revenue Code of 1986 and controlling Treasury regulations, (ii) is an organization whose purposes are to promote preservation or conservation of historical, cultural or architectural resources, and (iii) agrees to continue to carry out the conservation purposes for which this Agreement was created.   

  Dennis De Witt
  Brookline

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