[MassHistPres] Historic Preservation Restriction Template

[Tucker, Jonathan]

Just to make sure this recently-deceased horse has gotten a thorough beating, I will grant that it is not necessary for MHC to provide communities with a pre-approved HPR deed format.  There is profound and complex variability in the kinds of historic character possessed by structures and sites subject to HPRs, and there must therefore be room for variability in the nature of the HPRs themselves.  Complexity is a sufficient excuse to avoid handing anyone boilerplate, given the danger that they might unthinkingly use it, and apply it to historic resources for which it is not suited, thereby providing unsolicited and undeserved employment for lawyers.

However, complexity is not a sufficient excuse for failing to provide basic guidance on HPRs that does not rise to the level of legal advice.  It is incumbent on MHC to provide communities and citizens with basic guidance about what elements an acceptable HPR should include--i.e., what it should address.  What are the fundamental characteristics of an HPR?  What is the range of public purposes it is supposed to serve, and how can it accomplish those?  An HPR is supposed to "preserve" into the future those characteristics of an historic structure or site which represent a valid public interest.  How does an HPR do that?  What acceptable 'sample' HPRs exist for different categories of historic resources?  Ample warnings about the limited applicability of any given 'sample' and the need for involvement by local counsel could be provided in large bold font every three words, if necessary, but giving communities and citizens something to work with is better than leaving them to their own devices, plucking samples out of the air.

I am more than aware of the budget limitations under which MHC has been operating (not unlike those experienced by the municipalities), and will bow to none in my praise of and support for Chris Skelly, who keeps his end of the MHC machine running with professionalism, competence and frequent applications of communicative magic.  But the amount of time and effort that small communities in particular have to spend trying to meet a set of invisible and unspoken criteria for HPRs is completely unnecessary.  Addressing this lack becomes more of a necessity given the degree to which CPA funding in particular is now spurring levels of historic preservation activity not previously seen.  Maybe MHC could solicit some help in doing this, but providing some kind of organized technical assistance on HPRs is really something MHC ought to be doing.

Harumph.

Jonathan Tucker
Planning Director
Amherst Planning Department
4 Boltwood Avenue, Town Hall
Amherst, MA  01002
(413) 259-3040
tuckerj at amherstma.gov     


 

-----Original Message-----
From: masshistpres-bounces at cs.umb.edu [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Roseanne Saalfield
Sent: Monday, July 18, 2011 1:55 PM
To: Dennis De Witt
Cc: MHC MHC listserve
Subject: Re: [MassHistPres] Historic Preservation Restriction Template

In the matter of MHC and legal advice, I believe you are correct. I talked to Chris Skelly this spring about cast iron Shaker markers in one of our historic districts(a National Register site) and while he was 'surprised and very confused' that town council does not deem the markers 'structures' and therefore subject to review by historic commission he also said that in no way could MHC get involved with legal opinions and issues. So sad. but understandable
roseanne saalfield
chair 
town of harvard historic commission
On Jul 18, 2011, at 12:29 PM, Dennis De Witt wrote:

> Chris may correct me, but my guess is that MHC might shy away from providing such boilerplate because doing so could fall under the heading of "offering legal advice," which I suspect MHC does not want to do.
> 
> Dennis De Witt
> 
> 
> On Jul 18, 2011, at 11:54 AM, Tucker, Jonathan wrote:
> 
>> I was describing one particularly irritating aspect of the problem, not offering a treatise on the full picture, complete with solutions.
>> 
>> I absolutely agree that the provisions of MGL 184 are a significant part of the problem, and not only for restrictions seeking to ensure historic preservation.  They have a similarly limiting effect on attempts to preserve affordable housing, critical land resources, etc.  As legislation, it's just Lincoln Logs--there's nothing that says that the MGL language itself is perpetual.  If MHC and others were interested in making historic preservation deed restrictions more effective, they could work to get the legislation amended in a useful fashion.
>> 
>> But again, providing acceptable HPR boilerplate should not be the responsibility of communities, private lawyers, and other interested parties.  If MHC is the gatekeeper, determining what is acceptable and what is not in terms of an HPR, then it is MHC's responsibility to at least take the lead in describing how that acceptability can be achieved.
>> 
>> Jonathan Tucker
>> Planning Director
>> Amherst Planning Department
>> 4 Boltwood Avenue, Town Hall
>> Amherst, MA  01002
>> (413) 259-3040
>> tuckerj at amherstma.gov     
>> 
>> 
>> 
>> -----Original Message-----
>> From: masshistpres-bounces at cs.umb.edu [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Dennis De Witt
>> Sent: Monday, July 18, 2011 11:26 AM
>> To: MHC MHC listserve
>> Subject: Re: [MassHistPres] Historic Preservation Restriction Template
>> 
>> Its not as simple as that makes it sound.  In Mass. a restriction that does not meet the standards of MCL 184 cannot be perpetual and will time out.  Stefan Nagel, an attorney who specializes in restrictions in on this list.  He might be able to supply some up to date boilerplate.
>> 
>> Dennis De Witt
>> 
>> 
>> On Jul 18, 2011, at 11:11 AM, Tucker, Jonathan wrote:
>> 
>>> If MassHistoric (you mean MHC?) is indicating that the HPR template you are using is outdated, then it seems to me incumbent upon MHC to provide a sample HPR that is fully up to date, rather than asking each community to thrash around on their own in the dark.
>>> 
>>> And said sample deed restriction should not only be up to date, but reasonably simple and not too onerous in its restrictions for property owners who have modest hopes of actually living in and using their properties after the restriction is in place.  A very large part of the difficulty Massachusetts communities experience in getting private property owners to preserve their significant historic property is the sense that they are signing their lives away as a result of MHC's longstanding preserve-everything-at-all-costs approach to deed restrictions.  There really needs to be a better balance.
>>> 
>>> In many if not most cases, the only thing that really preserves an historic structure--particularly but not only older, larger historic homes--is the ability to have a viable economic use for the property.  It's been a very long time since we had a monied class upon whom we could rely as a significant demographic that gave a rat's patootie about historic preservation.  We need ways to make preservation viable for people whose wallets are thin and whose pockets do not go down to their pants cuffs.  Innovative, flexible historic preservation deed restrictions need to be part of that solution.     
>>> 
>>> Jonathan Tucker
>>> Planning Director
>>> Amherst Planning Department
>>> 4 Boltwood Avenue, Town Hall
>>> Amherst, MA  01002
>>> (413) 259-3040
>>> tuckerj at amherstma.gov     
>>> 
>>> 
>>> 
>>> -----Original Message-----
>>> From: masshistpres-bounces at cs.umb.edu [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Sarah LaValley
>>> Sent: Friday, July 15, 2011 11:02 AM
>>> To: masshistpres at cs.umb.edu
>>> Subject: [MassHistPres] Historic Preservation Restriction Template
>>> 
>>> Good morning preservationists:
>>> 
>>> Does anyone have a recent HPR template?  We are working on a few of these, and MassHistoric indicated that the model document we are using is outdated.  We've had problems digging up anything more recent.
>>> 
>>> Thanks very much-
>>> Sarah
>>> 
>>> Sarah I. LaValley
>>> Conservation, Preservation and Land Use Planner
>>> City of Northampton
>>> Office of Planning and Development
>>> 210 Main Street, Room 11
>>> Northampton MA, 01060
>>> Ph: 413.587.1263
>>> 
>>> 
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