[MassHistPres] Historic Preservation Restriction Template

snagel at stevesmall.com snagel at stevesmall.com
Mon Jul 18 16:17:30 EDT 2011


Hello Preservation Listserv - 

This is Stefan Nagel, writing from a remote (non-office) location.  As a 
result, I don't have direct access to some of the resources relating to 
historic preservation restrictions which I'll attempt to  identify in this 
note.

The wording and structure of historic preservation restrictions will vary 
depending on the purpose of the grant, the parties to the transaction, the 
characteristics of the property being protected, etc.  Therefore, no one 
template can or should be used.   So, here is some information as to where 
to look for guidance:  First, about 2004 or 2005 the Land Trust Alliance of 
Washington DC produced the second edition of the seminal "Conservation 
Easement Handbook", first published in 1988.  The 1988 Handbook included a 
discussion of historic preservation considerations for conservation 
purposes.  It also included a sample "historic preservation easement", 
which was updated in 1996 and then again with the participation of the 
National Trust for Historic Preservation for the 2004/2005 Handbook.  In 
addition, the MA Executive Office of Energy and Environmental Affairs has 
produced a sample land conservation restriction which is intended to 
address, among other things, the requirements of MGL chap. 184 Sec. 32 as 
they relate to land conservation restrictions.  Some of those land 
conservation restriction elements can be adapted to historic preservation 
restrictions for use in Massachusetts, which has statutory approval 
requirements which are unique in the United States .  And Massachusetts 
preservation organizations that have acquired and used preservation 
restricitons, such as Historic New England and some town historic 
preservation commissions, may (or may not) be willing to share their 
restriction templates.  

Please bear in mind one thing:  for preservation restrictions which are 
intended to benefit from the federal tax deduction for so- called 
"qualified conservation contributions", recent Tax Court rulings have made 
it essential that a knowledgeable attorney attend to the wording and 
structure of the required "extinguishment", "percentage interest" and 
alternative "mortgage subordination" provisions.  I believe - but am not 
certain of this - that the National Trust for Historic Preservation may 
have made adjustments to its sample easement preservation easement to 
address these recent rulings.  

This is a huge topic, so these observations only barely touch the surface.  
But perhaps they'll help advance whatever search you're conducting.

Stefan Nagel, Esq., Of Counsel
Law Office of Stephen J. Small, Esq., P.C.
tel. 617-357-4012, ext. 261
snagel at stevesmall.com

 

----------------------------------------
 From: "Tucker, Jonathan" <TuckerJ at amherstma.gov>
Sent: Monday, July 18, 2011 2:34 PM
To: "Roseanne Saalfield" <zan at charter.net>, "Dennis De Witt" 
<djd184 at verizon.net>
Subject: Re: [MassHistPres] Historic Preservation Restriction Template

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 th
eir 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
>>> 
>>> 
>>> City of Northampton email messages are public records except when they 
fall under one of the specific statutory exemptions.
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>> 
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> 
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