[MassHistPres] MGL 184 Restrictions (easements) held by town

[Tucker, Jonathan]

I'd be interested in hearing others' answer to that question.  Our Historical Commission holds some property interests that it acquired without any secondary approval, on the basis of an old Town Counsel opinion indicating that no other approval is necessary.  That opinion was founded on the context provided by other statutes speaking to how interests in property are acquired.  The statute in question (MGL, Ch. 8d) declares a plain authority without referencing any other necessary approvals:

. . . Said [historical] commission may acquire in the name of the city or town by gift, purchase, grant, bequest, devise, lease or otherwise the fee or lesser interest in real or personal property of significant historical value and may manage the same..

This is in contrast to, say, what's required for the acceptance of a gift of an interest in land offered to a conservation commission.  For the conservation commissions of towns, MGL. Ch. 8c explicitly requires another approval but, interestingly, not an approval by a town meeting:

. . . Said [conservation] commission may receive gifts, bequests or devises of personal property or interests in real property of the kinds mentioned below in the name of the city or town, subject to the approval of the city council in a city or of the selectmen in a town.

With regard to the implied need to obtain approval of a legislative body, while a city council may well be the legislative body for a city, the select board is never the legislative body in a town.  The statute takes the time to dictate an approval, but omits for towns any mention of an approval by the legislative body (town meeting).  That does not seem to create a context supportive of the opinion of Brookline's town counsel.

MGL Ch. 40, Section 14 regulates the purchase or taking by eminent domain of "any land, easement or right therein within the city or town," and that "no land, easement or right therein shall be taken or purchased under this section unless the taking or purchase thereof has previously been authorized by the city council or by vote of the town, nor until an appropriation of money, to be raised by loan or otherwise, has been made for the purpose by a two thirds vote of the city council or by a two thirds vote of the town. . . ."  However, the section can be read to mean that all of that applies to purchases and eminent domain actions "for any municipal purpose for which the purchase or taking of land, easement or right therein is not otherwise authorized or directed by statute."

In this case, our town counsel thought a separate authorization and direction was provided by statute under MGL, Ch. 40, Section 8d, and that historical commissions "may acquire" interests in land without any further approvals.

Does anyone know of any case law that verified or contradicted this opinion?

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




From: masshistpres-bounces at cs.umb.edu [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Dennis De Witt
Sent: Friday, February 24, 2012 11:24 AM
To: MHC MHC listserve
Subject: Re: [MassHistPres] MGL 184 Restrictions (easements) held by town

Judy et al

It is my understanding that in a town the selectmen must approve any 184 easement regardless of who holds it.  In addition, Brookline's town counsel has recently opined that because an easement is an interest in "real property", town meeting must vote to accept any easement held by a town body such as an historical commission or conservation commission.  I'm wondering if that is consistent (or not) with practice elsewhere.

I can think of several cases where the Grantor's specialist counsel has not raised that issue.  If it is required would a failure to have had such a vote result in the easement being not perfected and thus subject to challenge?

Dennis De Witt
Brookline


On Feb 24, 2012, at 10:59 AM, Judy Markland wrote:


Harry,
If Georgetown is a member of the Community Preservation Coalition (your CPC members will know), they will be more than happy to talk you through many of the issues involved with this and send sample documents.  If Georgetown isn't a member, I can highly recommend joining.  The fees are minimal and more than offset by the reduction in necessary calls to town counsel.  Mass Historical Commission can answer many of the specific questions about who can hold the restrictions but the Coalition can also help with some of the CPA-specific issues, like whether a private property receiving CPA preservation funds needs to be open to the public occasionally so that there's a clear "public good" received for the expenditure.
Judy Markland

At 05:53 AM 2/24/2012, Harry LaCortiglia wrote:

A query to the listserve members,

Can anyone provide me with some information regarding Historical Restrictions under MGL CH. 184?

When Historic Structures are preserved using CPA funding under Ch. 44b the law would seem to require a deed restriction to run with the land.
While I'm somewhat familiar with Conservation Restrictions under this chapter, ( having done a few of those ) I'm somewhat at a loss to know what organizations/entities would be qualified to "hold' an Historic Restriction . Would the local Historical Society (a private organization) be able to do so? What's the typical endowment to such holders these days?

Any info that anyone could provide to me would be helpful, as I seem to have a great deal to learn about these types of Restrictions.

Best,
H. LaCortiglia
Chair, Georgetown CPC
http://georgetowncpc.com<http://georgetowncpc.com/>


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