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

Fri Feb 24 15:39:16 EST 2012

A note I sent previously, intended for all, apparently made it only to
Dennis DeWitt and not to the rest of the listserv.  Here it is again, for
your possible edification:

Hello Dennis et al -

You're correct that the municipal governing body (selectmen, aldermen,
council) need to approve a preservation restriction for it to be deemed
"perpetual" under chap. 184.  And any town divestment/transfer of property
or a property interest requires town meeting approval.  However, the
position of your town counsel regarding town meeting approval for the town's
acquisition of a preservation or conservation restriction, without the
expenditure of town funds, is unique.  Hundreds of preservation and
conservation restrictions have been donated to towns and town bodies
throughout Massachusetts without town meeting approval.  Chapter 184 also
requires state approval of restrictions.  Neither the MA Historical
Commission (the agency that approves historic preservation restrictions on
behalf of the state) nor the Executive Office of Energy and Environmental
Affairs (the agency that approves land conservation restrictions for the
state) has ever required town meeting approval as a condition of their
agency's approval.  In my experience the position of Brookline's counsel has
never been raised anywhere else.  Was Brookline's counsel perhaps opining
about preservation or conservation restrictions which are purchased by the
town?

Stefan

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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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