[MassHistPres] Historic Restrictions

Tue Feb 28 12:46:34 EST 2012

MGL Chapter 184, section 32 states:

"Such conservation, preservation, agricultural preservation, watershed preservation and affordable housing restrictions are interests in land and may be acquired by any governmental body or such charitable corporation or trust which has power to acquire interest in the land, in the same manner as it may acquire other interests in land."

How can a municipality (or any other property owner) acquire an interest in land that it already owns?

Michael Steinitz

Director

Preservation Planning Division

Massachusetts Historical Commission

220 Morrissey Blvd

Boston MA 02125

617-727-8470

617-727-5128 (fax)

michael.steinitz at state.ma.us

________________________________
From: Tucker, Jonathan [mailto:TuckerJ at amherstma.gov]
Sent: Tuesday, February 28, 2012 10:42 AM
To: Steinitz, Michael @ SEC; 'Harry LaCortiglia'
Cc: masshistpres at cs.umb.edu
Subject: RE: [MassHistPres] Historic Restrictions

Is that in MGL, CMR, or a result of case law?

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 Steinitz, Michael (SEC)
Sent: Tuesday, February 28, 2012 10:23 AM
To: 'Harry LaCortiglia'
Cc: masshistpres at cs.umb.edu
Subject: Re: [MassHistPres] Historic Restrictions

Mr. LaCortiglia is correct in noting that in the case of a municipally-owned property, a preservation restriction may not be held by the local historical commission (a municipal body) or any other municipal entity, since the owner cannot hold a preservation restriction on itself.  The same holds true for conservation restrictions and conservation commissions.  The municipality must convey the preservation restriction to a qualified outside holder.

Michael Steinitz

Director

Preservation Planning Division

Massachusetts Historical Commission

220 Morrissey Blvd

Boston MA 02125

617-727-8470

617-727-5128 (fax)

michael.steinitz at state.ma.us

________________________________
From: masshistpres-bounces at cs.umb.edu [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Tucker, Jonathan
Sent: Tuesday, February 28, 2012 10:10 AM
To: 'Harry LaCortiglia'
Cc: masshistpres at cs.umb.edu
Subject: Re: [MassHistPres] Historic Restrictions

I think the answer to your question is in the potential dilemma you cited.  In most towns, control over the management (though usually not the disposition) of town property is in the hands of the town manager, town council president, mayor, etc., folks who are indeed vulnerable (and sometimes the source of) politically-motivated proposals to do something inappropriate with town property preserved for specific purposes.

Having conservation easements instead held by the conservation commission and historic preservation easements held by the historical commission, and so forth, puts the easements into the hands of those charged under state law with responsibility for overseeing the public purposes for which the easements were acquired and are held.   There's nothing wrong with assuming-even counting on-the fact that those folks may have to fight with other arms of local government to ensure the protection of those interests.

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: Harry LaCortiglia [mailto:hlacortiglia at comcast.net]
Sent: Tuesday, February 28, 2012 5:49 AM
To: Tucker, Jonathan
Cc: masshistpres at cs.umb.edu
Subject: Re: [MassHistPres] Historic Restrictions

Hi Jonathan,

Something that always made me shake my head (sorry if the rattle is noisy...).

How can a municipality that owns a property also be the holder of a restriction?

For example, if Anytown owns a parcel of land, managed and controlled by the Anytown Conservation Commission, how can the Anytown Conservation Commission be the holder of the restriction, as well?

If that were privately held land wouldn't the equivalent situation be considered a merger of interests?

Best,
H.

On 2/27/2012 11:30 AM, Tucker, Jonathan wrote:
I appreciate the clarification.  Is there a reason that the School Department could not continue to manage the school  building (is it being decommissioned?), while the Historical Commission holds the preservation restriction on behalf of the community?

It's not a happy state of affairs if you don't trust your own Town government to hold a preservation restriction.  Does it help that such a restriction is bound under the provisions of Article 97?  You can always loudly and regularly advertise the limits of the restriction-leaving hard copy evidence stapled to everyone's foreheads, including with the media and public through a press release-and then call MHC for help if local politicos start playing fast and loose with the property.

Good luck,

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: Harry LaCortiglia [mailto:hlacortiglia at comcast.net]
Sent: Saturday, February 25, 2012 7:03 AM
To: Tucker, Jonathan
Cc: masshistpres at cs.umb.edu<mailto:masshistpres at cs.umb.edu>
Subject: Re: [MassHistPres] Historic Restrictions

Hi Jonathan,

Would that it would be so easy.....

In this situation there will be no "real property interest" gained by the Town since the property is already municipally owned. It's also highly unlikely that the local Historical Commission would want to manage the property. It's a school. (In a decidedly Historic Building managed by the School Dept.)

I'm looking to find a 'holder" for a restriction that would be separate and insulated from the Town government and any potential politics that may someday arise in the future.

My apologies for not providing these details in the original posting. (I was asking it on a Friday, after all...)

Best,
H.

On 2/24/2012 12:07 PM, Tucker, Jonathan wrote:
MGL Chapter 40, Section 8d, last sentence:
. . . 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.

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> [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Harry LaCortiglia
Sent: Friday, February 24, 2012 5:53 AM
To: masshistpres at cs.umb.edu<mailto:masshistpres at cs.umb.edu>
Subject: [MassHistPres] Historic Restrictions

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
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