[MassHistPres] single house historic district vs. covenant on deed

[Steinitz, Michael (SEC)]

Christopher,

It's a good question. In Massachusetts the covenants you reference - preservation restrictions - are governed by state statute (Massachusetts General Laws, Chapter 184, section 31-33).  They may be held by any governmental entity, or by a charitable corporation or trust whose purposes include the preservation of historically significant historic properties or sites.  Such restrictions must be approved by the Massachusetts Historical Commission, and if held by a qualified, non-governmental organization, by the municipality in which the property is located.  Many municipalities hold preservation restrictions on historic properties - most designate their historical commission or historic district commission to act as the municipal agent to administer and enforce the restrictions.  In recent years municipally held preservation restrictions have been conveyed most often as a condition of a Community Preservation Act grant, but they are also conveyed for other reasons and purposes.  Municipalities can retain a preservation restriction when they sell a municipal property to protect it under new and future owners.  Or a preservation restriction may be required as condition of the granting of a local variance or permit for a project involving a historic property.  Or the municipality can "take on" a preservation restriction from an owner wishing to protect their property.

So how do preservation restrictions differ from a single-buiding local historic district? While both offer strong protections, there are fundamental differences in the legal basis and statutory frameworks for preservation restrictions and local historic districts.  Perhaps a most obvious difference is in their protective reach - while local historic districts can only review changes visible from a public way, preservation restrictions have the ability to protect all exterior and interior features of a property, the setting of a building, and known or potential archaeological resources below ground.

Local historic districts only deal with visible changes to exterior appearance.  Preservation restrictions can also limit or prevent changes to the use of a property, something local historic districts cannot control.

While it is possible to execute a preservation restriction more quickly than to establish a new local historic district, it is not a fast and easy process!  Keep in mind that there is a statutory requirement for review and approval of preservation restrictions by the Massachusetts Historical Commission (MHC) which holds such legal agreements to certain standards of format and documentation.

Another very important difference relates to owner consent. A preservation restriction is a binding legal agreement between a property owner and the holder of the restriction.  The owner must consent to and enter into the agreement, and by doing so conveys certain property rights to the holder.  By doing so the owner binds all future owners to the terms of the protective agreement.  A local historic district on the other hand is a municipal ordinance or bylaw created through the local legislative process.  It can in fact be created regardless of whether the owner consents to or objects to the establishment of the district.

Neither local historic districts, nor preservation restrictions are easy to undo, and they rarely are.  In the case of local historic districts, such a reversal would seem to have to follow a similar municipal process required for its creation.  For municipally-held preservation restrictions, "releasing" or "extinguishing" a restriction besides needing the consent of both parties, also requires approval from the Massachusetts Historical Commission, which must first hold a public hearing to determine that such an extinguishment is in the public interest.

These are just some of the differences I can think of off immediately.   Both of these can be effective preservation tools.

Michael Steinitz
Massachusetts Historical Commission


All,

Several historic houses and other buildings in Medford are protected by covenants on the deeds naming the Massachusetts Historical Commission as trustee.  Can the local Historical Commission or Historic District Commission be the trustee?  (We are not considering Historic New England as a trustee.  This costs $50,000 or more.)

What are the pros and cons of creating a single house historic district vs. simply placing a covenant on the deed, assuming the owner is willing to do either, but is not willing to spend $50,000.

Christopher Bader
Chair, Medford Historic District Commission






******************************
For administrative questions regarding this list, please contact Christopher.Skelly at state.ma.us<mailto:Christopher.Skelly at state.ma.us> directly.  PLEASE DO NOT "REPLY" TO THE WHOLE LIST.
MassHistPres mailing list
MassHistPres at cs.umb.edu<mailto:MassHistPres at cs.umb.edu>
http://mailman.cs.umb.edu/mailman/listinfo/masshistpres
********************************

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.cs.umb.edu/mailman/private/masshistpres/attachments/20150715/e9e129ff/attachment.htm>