[MassHistPres] Town owned historic buildings

Thu Apr 7 15:56:09 EDT 2016

With all respect for the important work they do, I would not expect the Community Preservation Coalition (CPC) to be able to usefully interpret what "preservation" includes under the Community Preservation Act (CPA) statute.  Their interpretations to date have depended on the narrowest possible interpretations offered by legal counsel for DOR, and those opinions have little-to-nothing to do with what "historic preservation" and its elements as defined under the CPA statute are supposed to include.  There is a reason that CPC closes all of their communications with the following qualifier:
Please Note:  The Community Preservation Coalition renders neither legal opinions nor legal advice, and recommends consulting with an attorney.
If Hopkinton town counsel took their lead from the CPC or the DOR interpretations and rendered an opinion based solely on the precedent established by those opinions, then it is no wonder they interpreted things so narrowly.

This issue has come up in Amherst.   Our Historical Commission is seeking CPA funds to fabricate and install in our oldest burial ground a memorial interpretive stone to function as an interpretive sign: 1) identifying the African American section of the cemetery, 2) highlighting the contributions of five black relatives who enlisted for the Union in the Civil War, and 3) memorializing one of the soldiers who we know is buried there, but who has gone without a headstone for far too long.  When we got pushback for this project from our Community Preservation Act committee-based on them contacting CPC for help and receiving the narrow CPC and DOR interpretations-we sought the assistance of our Town Counsel.

We received an opinion regarding CPA statute interpretation that paid specific attention to the actual language of the statute, as well as its intent with respect to historic preservation.  It has a particular focus on the definition of "rehabilitation", which describes a great deal of community historic preservation activity.  According to our Town Counsel, that explicitly includes historic interpretive signs, so long as those signs are a permanent capital improvement that make an existing historic resource functional for its intended purpose.  And one of the purposes of a historic resource is to serve as a vehicle for a community to better understand its own history.  Attached is a copy of that opinion, along with a document prepared by the Historical Commission summarizing what the opinion means in the context of the language of the CPA statute.  I hope it is useful.  It was convincing to a majority of our CPA Committee members, who voted to make the findings recommended by Town Counsel and voted to support the project.

Reading the CPA statute with respect to historic preservation produces some surprising things.  In the definition of "community preservation", for instance, is found the following:  "the acquisition, creation and preservation of open space, the acquisition, creation and preservation of historic resources and the creation and preservation of community housing."  Now why would "creation" be in the language about historic resources, if it did not mean to include the creation of new structures or improvements whose purpose was to make existing historic resources more functional and apparent?

Finally, I think it can be argued that the CPA statute recognizes the historical development of historic preservation itself as a public interest and practice, development of which began in the 19th century and was not codified until the 1930s in the regulations of the U.S. Dept. of the Interior and the National Park Service.  Those regulations and practices very explicitly refer to and include new interpretive settings and information-anyone been to a National Historic Site recently?-in order to make citizens aware of the historical fabric around them.

Without that awareness, few historic resources could command enough of a constituency to stand a chance of being preserved.  A community cannot value and preserve (except by accident) a historic resource about which its citizens know nothing, or far too little.  Without communities having the ability to use CPA funds to underwrite that kind of 'teaching function', community historic preservation in Massachusetts is hamstrung.  That surely was not the intent of the Community Preservation Act.  The CPA's definition of "rehabilitation", for instance, directly invokes and applies the Secretary of the Interior's Standards for Rehabilitation which, if you read them, embody those broader, practical intentions.  Why would that be in there if it was not intent of the Legislature that there be some continuity between the longstanding body of knowledge and federal practice of historic preservation, and the purposes of the CPA and the uses of its funds for local historic preservation?

I wonder if it wouldn't be worth having a conversation with staff for the Massachusetts Historical Commission about the need for someone to have a conversation with CPC and DOR with regard to how the CPA statute for historic preservation is being interpreted.  Left to their own devices, they seem to be struggling, and perhaps even getting in the way of the purposes of the Act with respect to historic preservation.  Maybe the Act needs to be amended to make some of this explicit-yes, you can use CPA funds to pay for studies and historic interpretive materials and due diligence necessary to ensuring that a community is aware of and preserves its existing historic resources.  Or maybe those who are implementing CPA just need to better understand what the Act is supposed to do.

Jonathan Tucker
Senior Planner
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 Daniel Bibel
Sent: Thursday, April 07, 2016 2:20 PM
To: Roughan, Michael; M Fenollosa; masshistpres at cs.umb.edu
Subject: Re: [MassHistPres] Town owned historic buildings

I question your town counsel that CPA funds can't be used for 'maintenance'.  From what I gather from a DOR table, 'preservation' of historic resources is an allowable use.  Perhaps you should reach at to the Community Preservation Coalition for clarification.

Dan Bibel
CPA Study Committee
Medfield

On 4/7/2016 2:04 PM, Roughan, Michael wrote:
Marilyn,

Regarding the question of ownership and maintenance of historic structures, I have been informed by the Hopkinton town counsel that CPA funds cannot be used for maintenance of historic structures and, in fact, we recently discovered they do not permit use of CPA funds for signage informing the public of the historic nature of the structure either. So within this context, our town administrators are very leery of expanding beyond the two historic structures the town currently owns. In fact this week, a historic home on town library property will be demolished and next week a 200+ year braced timber frame home once used as a "Toll house" will be demolished (6 month demo delay on both).

While these events should be construed to mean no more than I need to do a better job as HHC chair, it does emphasize that having a legitimate way to pay for maintenance is critical. One of the two historic structures that Hopkinton does own is an old Train Depot that has been used by volunteer groups as an "event store" and bottle collection facility that generate donations that help justify its existence. The second facility, McFarland Sanger house, is a 280 year old home that has had no significant modifications in the last century. Our town CPC last year allocated $50k of our $100k request for renovation funds, fortunately this year they have agreed to restore the full request so we can hire North Bennett St School / Keefe Tech to begin the restoration work. However, we still don't have a legitimate use for the facility once it's restored and may sell it to a private party with a deed restriction.

If anyone has recommendations for how to repurpose the McFarland Sanger house or would like more information on the property, please email me and the studies and reports we've commissioned to date.

Hopefully, going forward, I'll have a more positive story to tell.

....Mike

Michael Roughan, AIA, EDAC, LEED AP
Chairman - Hopkinton Historic Commission

Town of Hopkinton
18 Main Street
Hopkinton, MA 01748

D 617.357.7725 M 617.784.6463

From: masshistpres-bounces at cs.umb.edu<mailto:masshistpres-bounces at cs.umb.edu> [mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of M Fenollosa
Sent: Thursday, April 07, 2016 9:51 AM
To: masshistpres at cs.umb.edu<mailto:masshistpres at cs.umb.edu>
Subject: Re: [MassHistPres] Town owned historic buildings

Hi --

there is another reason why a town owning historic buildings may not be such a bad thing:  to the extent the town is responsible for the preservation and rehabilitation of these buildings, CPA money would likely be available to help, drawing on money from the state (through the state match) and possibly relieving the pressure on the municipal budget for non-CPA eligible projects likes roads and schools--

Marilyn Fenollosa
Lexington HDC, HC and CPC
On 4/6/2016 4:32 PM, jworden at swwalaw.com<mailto:jworden at swwalaw.com> wrote:

Sally,

Arlington owns several historic buildings, including our library (1893), town hall (1912), plus some old houses, one (ca. 1820) used as offices, one (a mansion, 1799) used for meetings, offices, and rented out for functions, and another (ca. 1830) as a museum.  The two houses were given to the Town so that they would be preserved, and then the uses were found.

John Worden, Arlington HDC

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