Preservation Restrictions and the CPA

1. Preservation Restrictions and the CPA Western Massachusetts Conference on the Community Preservation Act University of Massachusetts, Amherst April 28, 2007 Michael Steinitz • Massachusetts Historical Commission

2. Historic Preservation Restrictions A legal means to provide a high level of long term protection to significant historic properties. In use for over 50 years in Massachusetts. The Massachusetts Historical Commission has a statutory role in approving Historic Preservation Restrictions.

3. Historic Preservation Restrictions Historic Preservation Restrictions assure that the intrinsic value of historic properties will be preserved by present and future owners. A voluntary legal agreement

4. Nature and Purpose of a Preservation Restriction A legal agreement between a property owner and a qualified restriction holding organization. Protects a significant historic property or site for a term of years or in perpetuity. Restricts future changes in appearance or use of the property.

5. PRESERVATION RESTRICTION AGREEMENT between the PROPRIETORS OF THE SECOND CONGREGATIONAL MEETING HOUSE IN NANTUCKET, MASSACHUSETTS and the BOARD OF SELECTMEN OF THE TOWN OF NANTUCKET, MASSACHUSETTS  THIS PRESERVATION RESTRICTION, is made this 23 day of June, 2004, between the Proprietors of the Second Congregational Meeting House ("Grantor") and the Board of Selectmen of the Town of Nantucket ("Grantee"), a governmental body in the Commonwealth of Massachusetts, to be administered, managed, and enforced by its Historic District Commission ("HDC"). WITNESSETH: WHEREAS, Grantor is owner in fee simple of certain real property located in the Town of Nantucket, Nantucket County, Massachusetts, more particularly described in Exhibit A attached hereto and incorporated herein (hereinafter "the Property"), said Property including the following structure (hereinafter "the Building"):

6. Authorized byM.G.L. Chapter 184, ss. 31-33 • Preservation, Conservation, Agricultural Preservation, Watershed Preservation and Affordable Housing Restrictions are all enabled by Mass. General Law Chapter 184, ss. 31-33. • Defines scope and intent of preservation restrictions. • Provides for their acquisition, recording at Registry of Deeds, release, and assignment. • All Preservation Restrictions must be approved by the Massachusetts Historical Commission.

7. Preservation Restriction are widely used. Over 1000 Massachusetts properties protected by Preservation Restrictions. Restrictions granted to or purchased by: Non-profit Preservation Organizations Historical Societies Municipalities Other Government Agencies

8. Some uses of Preservation Restrictions related to CPA Required as a condition of a CPA grant. Required as a condition of the use of a CPA grant to purchase a significant historic property. Restriction can be purchased by a municipality using CPA funds. Restriction retained by a municipality when it transfers of a historic property purchased with CPA funds.

9. Unity Church, Easton

10. Seneca Boston House, Nantucket

11. Aikin House, Dartmouth

12. Redwing Farm, Chelmsford

13. What Properties qualify for protection by a Preservation Restriction? • Structures or sites must be significant for their: • Historic Architecture • Archaeology • Historic Associations

14. What defines a “significant” Property? Listed in or eligible for listing in the National Register of Historic Places. Contributing to a National Register Historic District or eligible District. Listed in the State Register of Historic Places. Decisions on significance and eligibility are made by the Massachusetts Historical Commission.

15. Who may hold a Preservation Restriction for a municipally-owned property? • A city or town may not hold a Restriction on itself! • A local historical commission or historic district commission or any agent of town government may not hold a restriction on a town-owned property. • The Restriction must be held by a qualified governmental body or charitable trust.

16. What does a Preservation Restriction Restriction Protect? It can forbid or limit: • Alterations to exterior or interior features of a building or structure. • Changes in the appearance or condition of the site, including new construction. • Uses that are not historically appropriate. • Archaeology Field investigation without a State Archaeologist’s permit. • Other acts or uses detrimental to appropriate preservation of the structure or site.

17. The Terms of the Restriction • Must adequately protect the identified character-defining historic features of the property, buildings, structures and their setting. • Must require owners to properly maintain the property and its significant features. • Can distinguish between major alterations that require approval, and minor, routine maintenance and repair.

18. What standards should determine maintenance practices, allowable changes and, “appropriate preservation”? • The Secretary of the Interior’s Standards for the Treatment of Historic Properties with Guidelines for Preserving, Rehabilitating, Restoring and Reconstructing Historic Buildings provide a nationally recognized set of guidelines for preservation, rehabilitation, restoration and reconstruction.

20. Baseline Documentation • The Restriction must establish those qualities of the property that are to be protected under the restriction. • Must adequately describe in words and depict in photographs the character-defining historic features of the property. • Must adequately describe and depict the condition and appearance of the setting.

21. Provisions of the Agreement must include: • A Grantor’s Covenant to Maintain the Property; Grantor’s Rights • A list of Prohibited Activities, including demolition • A list of Activities Requiring notification of and approval by Grantee • Standards for Review and Administration Procedures • Grantee’s rights to inspection; legal Remedies • Casualty damage; Insurance

22. MHC Review and Approval of Preservation Restrictions • Get MHC significance opinion for property early on. • Listed on the National Register? • Usually require: • Current MHC inventory form • Current Photographs of all historic features • Annotated Parcel Map

23. MHC Review and Approval of Preservation Restrictions • Contact MHC early in the process! • Use MHC sample Restrictions and submit DRAFT Preservation Restriction and Baseline Documentation for review and comment. • Allow adequate time for Review and Approval process! (Minimum 90 days)

24. Some Key MHC Standards • The protections must be comprehensive • They should protect the whole building or site, its significant features, AND its setting on the property • The Agreement must cite the Secretary of the Interior’s Standards for the Treatment of Historic Properties

25. Keep these questions in mind: • Does the property qualify for a Restriction? • Does the Restriction adequately protect the property? • Is the CPA awardee able to convey the Restriction? Leasees, mortgaged properties • Do the terms of the Restriction meet the Secretary of the Interior’s Standards? • Do the terms meet Ch 184 requirements?