Protecting Community Preservation Assets With Deed Restrictions

8/6/2019 Protecting Community Preservation Assets With Deed Restrictions

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PreservationPreservation RestrictionsRestrictions

and the CPAand the CPAWestern Massachusetts Conference on theWestern Massachusetts Conference on the

Community Preservation ActCommunity Preservation Act

University of Massachusetts, AmherstUniversity of Massachusetts, Amherst

April 28, 2007April 28, 2007

Michael SteinitzMichael Steinitz Massachusetts Historical CommissionMassachusetts Historical Commission


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Historic PreservationHistoric Preservation

RestrictionsRestrictionsA legal means to provide a high levelA legal means to provide a high levelof long term protection to significantof long term protection to significant

historic properties.historic properties.In use for over 50 years inIn use for over 50 years inMassachusetts.Massachusetts.

The Massachusetts HistoricalThe Massachusetts HistoricalCommission has a statutory role inCommission has a statutory role inapproving Historic Preservationapproving Historic Preservation

Restrictions.Restrictions.


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Historic PreservationHistoric PreservationRestrictionsRestrictions

A voluntary

legal agreement

Historic Preservation RestrictionsHistoric Preservation Restrictionsassure that the intrinsic value ofassure that the intrinsic value ofhistoric properties will be preservedhistoric properties will be preservedby present and future owners.by present and future owners.


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Nature and Purpose of aNature and Purpose of a

Preservation RestrictionPreservation Restriction

A legal agreement between a propertyA legal agreement between a property

owner and a qualified restriction holdingowner and a qualified restriction holdingorganization.organization.

Protects a significant historic property orProtects a significant historic property orsite for a term of years or in perpetuity.site for a term of years or in perpetuity.

Restricts future changes in appearanceRestricts future changes in appearanceor use of the property.or use of the property.


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Authorized byAuthorized byM.G.L. Chapter 184, ss. 31M.G.L. Chapter 184, ss. 31--3333

Preservation, Conservation, AgriculturalPreservation, Conservation, AgriculturalPreservation, Watershed Preservation andPreservation, Watershed Preservation and

Affordable Housing Restrictions are all enabledAffordable Housing Restrictions are all enabled

by Mass. General Law Chapter 184, ss. 31by Mass. General Law Chapter 184, ss. 31--33.33. Defines scope and intent of preservationDefines scope and intent of preservation

restrictions.restrictions.

Provides for their acquisition, recording atProvides for their acquisition, recording at

Registry of Deeds, release, and assignment.Registry of Deeds, release, and assignment.

All Preservation Restrictions must be approvedAll Preservation Restrictions must be approvedby the Massachusetts Historical Commission.by the Massachusetts Historical Commission.


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Preservation Restriction arePreservation Restriction are

widely used.widely used.Over 1000 Massachusetts propertiesOver 1000 Massachusetts properties

protected by Preservation Restrictions.protected by Preservation Restrictions.

Restrictions granted to or purchased by:Restrictions granted to or purchased by:

NonNon--profit Preservation Organizationsprofit Preservation Organizations

Historical SocietiesHistorical Societies

MunicipalitiesMunicipalities

Other Government AgenciesOther Government Agencies


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Some uses of PreservationSome uses of PreservationRestrictions related to CPARestrictions related to CPA

Required as a condition of a CPA grant.Required as a condition of a CPA grant.

Required as a condition of the use of a CPARequired as a condition of the use of a CPA

grant to purchase a significant historicgrant to purchase a significant historicproperty.property.

Restriction can be purchased by a municipalityRestriction can be purchased by a municipalityusing CPA funds.using CPA funds.

Restriction retained by a municipality when itRestriction retained by a municipality when ittransfers of a historic property purchasedtransfers of a historic property purchasedwith CPA funds.with CPA funds.


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Unity Church, EastonUnity Church, Easton


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Seneca Boston House,Seneca Boston House,NantucketNantucket


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Aikin House, DartmouthAikin House, Dartmouth


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Redwing Farm, ChelmsfordRedwing Farm, Chelmsford


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What Properties qualify forWhat Properties qualify for

protection by a Preservationprotection by a PreservationRestriction?Restriction?

Structures or sites must beStructures or sites must be significantsignificant forfor

their:their: Historic ArchitectureHistoric Architecture

ArchaeologyArchaeology

Historic AssociationsHistoric Associations


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What defines a significantWhat defines a significantProperty?Property?

Listed in or eligible for listing in the NationalListed in or eligible for listing in the NationalRegister of Historic Places.Register of Historic Places.

Contributing to a National Register Historic DistrictContributing to a National Register Historic Districtor eligible District.or eligible District.

Listed in the State Register of Historic Places.Listed in the State Register of Historic Places.

Decisions on significance and eligibility are madeDecisions on significance and eligibility are madeby the Massachusetts Historical Commission.by the Massachusetts Historical Commission.


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Who may hold a PreservationWho may hold a Preservation

Restriction for a municipallyRestriction for a municipally--owned property?owned property?

A city or town mayA city or town may notnot hold a Restriction onhold a Restriction onitself!itself!

A local historical commission or historic districtA local historical commission or historic districtcommission or any agent of town governmentcommission or any agent of town governmentmay not hold a restriction on a townmay not hold a restriction on a town--ownedownedproperty.property.

The Restriction must be held by a qualifiedThe Restriction must be held by a qualifiedgovernmental body or charitable trust.governmental body or charitable trust.


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What does a PreservationWhat does a Preservation

Restriction RestrictionRestriction RestrictionProtect? It can forbid or limit:Protect? It can forbid or limit:

Alterations to exterior or interior features of aAlterations to exterior or interior features of abuilding or structure.building or structure.

Changes in the appearance or condition of theChanges in the appearance or condition of thesite, including new construction.site, including new construction.

Uses that are not historically appropriate.Uses that are not historically appropriate.

Archaeology Field investigation without a StateArchaeology Field investigation without a StateArchaeologists permit.Archaeologists permit.

Other acts or uses detrimental to appropriateOther acts or uses detrimental to appropriate

preservation of the structure or site.preservation of the structure or site.


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The Terms of the RestrictionThe Terms of the Restriction Must adequately protect the identifiedMust adequately protect the identifiedcharactercharacter--defining historic features of thedefining historic features of theproperty, buildings, structures and their setting.property, buildings, structures and their setting.

Must require owners to properly maintain theMust require owners to properly maintain theproperty and its significant features.property and its significant features.

Can distinguish between major alterations thatCan distinguish between major alterations thatrequire approval, and minor, routinerequire approval, and minor, routine

maintenance and repair.maintenance and repair.


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What standards should determineWhat standards should determine

maintenance practices, allowablemaintenance practices, allowablechanges and, appropriatechanges and, appropriatepreservation?preservation?

The Secretary of the Interiors Standards forThe Secretary of the Interiors Standards forthe Treatment of Historic Propertiesthe Treatment of Historic Properties withwithGuidelines for Preserving, Rehabilitating,Guidelines for Preserving, Rehabilitating,Restoring and Reconstructing HistoricRestoring and Reconstructing Historic

BuildingsBuildings provide a nationally recognized setprovide a nationally recognized setof guidelines for preservation, rehabilitation,of guidelines for preservation, rehabilitation,restoration and reconstruction.restoration and reconstruction.


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Baseline DocumentationBaseline Documentation

The Restriction must establish those qualities ofThe Restriction must establish those qualities ofthe property that are to be protected under thethe property that are to be protected under the

restriction.restriction.

Must adequately describe in words and depictMust adequately describe in words and depictin photographs the characterin photographs the character--defining historicdefining historicfeatures of the property.features of the property.

Must adequately describe and depict theMust adequately describe and depict thecondition and appearance of the setting.condition and appearance of the setting.


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Provisions of the AgreementProvisions of the Agreementmust include:must include:

A Grantors Covenant to Maintain the Property;A Grantors Covenant to Maintain the Property;Grantors RightsGrantors Rights

A list of Prohibited Activities, includingA list of Prohibited Activities, includingdemolitiondemolition

A list of Activities Requiring notification of andA list of Activities Requiring notification of andapproval by Granteeapproval by Grantee

Standards for Review and AdministrationStandards for Review and AdministrationProceduresProcedures

Grantees rights to inspection; legal RemediesGrantees rights to inspection; legal Remedies

Casualty damage; InsuranceCasualty damage; Insurance


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MHC Review and Approval ofMHC Review and Approval of

Preservation RestrictionsPreservation Restrictions Contact MHC early in the process!Contact MHC early in the process!

Use MHC sample Restrictions and submitUse MHC sample Restrictions and submit

DRAFT Preservation Restriction and BaselineDRAFT Preservation Restriction and BaselineDocumentation for review and comment.Documentation for review and comment.

Allow adequate time for Review and ApprovalAllow adequate time for Review and Approvalprocess!process!

(Minimum 90 days)(Minimum 90 days)


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Some Key MHC StandardsSome Key MHC Standards The protections must be comprehensiveThe protections must be comprehensive

They should protect the whole building orThey should protect the whole building or

site, its significant features, AND itssite, its significant features, AND itssetting on the propertysetting on the property

The Agreement must cite the SecretaryThe Agreement must cite the Secretary

of the Interiors Standards for theof the Interiors Standards for theTreatment of Historic PropertiesTreatment of Historic Properties


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Keep these questions in mind:Keep these questions in mind:

Does the property qualify for a Restriction?Does the property qualify for a Restriction?

Does the Restriction adequately protect theDoes the Restriction adequately protect theproperty?property?

Is the CPA awardee able to convey theIs the CPA awardee able to convey theRestriction? Leasees, mortgaged propertiesRestriction? Leasees, mortgaged properties

Do the terms of the Restriction meet theDo the terms of the Restriction meet theSecretary of the Interiors Standards?Secretary of the Interiors Standards?

Do the terms meet Ch 184 requirements?Do the terms meet Ch 184 requirements?

Protecting Community Preservation Assets With Deed Restrictions

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