Among the many tools in a local preservationist’s tool box, a preservation restriction is perhaps the strongest. Sometimes called a covenant or easement in other states, it is essentially that - an easement that grants a third party certain rights to a property, but not full ownership. Preservation restrictions are a legal document recorded at the registry of deeds, and they run with the property, not the owner. In the case of a preservation restriction, it grants a municipality or a non-profit the right to approve proposed changes to a property. And while this is similar to a local historic district, preservation restrictions can go beyond what a local historic district can do - preservation restrictions can protect areas not visible from a public way as well as interior spaces. Preservation restrictions are not for every property, but they can be used to protect a community’s most important, most significant, and most intact resources.
Preservation restrictions have become more common in recent years as part of the local development process. The Community Preservation Act (CPA) legislation requires them if a municipality acquires a property using historic preservation CPA funds. And some communities that provide CPA funding to private properties will require a preservation restriction in exchange, to protect the community’s investment in the property. The Community Preservation Coalition provides a helpful FAQ about preservation restrictions.
Communities such as Lexington and Andover have worked preservation restrictions into special permit processes through their planning boards, with bylaws that provide relief from certain zoning requirements in exchange for a preservation restriction. These kinds of bylaws are important, as historic buildings are often not in the ideal place on a lot for current zoning - they were built before modern zoning. Allowing for an easier method of zoning relief may mean that a property can be subdivided in a way that preserves a historic structure, rather than requiring its demolition.
There are a few things to keep in mind, however, when pursuing a PR on a property. Preservation restrictions are a legal document and can take some time to prepare; they are not a quick, “let me get this signature!” form at the end of a permitting process. Under MGL Chapter 184, Section 31-33, a preservation restriction that will be held in perpetuity must be reviewed and approved by the Massachusetts Historical Commission (MHC). Because the MHC adds properties with a preservation restriction to the State Register of Historic Places, they cannot accept a restriction on any old building; it must retain a good degree of integrity and historic significance. The MHC should be contacted as soon as a preservation restriction might be considered for a property, so you can be sure that they will accept it, and to start the process of drafting and reviewing a restriction, which can take months.
The West Harwich Baptist Church when it was documented in 1993, from MACRIS
A recent case in Harwich illustrates the importance of starting the preservation restriction process early. Due to various title issues, the Town of Harwich became involved in the sale of the West Harwich Baptist Church to a developer. The church is an 1840s Greek Revival structure, with a congregation that no longer had a use for the building. The Town acquired the church through friendly eminent domain and with plans to sell it via a request for proposals process to a developer to help clear the title. When the acquisition and sale process was presented at a Special Town Meeting in October of 2022, the article was amended on the floor to add in the requirement for a preservation restriction. And while that amendment passed, as the Town has moved through the process they have not placed the preservation restriction on the building.
The winning developer for the property was selected last fall, and the Town signed a purchase and sale agreement with them. But then the developer immediately cited condition concerns with the building and requested to demolish the building. Because there is no preservation restriction in place, there is only local review mechanisms such as demolition delay protecting the property. After an outpouring of support for the building, the Town is now exploring ways to back out of the sale and pursue other options that would preserve the building.
Communities and non-profits can also hold term-limited preservation restrictions up to thirty years, and renewable. These are not subject to the requirements of MGL Chapter 184, but should still be reviewed by the MHC, to be sure they are providing sufficient historic preservation protections.
The Ransom C. and Mary Taylor House in Worcester
Recently in Worcester, a term-limited preservation restriction was used to preserve the Ransom C. and Mary Taylor House. Sitting on a large lot in a residential neighborhood, this will allow the house to be moved on the lot and housing constructed on the remainder of the lot. While the Worcester Historical Commission was concerned about preserving the Taylor House, the street is not a cohesive historic streetscape, and so they were less concerned, and thus less interested, in reviewing new construction on the lot.
It is also important to consider who is holding the preservation restriction, and if they have the capacity to review projects and manage the restriction. While local historical commissions can hold a preservation restriction on behalf of the municipality, they are often volunteer board members with an interest in history but perhaps no professional background in architecture, architectural history, or construction. If a community is going to seek out preservation restrictions, they should be sure that they have a good number of professionals on the local historical commission, and that the commission is provided regular opportunities to learn more about historic preservation treatments and best practices.
As a community considers ways to protect its historic resources, preservation restrictions can be an important tool, but they should also consider their capacity to prepare, record, and enforce the restriction. And always start the preservation restriction process early, so that it is correctly prepared and recorded before a sale goes through.