Amending Massachusetts Historic Preservation & Conservation Restrictions

Amending Massachusetts Conservation and Preservation Restrictions 2015 is a detailed analysis of laws to be aware of when considering an amendment to a Massachusetts historic preservation or conservation restriction, updated and revised in 2015. The article is a companion piece to the presentation at the 2015 Massachusetts Land Trust Coalition Conference of a workshop on amending conservation restrictions in Massachusetts.

The following is the table of contents and  introduction to the paper:

1.      Overview

2.      Definitions

3.      Individual Restriction’s Text

4.      MGL c. 184, § 32

5.      Municipal Law

6.      Article 97

7.      Charitable Trust Law

8.      Massachusetts Environmental Policy Act

9.      Enforcement

10.   Internal Revenue Code

11.   Conveyancing

12.   Drafting New Restrictions

13.   Open Questions

This paper reviews many of the laws affecting the amendment of a Massachusetts perpetual conservation or historic preservation restriction. [Footnotes omitted.] The focus here is on laws an attorney should be aware of when asked about amending an existing conservation restriction (CR) or historic preservation restriction (HPR) and when drafting a new restriction. This is an area of the law with some clear statutory requirements but with many unanswered questions about the practical application of the statutes and related common law. This paper does not discuss amendment policies and practices that are advisable for restriction holders to adopt even though the policies and practices may be as important as the laws. Apart from a few comments, the subject here is what the law is, not what it ought to be.

Section 2 below defines certain words and phrases as they are used in this paper. Section 3 highlights some things to look for in the restriction instrument itself while considering the other issues presented in the subsequent sections of this paper. Sections 4 through 9 survey Massachusetts “black letter” and common law applicable to the amendments discussed here. Section 10 offers an abbreviated tour of federal tax law to keep in mind in this context.  Putting Massachusetts law and regulations before federal tax law in this paper should not obscure the fact that federal tax law is of great importance to this subject, even if no federal tax deduction was claimed for the restriction being amended. Conveyancing practices applicable to amendments are the subject of Section 11. Section 12 briefly considers how the information in the preceding sections might be applied to drafting a new restriction. The last section identifies some questions that have yet to be addressed by legislation or court decisions about the law reviewed in this paper.