Municipalities can create historic districts for managing sites and structures therein. They may do so by special act or, more commonly, by an enabling act under the Historic District Act, G.L. c.40C. The resulting Historic District Commissions are city or town boards with power to regulate and restrict various changes within the district. More than 220 local historic districts were established in more than 100 communities.
In addition to this “district” approach, there are local historical commissions (LHCs). These are agencies of local government providing leadership to help preserve historic sites and buildings. As of 1999, about 345 communities had established LHCs. They have broad planning responsibilities to identify, evaluate and protect historic properties. G.L. c.40, §8D.
Several municipalities have utilized the Zoning Act or Home Rule authority to enact “demolition delay” bylaws. Such a bylaw typically provides a cooling-off period after a property owner files an application for a demolition permit from the building inspector. The building inspector then will be prohibited from issuing the demolition permit for a set period of time, usually 90 days to six months, during which local officials are directed to work with the property owner to seek alternatives to demolition. Other activists may attempt at the same time to create an historic district, secure landmark status, or negotiate an Historic Preservation Restriction (HPR) saving all or some of the property, allowing limited development, or none.
Over the decades our firm has helped with all manner of questions and legal needs pertaining to historic and archeological resources, from dealing with key state officials to satisfying the zoning or non-zoning requirements.
The Massachusetts Historical Commission (MHC) plays a major role at the state level. Located in the Office of the Secretary of State, the MHC administers state statutes and the National Historic Preservation Act (NHPA). It may designate or certify historic landmarks for listing in a state publication known as the State Register. This provides some degree of protection. There is a duty to eliminate, minimize, or mitigate adverse effects to State Register properties.
Once a property is designated a state historical landmark, and listed in the State Register, sponsors of public and private projects in the area, municipalities included, must access impacts to historic properties. A consultation process, to provide balanced points of view, follows if an historical property would be adversely affected by a project. State agencies, private parties, and others proposing state-licensed projects, must adopt all prudent and available means to eliminate, minimize, or mitigate adverse effects to State Register properties.
Matching grants are available to municipal and private non-profit owners of properties which are listed on the State Register (or certain other eligible properties if they meet requirements), if the owners agree to record an HPR with the MHC.
In addition to historic preservation as described, Massachusetts regulates discovery of an archeological site or historic site or object during any survey, excavation, or construction. This results in a mandatory report to the State Archeologist, and then reasonable steps to secure preservation.
Historic Preservation Restrictions are authorized, with the procedure specified for their creation and enforcement, in the same statute creating Conservation Restrictions (CRs) and Agricultural Preservation Restrictions (APRs). Such a restriction may be given to the MHC, a local HPC, or a qualified non-profit preservation organization. About 500 such restrictions have been submitted to and approved by the MHC.
Because we are familiar with real estate, land use, and environmental law, we are able to deal with how all three intersect in the field of historic sites and structures.