Easements and Ordinances
Easements offer property owners the opportunity to enhance local efforts to protect their historic properties. Below is a brief overview of some of the practical challenges faced by local preservation commissions across the country, and information about how easements address those challenges.
Ordinances May Be Amended or Revoked
Local ordinances, designed to protect historic properties in locally-designated historic districts, can be amended or revoked. Further, the boundaries of local historic districts may be altered at any time in response to changing government priorities or economic pressures. Some local protections may seem strong today, but the same may not always be true in the future. Easements, however, are recorded in the land records and are binding on current and future owners of the encumbered property in perpetuity. Easement holding organizations are not influenced by local economic or political pressures.
Scope of Protection
The protection offered by a historic preservation easement also goes beyond limiting changes to the property, which is where local ordinances typically focus. Easements prohibit demolition by neglect and require that the protected features, the foundations, and the overall structural integrity of the building be maintained in good order. As a result, the Trust has the right and, through its regular monitoring, the ability to identify maintenance issues and require property owners to address those issues before damage occurs to the historic fabric of the building.
Historic commissions do not often have the necessary funding to achieve their mission and rarely exist without coming under political and further economic pressures. National studies reveal that 40 percent of preservation commissions chartered to protect their local historic communities lack sufficient funding or staff to monitor the properties they are charged with overseeing, much less fight their destruction in court when necessary. Even the strongest historic preservation commissions often have their autonomy put at risk due to budgetary concerns of the municipality. Cost-cutting proposals that threaten to disband preservation commissions as independent bodies are commonplace. These proposals effectively reduce these commissions' budgets to zero and attribute their responsibilities to the city's commissioners or planning commissions. To the contrary, since the passage of reforms in the Pension Protection Act in 2006, easement-holding organizations are required to certify that they have the resources and commitment to enforce the easements they accept.
Federal and Local Protections Not Always Aligned
Historic district boundaries, as defined by the federal government in the National Register of Historic Places, can vary greatly from those defined by local ordinances, leaving many properties in federal districts unprotected. Two examples include Baltimore, Maryland, and Salem, Massachusetts, where maps of the historic districts regulated by local ordinances contain 30% to 50% fewer properties than those defined by maps of historic districts listed in the National Register. In other cities, such as Brooklyn, New York, entire districts as defined by the National Register are excluded from the list of historic districts protected by the local commission. In addition, Congress and the Internal Revenue Service have defined the required protections in a conservation easement, while the Department of the Interior has established standards for the preservation and rehabilitation of historic properties. Local preservation ordinances have no uniform set of preservation guidelines and thus, the level of protection varies significantly from one municipality to the next. Some local preservation commissions have definitive powers, while others can be overruled and still others are strictly advisory. Even where the local preservation commissions do have the authority to approve changes, their standards and guidelines do not always align with the federal Secretary of the Interior’s Standards.
The following report by Anthony Robins of Thompson & Columbus, Inc. specifically addresses the differences and similarities between easements and ordinances in New York City.
Historic Preservation Options in New York City: Similarities and Differences Between Landmarks Preservation Commission Regulation and Donation of a Preservation Easement