By Matthew Ahern, Brooks Becker, Kelli Gibson
In the summer of 2021, the National Trust for Historic Preservation, in collaboration with the National Commission of State Historic Preservation Offices (NCSHPO) and the National Alliance of Tribal Historic Preservation Offices (NATHPO), created and distributed a survey to State Historic Preservation Offices (SHPOs), and Tribal Historic Preservation Offices (THPOs) located throughout the country. The goal of the survey was to understand how many SHPOs and THPOs hold and actively accept preservation easements, and to identify common practices in the acquisition and management of preservation easements.
Easements as Vital Preservation Tools
Preservation easements are a critical legal tool for the protection of buildings and landscapes. Fundamentally, a preservation easement is a private agreement between a property owner and another party (e.g., preservation nonprofit, SHPO) that provides protection for certain features of a property in perpetuity. These agreements are individually crafted and provide stronger protection than general local historic preservation ordinances, which are subject to change. Easements can also protect historic properties that are not under the purview of local historic preservation laws.
In these cases, the preservation easement can be the only protection against demolition or alteration of a property’s significant historic features. Due to their individualized nature, easements also allow preservationists and property owners to identify specific preservation needs and goals for the property while also integrating the mission, goals, and interests of the easement-holding organization in constructing the agreement.
Information obtained from this survey provides a broad perspective of how (and how many) SHPOs use this legal tool and will allow national-level organizations to further understand the challenges and better support easement-holding SHPOs. Additionally, the survey information may provide useful information regarding federal dispositions under Section 106 of the National Historic Preservation Act.
The sale, transfer or lease of a historic property out of federal ownership is considered an adverse effect unless there are adequate restrictions to ensure its long-term preservation. The sale, transfer, or lease of a historic building does not qualify as an adverse effect if the property is transferred subject to an easement protecting the character-defining features. The use of easements in federal dispositions, therefore, has the potential to streamline the Section 106 review process along with providing the perpetual protection of important historic resources.
The survey results showed that most SHPOs hold easements, and that they are in place to protect a range of resource types. Though no survey responses were received from THPOs, the involvement of THPOs with easements remains an important area for further research. While SHPOs have traditionally accepted easements from a variety of sources, this trend has decreased in recent years, and SHPOs are generally hesitant to accept new easements.
This hesitancy primarily stems from a lack of funding and subsequent limitations in staff capacity to effectively monitor and steward the easements already held. Despite these limitations, SHPOs have an interest in developing solutions to these issues, such as seeking alternative funding sources and developing state and local nonprofit partnerships.
SHPO Easements: Past and Present
Most SHPOs reported receiving easements as a condition of a federal or state grant program, while a significant number also reported that they received easements during a sale, transfer, or disposition of federal (or state) land. Just over one third accepted easements through private donations. It is most common for SHPOs to hold 1-100 easements, but several hold more, with at least two SHPOs holding over 750 easements.
While every SHPO that reported holding easements specified that historic buildings were the main type of property protected, over half use easements to protect archeological sites, and a third utilize easements to preserve cultural landscapes. Generally, when a SHPO held a higher quantity of easements, there was more variation in how the easements were acquired as well as the types of resources protected.
Currently, most SHPOs report fewer sources for acquiring easements than in previous years, and more SHPOs report that they no longer accept new easements. Similarly, while the majority of SHPOs will accept easements through a Section 106 review, they will typically seek alternative resolutions before accepting a new easement.
Challenges to Regular Monitoring
Over half of respondent SHPOs reported carrying out some form of regular monitoring for existing easement properties. Easement monitoring serves to document a property’s condition, follow-up on the progress of approved projects, and ensure that the site is in compliance with the terms of the easement.
Monitoring can take the form of on-site visits every one to three years, the use of remote monitoring tools such as aerial GIS imagery, and/or regular correspondence with the property owners. SHPOs that do not have regular monitoring programs typically rely on property owners to be proactive in informing them of site alterations or issues. Even for those SHPOs that do regularly monitor easements, funding and staffing have been viewed as a barrier to making easement management more efficient.
Most SHPOs do not require a stewardship funding contribution when accepting new easements, which has led several SHPOs to cut back or eliminate their voluntary easement program. Stewardship funding contributions typically consist of a lump sum donation to a program’s endowment that supports the stewardship of an easement program. Typically accepted at the time an easement is recorded, the donations fund staff salaries and travel expenses related to monitoring visits. Some programs rely on this endowment model to fund easement stewardship. Alternatively, many SHPOs rely on the Historic Preservation Fund the when accepting easements that were a condition of a grant, and others manage their easement program out of their general budget.
Most SHPOs do not have dedicated staff to manage easements full-time and tend to utilize staff-members serving in other roles within the office in managing their easement programs. The number of staff responsible for managing a state’s easement programs tends to be 1-2 people. Furthermore, some SHPOs do not include easement management within staff members’ responsibilities. Limited staff capacity to manage easements is one challenge SHPOs experience in easement stewardship.
Adaptability and New Initiatives
SHPOs have initiated several different strategies to overcome challenges to easement stewardship. One successful strategy implemented by some SHPOs is the creation of nonprofit partnerships. While some SHPOs have taken on the role of advising nonprofits who manage easements, many also hold joint easements with nonprofits and are able to share stewardship responsibilities. While this approach addresses the issue of limited SHPO staff capacity, SHPOs are also interested in ways to increase funding for their easement program. Some offices have considered requiring stewardship contributions as a prerequisite to accepting new easements, while other SHPOs have implemented a system of administrative fees during the application process to cover stewardship costs.
The data and trends observed in the survey indicate that SHPOs recognize the value of preservation easements despite the challenges to stewardship they may experience. The survey information serves as a foundation for understanding the relationship between SHPOs and their easement properties and can assist in guiding the path forward in developing best practices for SHPOs and easement properties.
The National Trust Law Division developed a plan to continue its research on SHPOs/THPOs and their use of preservation easements. The first phase of the project consists of targeted outreach with key stakeholders to solicit feedback on the survey results. The next phase includes the use of SHPO focus groups to assess results and develop recommendations for use of easements and covenants in Section 106 dispositions and other potential scenarios.
These recommendations will be finalized and published into a summary document containing technical guidance and best practices for SHPOs and THPOs in dealing with easements and covenants. This guidance will ultimately provide SHPOs with tools to more efficiently manage the easements they currently hold as well as information on acquiring additional easements if they choose to do so.
Matthew Ahern and Brooks Becker were 2021 summer interns in the Law Division at the National Trust.
Kelli Gibson is the manager of the Easement Program at the National Trust. #easements#Legal