Rebecca Miller: "Breaking the covenants - Preservation easements don't equal an open invitation to rehab a historic building" - McMillan cited

See this commentary from Rebecca Miller of the DC Preservation League:

Breaking Ground: Past is Present

Breaking the covenants

Preservation easements don't equal an open invitation to rehab a historic building

December 6, 2013
Rebecca Miller

                                                                     

Over the next few months, there will be a lot of discussion about preservation easements or covenants. Easements are often used to protect land and properties that have historic, architectural, archaeological or environmental significance — and several of D.C.’s major development sites are protected by these restrictions.

Typical easements restrict activities that would affect identified, significant components of the property in exchange for tax relief, direct payments or other considerations. Standard easement restrictions on demolition, construction, alteration and remodeling projects are specified in the easement document.

Although most easements are intended to protect a historic resource, the language of each document reflects the specific conditions of a property. Three properties in the District that are proposed for redevelopment have preservation easements. Each of these cases is unique.

McMillan Sand Filtration Site

This easement calls for the review of all plans and specifications for renovation, rehabilitation, demolition or new construction by the D.C. Historic Preservation Office. This, of course, is no different than any other designated historic resource or contributing site in a historic district.

The easement does, however, specifically state that if HPO does not agree with the plans and the issues cannot be resolved, the District must request comments from the Advisory Council on Historic Preservation.

Opposition has been voiced about the current mixed-use plan — and with legitimate reason (see story, Page 39). The easement specifically requires that any and all rehabilitation or renovation work there be conducted in accordance with the Secretary of the Interior’s Standards for Rehabilitation. The proposed conceptual plans do not, in DCPL’s opinion, conform to those standards.

The McMillan property is definitely a difficult site to redevelop given the unreinforced concrete underground sand filtration caverns, tower bins and vast open space that make up the character-defining features of the 25-acre site. The Historic Preservation Review Board unanimously approved the most recent concept, and the application will be forwarded to the Mayor’s Agent for Historic Preservation due to the amount of demolition proposed.

West Heating Plant

Sold at auction earlier this year by the General Services Administration, Georgetown’s West Heating Plant carries a property-specific easement that requires any renovation work be conducted in accordance with the Secretary of the Interior’s Standards for Rehabilitation.

Although it was a condition of sale, the current development proposal calls for the demolition of all but the 29th façade of the building. It’s clear that conceptual plans from as early as October 2012 planned for the proposed amount of demolition. It is very disingenuous to purchase a property that has a preservation covenant when the intention was to attempt to demolish it from the beginning.

The whole purpose of these two preservation covenants was to ensure that the transfer of the property from the federal government to its new respective owners would have “no adverse effect” on the historic resources. That requirement of “no adverse effect” simply cannot be reconciled with either of the current proposals for these properties. This calls into question whether the federal government has in fact complied with its obligations under Section 106 of the National Historic Preservation Act.

Carnegie Library at Mt. Vernon Square

Press releases indicate the desire to redevelop the historic landmark with deep interior renovations and an addition to the exterior of the Beaux-Arts building.

The easement was placed on the building as a grant requirement to receive funds from the now-defunct Save America’s Treasures program. Section 102(a)(5) of the National Historic Preservation Act requires that the grantees must agree to assume, after the completion of the project, the total cost of continued maintenance, repair and administration of the grant-assisted property in a manner satisfactory to the Secretary of the Interior. This easement provides perpetual protection of the property, regardless of change of ownership or management.

The bottom line

The common theme is that any work done to these historic resources must meet the Interior secretary’s rehabilitation standards.

They are clear, binding agreements that must be held up by D.C.’s State Historic Preservation Office to retain the integrity of not only D.C.’s historic preservation program, but also as national policy for the protection of this country’s significant historic resources.

What is a preservation easement?

It’s a type of conservation easement. It’s “a private, legal arrangement between a property owner and a qualified nonprofit organization or governmental agency for the purpose of protecting a historic property’s conservation and preservation values,” according to the National Trust for Historic Preservation. It can also be known as a preservation covenant or preservation restriction.

An easement typically runs with the land and binds signatories, successors and the property in perpetuity. Often, owners of any property with an easement are required to bear the costs of continued maintenance and repairs.

Rebecca Miller is executive director of the D.C. Preservation League and writes the Past is Present column for Breaking Ground Extra.