Preserving Perpetuity? Exploring the Challenges of Perpetual Preservation in an Ever-Changing World

By Phelps, Jess R. | Environmental Law, Fall 2013 | Go to article overview

Preserving Perpetuity? Exploring the Challenges of Perpetual Preservation in an Ever-Changing World


Phelps, Jess R., Environmental Law


I. INTRODUCTION  II. BACKGROUND       A. Preservation Easements: An Overview      B. The Move to Permanence--Protection for Historic Properties         Through Division of the Fee Estate          1. Deed Restrictions/Zoning Controls         2. Purchase of Historic Properties         3. The Introduction of the Local Historic District/Regulatory            Controls         4. Limitations to the Common Law/Early Innovations and            Experimentation         5. The Rise of the Modern Perpetual Easement        C. Preservation Easements Today       D. The Challenge to Perpetuity?  III. LEGAL FRAMEWORK        A. Overview.       B. General Requirements under Federal Law       C. Amendment of Perpetual Easements          1. Overview         2. Federal Treatment of Amendment of Perpetual Easements         3. Express State Oversight over Amendment of Perpetual Easements         4. The Debate over the Charitable Trust Doctrine             i. The Argument for the Charitable Trust Doctrine            ii. The Argument Against Application        D. Extinguishment       E. Specific Easement Provisions          1. Easement Donations Generally         2. Defining the Casualty Event         3. Insurance Requirements         4. Amendment         5. Condemnation         6. Extinguishment/Allocation of Percentage Interests  IV. RESPONDING TO THE CASUALTY EVENT        A. Before a Disaster: The Importance of Relationship Building       B. The Initial Response: Surveying the Situation       C. Evaluating the Damage: Developing a Response Strategy       D. Developing a Legal Response: What is the Future of the          Protected Resource after a Casualty Event?          1. Minor Damage             i. Creating a Rehabilitation Plan/Schedule for Work            ii. Preparing New Baseline Documentation            iii. Possible Amendment of the Easement          2. Total Loss of the Protected Historic Resource             i.   Extinguishment of the Easement            ii.  Moving the Historic Resource            iii. Salvage            iv.  Use of the Charitable Proceeds: An Easement Holder's                 Legal and Ethical Obligations            v.   Preserving the Story: Oral Histories and Archival                 Materials  V. CONCLUSION 

I. INTRODUCTION

At their core, preservation easements are intended to provide permanent, or perpetual, protection to significant historic resources against insensitive alteration or even outright demolition. (2) Every day, easement-holding organizations partner with property owners to protect additional properties, which can provide sympathetic owners a meaningful degree of assurance that their treasured historic resources will be preserved beyond their lifetimes. (3) In recognition of the role this tool can play in protecting important heritage assets, certain types of voluntary easement donations are incentivized through the Tax Code. (4) This use of tax expenditures to influence individual preservation decisions constitutes an important public investment in preserving our nation's most significant properties, but only will accrue to the donor if the easement meets express, and increasingly proscribed, criteria; namely, that its terms actually provide for perpetual protection. (5) Perpetuity is an admittedly challenging target, and one that requires close attention from a drafting perspective, particularly as the IRS will go beyond the expressed period of duration to ensure that the easement truly provides the requisite level of permanent protection dictated by statute. (6) Moving beyond drafting concerns, however, if one is to take the concept of perpetuity seriously, the same degree of close attention also needs to be given to the monitoring and enforcement of the easement over that same period. (7)

Despite challenges, many easement-holding organizations have demonstrated the effectiveness of this tool for more than a half-century. (8) This is not, however, equivalent to perpetuity, and issues will inevitably arise that call into question the continued ability of this tool to provide permanent protection to critical historic resources. …

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