Jones Trustees Punt On Signing Historic Preservation Restriction Agreement
Photo: flckr.com. Creative Commons
At their online meeting on Tuesday, June 29, the Jones Library Trustees punted on both items on their agenda: the Historic Preservation Restriction Agreement that the Community Preservation Act requires in exchange for the two CPA historic preservation grants that the Trustees received in 2010-11, and rezoning of the public parking lot behind the CVS drug store.
Both agenda items required votes. Neither item received one. Town Planning Director Christine Brestrup came for discussion on the Preservation Restriction. At the suggestion of Trustee Alex LeFebvre, the Trustees invited her to stay for their discussion of the rezoning. She did.
This Historic Preservation Restriction Agreement has been pending for a decade. Discussion about it was vigorous.
The original, 1927-28 Jones Library building is on the State Register of Historic Places. As part of the historic Amherst Central Business District, it is likewise on the analogous National Register. The two CPA historic preservation grants at issue here totaled $140,000. They were to repair and preserve the original 1928 Jones Library slate roof, and its six original chimneys. The work was done in 2010-11, shortly after the Trustees received the money.
The Town Planning Department sent the initial draft of this Preservation Restriction to the Trustees in 2010. It required preserving the 1928 Library building’s exterior. It covered changes to the interior only if they affected the original Library’s exterior appearance. In 2017, after several go-rounds, the Trustees signed this Preservation Restriction.
However, neither the Massachusetts Historical Commission, which must approve the Restriction, nor the Amherst Historical Commission, which would enforce it, signed that 2017 Restriction. Apparently there were problems with the legal description of the building and with documentation of the deeds for the several parcels of land that the founding Trustees consolidated to create the Jones Library parcel.
This time, the process was reversed. Brestrup reported that KP Law, the Town’s attorneys, have reviewed this 2021 draft. The Massachusetts Historical Commission has approved it. At their meeting on Wednesday, June 23, 2021, the Amherst Historical Commission approved it in principle, pending certain changes to the text. For instance, it should state that the CPA-funded preservation work had been done already, instead of saying that it was yet to be done. The Trustees’ signatures would accordingly be the final step, not the first, before the Preservation Restriction is at last recorded in the Hampshire Registry of Deeds.
The Trustees’ obligation under the CPA to grant this Preservation Restriction antedates by several years the planning for their proposed demolition/expansion project. They nonetheless expressed concern about how it might affect their project. Trustee Alex LeFebvre asked whether the Restriction could cover just the original slate roof and chimneys. Brestrup noted that the common practice has been to cover the exterior of the whole building. She will confer with a senior planner in her department, and will see what the CPA Preservation Restrictions on some other historic Amherst buildings cover.
She mentioned that though the Preservation Restriction requires the Trustees to go to the Amherst Historical Commission for proposed changes to the 1928 Library’s exterior, it provides that permission to make such changes shall “not be unreasonably withheld.”
Trustee Treasurer Bob Pam wanted to make sure that the Preservation Restriction referred only to preserving the 1927-8 Library building’s exterior, and not to the 1993 addition. Ms. Brestrup said that the 1993 addition is less than 50 years old. It is therefore not subject to the demolition delay bylaw, and it would not make sense to go to the Amherst Historical Commission about it. But she will check as to both points.
Trustee Tammy Ely also was concerned about the 1993 addition. Trustee Lee Edwards asked the definition of a historic building. Was it age? Style?
Architect Jim Alexander noted that this 2021 Historic Preservation Agreement concerning the 2010-11 CPA grants is the correct one for this project. He noted also, as mentioned above, that Amherst has a downtown historic district that includes the Jones Library.
The Grantor of this Preservation Restriction is The Jones Library, Inc. This has always been a private 501 (c)(3) charitable corporation. It owns the Library’s building and land; art and artifacts that the Library acquired before about 1973; the Library’s Endowment; and certain other funds. As The Jones, Inc., the Library is not/not part of the Town of Amherst. The Town is the Grantee of this Preservation Restriction.
An additional concern, accordingly, was the Preservation Restriction’s Indemnification section. This wrongly states that the Grantor’s agents, contractors, and other representatives are also the agents, contractors, and other representatives of the Grantee, the Town. Therefore, says the Preservation Restriction, the parties do not/not provide for indemnification as between them for injuries, death, property damage, and more. However, this seriously misunderstands the Grantor-Grantee relationship here.
An example of when agents and contractors of The Jones, Inc., were not/not also agents and contractors of the Town was during the renovation of the Library’s Woodbury Room in 2012. The Trustees, acting as the Trustees of The Jones, Inc., paid for this renovation from Professor and Mrs. Woodbury’s generous bequest and gift to The Jones, Inc. The agents, contractors, etc. involved were those of The Jones, Inc., exclusively. They had nothing to do with the Town.
Yet the Preservation Restriction goes on to say that if these agents and contractors do not act for both The Jones, Inc., and the Town, which they do not, then the Grantor – The Jones, Inc. – will in general indemnify the Grantee – the Town — for the specified types of liability, plus “reasonable attorneys’ fees.” This could leave The Jones, Inc., with a substantial amount of liability that its separate Jones, Inc., casualty insurance policy might not cover.
Trustee Alex LeFebvre, joined by Trustee President Austin Sarat, therefore asked to see the respective insurance policies of The Jones, Inc., and of the Town. Brestrup undertook to get them.
Pam thought that the Trustees should sign this Preservation Restriction. Trustee President Austin Sarat thought that they needed to get it straightened out. It might be advantageous to sign it, but the Trustees will need to see what’s coming down the pike.
CVS Lot Rezoning
As to rezoning of the lot behind the CVS, the Trustees are interested in this because there is so little parking for the Library. For a construction grant in the current grant round, the Massachusetts Board of Library Commissioners (MBLC) requires on-site parking for the Library staff, plus a parking space for each certain number of square feet of a library building.
As the Trustees’ grant application noted, however, the Jones Library driveway has 2 parking spaces for those with disabilities, and nine additional free spaces. That is all. These 11 parking spaces do not come close to meeting the MBLC grant requirements. The grant application however identified 119 additional “safe and convenient public parking spaces” on nearby streets and in a parking lot (Grant Application, p. 41). These spaces are all metered. See here.
Brestrup explained that the lot immediately behind the CVS is owned by an elderly couple who live in Florida. She thought that the lease to CVS is for 25 years. The Town owns its abutting, paid parking lot behind the Miss Saigon restaurant and other businesses.
While she personally would love to see a garage back there, she said that the Planning Department thinks it is not big enough to make a difference. This is in part because of the requirements for 20’ setbacks on the north and south sides, and for 24’ access. She said that if the zoning were changed to B-G, a parking garage could go to 5 stories. B-G is Business General, which is high-density mixed use. See Amherst Zoning Bylaw, p. 2.
Trustee President Austin Sarat noted that until the Trustees know the plan, they are not in a position to comment. So they didn’t.
Brestrup invited everyone concerned to attend the Planning Board meeting on Wednesday, July 7th, at 6:30 p.m., for a thorough session on this zoning issue.
I was a Trustee of the Jones Library in 2010-11. Before we got any CPA money to preserve the 1928 Library’s slate roof, we Library Trustees clearly understood that our ‘quid’ for the ‘quo’ of even that one Community Preservation Act preservation grant was going to be a Historic Preservation Restriction on the exterior of the historic, 1928 Jones Library building.
For even that first CPA grant, therefore, a Historic Preservation Restriction on the historic Library’s exterior was the deal. It was unambiguous. And, it was binding. The second CPA grant did not increase our obligations as to how much of the Library’s exterior the Restriction would cover.
Please note: When we Trustees applied for the first CPA grant, we did not know that the six original chimneys were tottering, and that we’d need the second grant. Workers discovered the chimneys’ condition only when they got up on the slate roof to preserve it.
For reasons beyond the Trustees’ control, it’s taken a decade to work out various kinds of documentation needed to support the written Historic Preservation Restriction Agreement for, as it turned out, two CPA grants totaling $140,000. This included satisfying the Massachusetts Historical Commission about the Agreement. Yet this Agreement is still, simply, the written contract that memorializes that initial deal in 2010 between the CPA Committee and the Trustees.
The present Trustees must insist on a change to this Agreement’s indemnification section. This is in order to protect the financial position of The Jones Library, Inc. I rather imagine that lawyers for the Town’s insurance company would insist that The Jones, Inc., as a separate non-profit corporation, pay up in full for any injury, death, or property damage for which this Agreement would make The Jones, Inc., liable. A worst-case scenario could result in invading, or even wiping out, the Jones, Inc.’s Endowment.
For the present Trustees to try to change the Historic Preservation Restriction deal in any way, however, would be like those who get all the benefit of a contract, then decline to keep up their end of the bargain.