Legal Bulletins

Solar developers and solar lease landowners should be aware of how prior participation in the Maryland Historical Trust (“MHT”) Easement Program may impact planned solar projects. Normally, owners of properties encumbered by MHT easements must obtain prior approval from MHT for any changes or alterations – and failing to take these limitations into account may have significant (and costly) consequences for your project.   
 
Overview of Maryland Historical Trust Easement Program

Authorized pursuant to Md. State Finance and Procurement Article § 5A-301, et seq., MHT historic preservation easements ensure that a property’s historic and cultural value will be protected in perpetuity.  They are legally binding contractual agreements that are associated with the deed to the property.  Although the landowner maintains full ownership of the property, he/she has assigned certain development rights to the organization.  These may include restrictions on new construction, alterations and excavation, required maintenance, and the right to inspect the property to ensure that the landowner is in compliance with the conditions of the easement.

Since easements are legally binding agreements, altering a property for use as a solar facility without approval from MHT may have financial and legal consequences. If the conditions of the deed of easement are breached, then the binding agreement gives MHT authority to exercise any or all of the following remedies:

•    Institute suit(s) to enjoin any breach or enforce any covenant by ex parte, temporary, and/or permanent injunction;
•    Demand that the property be restored promptly to the condition required by the easement; and
•    Enter the property, correct any breach, and hold the grantor responsible for the resulting cost.

Landowners in breach of easement obligations must also reimburse MHT for expenses incurred by MHT, including court costs and attorneys’ fees.

MHT Approval for Alterations to Easement Properties

Owners seeking approval for alterations to easement properties should complete the MHT’s Checklist and Change/Alteration Project Proposal Application.  The MHT Easement Committee will review the request and make a recommendation to the MHT Director.  In reviewing an application, the MHT Easement Committee typically applies the Secretary of the Interior’s Standards for the Treatment of Historic Properties (36 C.F.R. part 68) during the review process.

After review, the MHT Director will approve, approve with conditions, or deny the request.  A letter detailing the Director’s decision will then be sent to the applicant.  Approval by the Director is effective for a period of six months from the date of approval.  If an extension of the approval period is necessary, then the applicant must submit a written request to the Director.  In the event that a Change/Alteration Project Proposal Application is denied, the applicant may appeal this decision to the MHT Board of Trustees.

If you have questions about how an MHT easement may impact your project, or would like assistance navigating MHT easement modification process, please contact David Beugelmans at 410-576-4104.