Easement On Down the Road

The McBirney Mansion, between Houston Ave. and Galveston Ave. on Riverside Drive, is both an architectural gem and an important link to Tulsa's history. The degree to which the house and grounds ought to be preserved and the means by which they ought to be preserved are in the public spotlight with news of plans for a small boutique hotel on the grounds. (See Holly Wall's story in the December 20, 2006, UTW.)

Washington Irving mentions the spring on the grounds in his account of an 1832 tour through Indian Territory, four years before the Creeks of Tallasi brought their sacred fire to the Council Oak atop a nearby hill.

As a source of potable water near a natural shale ford across the Arkansas River, it was likely a gathering place for many centuries before.

The mansion itself was built in 1927 for J. H. McBirney, an Irish immigrant and one of the founders of the Bank of Commerce. The Tudor Gothic-style house has a slate roof, unusual in these parts. The mansion remained in private hands for about 50 years, then spent a few years each as a law office and then as an eating-disorders clinic. In 1997, the mansion opened as a seven-room bed-and-breakfast inn.

It's long been a neighborhood landmark, too. In an entry in an online memory book for Riverview Elementary School, Judy Roberts recalls bike riding on the slope of the grounds back in the early '60s:

"We had no concept of private property, and we used to go down to the bottom of the hill where there was an old concrete pool that was empty. We'd ride our bikes around and around faster and faster until we were way up the sides, turned almost sideways....

"One day the old lady who lived there came out as we came back up the hill to leave.... In a very stern voice, she informed us that we were on her private property and did we have any idea how serious trespassing was? Then she told us to come in the house. Let me tell you, we were shaking in our boots.

"But once we got inside, she had tea waiting -- old fashioned high tea in a silver pot on a tray with china cups, sugar cubes, little finger sandwiches, cookies and the works. We had tea (although I'm sure we were very rude about it!) while she brightened up and told us she didn't mind us playing in her yard as long as we didn't destroy anything and came to visit her once in a while."

As part of the zoning permission to open a B&B, the mansion was allowed to hold a certain number of special events, such as wedding receptions. Neighbors protested the special event permission, concerned about traffic and also about setting a precedent for further commercial activity in the Riverview neighborhood.

So far there hasn't been any further incursion, and the traffic hasn't seemed to hurt the neighborhood, which continues to see new residents and renovation of its classic homes.

At 12,000 square feet, the McBirney Mansion is still one of the largest homes in Tulsa. Rarely can such a large historic home be preserved as a private residence.

Now there's a proposal on the table to leave the house intact, but to fill much of the open space on the grounds with an 85-room boutique hotel. The proponents say that the B&B's occupancy is low, and that has resulted in over a million dollars in deferred maintenance. They say that the hotel would generate the kind of revenue needed to keep up the mansion.

The plan appears to be a good example of "sensitive infill." The new buildings would be in the same Tudor Gothic style as the mansion. Parking would be underground, with access provided only from Riverside Drive, rather than sending traffic onto the neighborhood's side streets.

Neighborhood impact -- traffic, land-use precedent -- is an important issue, but for now let's focus on the question of historic preservation.

The plan reminds me of the Mid-Continent Tower expansion in the mid '80s. A twin was built next to the original 1918 office tower at 4th and Boston, and on top of that twin an additional 20 stories were added and cantilevered over the original building. The addition made it feasible to restore the original building to its former glory, and the project won an award from the National Trust for Historic Preservation.

But the McBirney home itself isn't the only thing of interest to preservationists. The new hotel buildings would run afoul of a conservation easement that forbids extension of the existing structure, erection of additional structures, excavation, and the removal of large trees.

In 1978, the law firm that owned the property donated a "scenic, open space, and architectural façade easement" on the building and grounds to the Oklahoma Historical Society and the City of Tulsa.

As the name of the easement suggests, the grounds are a significant contributor to the special character of the property. The easement describes the McBirney Mansion as "the last of the Childers Heights Mansions to still remain standing and is the sole reminder of the past splendor of this Tulsa area."

While the Riverview area once boasted many other stately homes with grand lawns stretching down to the river, and some of those homes still stand, their grounds were long ago subdivided and developed as apartment complexes of widely varying quality. Only the McBirney Mansion and the Blair Mansion (with its vast lawn near 26th & Riverside) still reflect that aspect of Tulsa's past.

You may never have heard of a "conservation easement," but in principle it's no different than the utility easement that runs through your backyard. While I own the entire lot on which our house sits, a utility easement prohibits me from building anything permanent within five feet of the back lot line to give the utility companies access to their lines. I also have to keep vegetation from growing up into the lines. (The utilities also have a limited right to vegetation maintenance within that easement, although it's not as sweeping as the guys in the orange trucks seem to believe.)

Like a utility easement, a conservation easement is attached to the deed. It runs with the land in perpetuity. It imposes certain obligations and restrictions on the current owner and all future owners, and it grants certain rights to the easement recipient. It's often called a "preservation easement" when it deals specifically with a place of historical significance.

As a tool for preservation of open space or historical assets, a conservation easement has several advantages over a zoning overlay or some other form of government regulation.

A conservation easement is entered into voluntarily by the property's owner. It is permanent, not subject to the whims of future planning commissioners or future city councilors. It can be tailored to protect specifically the characteristics of the property that matter most.

The owner receives an immediate financial benefit -- the Federal government treats donation of a qualified conservation easement as a charitable contribution based on the estimated decline in market value resulting from the restriction.

The public good of preservation thus comes at a much smaller cost than acquisition and maintenance of the property. (The National Trust for Historic Preservation covers all the whys and wherefores of preservation easements on its website at http://www.nationaltrust.org/legal/easements)

While the easement is permanent, it can be vacated with the consent of the easement's owner, and it could be to be replaced with a new easement with modified terms if all parties agree.

If the proponents of the hotel want to go forward with their plans, they will need the Tulsa City Council to agree to vacate the easement. When a developer donates a utility easement to the city, the Council votes to receive it. When the City vacates an easement (e.g., letting a street or an alley revert to the adjacent property owners), the City Council votes on the matter.

The McBirney easement is unusual in that it was donated jointly to a city government and a state agency. Normally, conservation easements are donated to organizations which have preservation as their sole priority and which would not be agreeable to ending ("vacating") an easement.

That's likely to be true of the board of the Oklahoma Historical Society, but the City Council might be inclined to weigh priorities like economic development, riverfront development, and neighborhood stability alongside preservation concerns.

All those issues are important, but the Council should keep in mind that by accepting this easement, the City became a steward of the historical character of the McBirney Mansion and grounds, and any decision it makes should further its preservation.