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Every conservation easement (CE) must have
certain elements to reach fruition. First, the land has to have
conservation values (CVs). There are basic CVs set forth in IRS code
section 170h (see box at right). Conservation Values set forth in 170(h)
include such things as habitat for native animals and plants, productive
forest and agricultural lands and protection of water quality.
Unless a
property provides at least one of these benefits, any charitable
deductions claimed on the CE may be deemed invalid. All CEs must have a
baseline documentation report (BDR), a snapshot in time of the property
at the time of donation that documents the property’s CVs and maps out
areas on the property
to be preserved inviolate and areas where reserved activities and uses
may be undertaken.
All CEs must have a conservation purpose. The easement must demonstrate
that it will allow no activities detrimental to the CVs the Conservation
Easement sets out to protect . The rights reserved within the CE, such
as agriculture, timber management construction of barns, sheds, houses,
and ponds must be compatible with and allow for the protection of the
CVs. For example, if the purpose of the Easement is to protect prime
agricultural soils, the landowner would typically reserve the “farmstead
area” (repair shop, equipment shed, etc.) on the area with the poorest
quality soil or near a road so as to maximize the productivity of the
soil. If the landowner sets out to protect a rare plant, the area with
the rare plant will be afforded special protection (perhaps no or
limited harvesting and no agriculture or food plots).
The landowners typically provide that their
activities will be conducted in accordance with plans and best
management practices to ensure the property will remain productive and
indeed have its productivity enhanced by agriculture, silviculture and
other activities on the property.
There must be an endowment on the property, to ensure its perpetual
monitoring and the defense of the CE’s terms and conditions. There must
be clear title—you can’t donate what don’t own outright. At the end of
the process of negotiating and defining all of the above, there must a
recorded deed of conservation easement—the terms and conditions of the
CE run with the land in perpetuity and the deed will provide evidence of
this for future titles.
Landowners Intent on Protecting Land:
The Most Important Ingredient
But for any of the above to matter at all, the land must have a property
owner willing to take the extraordinary step of saying “the value that
the commonwealth and I place on the qualities and uses inherent in this
land are so important that I will ensure their perpetual protection.”
Our land trust understands this and works diligently to make sure that
we are readily available to help the landowner protect the property’s
conservation values in an efficient and professional manner.
We work
with the landowner to create a Conservation Easement that reflects the
Conservation Values the landowner desires to protect. The easement is
also constructed to ensure that the landowners’ commitment to protecting
the land does not constrain them from traditional uses of the property
that provide value to them. This is critical to the success of a CE.
We’ve now helped put in place over 250 CEs protecting nearly 100,000
acres. We have a significant body of practice that we bring to bear to
ensure that our CEs are as up to the minute in meeting (and we hope
exceeding) the evolving standards involved in putting a CE in place. Our
baseline documentation is always being refined to ensure that it clearly
demonstrates the conservation values associated with the property and
clearly shows how the property will be used in the future. We work with
landowners to put in place an endowment program that is feasible and yet
ensures that their wishes for the property will be observed in perpetuity.
Forever is a mighty long time. As the landowners land trust, we think
our experience, our sensitivity to what landowners are trying to
accomplish, and our attention to ensuring the proper legal form of our
easements will help the time pass meaningfully and productively for all
concerned. |
