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Initial Site Visit:
Before agreeing to hold a conservation easement, a land trust
representative must first visit the property to visually determine
whether the property's conservation values justify the property's
being placed into a CE. We usually ask that potential donors provide
us with maps, deeds, tax plats and other documentation prior to our
initial site visit.
Landowner
Consultation:
We work with potential donors to help them achieve a balance between
reserved rights (how they choose to use the property after the CE is
recorded) and restrictions (those uses that the landowner wants to
restrict on the property such as residential, commercial or
industrial development). The landowner typically reserve rights that
allow the continuation of current use patterns. Each landowner and
easement if different; however, some examples of reserved rights
include commercial forestry, commercial agriculture, hunting,
fishing, other recreation.
Drafting
the CE: Our organization has a well-evolved template CE that we
can use to create the draft Deed of Conservation Easement that the
potential donor and their legal counsel can work from to achieve a
CE that:
- demonstrates the
conservation values of the property,
- clearly delineates allowed and disallowed uses,
- clearly sets forth the landowners reserved rights,
- demonstrates that
the reserved uses of the land do not negate the conservation values
the landowner seeks to protect, and
- that is defensible.
Baseline
Documentation Report
The Baseline Documentation Report (BDR) is a snapshot in
time that records the property's condition when the CE is donated on
it. This is a legal requirement of the IRS and is essential to the
land trust's ability to defend the donor's intent in protecting the
property. It allows future monitoring of the property to be
conducted with a knowledge of the property's condition and to assess
whether changes to the property are consistent with the terms and
conditions agreed upon in the CE.
The BDR contains a
good deal of research materials that show the property's
conservation values such as information about highly productive
soils, data on plant and animal species that are or might be on the
property, and geography of the area.
The BDR will also
have maps of existing man-made improvements on the property, and
could show areas where future improvements may be undertaken, of
existing timber stand types, existing agricultural lands and where
future such uses may be undertaken. Many landowners include within
their CEs areas that are designated as Special Natural Areas which
will be shown on a map in the BDR and which are subject to higher
levels of protection than the rest of the property. For example, the
landowner may choose to afford special protection to hardwood forest
in a steep gorge, a mature cypress swamp, or a fragile wetland.
There will also be a map with GPS points and photographs keyed to
those points. This map allows future monitors an accurate visual
comparison of the property at its time of donation and at the times
when it is monitored in the future. The BDR should be completed and
signed before the CE is legally conveyed.
Recording
the CE
After the donor and the land trust have
finalized the CE, it is recorded in the local Registry of Deeds,
which provides legal notification to future owners of the property
of the terms and conditions of the CE, which are perpetual and run
with the land.
Annual Monitoring/Enforcement
A valid CE must
allow the land trust access to visit the property at least annually
to monitor the condition of property and to determine that its use
is consistent with terms and condition of the CE.
There are two critical purposes for the
endowment: first is that it helps underwrite the land trust's annual
monitoring of the property; secondly, the funds are placed in a
stewardship fund that will be used to legally defend the
CE if it is challenged or somehow subverted. Our ability to defend
the CE is essential to the donor's intent to protect the land and to
create
a legacy of
protected land, even after the landowner has sold or passed the land
to the next generation.
Proactive Land Management
In drafting the CE,
care is taken that agricultural, silvicultural, hunting and other
rights are exercised in a way that is consistent with the
conservation purposes of the CE. Our staff has a great deal of
knowledge regarding land management--some of which has been gleaned
from the enlightened management of property by some of our
donors--and works with donors to ensure that their uses of the land
not only protect it but also enhance it over time.
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