Conservation Tools

The Pennsylvania Agricultural Conservation Easement Purchase Program (ACEPP) is a voluntary program that enables government entities to purchase agricultural conservation easements from willing landowners. (This is sometimes referred to as “purchase of development rights”.) These easements limit the use of farmland to agricultural production and certain other uses while keeping the land in the landowner’s ownership and control.

Farmers in counties with an agricultural land preservation board – all but 10 counties have one – may apply to the board to have one or more of their farm parcels considered for easement purchase. The farm must be located in a qualifying Agricultural Security Area. With farmer demand far exceeding available government funding, only farms with the best soils and other key characteristics (such as stewardship practices and likelihood of development) rank high enough for easement purchase offers to be made.

A county may engage in the purchase program as long as there are one or more agricultural security areas in the county. The county must appoint an agricultural land preservation board to administer the county’s program. The county may use county funds to purchase easements or seek state funds through the state program.

ACEPP is overseen by the State Agricultural Land Preservation Board and managed by the Pennsylvania Department of Agriculture Bureau of Farmland Preservation.

Agricultural Protection Zoning (APZ) is used by counties and municipalities to preserve the availability of agricultural lands for farming. This helps maintain the critical mass of active farmland necessary for preserving an agricultural economy in the community. The local government designates areas where agriculture is intended to be the principal use. Regulations are established for these agricultural zoning districts to constrain non-agricultural development and uses. Typically, non-farm residential development is limited to a small percentage of a tract or restricted to a fixed number of residential units or lots determined by the size of the farm. APZ regulations usually permit business uses supportive of agricultural operations. APZ regulations can help to:

• Maintain a critical mass of farmland that keeps businesses and organizations that support farms, such as farm suppliers and granges, viable.
• Minimize conflicts such as resident complaints about manure odors and farmer complaints of trespass.
• Promote more efficient agricultural operations.
• Protect prime agricultural soils, which, if developed, are irretrievable.
• Keep farmland affordable for farmers.
• Protect the character of the community.

APZ requires a high level of community support to be effective because an APZ’s protections are only as strong as the municipal governing body’s commitment to maintaining the zoning classification.

Agricultural security areas are intended to promote viable farming operations over the long term by strengthening the rights of farmers to farm and the farming community's sense of security in their use of the land. Landowners in an ASA receive protection from local laws and ordinances that would unreasonably restrict farm practices as well as protection from condemnation. Farmers also receive a 1% interest rate reduction on loans through the Small Business First Program and the Machinery and Equipment Loan Fund.

Farmland owners with a combined area of at least 250 acres of active farmland may petition their local government to establish an ASA.  The governing body of the local municipality may approve the proposal or a modified version or it may reject the proposal.

To qualify for the state agricultural conservation easement purchase program, land must be part of an ASA that is at least 500 acres.

When should one amend a conservation easement? What changes are appropriate? What changes are not? What factors should one consider? What mistakes can one learn from? What should an amendment policy look like?

Conservation easements are written to last — to endure and protect important resources, no matter people’s whims through the years. However, circumstances change; understandings of how best to meet easement objectives change; the world changes. As the number and age of easements increase, landowners and easement holders will increasingly find cause to consider modifications to an easement document. How can easement holders make ethical, legal, sound and practical decisions about amending easements? What are the risks of action — and inaction?

Audubon At Home (AAH) and its Bird Habitat Recognition Program (BHR) provide techniques for: (1) improving backyard habitat at any property scale, and (2) increasing the understanding and appreciation of the connection between human-influenced landscapes and the conservation of common birds. These programs are managed by Audubon Pennsylvania.

AAH offers tools and techniques through its website audubonathome.org and direct, professional trainings and assessment to property owners. Its purpose is to assist property owners to alter or improve land use in ways that invites nature. AAH presents a perspective that allows a harmonious and beneficial existence of people with natural, native plant and wildlife communities.

Participants may utilize the resources that AAH/BHR provides, including: web, personal contact (such as Audubon Advisors and public presentations) other avenues of communication, partnership programs with Audubon Chapters and other environmental organizations. Newly-gained knowledge may influence personal choices that are intentionally ecological and support bird populations in urban, suburban, and rural communities.

A build-out analysis projects the number of residential units and commercial/industrial square footage that could be built if all unprotected, buildable land within a specified area is developed in accordance with municipal zoning. Analysis can also include the impacts from permissible development on tax base, traffic, school enrollment, park needs, sewage and water facilities, natural and historic resources, farmland and rural landscapes, and overall quality of life. The results of the analysis typically are conveyed through maps and charts.

A build-out analysis allows a community to test its development regulations – to see its likely future if all the remaining buildable land in the community is developed in conformance with the municipality’s ordinances. The analysis answers the basic question: If existing land development ordinances and open space programs (or lack thereof) remain unchanged, how much land may ultimately be developed and where?

The Pennsylvania Farmland and Forest Land Assessment Act, commonly known as “Clean and Green” or Act 319, provides for preferential tax assessment of land. To qualify, the land must fit into one of three categories: land capable of producing wood products, “forest reserve”; land in agricultural production or enrolled in a federal soil conservation program, “agricultural use”; or open space open to the public, “agricultural reserve”. The land must also be comprised of at least 10 acres or be anticipated to generate at least $2,000 annually from the production of an agricultural commodity.

Land enrolled in the Clean and Green program is taxed on the basis of its “use value” (i.e., its value for timber or agricultural production without considering any development potential) rather than its market value (i.e., the amount that a willing buyer would pay a willing seller). This generally results in a lower tax assessment value unless the county in which the property is located has not reassessed property values in many years.

Many types of collaborative approaches are available to help land trusts and others advance land conservation. This guide identifies opportunities for collaboration, provides guidance in structuring productive collaborations, and presents examples of successful organizational partnerships.

While some argue for exceptions, many view commission-based compensation for fundraising and development professionals as a bad practice or as unethical. The standards of practices set forth by the Land Trust Alliance, The Giving Institute, and The Association of Fundraising Professionals do not allow for commission-based compensation. In contrast, performance-based bonuses that are not based on a percentage of revenue raised may be acceptable.

Community visioning is a process in which all local stakeholders have the opportunity to express ideas about the future of their community and offer a valuable additional voice to aid decision-making and influence development choices. Through public meetings, design charrettes, public surveys, and growth scenario comparisons, community visioning can clarify the goals and priorities of the community. The visioning process can be lead by municipal staff, representatives from neighborhood groups or business associations, and other local leaders. An effective community vision will lead to comprehensive planning documents and supporting regulations that reflect the will and vision of the community. Most importantly, the extensive public involvement in the community vision leads to a sense of community-wide ownership and buy-in in planning documents and projects.

CommunityViz is a software package for planning, designed with a specific mission in mind: to assist decision makers in visualizing, analyzing, and communicating about potential futures of their communities. Through interactive maps, CommunityViz shows existing zoning and land-use plans and shows future build outs of communities by placing proposed and allowed structures on the landscape. Through the creation of scenarios and inputting various types of data, the program allows users to generate detailed analysis of different proposed land use plans and measures of their impacts.

The visual translations are effective in communicating options in land use zoning to local government officials and the interested public. Municipalities interested in adopting or amending zoning ordinances that reflect a departure from traditional zoning concepts would benefit from CommunityViz tools that can objectively and comprehensively evaluate the impacts of different land use approaches.

A conservation easement is a power vested in a land trust or government to constrain, as to a specified land area, the exercise of rights otherwise held by a landowner so as to achieve certain conservation purposes. The conservation easement is established by agreement between a landowner and a land trust or government government. A real property interest that is recorded at the county recorder of deeds office, the conservation easement runs with the land, meaning it is applicable to both present and future owners of the land.

The conservation easement agreement is tailored to the particular property and to the goals of the landowner and conservation organization. For example, a conservation easement might allow sustainable forestry but restrict most other uses. Another might prohibit construction and logging within 100 feet of a stream but allow it elsewhere. Another might support farming but forbid development.

Most conservation easements are donated by landowners who wish to protect a beloved place. Under certain circumstances, easements are sold at a bargain price or fair market value. Donations and bargain sales that meet IRS requirements can result in federal tax benefits.

The Pennsylvania Conservation Easement & Commentary, published and maintained by the Pennsylvania Land Trust Association, includes a state-of-the-art easement document as well as more than sixty pages of in-depth guidance for using the model.

A conservation referendum is a highly successful mechanism for raising money that is dedicated to a specific conservation purpose. Open space of agricultural, recreational, natural, scenic, historic and/or cultural importance to a community can be protected using funds approved by voters in a primary or general election. If a local government hasn’t exceeded its taxation or debt limits, voter approval of funding for conservation projects isn’t necessary. Nevertheless, a referendum can be highly desirable because the referendum will serve to permanently dedicate the proposed tax or bond revenue to the conservation purpose described in the referendum. Cities, boroughs and townships in Pennsylvania are permitted to levy dedicated property, earned income and real estate transfer taxes for land conservation with the approval of a simple majority of voters through a ballot measure. State law does not provide this authority to counties. Both county and local government units in Pennsylvania may issue bonds with the proceeds dedicated to conservation projects with the approval of a simple majority of voters.

The Conservation and Preservation Easements Act resolves a number of legal issues affecting conservation easements and stands as a strong policy statement of the Commonwealth of Pennsylvania in support of conservation and preservation easements. A few items must be incorporated in the granting document to conform to the Act and, thus, be entitled to its advantages. A non-conforming conservation easement may be amended by holder and landowners to bring it under the protection of the Act. Conservation easements not conforming to the Act remain valid and enforceable under the common law.

COCS studies examine the relationship of municipal and school district revenue and expenses associated with various land use categories, such as residential, commercial, industrial, and farmland/open space. The revenues and costs generated by each of these different land uses are entered into a formula, the outcome being expressed as a ratio, showing the tax and non-tax revenue generated by that land use compared to the expenses incurred by that land use. Elected officials and planners can then evaluate the current fiscal impacts of these various land uses and see the true cost associated with each land use. COCS studies are useful in dispelling the notion that residential development keeps tax rates low. These studies reveal the true cost of residential land use, how important open-space and farmland are to a community’s fiscal well-being, and that it is important to have a wide tax-base with a variety of land uses.

When accepting a conservation easement, a holder is responsible for ensuring the eased property’s conservation values are protected in perpetuity: the holder must uphold the easement’s conservation objectives forever. Proper stewardship of conservation easements includes regular site monitoring visits, responding to landowners’ questions about the easement, maintaining positive relationships with landowners, building relationships with new landowners, ensuring easement violations are appropriately resolved, responding to landowners’ requests to exercise reserved rights, and amending the easement when necessary.

This guide helps readers better understand the options and costs associated with these stewardship activities. The average costs and average amount of staff time needed presented in this guide are based on an internet search and are composed mostly of averages found in sample stewardship cost calculators. Readers should be aware that sample size for this data is small and readers will need to estimate costs based on the specificities of each easement.

The digital spreadsheet that accompanies this guide can help readers to estimate the stewardship costs associated with a project and identify the investment needed to finance the stewardship.

This guide describes the range of costs incurred by land trusts and agricultural land preservation boards in completing due diligence for conservation easement acquisition. It reports costs for surveys, baseline data, appraisals, title search, phase 1 environmental assessments, and legal fees. The presented information is based on a 2011 survey of land trusts and agricultural land preservation boards and a review of land trust grant applications. Although the data was gathered in the context of conservation easement projects, much of the information is relevant to fee acquisition of land.

This guide is based on the publication “Creating Sustainable Community Parks and Landscapes, 2nd Edition” and was created to outline the benefits of enhancing the natural resources in local parks and other landscapes, to maintain these areas in a sustainable manner, and to provide a step-by-step guide to help staff and volunteers achieve those results.

Development threat analysis graphically depicts where unprotected open space lands are most vulnerable to development pressures over a specific time frame, usually 10 to 20 years.  To help identify areas where conservation efforts should be prioritized, the mapped results of the development threat analysis are overlaid with maps showing areas with high ecological, agricultural, recreational or other conservation values.

Analysis of development pressure is primarily based on population and employment forecasts and additional assumptions on attractors to development, such as transportation access and public sewer and water service.  Some analyses incorporate parcels’ access to employment centers and municipalities’ vulnerability due to weak resource protection ordinances. More sophisticated techniques can include land value projections.

In addition to helping determine conservation priorities, development threat analysis can provide the information needed by government to adjust public policy to redirect development to more suitable areas.

Development threat analyses are not intended to and cannot replace local knowledge about specific real estate values or parcels in which developers are interested. 

Prospective donors sometimes hesitate to make a substantial donation of cash, land or other property because of their concern that they may deplete assets that may be needed later in their lives. A gift by will avoids this concern.

A gift of cash or other personal property by will, sometimes called a bequest, can be made in a specific dollar amount or calculated as a formula based upon other requirements of the estate.  The gift can be to a specific conservation organization or the person(s) administering the estate (the "personal representatives") can be given the power in the will to identify the beneficiary of the gift. The gift can be unrestricted or can be given for a specific purpose.

A gift of land or other real estate interests by will, sometimes called a devise, can be made of the entire ownership interest, a percentage interest in common with others, or a remainder interest after the lifetime of some individual or individuals identified in the will. The will may authorize or direct the personal representative to donate a conservation easement on a property to a conservation organization before it is conveyed out of the estate in accordance with the terms of the will.  Unrestricted gifts of cash or items of personal property that can be converted into cash may come as delightful, and much appreciated, surprises to the beneficiary.  That's not always true with gifts of real estate.  The prospective beneficiary should be consulted before including a devise of real property in a will -- particularly if it is the donor's intent to restrict its use or transferability.

Economic impact studies identify a variety of economic benefits generated by biodiversity. The studies described in this guide each analyzed one or more of these benefits, including the following:

• Enabling the agricultural and forest industry through processes such as pollination, pest control, nutrient provision, genetic diversity, and disease prevention and control
• Provision of wild harvested food products such as fish, large and small animals, and maple syrup
• Provision of medicinal plants and raw materials for pharmaceuticals
• Enabling nature-based tourism and the hunting and fishing industry
• Natural degradation of chemicals released into the environment, a significant cost savings over physical, chemical and thermal bioremediation.
• Reduced healthcare costs through the prevention of the spread of disease.
• Reduction of worldwide poverty.
• Sustaining the natural ecosystems on which humans, and therefore human economic systems, depend.

Conserving natural lands, working farms and forests, and the creation of trails and parks are often viewed in terms of their costs. Yet these often generate financial returns, both to governments and individuals, and create significant cost savings to governments in the provision in services. Preservation projects can have a greater economic return than the money initially invested into the project. This research is not meant to state that conservation is always good and development always bad. Nor is it meant to diminish the importance of the environmental reasons for conservation.

Economic impact studies identify a variety of economic benefits generated by parks. The studies described in this guide each analyzed one or more of these benefits, including:

• Increased property values
• Increased tax revenues
• Decreased medical costs through increased exercise
• Increased tourism revenue
• Improved attractiveness of communities to homebuyers and businesses
• Decreased stormwater treatment costs

Sprawling patterns of development increase travel costs; decrease the economic vitality of urban centers; increase tax burdens due to more extensive road, utility and school construction and maintenance costs; increase health care costs due to pollution from automobile-centered neighborhood designs; and cause the loss of productive agricultural and forestry lands and the loss of natural lands that support tourism and wildlife related industries. Smart growth strategies, in contrast, can reduce development costs to both governments and individuals without reducing economic activity, including the number of residential or commercial units built.

Trails stimulate business creation, influence corporate location decisions, boost spending at local businesses, increase property values, reduce medical costs by encouraging exercise, and generate tax dollars. They also of course provide low or no-cost recreational opportunities and transportation options to the public. These economic benefits of trails are not a matter of speculation. Rather, they have been documented in an array of economic impact studies conducted across the United States. The reader may conclude from the evidence presented that trail projects are appropriately viewed as investments and productive community assets.

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of, or in opposition to, any candidate for elective public office. The prohibition applies to all campaigns at the federal, state and local levels. Violation of this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise taxes. During an election, nonprofits can lobby, provide voter education, encourage voter registration and participation, and participate in issue advocacy. Nonprofits must exercise extreme care that none of these activities are done in partisan way that interferes, or appears to interfere, with the election.

An Environmental Advisory Council (EAC) is a group of 3-7 people, appointed by a municipality’s elected officials, that advises the elected officials, as well as the planning commission and park and recreation board, on the protection, conservation, management, promotion and use of natural resources within the municipality. Pennsylvania municipalities are authorized to establish EACs through Pennsylvania’s Act 177 of 1996 (originally Act 148 of 1973). Since EACs are established through local ordinance and are not mandated, the support of elected officials is necessary for the formation of an EAC.

GPS can be useful for conservation organizations and local governments for monitoring their conservation easement holdings and managing their land preserves. GPS enables users to record positional data in the form of points (e.g., location of a tree or property corner), lines (e.g., a trail) or areas (e.g., a lake). Users can record the locations of any property features that they consider useful for conservation planning such as wildlife habitat units, fences, topography, soil erosion problems, invasive species and easement violations. The recorded data can be imported into Geographical Information System (GIS) software, enabling users to create highly accurate maps of their conservation holdings. Users can also use GPS to quickly re-identify in the field the precise location of previously recorded features. 

Growing Greener: Conservation by Design incorporates conservation considerations into the development process and municipal ordinances, patterning development around networks of open space. Conservation by Design arranges new development on sites to be developed so that half or more of the buildable land in subdivisions is permanently set aside as open space. The same number of housing units can be built—just on smaller lots—so landowners and developers are not financially penalized. Conservation by Design differs from traditional cluster developments in that it places conservation planning at the beginning of the development process rather than at the end and establishes higher standards for both the quantity and quality of open space.

Important Bird Areas provide essential habitat for one or more species of bird, including sites for breeding, wintering, and/or migrating birds. IBAs may be a few acres or thousands of acres. IBAs may include public or private lands, or both, and they may be protected or unprotected. To be designated, an IBA must meet at least one of several objective criteria. 

Once designated, the National Audubon Society works with partner organizations, including its local chapters, to develop and implement IBA conservation plans. Plan activities vary from IBA to IBA and can include bird monitoring, habitat restoration, land protection, and proposing changes to municipal land use policies.

IBA designation does not confer regulatory or other protection to the identified area. It simply recognizes an area as having outstanding value to bird conservation. Designations help conservation organizations and governments to better prioritize their conservation activities.

If the conservation organization needs time to obtain acquisition funding, and if the seller is willing to defer payment in full for that time, there are two ways to achieve the desired result:

• Seller Take Back Financing.  At closing, seller deeds the property to the conservation organization.  At the same time, the conservation organization delivers a promissory note to the seller for the unpaid purchase price and records a mortgage on the property in favor of the seller to secure that debt.
• Installment Payment Financing (i.e., Installment Agreement).  At closing, the seller and conservation organization sign and record an agreement that sets out the terms for payment of the unpaid purchase price.  The seller retains title to the property until the purchase price is paid. 

Either financing alternative allows the conservation organization the right to use the property while paying off the purchase price.  In either case, the seller can defer recognition of gain on the sale for federal tax purposes until payments are received.

Invasive species can impact the values for which land is conserved. Natural lands are not fully protected unless they also are managed for the features that first motivated preservation. Invasive species can change community structure, composition, and ecosystem processes on these lands in ways that may not be anticipated or desirable. Careful management can minimize these negative impacts.

Invasive species management programs should identify resources worth protecting and ecological threats to them. A plan should identify goals, objectives, and strategies for the land.  

The program described in the Main Description below assists landowners and land managers to develop and implement a management program for controlling invasive species. The methodology focuses on plants, but a similar approach can be used for other pest species. The techniques employed adhere to the principles of Integrated Vegetation Management (IVM). IVM practices reduce the need for pesticides, promote healthy ecosystems, and provide measurable results, such as greater natural species diversity and better control of invasive species. Management options for IVM may include biological, chemical, cultural, manual, and mechanical techniques, as well as controlled burning.

The Land Trust Accreditation Commission, an independent program of the Land Trust Alliance, provides independent verification of 37 indicator practices from Land Trust Standards and Practices that show a land trust's ability to operate in an ethical, legal and technically sound manner and ensure the long-term protection of land in the public interest. The Commission accredits nonprofit applicants who demonstrate compliance with all of the accreditation indicator practices. The Commission’s accreditation seal is a mark of distinction in land conservation. It recognizes organizations for meeting national standards for excellence. Land trusts may use the accreditation application process as a way to fine-tune their policies and improve their operations. Accreditation is voluntary.

Land Trust Standards and Practices are guidelines to help land trusts operate in ethically, technically and legally sound ways. They guide land trusts in conducting sound programs of conservation land transactions and stewardship, helping to ensure the long-term protection of land in the public interest. The governing boards of most land trusts have expressed the intent of bringing their operations into conformance with Standards and Practices, signifying this through an Adoption Resolution. The Land Trust Alliance developed Standards and Practices at the urging of land trusts, recognizing that a strong land trust community depends on the credibility and effectiveness of all its members. Land Trust Standards and Practices were last revised in 2004.

Outdoor lighting that is excessive or misaimed can be an aesthetic blight, a safety hazard, a visual annoyance or hindrance, an environmental polluter and a health hazard. Bad lighting is also a waste of money and energy. Good outdoor lighting uses energy wisely and avoids the safety and nuisance problems of obtrusive lighting. Without an effective lighting ordinance in place, municipalities are powerless to control the quantity and quantity of lighting in the community. The Pennsylvania Outdoor Lighting Council (POLC) works directly with municipal governments to develop outdoor lighting ordinances that promote outdoor lighting quality for the comfort and safety of the municipality's residents and businesses. POLC publishes Model Outdoor Lighting Ordinances, which can be extremely useful when a municipality lacks specific expertise with lighting issues and seeks well designed ordinance language that can be tailored to its specific needs.

Lobbying, attempting to influence legislation, either through direct contact with legislators and government employees who participate in the formulation of legislation, or by urging others to do the same, is an important tool by which nonprofits can effect positive change. If engaging in lobbying, nonprofit organizations who hold 501(c)3 status under the federal tax code should be aware of three sets of rules:

• Federal tax code rules that dictate how much 501(c)3 organizations may spend on lobbying without penalty or risking the loss of their favorable tax status. Organizations may choose from two alternatives under the tax code, but nonprofit advocacy experts recommend choosing the “501(h) election” alternative because it gives nonprofits clear definitions of what activities constitute lobbying and how much organizations may spend on these activities.
• Federal Lobbying Disclosure Act rules. If an organization has at least one employee who makes more than one lobbying contact and meets a minimum threshold of time and money spent on lobbying, the organization must register and file reports.
• State rules. Each state has its own definitions of what constitutes lobbying, the rules governing lobbying, and the thresholds at which organizations must register and report their activities.

Demolition, alteration and incompatible development present a continual threat to Pennsylvania’s historic legacy. While federal and state regulations offer only limited protection, local municipal ordinances can substantially protect historical resources. Municipalities across the Commonwealth offer diverse stories of success, maintaining and enhancing historical and architectural character.

Pennsylvania law provides municipalities a range of options to tailor regulatory approaches for historic preservation to specific local objectives. The Historic District Act authorizes municipal protection of historical and architectural character through the regulation of new construction, alteration, restoration, or demolition of buildings within districts that have been certified by the Pennsylvania Historical and Museum Commission. The Municipalities Planning Code authorizes the use of zoning ordinances to protect historic resources – in fact, mandates it. Zoning regulations can be used to protect historic resources whether located with other historic resources in a district-like setting or dispersed at isolated sites. Zoning also provides opportunity to create regulatory incentives for historic preservation.

The Model Grant of Conservation Easement and Commentary includes a state-of-the-art legal document as well as 73 pages of in-depth guidance for using the model. First published in 2005, the sixth edition was published in 2011. The latest edition can be downloaded free-of-charge at ConserveLand.org or ConservationTools.org. Published by the Pennsylvania Land Trust Association for the benefit of private and public holders, landowners and their respective legal counsels, it is written to conform to Pennsylvania law and is the standard of choice in Pennsylvania. It is easily adapted for use in other states and is used across the country. The model and commentary are the products of countless hours of research, regular feedback from users, scrutiny by legal professionals, and discussion and drafting by the development team. The model is characterized by plain language, consistent form and easy-to-read formatting. It is written to achieve meaningful resource protection while being fair to both landowner and holder.

The Pennsylvania Land Trust Association maintains a suite of model legal documents and accompanying commentaries to assist land trusts, government units, landowners and donors, as well as their respective legal counsels, in implementing conservation transactions and other conservation-related activities. The models and commentaries are the products of countless hours of research, regular feedback from users, scrutiny by legal professionals, and discussion and drafting by the development team. They are characterized by plain language, consistent form, easy-to-read formatting and incorporation of best practices.

The models are regularly used in conservation projects and reviewed for potential improvement. They are updated as needed to reflect advances in knowledge and to maintain them as state-of-the-art legal documents.

The model easement documents are written to achieve meaningful resource protection while being fair to both landowner and holder. The other models are likewise written to be fair to all parties in advancing the purpose of the particular document. The models are written to conform to Pennsylvania law but are easily adapted for use in other states.

Mortgage subordination is mandatory for the donation of a conservation or trail easement to qualify as a charitable deduction for federal tax purposes and, to assure that the easement will survive a foreclosure of the mortgage, it is usually required in other easement transactions as well. Obtaining a subordination has never been quick or easy but it’s become even more difficult and time consuming due to the consolidation of mortgage servicing into an industry comprised of a few huge databanks. This guide shows users how to take advantage of this development by setting out a process that conforms to industry requirements.

This guide is based on the publication “Multi-Municipal Cooperation for Recreation and Parks” developed by the PA Parks & Recreation Society and PA Department of Conservation and Natural Resources/Bureau of Conservation and Recreation. It is intended to provide comprehensive guidance to municipal and county officials on establishing cooperative partnerships on recreational opportunities.

A municipality may more effectively provide for future trails, parks, networks of open space, road improvements, or other public uses by identifying the location of key public grounds and infrastructure in advance of the public’s need and reserving the necessary land on an official map. By reserving the land, the municipality expresses its intent to acquire that specific land at some future date. This expression of intent does not affect existing property ownership; landowners still own and control their land. However, the owners are constrained in building on, subdividing or otherwise developing the reserved land until (1) they receive a special encroachment permit or (2) they provide written notice of intent to develop and then allow the municipality up to a year to acquire the land from them.

The municipality and landowner may negotiate the sale of the reserved land or an easement, or they may agree to an alternative approach that will still meet the public need. If negotiations fail, the municipality may use its powers of condemnation, although municipalities rarely exercise these powers. If the municipality does not acquire the land within a year of the notice, the reservation lapses and the owner is free to build or subdivide following the normal regulatory process.

In legal terms, an option is simply a right without any corresponding duty.  Applied to real property, the most common option contracts give the holder of the option the right to purchase or lease real property without any obligation to do so.  Less common, but sometimes useful, is a "put" option that gives the landowner the right to compel another to purchase their land.  An option gives the holder the benefit of time to decide whether and when to enter into a transaction.  The landowner often receives cash compensation for giving up their right to sell freely on the open market during the option period.  The option is a flexible tool that can be used for a variety of purposes in which control -- rather than immediate rights of ownership or occupancy -- is desired.

PA Land Choices is a comprehensive educational program to engage and enlighten citizens and stakeholders regarding the importance of civic responsibility and the power of citizens in planning the future of a community.  

PA Land Choices is a collection of sequential activities that provide a simple and engaging approach to community involvement.  Each activity guides the learner to understand the power of choice by first analyzing the forces that create change in a community and region. The program facilitates discussion, focusing on a key question: “What defines a good community?” and guides learners to identify positive and negative impacts of community elements.  It identifies the importance of natural resources, green spaces, public lands and public spaces.

PA Land Choices promotes civic responsibility through place-based education and service-learning. Through its interactive and thoughtful activities, it challenges the learner to become involved in creating the communities of the future.
 

The Pennsylvania Natural Heritage Program (PNHP) provides scientific information, expertise, and assistance to support the conservation of biological diversity. PNHP tracks the occurrence and location of native plant, animal, natural community and geologic resources, with a focus on rare and endangered species. Much of this information is posted at PNHP’s website, http://www.naturalheritage.state.pa.us. County and local governments can use PNHP information in developing and updating their comprehensive plans, open space and greenways plans, and land development ordinances. County and local governments considering the adoption of open space programs or conservation funding referenda can use the PNHP information to both describe and justify the use of funds. Counties can also use the PNHP data to establish criteria for evaluating open space grant applications submitted by municipalities under county open space programs. Conservation entities can use PNHP information to guide conservation planning and resource management activities. Developers and others can use PNHP’s Project Planning and Environmental Review tool to screen projects for potential impacts on resources of special concern and facilitate the pursuit of project clearances from government agencies having jurisdiction over those resources of special concern.

There are a number of land use planning and zoning tools available to municipalities in Pennsylvania, authorized through the Municipalities Planning Code (MPC). These tools make it possible for municipalities to guide growth, protect land, and establish commercial, residential industrial, and agricultural corridors within the community, thus protecting natural, historical, economic, and cultural resources in the process.  

The Municipalities Planning Code was first enacted in 1968 and became effective January 1, 1969. Through this enabling act, municipalities have been given the ability to plan for and control land use. The Act has been amended numerous times, most recently in 1988 and again in 2000, strengthening municipal controls in regulating land use. 

The Plant Stewardship Index (PSI) enables stewards of public and private land in the Piedmont area of Pennsylvania to survey and assess the status of the native plant populations on the properties they protect and manage. The PSI also serves as a broader ecological indicator in that the health of the native plant community has been shown to correlate with water quality, macroinvertebrate diversity, mammalian diversity, and overall watershed health. (PNPS 2003)

The PSI provides a method for monitoring and evaluating land management practices. This method, adapted from the Floristic Quality Assessment Index (FQAI or FQI) methodology, assigns relative values (Coefficients of Conservatism or CCs) to every plant found within a survey area, and calculates an overall PSI value for each area. By applying the PSI to plant surveys repeated at regular intervals, land managers can quantify the results of their land management practices and assess trends over time.

The Bowman’s Hill Wildflower Preserve maintains a free website-based PSI calculator (http://www.bhwp.org/psi)

Conservation organizations often rely on promises by donors to donate at a future time money, land, conservation easements, services and other valuables. Before investing time and money in a prospective project, a conservation organization may want the prospective donor’s promise to support the project to be a legally binding obligation of the donor. Donors may fear that a legally binding obligation will nullify the wholly voluntary nature of their gift, thereby eliminating the possibility of receiving a federal income tax deduction for making a charitable contribution.

This guide offers suggestions on ways to create a legally enforceable promise to make a gift. The guide also offers suggestions on ways to preserve the voluntary nature of donor’s investment in the project and, hence, allow for the possibility of the donor claiming a deduction for federal tax purposes.

A carefully crafted document evidencing the proposed terms of donation (the “donation document”) can insure that there is a meeting of the minds between a donor and donee about the investments each will be expected to make to bring a project to fruition while addressing the concerns outlined above.

Conservation organizations and governmental entities may identify countless conservation resources that merit protection;  but lacking key resources such as funding and staff, it is unreleastic that they can protect them all and even more realistic that they’ll have to make difficult decisions on which they’ll focus their resources. Conservation prioritization tools rank conservation resources in order of importance based on specific values for targeted conservation resources – such as ecological resources (i.e. habitats, specific animal and bird species or species populations), agricultural, education, outdoor recreation, forestry, cultural, recreational, historical and/or visual resources. Prioritizations can be further refined if threat (biological and/or development types of threat) to the targeted resource(s) are also included in the assessment.

Conservation organizations and other charities are not automatically exempt from paying taxes on real estate; nor are local governments. Park and open space lands held by charitable organizations and local governments are often granted exemption from property taxes, but these lands are not automatically exempt from taxation. If exemption is desired for a parcel, the charitable organization or local government must apply for exemption for that specific parcel. Exemption for one or many parcels does not guarantee exemption for others owned by the same entity.

As part of the land development process, a Pennsylvania municipality may require the developer to dedicate land to the municipality for public parks and recreation purposes. Called “public dedication” in the state’s Municipalities Planning Code, this tool is also referred to as “mandatory dedication”.

A municipality may also provide the option for the developer to choose from several alternatives to public dedication. However, municipalities may not mandate these alternatives. The developer may voluntarily agree to do one or more of the following instead of or in addition to public dedication:

• Pay a fee to the municipality to be used for providing “parks and recreation facilities” accessible to the new development. This is known as “fee-in-lieu” of land dedication;
• Construct recreational facilities; and/or
• Privately reserve land within the subdivision for park and recreation purposes.

Public dedication is based on the concept of impact fees: Development creates increased demand for municipal services or facilities. Requiring the developer to provide amenities or funding for expanded or enhanced public amenities is an efficient and equitable way to offset some of the impacts of a new development.

Pennsylvania’s Recreational Use of Land and Water Act limits landowners’ liability for personal injury or property damage if they make their land available to the public for recreation free of charge. Landowners may further limit their liability using the other tools outlined in the guide Reducing Liability Associated with Public Access.

Land that is perpetually restricted by a conservation easement is valued at its restricted value for federal estate tax purposes. In addition, up to 40% (capped at $500,000) of the value of land restricted by a conservation easement can be excluded from the value of the estate if the easement conforms with Section 2031(c) of the tax code.

A charitable contribution of a conservation easement granted by the persons administering the estate (called "personal representatives") can reduce federal estate tax otherwise due. In other words, a conservation easement donated after the death of a landowner can reduce federal estate taxes.

Pennsylvania’s Recreational Use of Land and Water Act and other statutes provide substantial protection from liability to landowners who permit the public to come onto their land for outdoor recreation. These protections also apply to holders of trail and other easements. The best defense for landowners and easement holders, however, is preparedness: posting signs, obtaining releases, requiring indemnity, securing insurance coverage and taking steps to warn users of potentially dangerous conditions. This guidance discusses a variety of legal and other means to avoid or minimize liability.

In Pennsylvania, land that is perpetually restricted by a conservation easement is valued at its restricted value for state inheritance tax purposes.

The value of land restricted by an agricultural conservation easement can be reduced by 50% for state inheritance tax purposes.

The value of land enrolled in the Clean and Green preferential taxation program is its agricultural use value for state inheritance tax purposes.

The ownership of real estate can be divided into a present interest (called a "life estate") and a future interest (called a "remainder" or a "remainder interest"). The division is effectuated, unconditionally and absolutely, by delivery of a deed that includes a clause reserving to the transferring owner (sometimes called the "grantor") ownership of the land for the term of the reserved present interest. Reservation of the present interest allows the owner to retain ownership for a period of time measured by the life of one or more individuals, by a term of years, or by a combination of the two.  The transferee owner identified in the deed (sometimes called the "grantee") holds the remainder interest -- the ownership interest that immediately begins when the life estate ends.

The transfer of the future interest can occur via gift or a sale by the landowner and can be an important tax and estate planning tool. The donation of a personal residence or farm subject to a reserved life estate can result in a federal income tax deduction. If appropriate, coupling this with the donation of a conservation easement may provide additional tax benefit as well as permanent protection of conservation values.

If an owner is willing to donate or sell land only for so long as it is used, or not used, for a particular purpose, the owner can transfer the land on a conditional rather than absolute basis. The deed used to convey the property can include terms that will trigger a change in ownership back to the original owner (or owner’s heirs, successors and assigns) if use or ownership of the land falls out of compliance with the conditions set forth in the deed.

The right of first purchase can be a right of first offer, a right of first negotiation, a right of first refusal or a combination of these rights. The right of first offer requires the owner to offer the property, on owner’s terms, to the person who holds the right (called the “holder”) before offering the property to others. The right of first negotiation goes one step further and requires the owner to negotiate with the holder in good faith for some period of time. The right of first refusal allows the holder the right, after offers are solicited from others, to match any offer that the owner is willing to accept. These rights are often combined so that the holder has the opportunity for first response and the assurance that, if owner’s expectations are unrealistic before exposing the property to the market, there is still the opportunity to match a market price.

A riparian buffer protection agreement limits construction on and uses of land bordering a waterway to protect that resource and advance other conservation purposes agreed to by the landowner and a private charitable conservation organization or government (the “holder”). While the property remains in the landowners’ control, the landowner grants to the holder the power to constrain actions impacting the land to ensure that the agreed to conservation purposes are respected. This power is often called a “conservation easement” or “conservation servitude” because it is an interest, albeit narrow, in real property. The riparian buffer protection agreement is recorded at the county recorder of deeds office and “runs with the land”, binding both present and future owners to its terms.

The agreement is tailored to the particular property and to the goals of the landowner and conservation organization or government. For example, within the first 50 feet of a stream, activities inconsistent with water and habitat protection may be ruled out but, extending further outward, a variety of sustainable uses may be allowed depending upon their potential to erode soil or otherwise degrade water resources.

The Pennsylvania Land Trust Association publishes and maintains the Model Riparian Buffer Protection Agreement and Commentary for the benefit of private and public holders, landowners and their respective legal counsel.

If a conservation organization needs time to obtain acquisition funding, and if seller is willing to defer payment in full for that time, there are two ways to achieve the desired result:

• Seller Take Back Financing.   At closing, seller deeds the property to the conservation organization.  At the same time, the conservation organization delivers a promissory note to seller for the unpaid purchase price and records a mortgage on the property to secure that debt.
• Installment Payment Financing (i.e., Installment Agreement).  At closing, seller and conservation organization sign and record an agreement that sets out the terms for payment of the unpaid purchase price.  Seller retains title to the property until the purchase price is paid.

Either financing alternative allows the conservation organization the right to use the property while paying off the purchase price.  In either case, seller can defer recognition of gain on the sale for federal tax purpose over a period of two or more years.

If a conservation easement, rather than land, is being purchased, then the only alternative is installment payment financing.  A conservation easement is not the kind of property interest that can be the subject of a mortgage to secure payment of the purchase price.

Municipalities interested in adopting or amending sign ordinances need to determine what type of sign ordinance is important to them. Developing a sign ordinance involves coming to consensus on a signage vision for the municipality, the willingness of elected officials to draft and implement the regulations, and an understanding of current case law on sign regulations.

Sign ordinances that work well have clear, easy requirements that are consistent with current case law. The ordinances can be adopted as a part of the zoning ordinance or as a stand-alone ordinance. Model sign ordinances are available for municipalities to use as a guide for drafting their signage regulations. 

Pennsylvania municipalities use a variety of approaches to plan for and regulate the use and disturbance of steep slopes. Regulation is accomplished through the zoning ordinance and the subdivision and land development ordinance. A zoning ordinance can regulate the use of land characterized by steep slopes, and can include supplemental regulations or standards that prevent steep slope impacts. A subdivision and land development ordinance can also include design standards that prevent steep slope impacts, and typically requires from development applicants detailed site information such as topographic surveys and grading plans.

Unlike zoning ordinance provisions, subdivision standards are more easily modified or waived by a municipality when requested by a development applicant. Using a zoning ordinance instead to address the use and disturbance of steep slopes can afford this natural resource a higher degree of protection.

Steep slope regulations may be established within a zoning ordinance as an overlay zoning district or as a set of supplemental zoning regulations. They can be primarily use-based, performance-based, or a combination of the two. When coupled with other municipal tools, such as Conservation by Design, they can achieve landscape-scale conservation benefits.

A stewardship fee is a means for a conservation organization to secure the financial commitment necessary to undertake long-term stewardship of a conservation easement. The landowner who cannot or will not make a cash contribution or pledge up front to cover the easement holder’s long term stewardship liability may be willing to establish a fee that will be borne by future owners of the land or that will only be paid upon certain triggering events.

Ensuring that the conservation organization can collect a fee from future landowners who did not, themselves, promise to make payment, requires careful planning. A funding commitment (e.g., a stewardship fee) that is enforceable against the donor who made the promise is relatively easy to create (see discussion in Pledges and Donation Agreements). To enforce the funding commitment as the personal obligation of a future owner is far more challenging: Either the commitment must meet the requirements of a covenant running with the land (including that the payment be directly connected to the future owner’s use and enjoyment of the land) or the future owner must adopt the commitment as his own. The commitment may also be collected from the value of the conserved land by having it secured by a mortgage recorded after the recorded conservation easement.

Transportation planning practice has begun to embrace the connection between land use and transportation, seeking to accommodate a range of transportation choices and addressing the land use context in which transportation improvements are to take place. Municipalities can establish street and sidewalk standards for their communities or improve existing ones using several popular planning concepts such as Complete Streets, context sensitive design, and traffic calming principles. Streets and sidewalks can be designed to complement the character of the surrounding neighborhood and safely accommodate a wide variety of people, uses, and needs, including those of pedestrians and cyclists. Good design can improve mobility, the health of communities, and the broader environment.

To translate standards into practice, municipalities may update their subdivision and land development ordinances to require new developments to conform to their new standards. Municipalities may also embark on improving existing streets and sidewalks, funding these improvements via grants, using tax revenue on a pay-as-you-go basis, or through bonding.

Under development.

While land use planning and development since the mid-1900s have placed great emphasis on separating different land uses and serving cars and trucks, Traditional Neighborhood Development stresses the integration of different housing types and other land uses and the creation of paths, streets and lanes to equally serve pedestrians and the automobile.

Many TND ordinance provisions are crafted to recreate old-fashioned neighborhoods, where a compatible scale of homes, shops, eateries, libraries, churches, and other land uses are interspaced among grid-like streets, sidewalks, and village greens. The compact form promotes walking, biking, and use of public transportation to meet many of the residents’, visitors’, and workers’ daily or weekly needs (e.g., school, work, recreation, shopping).

TND can accommodate growth while leaving most farmland and open space intact. TND can occur in infill settings (i.e., where vacant or underdeveloped land exists within an urban or village area) and involve adaptive reuse of existing buildings. TND can also occur in “greenfields”, involving all-new construction on previously undeveloped land. Either setting may be appropriate if the area targeted for TND is designated for such development through a thoughtful, well-designed municipal or regional planning process.

Traffic-calming incorporates a variety of design and management strategies into local streetscapes to control motor vehicle speeds and traffic volume for the safety of both motorists and non-motorists. For example, speed tables or speed bumps compel drivers to slow down to speeds at which they are better able to react to unexpected situations such as a child darting across the street. Even if a crash does occur, lower speed crashes are less likely to kill or seriously injure.

By donating or selling a trail easement to a nonprofit organization or government (the “Holder”), a landowner may provide their land for a public trail without having to subdivide the land or lose ownership and control of the land. The easement may address matters such as:

• How wide is the trail and what sort of facilities are allowed?
• Are bicycles allowed? Horses? Picnicking?
• May the landowner close the trail temporarily for hunting? Timber harvests? Manure spreading?
• Who is liable if there is an accident?

The Pennsylvania Land Trust Association has created the Model Trail Easement Agreement as well as other models to assist in establishing public trails on private property.

Transfer of Development Rights programs enable landowners within valuable agricultural, natural and cultural resource areas to be financially compensated for choosing not to develop some or all of their lands. These landowners are given an option under municipal zoning to legally sever the “development rights” from their land and sell these rights to another landowner or a real estate developer for use at another location. The land from which the development rights have been severed is permanently protected through a conservation easement or other appropriate form of restrictive covenant, and the development value of the land where the transferred development rights are applied is enhanced by allowing for new or special uses, greater density or intensity, or other regulatory flexibility that zoning without the TDR option would not have permitted. The TDR tool is similar to Pennsylvania’s county agricultural conservation easement purchase programs, except with TDR, the development rights purchased from the farmer/landowner can be reused rather than being retired under the agricultural easement scenario. Pennsylvania’s TDR programs have focused largely on the protection of farmland, although historic and natural resources have also been permanently protected in Pennsylvania using the TDR tool. Under Commonwealth law, use of TDRs must be voluntary, and TDRs are established in a municipal zoning ordinance as one of several use options available to a landowner or developer.

A tree ordinance is an expression of citizen concern about trees and their intrinsic value as well as of community pride. A tree ordinance is also a regulatory tool to help facilitate decision-making and management of trees in a municipality.

The International Society of Arborists categorizes tree ordinances into three main categories:

• Street tree ordinances primarily cover the planting and removal of trees within public rights-of-way. They often contain provisions governing the maintenance or removal of private trees that pose a hazard to the traveling public. Also included are ordinances with tree planting requirements, such as requiring tree planting in parking lots. Tree protection ordinances are primarily directed at providing protection for native trees and/or trees with historical significance. They usually require that a permit be obtained before protected trees can be removed, encroached upon, or in some cases, pruned.
• View ordinances are designed to help resolve conflicts between property owners that result when trees block views or sunlight. A tree ordinance is usually implemented as part of a broader community effort to address tree-related goals.
• Ordinances regulating the harvest of timber are addressed at this website under the heading Timber Harvest Ordinances

An urban growth boundary (UGB) is a line drawn on a map that separates areas where government policies encourage urban development from areas where government policy encourage agriculture, silviculture and other non-developmental rural activities. Typical goals of a UGBs are the:

• Promotion of compact, contiguous development patterns,
• Preservation of open space and land that is environmentally sensitive or important,
• Preservation of farmlands and the rural character of areas outside of the UGB,
• Reinvestment in existing urbanized areas,
• Creation of transit-oriented, mixed-use land use patterns,
• Lowering of development costs by allowing development in areas efficiently served by urban infrastructure.

A regional UBG can be established by creating several individual UGBs within a county or multi-county area.

Walking is the easiest and healthiest form of exercise and can engage individuals of varying fitness levels. In fact, walking is the physical activity most prescribed by doctors.    Walking can improve physical health and reduce obesity. Using the Walk for Wellness model, conservation organizations and educators can inform the public on the benefits of walking and promote safe, green places to walk that include a wider choice of natural settings and trail venues.   The key is not only to encourage physical activity but to create a connection between the individual and his or her natural environment.

Small-scale solar and wind energy systems tap plentiful and renewable energy sources and can produce energy at the location where it is needed. The systems reduce reliance on foreign oil, reduce pollution and help to create green jobs, among other benefits. However, these systems may also have negative impacts including excess solar panel glare, wind turbine noise and rattle, impacts to scenic or historic resources, or safety hazards if abandoned. Accordingly, the municipal governing body may adopt zoning regulations to allow use of alternative energy systems and realization of their benefits, while mitigating potential impacts through a permitting process.

This guide assists users with development of zoning regulations for alternative energy uses that are non-commercial, in other words, accessory uses that power the principal use (i.e., a home, business, or farm) on a building or lot. This guide does not address utility scale or commercial alternative energy systems that are the principal use of a lot.