Conservation Tools

This is a comprehensive book on the tax benefits of the charitable contribution, or bargain sale, of a conservation easement. It provides a detailed explanation of the complex and extensive requirements of the federal tax code and related concepts, including the rules governing the operation of tax-exempt organizations such as land trusts.

Brown presents her thesis that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief. She briefly describes the history and rationales underlying the creation and perpetuation of conservation easements and the close relationship between preservation and a strong private property regime, discusses challenges to perpetual conservation easements under the doctrine of changed conditions as well as the importance of private-party standing to the defense of conservation easements, and considers efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions. She demonstrates that decentralizing property ownership interests by enforcing property owners’ decisions to burden their property with perpetual conservation easements is consistent with a democratic property system.

This article explores conservation easement drafting strategies responsive to global warming and climate change. It proposes the development of an "Ark" easement, which unlike traditional, perpetual easements, would be terminable by the holder without resort to a judicial proceeding if global warming caused changes render the conservation purposes of the easement impossible or impractical. For this strategy to succeed, however, the easement holder must be able to recover the full, appreciated value of the development rights and redeploy them to further the social good of land and resource conservation.

In light of the changes global warming will bring, this article creates a case for the argument that upon any easement termination, it is the holder of a conservation easement that is entitled to the appreciated value of the development rights held in abeyance by a conservation easement. It addresses conservation easement provisions that would calculate and direct such appreciated value to the easement holder and that would also prevent the landowner from receiving an unwarranted windfall. Finally, it discuss a new type of conservation easement, an “ark” easement, which is intended to assist species and ecosystems in global warming caused migrations by being terminable at the easement holder’s option.

The goal of the Conservation Defense Insurance is to create favorable case law, avoid unfavorable case law, defend and enforce conservation easements, protect fee-owned land, encourage practices that will help prevent violations and unnecessary litigation, support good practices, and provide the confidence and capability to uphold conservation obligations forever.

A 3-page article covering easement basics. Published by the National Association of Legal Assistants.

This article presents an overview of conservation easements designed to help practitioners reap the myriad benefits that state and federal law authorize. It addresses three distinct subjects pertaining to conservation easements; an account of the development of conservation easements; an in-depth review of conservation easement tax law and examples of potential tax benefits; and the often-altruistic client motivations that drive the conservation easement field.

This article briefly describes conservation easements and how they operate to protect the conservation values of land, describes the dramatic growth in the use of conservation easements over the past two and a half decades, and highlights some of the more troubling issues that have arisen as a result of the growth in the use of easements, as well as proposals for reform. The article asserts that if reforms can be successfully implemented, conservation easements can emerge from their troubled adolescence to take their appropriate adult role in the panoply of land conservation techniques, and may help lead us to a new paradigm of private property ownership.

This article discusses the history of conservation easements up to the present, and analyzes several barriers preventing even broader use of this valuable private land protection instrument. It alerts landowners and easement holders to several legal and policy concerns creating barriers to the effectiveness and appeal of conservation easements and investigates available and potential resolutions to these concerns

In this article, McLaughlin outlines the support for applying charitable trust principles to perpetual conservation easements, including uniform laws, the Restatement of Property, federal tax law, and case activity on this issue to date. She cautions that perpetual land protection is not appropriate in all circumstances and recommends a more considered use of perpetual conservation easements as a land protection tool. This article explores the possible use of a number of nonperpetual conservation easements to accomplish land protection goals.

The Pennsylvania Conservation and Preservation Easements Act, the act of June 22, 2001 (P.L. 390, No. 29) (32 P.S. §§5051-5059) was enacted in its final form as House Bill 975, PN 2294. It is Pennsylvania's enabling act for conservation easements (excluding agricultural conservation easements created under the Agricultural Area Security Law.

Conservation transactions may involve substantial planning and execution costs. Some of those expenses clearly benefit one or the other party to the transaction. Who benefits from other expenses may be quite ambiguous. Accurate assignment of financial responsibility for these various transactional expenses has both economic and tax consequences for the landowner as well as implications for the conservation organization. 4 pp.

This article examines the “dynamic conservation easement”, an easement whose terms provide land use restrictions that may change over time. It argues they are better suited to serving their unique conservation purposes and are more likely to fulfill their promise to protect the land in perpetuity than static conservation easements, whose terms provide unchanging land use restrictions.

As part of the process a landowner must undergo when seeking to develop land where either federally listed endangered or threatened species, or their habitat, are present, he must prepare a Habitat Conservation Plan. It has become commonplace for government agencies to require the creation of conservation easements as part of these plans. This article describes the use of conservation easements in the Habitat Conservation Plan process under the Endangered Species Act and explains the complexities that arise with the enforcement of those conservation easements.

The hybrid easement document provides for both resource protection and public access for fishing. It is a tool for conservation organizations and governmental entities to build cooperative relationships with private landowners to provide conservation and recreation benefits to the public while keeping properties in the control of the owners. READ the commentary.

Findley gives a brief overview of the land conservation movement in the United States and the use of conservation easements. He gives several examples of how conservation easements have successfully allowed landowners to protect their land.

This document was developed by Brandywine Conservancy to share with prospective landowners and explain the many important legal and cost issues that a prospective easement donor should consider.

The author provides an overview of the modern law of servitudes and surveys the changes to traditional servitudes law brought about by the 2000 Restatement (Third) of Property: Servitudes. The author explains how the new Restatement simplifies and clarifies this body of law, providing greater freedom to property owners while safeguarding the public interest

United States District Court for the Western District of Virginia found that The Historic Green Springs, Inc. -- a holder of a conservation easement -- has standing under the Clean Water Act as a plaintiff regarding discharge of wastewater into a creek whose protection is a subject of the easement and an interest of the organization. (2011 U.S. Dist. LEXIS 70515)

This article undertakes a critical analysis of the tax incentives that encourage the donation of conservation easements and the proposals to increase them. It concludes that a responsible approach to increasing the tax incentives is called for: Congress should increase the incentives only if some assurance can be had that the increase will be efficient, that land trusts and government agencies have the expertise and resources to appropriately screen and steward the anticipated additional easements, and that the increase will not encourage exploitation and abuse.

This document is one of a series of fact sheets and reference materials produced by the Land Trust Alliance. Please contact us for additional information or to order materials.

Achieving conservation goals in protected areas hinges on continual monitoring, enforcement, and legal defense. A national survey of land trust legal defense of conserved areas showed half of land trusts reported a legal challenge, and one-quarter of those land trusts were hindered by financial barriers in pursuing a legal challenge. Interviews with land trust staff revealed the necessary conditions for pursuing legal defense, including organizational capacity, community support, and persuasive property claims, as well as the importance of stewardship endowments and the need for greater land trust capacity and accountability.

This webcast delves into conservation easements, providing information on municipal land protection programs, financial benefits to landowners, steps in acquiring easements, and easement stewardship.

Used to secure payment of deferred contributions, private transfer fees and other conservation contributions promised by present landowners and to be paid by either them or future owners. The model offers ten basic ways to structure financial arrangements. Read the commentary, not just the model document!

The Model Donation Memorandum puts into practice the research, analysis and recommendations of the Pledges and Donation Agreement guide. The commentary to the model is intended as a resource, to explain the purpose of each provision in the model memorandum, refer the user to pertinent portions of the guide for further analysis; and provide alternative and optional provisions.

Download both the model and the commentary! The Model Grant of Conservation Easement and Commentary, now in its 6th edition, provides users with a state-of-the-art legal document together with an expansive commentary covering alternative and optional provisions and the reasoning behind it all.

A model legal document and accompanying guidance to help users in obtaining the "subordination" of a mortgage to a conservation easement.

Private wealth-protecting perpetual trusts and environment-protecting conservation servitudes share the problem that both are long-term property arrangements that are likely to last far longer than the ability of their creators to predict what the future will bring. Existing doctrines can be used and extended to solve many problems that are likely to arise, but more will be needed. For conservation servitudes, more attention should be given to protecting the public interest against collusive terminations by action of a developer and the servitude holder and against retention of conservation servitudes of marginal value when the land is needed for other uses of benefit to the community.

This article makes two recommendations regarding the drafting of conservation easements in the age of global warming. The first recommendation relates to drafting language that will ensure perpetuity in conservation easements where the eased land has been adversely affected by global warming. The second recommendation relates to drafting conservation easement language that addresses “latent ancillary rights” in the eased land that per¬tain to global warming, for example the carbon sequestra¬tion process in forested land.

Conservation easements have permitted the leverage of private initiative, resources, and commitment to ensure that open space and wildlife habitats are preserved for future generations. At the same time though, private conservation easements raise public policy concerns related to the tax subsidies, the absence of public process in their creation, long-term stewardship, and flexibility to adapt conserved land to emerging needs of the community. This article examines the recent achievements and benefits of conservation easements, and suggests some reforms that might make them an even stronger vehicle for land conservation in the public interest.

McLaughlin and Machlis offer a rebuttal to Gerald Korngold’s article “Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process”, which presents a critique of conservation easements and a variety of suggestions for reform. They discuss five misconceptions that tend to pervade the criticism of conservation easements and result in proposals for reform that would be contrary to the public interest. They also discuss three of the primary reforms suggested in Korngold’s article and why they feel those reforms are both unnecessary and inadvisable.

State and federal governments face important choices about how to provide public access to conservation easement information, given growing concerns that the public’s substantial investment in conservation easements will be lost without comprehensive tracking over the long term. This article reflects on the public nature of conservation easements, the challenges posed by their perpetuity, and provides concrete recommendations for legislatures seeking to improve conservation easement tracking.

In Randal A. Schrimsher et ux. v. Commissioner; T.C. Memo. 2011-71; No. 945-09 (27 Mar 2011), the U.S. Tax Court determined that a claimed deduction of $705,000 for a façade easement would be denied due to a lack of a contemporaneous written acknowledgement.

Contemporary conservation easement practice has attracted many critics, based in part on well-publicized national scandals involving fraudulent donations of conservation easements for tax purposes and in part on more general concerns about the potential inefficiency of these easements. This article scrutinizes the current debate by examining various criticisms and proposals for reform of current conservation easement practice. It provides important detail on contemporary conservation easement practice, considers the interaction between contemporary practice and the abstract concerns raised in the academic debate, and offers some suggestions for reform and further study.

Part One of this report provides an introduction to some of the issues arising from conservation easements, as foretold at the time of the enactment of the federal laws that granted them tax subsidies. Part One also describes the reasons why the public has a stake in conservation easements and in their content and governance. Part Two provides a Primer on Land Trusts and Conservation Easements, including defining terms, providing historical context and reporting current trends and a preview of the future problems that they present. Part Three specifically discusses issues emanating from conservation easements and evaluates a number of alternative ways to resolve them.

This article is a rebuttal the position of Professor Julia D. Mahoney that conservation easements should not be allowed to remain in effect in perpetuity and instead they should be time limited, or perhaps not created in the first instance. The article provides a brief discussion of the historical and philosophical antecedents of real property law in the United States, an historical and legal analysis explaining how conservation easements fit within the current real property regime of the United States, and expounds upon the merits of perpetual conservation easements. The final parts of the article provide rebuttal to critiques Mahoney has provided to this work.

Definition of restraint on alienation from thefreedictionary.com with examples n. an attempt in a deed or will to prevent the sale or other transfer of real property either forever or for an extremely long period of time. Such a restraint on the freedom to transfer property is generally unlawful and therefore, void or voidable (can be made void if an owner objects), since a present owner should not be able to tie the hands of future generations to deal with their property. This ban on a restraint on alienation (transfer) is called "the rule against perpetuities."

This article argues that the charitable trust doctrine of cy pres should apply to donated conservation easements and, if interpreted as suggested, can provide a principled means of modifying or extinguishing easements that have ceased to provide sufficient public benefits to justify their continued enforcement (or have even arguably become detrimental to the public). It states that the landowner should be permitted to exercise dead hand control over the use of the property encumbered by the easement, but only so long as the easement continues to provide benefits to the public sufficient to justify its enforcement.

Pursuant to Senate Resolution 2007-195, a report on the impacts of Pennsylvania's Agricultural Conservation Easement Purchase Program.

The "Worksheet to Calculate Stewardship Costs and Endowment Needs for Property under Protection Agreement" is designed to address relatively simple properties of similar character. It does not factor reserved rights for subdivision and development, which can be huge factors in determining future costs.

The new edition of The Conservation Easement Handbook reflects a true collab- oration among the lead partner organizations, the writers Elizabeth Byers (part one) and Karin Marchetti Ponte (part two), and many others. The National Trust for Historic Preservation was a central partner in the first edition, and was integral to the revised handbook. National Trust staff Thompson Mayes and Julia Hatch Miller provided in-depth review of the entire manuscript and drafted the chapter on easements for historic buildings and culturally significant prop- erties. Scenic America, a new partner, working with Matt Goebel, Chris Duerksen, and Carl Castillo at Clarion Associates, provided text on scenic ease- ments for the chapter on special-purpose easements.

An overview of conservation easements, including the basics of what a conservation is, the tax benefits of donating an easement, and the easement process at Natural Lands Trust.

Exacted conservation easements are not donated or voluntarily sold, they are mitigation requirements for landowners seeking to fulfill goals other than land protection. This article outlines reasons why exacted conservation easements emerged and why they are such a popular tool. Because they don’t embody the freedom of contract associated with traditional conservation easements and often tie directly to regulation of property, they are a tool that directly conflicts with many of the goals that gave rise to their emergence.

This short article explores the role land trusts and conservation easements can play in the protection of biodiversity on private lands.

Thompason scrutinizes Julia Mahoney’s article “Perpetual Restrictions on Land and the Problem of the Future”, to see whether conservation easements and other existing efforts to conserve land across generations are quite as troubling as she suggests. Thompson argues that by shifting the decision-making authority over future land uses from a single private landowner to a land trust or various segments or representatives of the public, it is less likely for the land to be developed but still leaved the ultimate decision to future generations. He explores justifications for why one generation may want to make future developments more difficult and asks how society should balance the potential benefits of perpetual conservation easements against the possible costs to future adaptability.

These article are a two part series that explore tribal use of conservation trust mechanisms to assert traditional native prerogatives on privately held lands in the United States. Part I (The Emerging Tribal Role in the Conservation Trust Movement) presents this role as an interface between two separate movements: the Native environmental sovereignty movement, aimed at protecting environmental resources located off the reservations, and the conservation trust movement created in response to the deficiencies of environmental law. Part II (Evaluating Four Models of Tribal Participation in the Conservation Trust Movement) seeks to develop the tribal role by evaluating four models of native engagement according to criteria important to both native and non-native interests.

43 pages.

COMING SOON!