Managing Conservation Easements in Perpetuity - Environmental ...

Exaction: The regulatory requirement
of an act in order to comply
with a permit or obtain a governmental
approval usually where the
government compels a person or
entity to grant a conservation easement
in exchange for a permit. See
also quid pro quo.
Quid pro quo: The exchange of
benefit where one valuable thing is
given in exchange for another.
Be sure that your records
clearly document how your
land trust acquired each conservation
easement it holds, because
charitable trust principles may
more likely apply to donated or
bargain sale easements.
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easements are viewed as charitable trusts, a land trust may have limited
discretion to amend conservation easements without court approval
and without involvement of the state attorney general or other officials.The
nature of the limitations depends on the state, the manner in
which the easement was acquired, the nature of the amendment, the
authority to amend included in the easement and other circumstances.
Conservation easements may be created in at least five different ways:
1. By donation
2. By purchase or bargain sale, with or without donated funds or
funds obtained from government sources
3. Through “reservation,” by which land trust property is transferred
to another entity subject to a reserved conservation
easement
4. By “exaction,” as a result of land use regulatory processes
5. Through settlement of a dispute or enforcement proceeding
Federal and state law, including the charitable trust doctrine, may
apply differently to amendments to conservation easements of different
origins; therefore, any legal analysis of an amendment request must
consider the origin of the easement. Easements with some donative
component may be more likely to be subject to charitable trust principles
than easements purchased at their full fair market value.
If a conservation easement is a charitable trust, a land trust must
consider state charitable trust law when contemplating amendments.
The details of charitable trust law vary from state to state, and a land
trust must consult with qualified legal counsel.The overriding principle
of charitable trust law is that both the grantor’s expressed and implied
intent be honored. As a general rule, if a conservation easement deed
contains an amendment provision, the land trust has the express power
Charitable trust: A trust established for charitable purposes. In this
context, the text refers to a conservation easement as a possible charitable
trust, subject to the charitable trust doctrine. When a gift is made
to a charitable organization to be used for a specific charitable purpose,
the organization may not deviate from the charitable purposes of the gift
without receiving judicial approval. This principle holds true whether the
donor is treated as having created a charitable trust or merely as having
made a restricted charitable gift under state law.
Managing Conservation Easements in Perpetuity