Managing Conservation Easements in Perpetuity - Environmental ...

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Table 2-1: Legal Risk Spectrum IRC/Reg Concerns: impact on conservation purposes IRC/Reg Concerns: impact on conservation values IRC/Reg Concerns: commitment and resources IRC/Reg Concerns: extent of language change Private Inurement Private Benefit Impermissible Private Benefit/ Appraisal Less Risk > More Risk > Highest Risk Amendment does not affect conservation purposes protected in perpetuity or affects in positive ways only Amendment has a beneficial effect on conservation values of the easement land Land trust clearly has both commitment to protect conservation purposes and resources to enforce restrictions Amendment corrects a scrivener’s error No land trust insider is involved at all No financial benefit at all to any private party Full independent appraisal shows lack of impermissible private benefit Amendment has a neutral effect on conservation values of the easement land Amendment makes de minimis changes or clarifications Land trust insider involved but receives no benefit at all “Incidental” private benefit to unrelated parties; risk grows by liberal construction of “incidental” Appraisal to confirm lack of impermissible private benefit is clearly unnecessary 176 Amendment affects conservation purposes protected in perpetuity both positively and negatively No net financial benefit to any private party; any benefit is offset by detriment No consideration of appraisal to assess possible benefit to private party Amendment might harm conservation purposes protected in perpetuity Amendment might benefit land trust insider modestly/ remotely Possible financial benefit to a private party No appraisal despite possible benefit to private party Managing Conservation Easements in Perpetuity Amendment definitely harms or negates conservation purposes protected in perpetuity Amendment has a negative effect on conservation values of the easement land Land trust lacks commitment to protect conservation purposes or resources to enforce restrictions Amendment alters basic provisions and protections Amendment clearly benefits land trust insider Clear financial benefit to a private party No appraisal despite clear benefit to a private party or amendment when appraisal reveals impermissible private benefit
State Nonprofit Law Requirements State Easement Enabling Laws State Charitable Trust Requirements Compliance with State Fraudulent Solicitation Laws Compliance with Local Ordinances Compliance with Conservation Easement Violation of Third- Party Rights Created by the Easement Donor/Grantor Approval Funder Approval Less Risk > More Risk > Highest Risk Amendment furthers or is consistent with land trust’s mission State law permits easement amendment Easement cannot be considered a charitable trust Amendment is consistent with land trust solicitations for fee land, easements or funds Amendment is not contrary to local law and meets current zoning/similar requirements Easement expressly permits this amendment or this type of amendment Amendment protects thirdparty rights in the easement and is approved by those third parties Donor/heirs/ grantor approves this amendment Funders fully approve this amendment Easement is or might be a charitable trust; requirements are satisfied Easement expressly permits amendments in general Donor/heirs/grantor approves this kind of amendment Funders approve this sort of amendment Amendment is not inconsistent with land trust’s mission Easement is silent, but state law clearly permits easement amendments Amendment is not inconsistent with third-party rights Donor/heirs/ grantor knows and is unconcerned Funders know and are unconcerned Amendments 177 Land trust’s mission is unclear; difficult to see whether amendment furthers mission State law is uncertain Easement might be a charitable trust; requirements are not satisfied Easement is silent and state law is uncertain Donor/heirs/ grantor does not know/is not consulted Funders do not know/are not consulted Amendment is contrary to land trust’s mission State law forbids easement amendment or this type of amendment Easement is a charitable trust; requirements are not satisfied Amendment is contrary to land trust solicitations for fee land, easements or funds Amendment is contrary to local law or inconsistent with current zoning/similar requirements Easement expressly forbids this amendment or all amendments Amendment abrogates thirdparty rights Donor/heirs/ grantor opposes this amendment Funders oppose this amendment
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Managing Conservation Easements in
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Managing Conservation Easements in
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The Land Trust Alliance’s mission
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C O N T Acknowledgments · 5 A Note
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C O N T E N T S Violation Resolutio
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When a land trust accepts a conserv
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Eternity is a long time. Especially
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Course Road Map This course covers
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Course Resources This course includ
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Everyone is responsible for good re
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22 4. Consider costs and capacity w
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The long-term health and success of
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26 recordkeeping system that includ
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At a minimum, a land trust should k
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In addition to your land trust’s
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32 to serve owners of conserved lan
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34 Post-Closing Easement Stewardshi
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Transparent and ethical procedures
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38 final wording of the clause. The
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40 certain documents, such as lette
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42 able people depending on life ex
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Proper record destruction maintains
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Recordkeeping practices are essenti
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C A S E S T U D Y When the house wa
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C A S E S T U D Y People close to t
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Every project file should have a un
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54 project; -00 identifies the firs
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Do not store permanent files — ev
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Example 58 Combination system. Seve
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60 Retrieving Documents Documents n
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Hearsay is like children playing th
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64 trust prepares. A commitment to
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66 Essential Conservation Documents
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68 For more information on drafting
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70 for admitting GIS-driven maps in
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P U T T I N G I T I N T O P R A C T
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Statute of limitations: The maximum
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100 Evaluate Your Knowledge Answer
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102 Guidance 1. A written records p
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104 Conclusion Recordkeeping is an
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106 management system, a database t
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Brandywine Conservancy: Conservatio
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Mountain Conservation Trust of GA:
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VLT: Conservation Stewardship Progr
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VLT: Computer Document File Structu
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MALT: Records Management Policy All
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MALT: Records Management Policy 122
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MALT: Records Management Policy Mon
Page 128 and 129: Greensboro Land Trust: Statement of
Page 130 and 131: CLC: Record-keeping Policy 128 COLU
Page 132 and 133: CLC: Record-keeping Policy next reg
Page 134 and 135: CLC: Record-keeping Policy • Insp
Page 136 and 137: CLC: Record-keeping Policy 4. Trade
Page 138 and 139: VLT: Recordkeeping System Examples
Page 140 and 141: VLT: Recordkeeping System Examples
Page 142 and 143: 140 Additional Resources “The Adm
Page 144 and 145: 142 Check Your Progress Before movi
Page 147 and 148: Chapter Two • Amendments Otis B.
Page 149 and 150: • Understand the different kinds
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Page 153 and 154: deal with conflicts of interest in
Page 155 and 156: The challenge for each land trust w
Page 157 and 158: source can be invaluable in these c
Page 159 and 160: to add acreage or correct scrivener
Page 161 and 162: Organizational and Governance Docum
Page 163 and 164: Guidance on Completing IRS Form 990
Page 165 and 166: other words, these prohibitions app
Page 167 and 168: the unique and significant size of
Page 169 and 170: Islands. The states are Alabama, Al
Page 171 and 172: to agree with the owner of the encu
Page 173 and 174: are respected in other states. Your
Page 175 and 176: should consult with experienced leg
Page 177: e added up to reach a decision; for
Page 181 and 182: protected conservation values and t
Page 183 and 184: Principles 5, 6 and 7 tie the amend
Page 185 and 186: No amendment policy should be more
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Page 189 and 190: context in which a land trust opera
Page 191 and 192: make a recommendation to the board
Page 193 and 194: Table 2-3: Land Trust Capacity and
Page 195 and 196: These are subjects that require leg
Page 197 and 198: 3. Negotiating with the landowner.
Page 199 and 200: Consulting with State Officials The
Page 201 and 202: Conservation Easement Amendments Th
Page 203 and 204: Scenario 2: Excessive Stewardship O
Page 205 and 206: Scenario 3: Weighing Impacts to Con
Page 207 and 208: Scenario 2: Excessive Stewardship O
Page 209 and 210: Drafting Easements with Amendments
Page 211 and 212: Easement Amendment Provisions Part
Page 213 and 214: the protected property is located.
Page 215 and 216: ary, these less permanent approache
Page 217 and 218: Discretionary Waiver A discretionar
Page 219 and 220: Looking Ahead: The Future of Easeme
Page 221 and 222: Easement Amendments This exercise m
Page 223 and 224: • Not result in private inurement
Page 225 and 226: V. Amendment Procedures [page 186]
Page 227 and 228: Insert the date of the policy and t
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communicating a clear process in si
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• Applied its existing conflict o
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5. Can describe two ways that your
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Conclusion Although conservation ea
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considering an amendment and the po
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I. General Policy Statement GVLT: C
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cost agreement will be developed an
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VLT Amendment Principles and Consid
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Sample Language Permitting Amendmen
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hereby approved and will not be dee
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May 23, 2006 name address town re:
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If you have any questions, please c
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“Hicks v. Dowd: The End of Perpet
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Check Your Progress Before moving o
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256 • Describe the role of variou
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258 Adoption and implementation of
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260 the landowner on the land, you
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Adopting and implementing an easeme
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A violation resolution policy holds
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IRS Form 990 and Easement Violation
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268 WCLT learned that having a thou
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If you make public detailed violati
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Collecting and sharing violation in
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Moderate and major violations go to
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Violation policies should contain a
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The key to discovering easement vio
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Recordkeeping is essential to effec
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Extra precautions need to be taken
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Third-party violator: A person or e
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The person designated to talk with
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Knowing When You Have to Go to the
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290 first. This letter caused the l
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Mediation: The act of an impartial
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All conservation easements should i
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Third-party enforcer: A person or e
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298 with respect to the conservatio
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300 like posture, you will be more
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Example 302 state. If the best cour
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Avoid placing mandatory arbitration
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306 a landowner is harvesting timbe
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308 Combined Approach Often you wil
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Your land trust’s legal rights ma
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Many land trusts create one dedicat
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Land trusts may need to rethink cur
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Waiver: The intentional or voluntar
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Quiet title action: A lawsuit broug
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T E M P L A T E You should refrain
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T E M P L A T E In determining the
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T E M P L A T E Sample Language The
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T E M P L A T E other violation res
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C A S E S T U D Y called VLT to rep
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C A S E S T U D Y Guidance Vermont
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342 4. Can list four alternatives t
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344 2. Violation resolution princip
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346 6. Essential violation document
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348 Sample Documents The following
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Dutchess Land Conservancy: Conserva
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MALT: Easement Violation Policy 3.
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MCTGA: Procedure for Enforcement of
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MCTGA: Procedure for Enforcement of
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TRLT: Easement Enforcement Guidelin
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VLT: Easement Enforcement Flow Char
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VLT: Easement Enforcement Flow Char
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VLT: Conservation Stewardship Progr
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VLT: Quick Answers to Assist You wi
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VLT: Stewardship’s FAQs VLT LANDO
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VLT: Stewardship’s FAQs VLT LANDO
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376 Guidebook for Directors of Nonp
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378 Check Your Progress Before comp
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380 • Develop an amendment policy
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Glossary Administrative deviation d
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the property worthy of permanent co
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Policy: A specific course of action
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Index arbitration 266, 292, 294, 30
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Governance Mission, Planning and Ca
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