Managing Conservation Easements in Perpetuity - Environmental ...

Every land trust should have
a carefully prepared written
amendment policy.
178
Your land trust policy and procedures most likely will be inadequate if
they prohibit all easement amendments. Errors will occur, and your land
trust needs a policy to address what degree of error it is willing to correct
through amendments. The example in the previous paragraph poses
significant problems,especially if the conservation easement was donated
and your land trust signed the IRS Form 8283 (confirming the receipt
of a charitable donation) based on the conservation easement as written
with two reserved home sites. The length of time that passed from easement
closing to the landowner informing you of the error will also affect
your land trust’s ability to determine if, in fact, an error had been made.
For example, is it an error or a change of heart if the landowner takes
three years to bring up the matter of the reserved home sites?
As you can see, even correcting “errors” can put a land trust on a
slippery slope toward making poor decisions about amendments.
An amendment policy, which includes the amendment principles
discussed below, provides a structure in which to consider a proposed
amendment, make a decision and document the supporting reasoning
and justifications. A written amendment policy sets or identifies standards
by which the land trust accepts or rejects amendment proposals.
The policy should contain amendment procedures that land trust
personnel, whether staff or volunteer, use to evaluate the amendment
proposal and guide the overall decision-making process.
Contents
Amendment policies address overall policy guidelines and criteria for
making amendment decisions and specific procedures for evaluating
amendment requests. Some land trusts meld these into one document;
others keep them as separate pieces. The overall policy is usually in a
form that can be shared with landowners, potential easement grantors,
funders and the public. Some land trusts keep the amendment procedures
in a separate document to be used internally and shared with
others only on request. Either format is acceptable.
Amendment policies typically include:
A statement of the land trust’s philosophy on easement amendments. An
amendment policy should declare that easements are considered
perpetual, consistent with applicable law and the donor’s documented
intent, and that any amendment should change the easement to
enhance its protection or at least be neutral with respect to impacts on
Managing Conservation Easements in Perpetuity