Managing Conservation Easements in Perpetuity - Environmental ...

make a recommendation to the board for approval. In all cases, the
land trust board is accountable for the final decision.
Early in the process, advise the landowner, in writing, to obtain his or
her own legal counsel. Amendments are often as complex as the original
conservation easement and may have tax and other ramifications
for landowners. Landowners should have competent counsel throughout
the process.
Landowner (or land trust) submits written request. Unless dissuaded
by discussions with the land trust and legal counsel, the landowner
submits the amendment request in writing to the land trust. Some
land trusts will waive the written request from the landowner. In these
cases, the land trust should still commit the amendment request to
writing and confirm it with the landowner before proceeding with the
amendment process. For example, the land trust may write a letter
with a point-by-point summary of the amendment request as understood
by the organization, review that letter with the landowner and
confirm agreement, then move on to the next steps in the process.
Site visit. The land trust visits the property (the only exception being
the simplest cases with no significant change to the easement or in
cases in which a reserved right is extinguished).The site visit allows the
land trust to identify the amendment’s potential effects on the conservation
values and purposes of the easement. Photos taken during the
site visit can document the pre-amendment condition of the land,
supplementing baseline and monitoring photos that may not be fully
up to date or may not focus on the specific part of the easement land
in question.
2. Reviewing the request
Land trusts typically use several basic questions or tests to determine
whether the proposed amendment meets the thresholds of the amendment
principles.
• Public interest and organizational mission test. Does the proposed
amendment serve the public interest and further organizational
mission and goals?
• Legal test. Is the amendment legally permissible under federal,
state and local law? Could the amendment jeopardize the land
trust’s tax-exempt, charitable status?
• Financial test. Could the proposed amendment result in private
Amendments 189
The land trust’s board is accountable
for the final decision on all
amendment requests.
Early in the process, advise the
landowner, in writing, to obtain
his or her own legal counsel.