Managing Conservation Easements in Perpetuity - Environmental ...

Standing: The right of a person to
participate in a judicial proceeding
and be recognized as a party to
the proceeding by the court and the
other parties.
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tion attributes of easement land. Conversely, if an amendment would
increase the stewardship burden, the land trust should also weigh
this negative factor in the evaluation, and perhaps seek to mitigate
this increased burden by requiring a financial contribution from the
landowner to the land trust’s stewardship fund. However the land
trust handles this issue, it must be clear that the landowner did not
“purchase” the amendment.
Are there other parties (in addition to the landowner and land trust that
hold a legal interest in the easement) that must be engaged in the process?
If the land trust purchased the original easement, the funding sources
may have a legal or programmatic interest in the easement. Some
public funding programs have rules that effectively prohibit amendments.
Furthermore, the land trust may wish to consult with the funding
source as a matter of courtesy and good public relations depending
upon the situation.
If the easement property is part of a larger easement property that
was subdivided after the original easement was granted, the owners
of the other easement properties may have legal standing to challenge
an amendment. Even if the landowners do not have legal standing to
sue, the land trust should evaluate whether to obtain these landowners’
approval to avoid conflicts.
Amending an easement exacted in a land use or environmental
permitting situation may require approval of the permitting agency
or municipality. Therefore, such an easement must be carefully scrutinized
for the land trust’s ability to amend, and steps taken to engage
other appropriate parties who must, or should, be consulted about an
easement amendment. If some entity other than the land trust must
approve the amendment, landowners and land trusts should understand
that these approvals may take time and may require public hearings
or notice with respect to the easement amendment.
If the easement was donated and an income tax deduction taken, an
IRS ruling may be worth considering because neither the IRS nor the
courts have yet addressed this point. Some attorneys believe the landowner’s
tax concerns as to a deduction end when the three-year statute
of limitations runs out, thereby making IRS consent unnecessary.
The IRS retains power to sanction the land trust, however, and some
amendments may have additional tax consequences.
Managing Conservation Easements in Perpetuity