Managing Conservation Easements in Perpetuity - Environmental ...

Example
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Conservation easements that include affirmative obligations or affirmative
rights may also trigger easement amendment requests, and
they can represent serious administrative burdens for land trusts. It is
important to be extremely careful when placing affirmative obligations
on landowners, because future landowners may not have the capacity
or the desire to implement them. A future landowner may request the
easement be amended to reduce or eliminate such obligations.
Drafting for Flexibility
A land trust that anticipates likely areas of change will draft a conservation
easement so that it is appropriately flexible. Experienced practitioners
say that the most pressure for change comes with houses,
house rights and other structures appurtenant to houses; subdivision
rights; and agricultural, recreational and forestry uses. Your land trust
can build flexibility into its conservation easements to relocate structures,
subdivision lines, building envelopes and the like, to the extent
appropriate for the resource base, by using an approval function rather
than requiring an amendment.
Avoiding Amendments through Better Easement Planning
The Society for the Protection of New Hampshire Forests has found that
the most common amendment requests are those associated with its early
easements that have houses within conservation easement areas, because
landowners today seek to do things with their homes that could not have
been anticipated when the easement was drafted. Today, the Society usually
excludes existing residential use areas from new easements. However, for
proposed easements in which the landowner wishes to retain the right to
build a future home, the Society provides two choices: (1) excluding a future
house site from the easement area before conveying the easement; or (2)
reserving a right in the easement to withdraw a site in the future. Because
of ever-changing local land use regulations, the first approach could result
in a legally substandard site at some point in the future, which in turn
could generate an amendment request. In the second approach, the ease-
ment terms provide that the site either be a specified number of acres or
the minimum needed for local regulatory approval, provide guidelines for
where the withdrawn site can be located and that the site must be approved
by the Society. This approach ensures that the future withdrawal does not
compromise the conservation purposes and attributes. Instead of amending
the easement when the house site is withdrawn, a survey of the site and a
“notice of withdrawal” are recorded at the registry of deeds.
Managing Conservation Easements in Perpetuity