Managing Conservation Easements in Perpetuity - Environmental ...

Every conservation
easement should contain
an amendment clause.
210
may infer that amendment is an option if the landowner is unhappy
with the easement. This concern can be addressed both by the plain
language of the clause stating that amendments are rare, and by a separate
handout explaining in detail the land trust amendment policy and
procedures.
Others believe that absence of an amendment provision in a conservation
easement could be interpreted to mean amendments are forbidden,
leading to possible disputes if an easement is later amended
contrary to the grantor’s understanding. To minimize risks, the land
trust’s amendment policy and supporting materials should underscore
that easements are perpetual, amended only in exceptional circumstances,
and that all amendments must clearly serve the public interest
— not solely the interests of the landowner.
Approval Clauses
In addition to an amendment clause, your easements should also
include a discretionary approval clause that allows your land trust to
approve uses or activities that were not anticipated at the time of the
conservation easement, so long as such uses or activities are consistent
with the identified conservation values and the purposes of the easement.
Such a clause may help your land trust prevent amendments
that would otherwise be necessary (for example, to adapt to changing
technology). Land trusts that insert discretionary approval clauses in
their easements caution that the same procedures used to analyze an
easement amendment request should also be applied to a discretionary
approval decision to avoid the pitfalls discussed above for amendments.
See page 243 for an example of a discretionary approval clause
and the Land Trust Alliance course “Conservation Easement Drafting
and Documentation” for further discussion of this issue. You may also
refer to the Conservation Easement Handbook sample easement provisions
for another version of this clause. A discretionary approval may
not always be appropriate and should be carefully analyzed.
Drafting Amendments
The format of an easement amendment will vary based on state laws
on transfer of property interests and recordation of documents, as well
as such issues as the desirability of upgrading the easement language
to the land trust’s current model easement format and language.
Generally, an easement amendment will look very similar to a conservation
easement and must be recorded in the county or town in which
Managing Conservation Easements in Perpetuity