Managing Conservation Easements in Perpetuity - Environmental ...

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256 • Describe the role of various parties (board members, volunteer, staff, partners and others) in the event of a potential conservation easement violation • Describe the range of solutions and approaches available to land trusts to resolve conservation easement violations • Determine when a land trust should seek legal counsel in the event of a potential violation of a conservation easement • Explain the types of costs a land trust might incur when enforcing a conservation easement • Determine the range of legal defense funding that would be appropriate for your organization • Help your land trust find the resources to draft an enforcement policy or procedure that addresses the following: • The role of all parties • Documentation of the potential violation • Communications with the landowner • Options for resolution • Involvement of legal counsel Summary Successful land conservation starts with closing important conservation projects and continues with, and is dependent upon, solid, sustainable conservation easement stewardship systems, including enforcement and defense. Upholding and defending your land trust’s easements are two of your land trust’s most important obligations. Conservation easements are only paper and ink if your land trust does not uphold their terms. Three important components of conservation easement defense and enforcement are covered in this course: recordkeeping, addressing easement amendments and conservation easement enforcement (other closely related easement stewardship components, including sound conservation easement drafting and due diligence, annual monitoring visits and good landowner relationships, are covered in other Land Trust Alliance courses). The IRS requires that to be eligible to hold easements that may qualify for federal tax benefits, land trusts must monitor and enforce all their conservation easements. They must also have the commitment, capacity and capability to uphold their conservation easements forever. Most attorneys interpret this requirement to mean that all violations, even technical ones, must be addressed in a manner proportional to the severity of damage to the conserved resources. Failure by a land Managing Conservation Easements in Perpetuity
trust to resolve even a single conservation easement violation can cause many unpleasant consequences. The land trust may be: • Disqualified from accepting further tax-deductible conservation easements • Fined, or have its charitable status revoked, by the IRS Even if the land trust avoids these penalties, at the very least it will endanger the organization’s credibility in its community and with its landowners. Conservation easement “enforcement”is often referred to by land trusts as “violation resolution,” because it involves discovering and resolving a violation of the easement. If the land trust and landowner cannot resolve the dispute, then the land trust may take the landowner to court to remedy the problem. Land trusts can use a variety of techniques to resolve an easement violation before seeking remedies in court, and many are described in this chapter. Conservation easement “defense” means that the land trust responds to a legal action or challenge relating to a conservation easement brought against the land trust by another person or entity,including a landowner,neighbor or another third party. While the vast majority of easements have not been violated, your land trust should prepare for violations of varying degrees. The key is to minimize the magnitude of violations, prevent expensive, unnecessary legal actions and address the violations your land trust encounters promptly and appropriately. Land trusts must understand that violations usually appear suddenly and without warning. A landowner is unlikely to alert the land trust that a violation is imminent; therefore, your land trust must be prepared for the unexpected and be able to respond rapidly and appropriately. Your land trust also must identify potential sources of violations and head them off through proactive assistance to conservation easement landowners. Landowners are endlessly creative in interpreting conservation easements. Your land trust, therefore, needs to have: • A solid understanding of the conservation easements it holds • Sound legal advice when dealing with new easement interpretation issues • Excellent communication and negotiation skills to resolve violations Violation Resolution and Easement Defense 257 Easement enforcement: The discovery and resolution of an easement violation. Easement defense: The land trust’s response to a legal action or challenge relating to a conservation easement.
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Managing Conservation Easements in
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Managing Conservation Easements in
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The Land Trust Alliance’s mission
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C O N T Acknowledgments · 5 A Note
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C O N T E N T S Violation Resolutio
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When a land trust accepts a conserv
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Eternity is a long time. Especially
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Course Road Map This course covers
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Course Resources This course includ
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Everyone is responsible for good re
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22 4. Consider costs and capacity w
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The long-term health and success of
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26 recordkeeping system that includ
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At a minimum, a land trust should k
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In addition to your land trust’s
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32 to serve owners of conserved lan
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34 Post-Closing Easement Stewardshi
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Transparent and ethical procedures
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38 final wording of the clause. The
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40 certain documents, such as lette
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42 able people depending on life ex
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Proper record destruction maintains
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Recordkeeping practices are essenti
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C A S E S T U D Y When the house wa
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C A S E S T U D Y People close to t
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Every project file should have a un
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54 project; -00 identifies the firs
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Do not store permanent files — ev
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Example 58 Combination system. Seve
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60 Retrieving Documents Documents n
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Hearsay is like children playing th
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64 trust prepares. A commitment to
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66 Essential Conservation Documents
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68 For more information on drafting
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70 for admitting GIS-driven maps in
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P U T T I N G I T I N T O P R A C T
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Statute of limitations: The maximum
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100 Evaluate Your Knowledge Answer
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102 Guidance 1. A written records p
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104 Conclusion Recordkeeping is an
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106 management system, a database t
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Brandywine Conservancy: Conservatio
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Mountain Conservation Trust of GA:
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VLT: Conservation Stewardship Progr
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VLT: Computer Document File Structu
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MALT: Records Management Policy All
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MALT: Records Management Policy 122
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MALT: Records Management Policy Mon
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Greensboro Land Trust: Statement of
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CLC: Record-keeping Policy 128 COLU
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CLC: Record-keeping Policy next reg
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CLC: Record-keeping Policy • Insp
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CLC: Record-keeping Policy 4. Trade
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VLT: Recordkeeping System Examples
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VLT: Recordkeeping System Examples
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140 Additional Resources “The Adm
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142 Check Your Progress Before movi
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Chapter Two • Amendments Otis B.
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• Understand the different kinds
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Conservation easement amendments in
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deal with conflicts of interest in
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The challenge for each land trust w
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source can be invaluable in these c
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to add acreage or correct scrivener
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Organizational and Governance Docum
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Guidance on Completing IRS Form 990
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other words, these prohibitions app
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the unique and significant size of
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Islands. The states are Alabama, Al
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to agree with the owner of the encu
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are respected in other states. Your
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should consult with experienced leg
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e added up to reach a decision; for
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State Nonprofit Law Requirements St
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protected conservation values and t
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Principles 5, 6 and 7 tie the amend
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No amendment policy should be more
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easement or the amendment in a four
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context in which a land trust opera
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make a recommendation to the board
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Table 2-3: Land Trust Capacity and
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These are subjects that require leg
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3. Negotiating with the landowner.
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Consulting with State Officials The
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Conservation Easement Amendments Th
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Scenario 2: Excessive Stewardship O
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Scenario 3: Weighing Impacts to Con
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Page 209 and 210: Drafting Easements with Amendments
Page 211 and 212: Easement Amendment Provisions Part
Page 213 and 214: the protected property is located.
Page 215 and 216: ary, these less permanent approache
Page 217 and 218: Discretionary Waiver A discretionar
Page 219 and 220: Looking Ahead: The Future of Easeme
Page 221 and 222: Easement Amendments This exercise m
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Page 225 and 226: V. Amendment Procedures [page 186]
Page 227 and 228: Insert the date of the policy and t
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Page 233 and 234: 5. Can describe two ways that your
Page 235 and 236: Conclusion Although conservation ea
Page 237 and 238: considering an amendment and the po
Page 239 and 240: I. General Policy Statement GVLT: C
Page 241 and 242: cost agreement will be developed an
Page 243 and 244: VLT Amendment Principles and Consid
Page 245 and 246: Sample Language Permitting Amendmen
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Page 249 and 250: May 23, 2006 name address town re:
Page 251 and 252: If you have any questions, please c
Page 253 and 254: “Hicks v. Dowd: The End of Perpet
Page 255: Check Your Progress Before moving o
Page 260 and 261: 258 Adoption and implementation of
Page 262 and 263: 260 the landowner on the land, you
Page 264 and 265: Adopting and implementing an easeme
Page 266 and 267: A violation resolution policy holds
Page 268 and 269: IRS Form 990 and Easement Violation
Page 270 and 271: 268 WCLT learned that having a thou
Page 272 and 273: If you make public detailed violati
Page 274 and 275: Collecting and sharing violation in
Page 276 and 277: Moderate and major violations go to
Page 278 and 279: Violation policies should contain a
Page 280 and 281: The key to discovering easement vio
Page 282 and 283: Recordkeeping is essential to effec
Page 284 and 285: Extra precautions need to be taken
Page 286 and 287: Third-party violator: A person or e
Page 288 and 289: The person designated to talk with
Page 290 and 291: Knowing When You Have to Go to the
Page 292 and 293: 290 first. This letter caused the l
Page 294 and 295: Mediation: The act of an impartial
Page 296 and 297: All conservation easements should i
Page 298 and 299: Third-party enforcer: A person or e
Page 300 and 301: 298 with respect to the conservatio
Page 302 and 303: 300 like posture, you will be more
Page 304 and 305: Example 302 state. If the best cour
Page 306 and 307: Avoid placing mandatory arbitration
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306 a landowner is harvesting timbe
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308 Combined Approach Often you wil
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Your land trust’s legal rights ma
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Many land trusts create one dedicat
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Land trusts may need to rethink cur
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Waiver: The intentional or voluntar
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Quiet title action: A lawsuit broug
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T E M P L A T E You should refrain
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T E M P L A T E In determining the
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T E M P L A T E Sample Language The
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T E M P L A T E other violation res
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C A S E S T U D Y called VLT to rep
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C A S E S T U D Y Guidance Vermont
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342 4. Can list four alternatives t
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344 2. Violation resolution princip
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346 6. Essential violation document
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348 Sample Documents The following
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Dutchess Land Conservancy: Conserva
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MALT: Easement Violation Policy 3.
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MCTGA: Procedure for Enforcement of
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MCTGA: Procedure for Enforcement of
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TRLT: Easement Enforcement Guidelin
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VLT: Easement Enforcement Flow Char
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VLT: Easement Enforcement Flow Char
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VLT: Conservation Stewardship Progr
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VLT: Quick Answers to Assist You wi
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VLT: Stewardship’s FAQs VLT LANDO
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VLT: Stewardship’s FAQs VLT LANDO
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376 Guidebook for Directors of Nonp
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378 Check Your Progress Before comp
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380 • Develop an amendment policy
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Glossary Administrative deviation d
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the property worthy of permanent co
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Policy: A specific course of action
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Index arbitration 266, 292, 294, 30
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Governance Mission, Planning and Ca
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