Managing Conservation Easements in Perpetuity - Environmental ...

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MCTGA: Procedure for Enforcement of Easements 358 Mountain Conservation Trust of Georgia’s Mission The Mountain Conservation Trust of Georgia is dedicated to the permanent preservation of the natural resources and scenic beauty of the mountains and foothills of North Georgia through land protection, collaborative partnerships and education. PROCEDURE FOR ENFORCEMENT OF EASEMENTS These procedures are for Board Members of the Mountain Conservation Trust of Georgia to determine 1) what is a violation of a conservation easement, and 2) what is the appropriate response to that violation. Levels of Violations • Improper Communication of Action - would result in no tangible impact on conserved resource(s). • Minor Violations a) exercising reserved rights without notification b) transfer of property without notification - would result in a transitory or minor impact on conserved resource(s). • Intermediate Violations a) undiscovered trash dump (no longer used with absence of hazardous wastes) b) unauthorized access (hunting, fishing & hiking) c) unauthorized placards d) firewood harvesting (of downed trees) - would result in a moderate impact on conserved resource(s) affecting 1- 5% (in area) of conserved property a) extensive tree pruning & cutting b) unauthorized construction of communications system Managing Conservation Easements in Perpetuity
• Major Violations - would result in a major impact on conserved resource(s) affecting 6-100% Response to Violation (in area) of conserved property a) clearcutting b) unauthorized construction of shelters 1. For both “Improper Communication of Action” and “Minor” violations, regardless of degree of mitigating circumstances, the Trust should endeavor to educate the landowner and to continue to build a strong working relationship. These violations may 1) merit no formal response, 2) be addressed and approved on principle, 3) be waived because of the perceived minimal nature. 2. (Minor) May require a modest request to the landowner to please inform the Trust before future similar endeavors. 3. (Minor-Intermediate) May require one or more site visits to assess the situation and to develop a solution 4. (Intermediate-Major) May require alternative forms of mitigation (restoration, payment of damages) appropriate to level of mitigating circumstances. 5. (Intermediate-Major) Submission of notification to cease and desist all undesirable activities with a request to return site to prior condition. 6. (Intermediate-Major) Pursuit of litigation or enforcement by city/county municipality if landowner is unresponsive to initial attempts of mitigation\ 7. (Intermediate-Major) Attainment of formal “Stop Work Order” to prevent irreparable harm to conserved properties 8. (Intermediate-Major) In worst case scenario, pursuit of litigation may be the greater part of valor in cases where >10% (in area) of conserved property is in peril. 2 Violation Resolution and Easement Defense 359 MCTGA: Procedure for Enforcement of Easements
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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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Scenario 2: Excessive Stewardship O
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Drafting Easements with Amendments
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Easement Amendment Provisions Part
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the protected property is located.
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ary, these less permanent approache
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Discretionary Waiver A discretionar
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Looking Ahead: The Future of Easeme
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Easement Amendments This exercise m
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• Not result in private inurement
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V. Amendment Procedures [page 186]
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Insert the date of the policy and t
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communicating a clear process in si
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• Applied its existing conflict o
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5. Can describe two ways that your
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Conclusion Although conservation ea
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considering an amendment and the po
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I. General Policy Statement GVLT: C
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cost agreement will be developed an
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VLT Amendment Principles and Consid
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Sample Language Permitting Amendmen
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hereby approved and will not be dee
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May 23, 2006 name address town re:
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If you have any questions, please c
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“Hicks v. Dowd: The End of Perpet
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Check Your Progress Before moving o
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256 • Describe the role of variou
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258 Adoption and implementation of
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260 the landowner on the land, you
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Adopting and implementing an easeme
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A violation resolution policy holds
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IRS Form 990 and Easement Violation
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268 WCLT learned that having a thou
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If you make public detailed violati
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Collecting and sharing violation in
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Moderate and major violations go to
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Violation policies should contain a
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The key to discovering easement vio
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Recordkeeping is essential to effec
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Extra precautions need to be taken
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Third-party violator: A person or e
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The person designated to talk with
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Knowing When You Have to Go to the
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290 first. This letter caused the l
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Mediation: The act of an impartial
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All conservation easements should i
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Third-party enforcer: A person or e
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298 with respect to the conservatio
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300 like posture, you will be more
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Example 302 state. If the best cour
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Avoid placing mandatory arbitration
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306 a landowner is harvesting timbe
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Page 322 and 323: Waiver: The intentional or voluntar
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Page 332 and 333: T E M P L A T E You should refrain
Page 334 and 335: T E M P L A T E In determining the
Page 336 and 337: T E M P L A T E Sample Language The
Page 338 and 339: T E M P L A T E other violation res
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Page 342 and 343: C A S E S T U D Y Guidance Vermont
Page 344 and 345: 342 4. Can list four alternatives t
Page 346 and 347: 344 2. Violation resolution princip
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Page 350 and 351: 348 Sample Documents The following
Page 352 and 353: Dutchess Land Conservancy: Conserva
Page 358 and 359: MALT: Easement Violation Policy 3.
Page 362 and 363: MCTGA: Procedure for Enforcement of
Page 364 and 365: TRLT: Easement Enforcement Guidelin
Page 366 and 367: VLT: Easement Enforcement Flow Char
Page 368 and 369: VLT: Easement Enforcement Flow Char
Page 370 and 371: VLT: Conservation Stewardship Progr
Page 372 and 373: VLT: Quick Answers to Assist You wi
Page 374 and 375: VLT: Stewardship’s FAQs VLT LANDO
Page 376 and 377: VLT: Stewardship’s FAQs VLT LANDO
Page 378 and 379: 376 Guidebook for Directors of Nonp
Page 380 and 381: 378 Check Your Progress Before comp
Page 382 and 383: 380 • Develop an amendment policy
Page 385 and 386: Glossary Administrative deviation d
Page 387 and 388: the property worthy of permanent co
Page 389 and 390: Policy: A specific course of action
Page 391 and 392: Index arbitration 266, 292, 294, 30
Page 394: Governance Mission, Planning and Ca
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