Managing Conservation Easements in Perpetuity - Environmental ...

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Proper record destruction maintains confidentiality. 44 in some states; IRS forms and related documentation [Forms 8283, 8282, 990, appraisals, discharges of tax liens and so forth] should also be kept for seven years). If yes, keep the record for those years plus one year. If no, go to the next question. 2. Is it a record that will help the land trust administer the conservation easement (for example, appraisals to determine the condemnation percentage in case of a public taking)? If yes, then retain the record forever. If no or not sure, go to the next question. 3. Is the record not available from the land records (title clearing documents, for example)? If no, then go to the next question; if yes, keep it. The one exception to this rule is the actual conservation easement deed because, as a practical matter, it is your central document. As a legal matter, you can obtain a certified copy from the land records to admit in court. 4. Is the record a basic document that you will need forever, such as the conservation easement, the baseline documentation report or map, annual monitoring reports, amendments, supplements to the baseline or violation resolutions? If yes, keep it forever. If no, go to the next question. 5. Does the record address a core element of the conservation easement (for example, a no-subdivision clause that was highly negotiated and central to the land’s conservation, such as in MET v. Gaynor, the case study that follows). If yes, then retain it forever. If no, go to the next question. 6. Does the record expressly, clearly and unambiguously address the intent of the original conservation easement grantor in a way not documented in the conservation easement or baseline documentation report (for example, the signer writes a letter clearly and unambiguously stating that she donated the conservation easement expressly for the purpose of making sure that no more houses were ever built on the land)? If yes, then retain it forever. If no, go to the next question. 7. Can anyone articulate a clear detailed example of a situation in which the document would be essential to prove a point in court not covered by the conservation easement or baseline documentation report? Fear is insufficient here. If in doubt, check with your attorney, and throw the document out if it is anything less than overwhelmingly helpful. (For example, The Trustees of Reservations in Massachusetts recently used a detailed written chronology of the negotiation and sign- Managing Conservation Easements in Perpetuity
ing of a conservation easement to stop an heir of the original easement grantor from claiming that the Trustees fraudulently induced the then-older woman to sign something she did not understand. In the detailed chronology, several points were clear and unambiguous that the woman had legal and financial counsel, understood what she was doing and did it intentionally. This document prevented litigation.) If yes, then retain it forever. If no, go to the next question. 8. Could the document in any way be construed against the land trust and potentially damage the land trust or the conservation easement (for example, internal memos or other communications that slight the grantor or the grantor’s family)? If yes, throw it out. If no or unsure, then go to the next question. 9. Is it a financial record? If yes, financial records are usually kept for seven years. If no, go to the next question. 10. Is it a corporate or administrative record, such as bylaws, annual reports, newsletters, incorporation records, board minutes and resolutions, secretary of state filings and so forth? If yes, keep forever. If no, go to the next question. 11. Is the record an organizational policy or procedure? If yes, keep for as long as it is current. If no, go to the next question. 12. Is it a court order or other violation resolution? If yes, keep forever. If no, go to the next question. 13. Is it a management plan? If yes, keep until you receive a full replacement update. If only partial updates, then keep the original plan. If no, go to the next question. 14. Is it an unexercised option to purchase, a right of first refusal or some other contingent interest in real estate? If yes, keep for the term of the interest or forever. If no, go to the next question. 15. Is it a government permit or approval? If yes, keep forever. If no, go to the next question. 16. Is it a survey or map? If yes, keep forever. If no, go to the next question. 17. Is it a title certificate, opinion, policy or similar title document? If yes, keep forever. If no, go to the next question. 18. Is the record essential, clear and unambiguous correspondence, e-mail or phone message regarding the original grantor’s intent, representation or competency? If yes, keep forever. If no, go to the next question. 19. Is the record essential, clear and unambiguous correspondence, e-mail or phone message regarding a violation or Recordkeeping 45 Land trusts should shred and properly dispose of purged documents.
Page 1: Managing Conservation Easements in
Page 4 and 5: Managing Conservation Easements in
Page 6 and 7: The Land Trust Alliance’s mission
Page 8 and 9: C O N T Acknowledgments · 5 A Note
Page 10 and 11: C O N T E N T S Violation Resolutio
Page 13 and 14: When a land trust accepts a conserv
Page 15 and 16: Eternity is a long time. Especially
Page 17 and 18: Course Road Map This course covers
Page 19: Course Resources This course includ
Page 22 and 23: Everyone is responsible for good re
Page 24 and 25: 22 4. Consider costs and capacity w
Page 26 and 27: The long-term health and success of
Page 28 and 29: 26 recordkeeping system that includ
Page 30 and 31: At a minimum, a land trust should k
Page 32 and 33: In addition to your land trust’s
Page 34 and 35: 32 to serve owners of conserved lan
Page 36 and 37: 34 Post-Closing Easement Stewardshi
Page 38 and 39: Transparent and ethical procedures
Page 40 and 41: 38 final wording of the clause. The
Page 42 and 43: 40 certain documents, such as lette
Page 44 and 45: 42 able people depending on life ex
Page 48 and 49: Recordkeeping practices are essenti
Page 50 and 51: C A S E S T U D Y When the house wa
Page 52 and 53: C A S E S T U D Y People close to t
Page 54 and 55: Every project file should have a un
Page 56 and 57: 54 project; -00 identifies the firs
Page 58 and 59: Do not store permanent files — ev
Page 60 and 61: Example 58 Combination system. Seve
Page 62 and 63: 60 Retrieving Documents Documents n
Page 64 and 65: Hearsay is like children playing th
Page 66 and 67: 64 trust prepares. A commitment to
Page 68 and 69: 66 Essential Conservation Documents
Page 70 and 71: 68 For more information on drafting
Page 72 and 73: 70 for admitting GIS-driven maps in
Page 74 and 75: P U T T I N G I T I N T O P R A C T
Page 96 and 97:
P U T T I N G I T I N T O P R A C T
Page 98 and 99:
Page 100 and 101:
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:
Page 114 and 115:
Page 116 and 117:
Page 118 and 119:
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
Page 126 and 127:
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
Page 155 and 156:
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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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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Page 320 and 321:
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Waiver: The intentional or voluntar
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Page 326 and 327:
Page 328 and 329:
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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Page 356 and 357:
Page 358 and 359:
MALT: Easement Violation Policy 3.
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MCTGA: Procedure for Enforcement of
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
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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
Page 378 and 379:
376 Guidebook for Directors of Nonp
Page 380 and 381:
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
Page 391 and 392:
Index arbitration 266, 292, 294, 30
Page 394:
Governance Mission, Planning and Ca
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