Managing Conservation Easements in Perpetuity - Environmental ...

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Recordkeeping practices are essentially risk assessment and management. 46 violation resolution, the exercise of a reserved right or an interpretation of the conservation easement? If yes, keep forever. If you have made it through to the last question and you answer “no” to that question, then shred the document. If you are unsure, consult your attorney. You can also tag unsure documents for review at two years and eight years. If after that time, you still feel they do not meet any of the criteria and your attorney does not feel they are essential, then shred them. Managing Conservation Easements in Perpetuity
Maryland Environmental Trust v. Gaynor This case study can be completed in a training or self-study program. This case study shows the importance of good recordkeeping practices, including keeping materials that are clear and unambiguous, to the perpetuity of an easement. Read the case study and answer the questions below. Guidance on the answers follows. In 2000, the Maryland Environmental Trust was sued by a landowner claiming that MET did not explicitly state that it would accept a conservation easement from the landowner without a no-subdivision clause. The Gaynors claimed that MET fraudulently induced them into signing the conservation easement with a no-subdivision clause by not telling them explicitly that the board would take the easement without it. In this case, a letter kept in the MET files allowed the land trust to prevail against the Gaynors’ demand to extinguish the easement. The Gaynors originally sought out MET to conserve their 25-acre parcel.However, MET’s project selection criteria usually required a minimum of 50 acres, so the project did not qualify on its own. The Gaynors then sought the participation of their neighbors to meet the 50-acre minimum. Each conservation easement was separately negotiated. On one of the neighboring easements, MET required a no-subdivision clause, but on the others the clause was a request, rather than a requirement. The MET board voted on the package of conservation easement projects with direction to staff to implement the board’s action. Staff wrote a letter to the Gaynors, which MET kept in its files, stating that the board “wanted” the no-subdivision restriction and “felt strongly about it.” The Gaynors assumed this statement meant the no-subdivision clause was a requirement and they did not inquire further. However, on one property on which the landowner objected to the clause, MET agreed to accept a conservation easement without the no-subdivision language.This property happened to be next door to the Gaynors, and the permitted site for the subdivision and second house happened to be directly in the Gaynors’ view. Eleven years after the easements were accepted, MET reviewed and approved the house site and subdivision on the property adjacent to the Gaynors. The land trust reviewed the proposal strictly from a natural resource and mission perspective without anticipating how the subdivision and new house site might affect neighbors. Recordkeeping 47 C A S E S T U D Y
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 46 and 47: Proper record destruction maintains
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 98 and 99:
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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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
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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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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
Page 348 and 349:
346 6. Essential violation document
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348 Sample Documents The following
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Dutchess Land Conservancy: Conserva
Page 354 and 355:
Page 356 and 357:
Page 358 and 359:
MALT: Easement Violation Policy 3.
Page 360 and 361:
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
Page 372 and 373:
VLT: Quick Answers to Assist You wi
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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
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380 • Develop an amendment policy
Page 385 and 386:
Glossary Administrative deviation d
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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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