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74OPTIMIZING PRIVATE LAND CONSERVATION AND PUBLIC LAND USE PLANNING⁄REQUISITIONincentives legislated by federal and state legislatures, as well as land trusts’ traditionalappeal to charitable donors.For the donation of a conservation easement to be tax deductible, the InternalRevenue Service (IRS) requires that the easement must be “in perpetuity.” Securingand maintaining conservation easements in perpetuity are the most critical andcomplicated challenges and opportunities for the private land conservationcommunity (LTA, 2007). The perpetuity requirement traces back to the policyconcern that donations not in perpetuity would be difficult to value. Federal and stateregulators were also wary that this tax deduction might be used to allow a publicsubsidy for property held in a long-term investment for development. Theinvolvement of the IRS and the use of a charitable donation to receive a tax deductionrender a traditional private transaction into one with public implications. Hence, theadvent of a perpetual conservation easement not only holds important ecological andfinancial benefits, but also holds important private and public policy implications.Perpetual restrictions on land are not unique to the conservation easementcontext. Perpetual restrictions have been placed on the development and use of landin the charitable context for centuries. This includes the donation of property togovernment entities and charitable organizations to be used for specified charitablepurposes in perpetuity as hospitals, libraries, public parks, and nature preserves, all ofwhich limit the use of the land for economic development or other purposes(McLaughlin and Machlis, 2008).Like the above charitable donations, conservation easements are legally bindingdocuments that can be enforced by a court of law. When a land trust accepts aperpetual conservation easement, the land trust promises the easement grantor, landtrust members, funding sources, and the public that the land trust will uphold theeasement in perpetuity. As a charitable organization chartered under state law and asa federally tax-exempt nonprofit entity, a land trust has legal and ethicalresponsibilities to ensure perpetual protection of its easements and lands donated forconservation purposes (LTA, 2007).Ironically, proponents of conservation easements also argue that one benefit ofconservation easements is that they preserve the ability to make choices aboutproperty under easement in the future. This is an efficiency argument that suggestsreversing the impacts of development is much more difficult than reversing theimpacts of conservation. This is evident because mistakes in the conservation of aparcel are less socially, economically, and ecologically costly than mistakes in thedevelopment of a parcel. In essence, the conservation of the land may make it moresusceptible in the future to change because it has yet to be permanently altered bydevelopment. Development limits what can be changed. This produces an underlyingconundrum for land trusts. While conservation easements essentially help keepconservation options alive, they can also potentially keep development options aliveas well. This may inappropriately lock up lands that, from a broader view of thepublic interest, ought to be set aside for future development or, at least, should beconsidered for future development through a public planning process (Echeverriaand Pidot, 2009).yale school of forestry & environmental studies
SECTION 575Opponents of conservation easements as a means to permanent land conservationoffer further reasons why conservation easements may not be the most permanent ofinstruments. For instance, there are substantial questions as to whether easementrestrictions can be effectively enforced over the long term, especially with the transferof the property under easement to a landowner that may not have the same values asthe previous landowner. Also, the ecological changes of a parcel or landscape may notbe accounted for in a conservation easement especially when dynamic changes areinherent in natural systems. In addition, there is scientific consensus that climatechange may produce sizeable shifts in ecological conditions across a landscape havinga dramatic impact on areas such as coastal watersheds and other riparian zones, as wellthe habitat of many endangered species. The predictability of the conservation valueof a certain property will be in jeopardy, leading to situations where conformance to aconservation easement may be impossible (Echeverria and Pidot, 2009).The Rolling EasementAn innovative take on the traditional form of an easement is the rolling easement.Rolling easements have been enacted in a few jurisdictions to balancewetlands preservation with private property rights. As the sea advances, theeasement automatically rolls landward, thus permitting the creation of newwetlands and preserving public access to the shore. The owner of the underlyingfee can develop and use the land as long as the land is above sea level.This allows the owner to plan for the future based upon sea level rise projections.Innovative easement designs like this demonstrate the flexibility ofthese instruments and their ability to adapt to future environmental changes(Sussman et al., 2010).Owners of the underlying fee interest may also be able to modify or extinguishconservation easements in the future through legal action with or without thecooperation of the easement holder. This can be done by arguing that a change incircumstances makes the purposes of the easement impossible or impracticable toaccomplish or that the easement is too vague, ambiguous, or impossible to enforce.If a conservation easement is deemed to be no longer useful, it “might legally dieof neglect” (Thompson, 2004, p. 611). This could happen in at least two ways: first,through a failure to formally re-record the conservation easement under a particularstate’s marketable title acts; or second, through estoppel 1 after repeated violations ofthe easement’s restrictions by the owner of the property under easement (Bray, 2010).However, a well-drafted easement may be able to reconcile these potentialimpediments by being able to adapt to future contingencies. The challenge for eachland trust is to develop criteria for amendments to conservation easements to addressunexpected or evolutionary changes in a manner that honors its legal and ethicalobligations and maintains public confidence in the integrity of the organization andits conservation easements (LTA, 2007). Conservation easements must be careful not1 Estoppel is a legal doctrinethat means a person is preventedfrom denying orasserting a position contraryof that which has been establishedas the truth by his orher previous actions.yale school of forestry & environmental studies
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yale program on strategies for the
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Optimizing Private LandConservation
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INTRODUCTION1IntroductionThe tradit
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WORKSHOP SUMMARY3Optimizing Private
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WORKSHOP SUMMARY5●Land trusts are
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WORKSHOP SUMMARY7Promoting conserva
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WORKSHOP SUMMARY9●●Build divers
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WORKSHOP SUMMARY11●●●Looking
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SECTION 113Section 1: Importance of
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SECTION 115needs of the federal lan
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SECTION 117Yet, to date, there has
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SECTION 119to shape land use planni
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SECTION 121Western Lands and Commun
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Page 49 and 50: SECTION 343variety of views and to
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Page 53 and 54: SECTION 347Source: Moore, Christoph
Page 55 and 56: SECTION 349Organizations Doing Inte
Page 57 and 58: SECTION 351Conference Proceedings.
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Page 93 and 94: SECTION 687Section 6: Costs and Tim
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Page 101 and 102: SECTION 695Reducing CostsWhile land
Page 103 and 104: SECTION 697Morrow, D. (2010). Doing
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Page 115: SECTION 1109Biosketches of AuthorsB
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