Expert Advice on Land Conservation

Interview with the Senior Vice President and Director of National Programs at the Trust for Public Land.

| July 3, 2008

  • River
    The Thompson and Fisher river valleys of northwest Montana are protected by a conservation agreement between the Trust for Public Land, the Plum Creek Timber Company and the Montana Department of Fish, Wildlife and Parks.

  • River

Ernest Cook has more than 25 years of experience working with the Trust for Public Land. Read this interview to learn all about conservation easements from a professional. For more, see “Protect Your Land for Future Generations.”

Let’s say I’m a landowner who would like to preserve my land for future generations. Explain the process of approaching a land trust, setting up a conservation easement and enforcing its restrictions permanently under new owners.

Land trusts are nonprofit organizations that work to preserve open land, and they have a variety of tools to make that possible. In particular, land trusts often work with landowners to arrange a contribution of a conservation easement from a landowner to the land trust. So that’s one avenue a landowner can look at. Some landowners also will donate land outright to a land trust. So rather than giving a conservation easement, which I will go into some more detail in a minute, they also can donate their entire ownership of the land to the land trust, so that ownership of the tract or the parcel passes to the nonprofit organization. In some cases, land trusts may have some funding — or they may know where funding exists — that can compensate a landowner in whole or in part for the value of the land that is being protected.

A conservation easement is a technical term that refers to a legal instrument that’s recorded at the registry of deeds against a property, which in its most basic form prohibits any future development of the property. However, easements are almost endlessly negotiable. For example, the easement instrument may specify that one additional home site can be built on the property. Maybe it’s 100 acres that might ordinarily allow for 10 dwellings to be developed, but the conservation easement could limit it to just one home site on the area, or it could limit it to none. Again, those are flexible. The easement often has provisions about how the land should be managed in its open space condition. So for example, if there is an important wildlife habitat on the property, the easement may contain some very specific requirements that govern how the property is to be used in the future so that the wildlife value of the property is not destroyed. For example, if this is a wetland, the easement may prohibit any drainage that would dry up the wetland; or if it’s a forest habitat, it may prohibit any logging operations; or it may regulate how farmland or ranchland is used in a way that will be compatible with wildlife. Again, easements should be carefully tailored to help both the landowner and the land trust to meet their conservation goals for the property.

If a landowner donates the easement to the land trust and the easement meets certain requirements, the easement donation will typically enable the landowner to take a charitable tax deduction, the gift of the easement, and that can be a very powerful incentive for landowners. Particularly if the landowner really wants to see land protected, they can achieve that with a conservation easement and in a sense be partly compensated by savings on income taxes — assuming the owner pays income taxes. This doesn’t work so well if the owner of the property is a church, or a chapter of the Boy Scouts or any other kind of nonprofit organization that doesn’t pay taxes.

When you say that easements are endlessly negotiable, do you mean when they are initially created? Because once they’re established, future owners cannot change the restrictions. Correct?

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