Conservation Easements Giving Something Up to Get Something Better Posted on February 27, 2014 by UPLLC

“People are temporary, land is forever.” Yet, protecting land is all about people. Landowners who understand, and are motivated by the desire to have their property protected, in many cases research and agree to complete conservation easements. What is a conservation easement and why would someone voluntarily place restrictions on their property?

A conservation easement is a voluntary agreement between a landowner and a land trust that contains certain restrictions on the subdivision, development and use of the landowner’s private property. The conservation easement’s purpose is to protect significant resources such as productive agricultural land, ground and surface water, wildlife habitat, scenic views, cultural and historic sites, or recreational lands. The agreement lasts forever and runs with the land, not with the landowner; meaning every subsequent owner of that piece of property will need to abide by the terms of the conservation easement. In all cases, the landowner retains ownership of the property and can sell it, mortgage it, and manage it in any way they wish, as long as the mutually agreed upon terms of the conservation easement are not threatened or violated.

Every landowner and every piece of land is different. As such, each conservation easement should be customized to meet the needs of the land and landowner. Here are some common reasons why a conservation easement may be placed:

  • A Family Heritage Tool: Many landowners limit or restrict subdivision and development of their property to keep it as one unit that cannot be subdivided and sold off. For example, farmers and ranchers work their entire life (and sometimes generations) to make a property productive and healthy. The last thing they want to happen is to be forced to sell off pieces of their life’s work. This is most commonly seen after the landowner passes on and his/her heirs inherit the land, but do not want to work the land or live on it; so they take the most “economically expedient” action and sell the land. In many cases the land is sold in pieces since the sale of smaller, multiple parcels generates more profit than one large sale.
  • Asset Protection: Clean water, good wildlife habitat and productive agricultural lands are important to both individuals and society. The conservation easement can be a tool to help preserve these values and ensure they are protected forever.
  • Estate Tax Mitigation: A conservation easement theoretically lowers the value of a property due to the extinguishment of most or all of the development or subdivision rights. This, in turn, should lower the value of the property enough so that a landowner’s heirs either pay a lower estate tax or no estate tax at all.
  • Land Management Strategy: Conservation easements can assist a landowner in making crucial decisions about the property and how it will be managed in the long term. For example, placing a conservation easement over prime soils ensures that whatever management happens on the remainder of the property, the possibility of retaining the integrity and productivity of that farmland remains.
  • A Privacy Buffer: Using a conservation easement as a buffer can help a landowner increase their privacy by permanently restricting areas around their residence.
  • A Zoning Tool: Some landowners and sometimes municipalities, use conservation easements to limit or prevent incompatible uses of land. For example, a city council changes zoning overlays in a neighborhood to allow for commercial use. Member of the local community don’t think that is a compatible land use. In this case, a large landowner can conserve their land, thereby creating open space instead of a commercial area. If no zoning is present, a conservation easement can give the community the ability to create their own open space that government entities cannot or will not create.
  • Ensure Permanence: Governments can own land and they can also sell it. If a municipality creates a park, then 50 years later decides to sell that land, the park could disappear. If that park had a conservation overlay or easement on it, even if the municipality sold it, it would remain open.
  • A Tax Deduction: Conservation easements have generous income tax incentives associated with them. There is a federal income tax deduction and there are even some states that offer tax credits.
  • An Income Source: There are many federal, state and local programs, though competitive and time consuming to complete, which will pay a landowner for development rights (e.g. placing a conservation easement on your property).

For whatever reason a landowner decides to complete a conservation easement, there is one thing each agreement has in common – it must be developed with the goal of being beneficial to all parties and the land. Land trust attorneys, as well as conservation consultants representing the landowner, all must work together to ensure the optimal outcome.

In taking time to work with people and understand their motivations, the protection of land will follow.

Michael Scisco has worked in the land and resource conservation industry for over 10 years. He has been involved with the permanent protection of over 100,000 acres of land in North Carolina, New Mexico and Arizona. Please contact Michael if you have any questions or comments concerning this article at mscisco@uniqueplacesllc.com
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