How to Create a Conservation Easement:
Part 1, The Baseline *by NBLT Staff
Few people other than land trust staff have any idea of what is involved when North Branch Land Trust accepts a land conservation agreement donation from a concerned landowner. In the next few issues of The Horizon I will be explaining some of the procedures involved with land conservation agreements or easements.
When a landowner donates a land conservation agreement on their property to a land trust or conservancy, they actually agree to donate certain, if not most, of their “development rights” on the property. North Branch Land Trust does not then own these “rights”; rather, it owns the “right” to enforce the landowner’s restrictions on their exercise. For example, most (if not all) landowners want to limit the number of building sites on their land and forever protect the remaining portions. Some landowners do not want any future development whatever on their property. The number, size and location of any building sites is discussed and agreed upon by the landowner and North Branch Land Trust. Any future development will be conducted in areas of the least conservation value. Many landowners would like to retain the right to commercially timber and/or continue farming on their property. These land uses are allowed and, when done with “Best Management Practices” (BMPs), help sustain soils, water quality, forest health and wildlife diversity.
It is the policy of North Branch Land Trust (and a requirement of the Internal Revenue Service) to have the land trust conduct a property inspection or baseline documentation on the property. The reason for this property inspection is to observe and document the current condition of the property and identify its conservation values. It’s like a “snapshot” of the land at the time of the easement donation. How could we tell if something changed on the property if we didn’t know what it looked like when we accepted the easement? As the NBLT’s Land Protection Specialist, I perform this property inspection. The resulting documentation is referred to as the Baseline Documentation and Wildlife Inventory.
North Branch Land’s Trust’s Baseline Documentation and Wildlife Inventory consists of over 40 pages of maps, photos, soil and slope data, wetland locations, property description and flora/fauna lists. The creation of this report usually requires at least 8 property visits. During the course of these visits, certain procedures must be followed. With a copy of the survey in hand, and sometimes with the help of the landowner, the property’s boundaries are walked, to positively locate the correct boundaries. Photographs are taken of boundary pins, markers, flags or other designated features. Three pictures are taken of each landmark, along with the recorded GPS coordinates, photo direction (compass bearing) and a written description of what was photographed. Other photographs of the property’s features are taken using the same procedure. This includes pictures of fields, forests, scenic views, roads, lanes, wetlands, streams, vernal pools, stone walls, standing or recently cut timber, existing homes, structures and garbage/rubbish if any. It is impossible to record everything, but we try to capture most of these items, especially the existing structures along with any evidence of land disturbance. The footprints of all existing structures are measured and recorded.
The Baseline Documentation and Wildlife Inventory is of great importance. When the signed land conservation agreement is recorded at the county courthouse, it becomes a legal document attached to the deed in perpetuity. The Internal Revenue Service (IRS) mandates that the property be monitored by the land trust on a yearly basis, forever. This Baseline Documentation and Wildlife Inventory protects not only the property’s conservation values, but also the current landowner and the land trust. Example: during the annual monitoring visit to a conserved property, a new land trust representative reports that a steep forested hillside looks like it has been timbered. The conservation agreement allows for timbering under a forest management plan. The plan needs prior approval from the land trust, and timbering is certainly not allowed on steep slopes. Is this a landowner violation? The landowner is notified of this possible violation and indicates the hillside in question was timbered before she bought the property. She says that there is a picture of it in the baseline. The Property Photos section of the baseline clearly shows that same steep hillside as recently timbered, thus protecting the current landowner.
Another example: twenty years from now, during the annual monitoring visit on a conserved property, a land trust representative reports finding a large storage shed built in the middle of an open field. The original conservation agreement prohibits the construction of any structures. The landowner, notified of the violation, claims the shed was always in the field. Is this a landowner violation? The land trust reviews the Baseline Documentation and Wildlife Inventory, and the Property Photos show scenic pictures of the field without any structures. In fact, the previous nineteen years of monitoring reports indicate no violations have occurred on the property. Therefore, the current landowner has violated the restrictions and will be required to remove the shed.
For me (and the volunteers who assist me), the most enjoyable part of the Baseline Documentation and Wildlife Inventory is the flora and fauna inventory. It is our obligation to the members of North Branch Land Trust, and to our participating landowners, to protect and uphold the conservation values of their property. Wildlife inventories are preferably conducted during the most opportune times of the year, i.e.; spring wildflower season or summer breeding birds. I try to identify as many plant and animal species as possible, from butterflies to wildflowers. Certain habitats that may host rare species are carefully inventoried. Areas of future land-use activities like timbering or building sites are equally studied. Any habitats that host any uncommon species are described, along with the locations of high-conservation-value areas like natural communities or important wildlife corridors. These data are mapped to avoid future conflicts. Included in the report are pictures of scenic views and unique land features occurring on the property, along with close-ups of plants, animals, bugs and other critters that stay still long enough for me to get a snapshot of them.
The property maps, photographs and photo descriptions are compiled, sorted and inserted in the document. All of the property descriptions, sometimes including over 500 species of plants and animals, are typed up and designed into a rather impressive document. (Yes, I have to include all the scientific names, too.) The responses from landowners have been quite gratifying—some comment that the 3-D mapping looks pretty cool! The Baseline Documentation and Wildlife Inventory is like the family “bragging rights” to their land.
Not all properties will have uncommon or rare species. Many of our conserved properties support a high degree of common species. In terms of bio-diversity, those properties containing “high-quality common species” are equally important. I often get phone calls from landowners indicating that they feel their property does not have anything worthy of conserving, so why bother with a conservation agreement? What if your property has a vast stand of healthy eastern hemlocks that have not been affected by the current wooly adelgid, or a few tall American chestnuts that still manage to produce nuts each year? How important is your property now? What may be exceedingly common species now may not be in 30 years. Prospectively speaking, I would rather conserve, study, manage and prevent. It is much easier to prevent a species from being placed on the Endangered Species List than to try to remove a species from it, unless it becomes extinct.
To all concerned landowners out there—please take this into consideration; to all of our members, supporters and, especially, land conservation easement donors—Thank You! Now, back to typing the scientific names of all those critters. . . .
NPT Swamp
NPT Swamp
How to Create a Conservation Easement:
Part 2, Conservation Easements, The Legal Document. *by NBLT Staff
In order to help inform our supporters, members and the general public, I decided to write a two part series of articles for The Horizion newsletter. Illustrated in The Horizon Fall 2005 issue was the article called “How to Create a Conservation Easement: Part 1, The Baseline. The next and final step in the land conservation process is the conservation easement, the legal document.
The conservation easement or agreement is a carefully drafted legal document. In order to become a legal and binding document, it must be signed and dated by the current property owner(s) and also signed and dated by the current standing President of the North Branch Land Trust. Both parties need to have their signatures notarized. When signed and notarized by all parties, the document is recorded in the Recorder of Deeds office at the county courthouse where the property is located. To provide legal representation and guidance to North Branch Land Trust, we consult the legal services of Attorney George Asimos who is an associate of the firm Saul Ewing, LLP. Attorney Asimos and North Branch Land Trust collaborated, for the most part, a conservation easement design to be used as the format for our conservation easements. The document must meet the requirements defined in the Pennsylvania Conservation and Preservation Easements Act, Act 29 of 2001 (the “State Conservation Easement Law”). Basically, this nearly 30-page document is an agreement between the landowner and North Branch Land Trust that outlines permissible and non- permissible land use activities and land management regarding their property. This document also addresses the property rights of the owner and certain rights retained by North Branch Land Trust.
The conservation easement consists of many sections and articles. The document is referred as the CONSERVATION EASEMENT AND DECLARATION OF RESTRICTIONS AND COVENANTS.
The first part outlines the date of signing and the names and addresses of both parties. The “OWNER” is the current landowner(s) and the “HOLDER” is North Branch Land Trust.
The second part noted as “WITNESSETH THAT” describes the location of the property that includes the Township and County. Listed is the total acreage of the property and the total acreage of the “Conservation Area” and where this total is recently described, e.g., the county of recorded records all Deed Book(s) and Page Number(s).
The third part is noted as “WHEREAS”. This section mentions various listings of statements that includes attachments like Exhibit “A” , the described metes and bounds, and Exhibit “B”, maps or plans of the property. Also stated is that North Branch Land Trust is a legitimate 501 © (3) non-profit organization, etc. The remaining and majority of the “WHEREAS” are statement describing the conservation values of the property. This defines why North Branch Land Trust has accepted a conservation agreement of this particular property and the conservbation purposes served. The conservation values and purposes include preservation of natural communities, wildlife communities and scenic open space. Protection of rivers, streams, lakes, ponds, vernal pools and wetlands occurring in the conservation area and their impacts towards downstream watersheds are addressed. The conservation of soils and prevention of soil erosion is outlined. Baseline observations indicating the numbers of flora and fauna species observed in the conservation area are mentioned along with the habitats that these species depend upon. Any plant and animal “Species of Concern” are also addressed. The proximity of the conservation area in relation to nearby protected lands or ecologically significant areas is mentioned. Sustainable land use activities like agriculture, forestry are noted. In certain properties, the preservation of historically significant attributes like Native American Indian archaeological sites, ancestral trails and passageways or even historical buildings are addressed.
The next section “ARTICLE 1, GRANT OF EASEMENTS” states that the “OWNER” voluntarily and unconditionally grants and conveys unto the “HOLDER”, the North Branch Land Trust, a perpetual easement over the Conservation Area for the purpose of preserving and protecting the Conservation Purposes. The Owner also grants the Holder to right to inspect the property, providing that the Holder gives at least 7 days notice to Owner, except in cases of suspected or known violations of this conservation easement. Please note that the conservancy (North Branch Land Trust) only owns the Right to enforce the terms of the of conservation easement. The Owner and all future owners retain all other property rights. Lastly, the Holder has the right to places several Conserved Property signs on the Conservation Area identifying the interest of the Holder regarding the conserved property.
The following section “ARTICLE 2, OWNER’S DECLARATION OF COVENANTS AND RESTRICTIONS” is the article that most landowners misinterpret. Throughout this article, it mentions and defines the restrictions and/or permissible activities on the conservation area. This article is specifically written in a way to avoid ambiguity. Certain non passive recreational activities such as fishing, hunting, hiking or cross country skiing are allowed and mentioned in this article. Other allowable activities may include the non-commercial cutting of trees for firewood and other personal use or the cutting of dangerous trees. Restricted activities are also outlined such as mentioning the defined distance in length where land disturbance is not permitted near any wetlands. This is referred as a “wetland buffer zone”. Mentioned in Article 2 are other restricted land use actives that actually are allowed in the next section of the conservation easement. The two most often confused references in this article are “No structures shall be built within or upon the conservation area, or No cutting of trees shall be allowed within or upon the conservation area”. Most if not all concerned land owners call this to my attention. They cautiously state ask, “aren’t we allowed to commercially harvest trees or build a new home in specified building site?” The answer is yes and these reserved landowner rights need prior approval from the Holder “North Branch Land Trust” and are mention in Article 3.
The next and a very important article is “ARTICLE 3, RESERVED RIGHTS”. This section mentions any and all land use activities agreed upon by the Owner and Holder. These activities may include the construction of residential dwellings, commercial timbering, constructing ponds, vernal pools and wetlands, and the building of roads. These activities or “Reserved Rights” will need prior notification and approval from the Holder. North Branch Land Trust will need to review a Timber Harvest Plan prior to allowing that activity to happen or to review the location and plan of the new building site. For the most part, these activities will be allowed providing certain conservation values of the property will not be compromised. What this means is commercially timber harvesting of trees may need to begin during the colder months when the soil is frozen and firm to prevent soil erosion and deep skidder ruts, or during the period when a certain plant/animal Species of Concern has completed it’s breeding cycle, has migrated, hibernated or is dormant. A second example may be the former owner has sold the property and the new owner would like to build a new home. This is a Reserved Right of the owner. They intend to build the home right in the middle of a hay field. The conservation easement specifically mentions that the former owners wanted to protect the beautiful scenic view shed of the meadow. The new owner notifies North Branch Land Trust that they plan on building a new home along with that nice long drive way right in the middle of that meadow. In this case the Holder may deny the intended location of the home site for the obvious reasons and suggest appropriate building locations on the property.
In “ARTICLE 4, HOLDERS’S COVENANTS”, this defines the rights of the Holder (North Branch Land Trust). This article addresses that the Holder shall use its best effort to enforce the conservation easement. If the Holder fails to do so, of if the Holder no longer exists, the conservation easement may be transferred to another qualified conservation organization.
In “ARTICLE 5, REMIDIES AND ENFORCEMENT”, this defines what recourse and action the Holder can exercise in the event of a violation. It defines remedy of damages and most importantly to the Holder, reimbursement of expenses of enforcement and litigation. This may seem controversial and unfair, but the reality is most if not all non-profit organizations have limited resources. Accepting a conservation easement on a property that the Holder has an obligation to protect and enforce in perpetuity is a burden. Forever is a long time! It’s like your neighbors going on vacation this July and asking if you can watch over their home and by way can you take care of our three dogs. We plan on returning around August of 2099. Prior to conserving a property we ask of the landowner to donate a very moderate Stewardship Endowment donation. This donation can only used to only to monitor, enforce and legally defend their conservation easement. There may come a time when a deliberate violation occurs on conserved property and may be challenge winding up in a legal matter. The conservancy stewardship endowment for that particular property can easily be consumed by the high costs of litigation. How can conservation easements be adequately defended if capriciously challenged and endure lengthy court battles? Most landowners who conserve their property are not the ones who violate the conservation easement. Most often, violations occur from the next landowner. Many new owners of conserved lands do not have the same philosophies and caring land values as the original owners. This language was drafted for this reason.
The final section “ARTICLE 6 GENERAL PROVISIONS”, define the rights and obligations of the land owner (Conservtion Easement Owner). This article states that the current Owner is responsible for all property taxes, levies and/or assessments. This mentions indemnification of the landowner from any liability if an employee or representative of the Holder becomes injured while conducting conservation easement activities such as baseline inventories or monitoring visits. This article addresses any amendments or modification of the conservation easement if circumstances could arise. It mentions covenants run with the land, that it applies to the next legal owner. It address that the Owner needs to notify the Holder no later than 30 thirty after the sale of the property. This article also indicates that the Owner has agreed the Baseline Documentation and Wildlife Inventory is an accurate representation of the condition of the conservation area.
Please keep in mind that they above information is only a brief review of all the intricacies involved in a conservation easement document. I hope by reading the two part series published in the Horizon’s newsletters, you may broaden your understanding of conservation easements and the necessary steps, procedures and requirements needed to complete this transaction.
