Conservation Easements & Private Land Stewardship
“Conservation easements” are property rights created to ensure that lands are used only in a manner consistent with specified conservation purposes. These purposes include the protection of wildlife, forests, scenic views, and historic places. Under common law rules, conservation easements were permitted but ineffective due to demands that the land be “used”. Now most states have enacted conservation easement statutes. These allow landowners to donate “qualified conservation ease-ments” that are enforceable over time. Such easements are potentially of great advantage to donors and their communities, but have serious potential disadvantages as well. This is especially true to the extent that rigidity and coercion are introduced into what should be a device for private stewardship based on individual circumstances and vision. It is important that landowners exercise care before entering into conservation easements. It also is vital that legislators and concerned citizens work to reform governmental rules and practices so as to restore to conservation easements as much of the common law ethic of free and flexible agreements as possible.
By granting a qualified conservation easement, the donor continues to own and use his lands and may pass them to his heirs. The donor also may deduct the value of the easement for federal income tax purposes and enjoy local real estate tax and federal estate tax reductions as well. At the same time the owner is assured that the land will be used in accordance with principles of good stewardship even after its sale or his death. The community benefits as well, since the advantages of conservation extend well beyond the boundaries of the parcel subject to the easement. All the while, the land is kept in productive use and the costs of enforcing the terms of the easement are borne by the holder.
These potential advantages are increasingly well known, but it is important that prospective donors, legislators, and others interested in good stewardship and individual freedom understand the potential disadvantages of conservation easements as well. One important disadvantage is rigidity– some state statutes and federal tax laws require that easements must be “perpetual.” This discourages some donors and, if the restrictions have ceased to fulfill their original purpose, imposes wasteful under-utilization of land on others and their communities. Another disadvantage is that easement holders (which most states require to be governmental bodies or charities such as land trusts) may not be faithful to their obligations. Self-dealing, laxity, and over-zealous enforcement all are real possibilities. The technical requirements of state laws and federal tax codes also create traps for the unwary. Finally, and of profound importance to those who might prize conservation easements as combining stewardship and individual liberty, some land trusts may have worked hand-in-glove with public officials to intensify governmental coercion and to hold conservation easements out as a more palatable alternative. The challenge remains to enhance the benefits of conservation easement statutes and to eliminate these potential problems.
Many landowners pride themselves on their careful stewardship of their lands. They often want to ensure that their love for the environment is respected by succeeding family generations and others who eventually might own their lands. Since they want their progeny to continue using the land, an outright gift or sale to a land trust or similar conservancy group would not achieve their purposes. They also realize that family ownership coupled with heavy-handed governmental regulation is not the answer. Even if regulators understand and respect their environmental concerns, they are apt to effectuate them in an undifferentiated and clumsy manner. They certainly cannot be expected to respect the careful balance between conservation of the environment and the continuation of family heritage and traditional uses that the original landowner wants to