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articles & updates | article
Ethics Plenary Speech
by Stephen J. Small, Esq.
Second, outreach. You need a presence in the community. You need to let people know you are there. Here is a model for some land trusts, government agencies, and anyone else in the easement business. (When I say land trust, etc.). Begin a regular program of bringing in speakers from your area, or from outside your area, to talk on any subject that might be of interest to your service area. It might be wastewater recycling, it might be estate planning, it might be best management practices for forestry or agriculture, it might be conservation easements. Advertise the program in the local newspapers, on local radio, put up signs in local stores. People will begin to know the name of the land trust and what you do. And some people will even show up to listen to the guest speakers. Do this at least twice a year and maybe more often than that. Educate landowners, educate attorneys and accountants and appraisers and other professionals, educate the planning board, the regulators, the media, the local IRS. Reach out to anyone you want to reach out to.
If you don't know where to find speakers, ask LTA for a list of the 25 workshop speakers at Rally who got the highest evaluations, and believe me I can tell you as a speaker that those evaluations can be harsh. [two of my favorites.] Bring those speakers to town and you will begin to educate your audience about the right way and the wrong way to do things.
And that's number three on the list, education. When your land trust sets the standard for teaching people the right way and the wrong way to do things, not only will you be doing your audience and your land trust a service but you will be making it harder for the abusive transactions to pop up in your service area. If people in your service area know you are out there, and they are approached with a proposed transaction that smells bad, they will be more likely to call you and ask you what you think. Of course, this presumes you know what you are doing so all of this success story starts with educating yourselves, and we have already started to talk about that.
Darby and I were talking a week ago about this program and he said, you know Steve, I understand what you are saying about abusive transactions, but we really don't see any of those in Vermont. And do you know what I said to Darby? I said, that's right - and do you know why - because the Vermont Land Trust has had a strong presence in the community for decades and has been reaching out to landowners, appraisers, attorneys, everyone, for decades, teaching people about the right way to do these transactions.
Talking about teaching people the right way to do these transactions, I simply cannot do this without making it sound like I'm plugging my books but here I go anyway. At the end of 1987, a lady I know who was involved in local land trust work said to me, "Stephen, don't you have something simple and easy that explains conservation easements that we can hand out to landowners?" No such thing existed, and I thought I'd try to put something together. What emerged out of that conversation was my first Preserving Family Lands book, published in May of 1988. I wrote Preserving Family Lands with the idea that it would be for landowners to read and for land trusts to read and for land trusts to buy in bulk and give away to landowners. We have sold more than 100,000 copies of that book, and we have two other Preserving Family Lands books now, Book II and Book III.
The simplest and easiest way to educate people about this work is to give them something simple and easy to read, and if you have something like that in your offices then you should give that away and if you don't then you should get something that fits that bill.
Number four on the list is membership. When people know you are there, and when they understand your mission is to maintain the quality of life where they live, they might actually sign up to become members. And they might pay money to become members. And they might contribute money to your mission.
And that is number five, fundraising. I learned years ago from Allen Morgan, a consummate fundraiser for land conservation, that the secret to fundraising success is to ask. The more members you have, the more people there are in the community who understand and support your mission, the more people there are who know you are trying to do the right thing, the more money you can raise. And do you know what that enables you to do?
It enables you to save more land, and, number six on this list, it enables you to start the cycle all over again. Outreach, education, membership, and fundraising. Educate your constituency and educate yourselves, whatever it takes to educate yourselves, how to do these deals right, how to do the right thing, how to save more land.
Number Seven. If you have not already done so, adopt criteria for accepting - and turning down - conservation easements. Read the code, read the regulations, read the books, understand what the rules are. See LTA's Standards and Practices. Set your own priorities and guidelines based on your mission and your staff. One Board Chairman of a western land trust said to me many years ago that his land trust should only accept conservation easements it was willing to go to court to defend. Adopting criteria not only forces you to think hard about what you are doing but it also puts you in a better position to turn down easements that for whatever reason don't fit your guidelines. On the other hand, not every easement you are offered is going to be a home run and under some circumstances - and each land trust can decide what they are - under some circumstances you may decide to accept an easement that falls outside your guidelines. For example, under some circumstances you may want to accept an easement that you may believe allows too much development as long as you tell the donor you do not think it is deductible. If it serves to prevent additional development in the future, you might want to think about accepting it.
Number Eight. You need to adopt criteria and guidelines for amending conservation easements. When and under what circumstances will you agree to amend a perpetual conservation easement? Will you agree to an amendment that relocates a reserved house site? Will you agree to an amendment that is inconsistent with the purpose of the easement? There are fundamental tax, conservation, and community relations issues at stake when it comes to a land trust that agrees to amend a conservation easement. I'm not saying it can't be done, in fact it can be done, but you must sit down and think about this long and hard and devise an acceptable policy. Again, see LTA's Standards and Practices for some starting points.
Number Nine. Decide what you are going to do if you are given a Form 8283 that makes you nervous, and adopt some written policies for that. As the donee of a conservation easement, you have to sign a Federal Form 8283, acknowledging you received the gift, for the donor to claim an income tax deduction for the easement donation. Just above the space for the donee's signature, there is a line that says, "This acknowledgement does not represent agreement with the claimed fair market value."
Let's assume you conclude in your heart of hearts that there is absolutely no way the easement is worth what the donor claims it is worth. Do you sign the Form 8283? Do you sign it and attach a statement to it? Do you sign it and send the donor a letter? Do you refuse to sign it?
This is a new issue and not an easy issue. My personal thinking on this one is to have a review process that occurs when this issue comes up, perhaps some board and staff and counsel, and if people pull the facts together and decide in good faith the claimed deduction is so far out of line they are nervous then you should refuse to sign it. You also may want to make it clear to donors, perhaps in writing and perhaps way ahead of time, that you may need more than a few days to turn around a Form 8283 so it won't land on your desk for signature the same day the donor's tax return must be filed.
Number Ten. Good relations with the local media. How many of you have good relations with the local media? What about the rest of you? Aren't you doing good work? Aren't you proud of the work that you do? Aren't there wonderful photo opportunities in your service area, great stories to tell about landowners who love their property and have decided to forego financial gain from selling it in order to preserve the quality of the life they love? Is this a no-brainer?
Number Eleven. Good relations with Congress. How many of you have good relations with your Congressperson? With at least one of your United States Senators? What about the rest of you? Aren't you doing good work? Aren't you proud of the work that you do? Don't you think your elected officials (at least some of them) would welcome a photo opportunity at the site of an important property you have protected with a conservation easement? Do you understand the value of good congressional relations in the current climate in Washington, D.C.? Were you here at the beginning of my speech when I said that all of a sudden there seems to be a chill in the air?
Number Twelve on the list of things for land trusts to do: support the Land Trust Alliance in its efforts to raise the bar, to raise the level of professionalism of land trusts, to put on more training programs. The strength of the land trust movement in this country is its grass-roots nature, and the weakness of the land trust movement in this country is its grass roots nature. At this point in time LTA can't make anybody do anything; LTA can suggest, LTA can advise, LTA can cajole, but it can't require that land trusts do a better job.
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