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Conservation Easements and Land Trusts: Plenty of Good News
by Stephen J. Small, Esq.

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Many landowners around the country love their land. Open space, wildlife habitat, the farm or forest or ranch or plantation, the acres in the country, some landowners are fortunate to have a special place and they do not want to see it developed. They do not want to see it paved over, subdivided, turned into house lots or condos or strip malls or industrial parks.

Love of the land and the inability of governments to protect open space has helped fuel the rise of the land trust movement. People in communities around the country have said, "Landowners who don't want to sell to developers need a choice. We are going to start a land trust that will be here for landowners who want to donate conservation easements."

The size, shape, and mission of land trusts is as varied as the landscape across the country, from the Piedmont Environmental Council and Maryland Environmental Trust surrounding Washington, D.C., to the Malpai Borderlands Group in southern New Mexico and Arizona to the Colorado Cattlemen's Agricultural Land Trust to the New England Forestry Foundation to the Sheffield Land Trust in the Berkshires to the Chagrin River Land Conservancy outside of Cleveland. This is a generalization, but most land trusts around the country spend most of their time working on voluntary donations of conservation easements from landowners who do not want to see their land developed. As a friend of mine in Virginia has said so often, "Asphalt is the last crop."

More than twenty years ago, I was an attorney in Chief Counsel's Office of the IRS in Washington, where I wrote the federal income tax regulations on conservation easement donations. I left Chief Counsel's Office in 1982 and I have been in the private practice of law since that time. I understand and "represent" the viewpoint of private landowners. Now, roughly ninety percent of my clients are private landowners, or families, with land they love, land they want to see kept intact.

Washington Post reporters David Ottoway and Joe Stephens attended the recent Land Trust Alliance national conference, held this year in Sacramento, and they were at the plenary session on ethics on Sunday, October 19, at which I was one of the speakers. The Post carried an article on October 25 on the conference, and quoted a bit of my plenary speech. During that speech I challenged the Washington Post to do a series on great conservation easement projects.

There are hundreds if not thousands of great conservation easements. Here are five examples.

1. A landowner who owned a plantation of almost 7,000 acres, less than an hour outside of Charleston, South Carolina, donated a conservation easement on most of the land to Ducks Unlimited and an historic preservation easement on the historic home and outbuildings to Historic Charleston Foundation. The plantation, extremely important waterfowl habitat, is an oasis of trees, water, and open space, surrounded by development.
2. A landowner who owned 510 acres on Martha's Vineyard, land inherited from his mother, donated a conservation easement on the entire property to The Nature Conservancy, preserving remarkable habitat and allowing one additional house to be built on the property.
3. A partnership of old college friends donated a conservation easement on a 10,000-acre ranch in the southwest, protecting important open space and wildlife habitat against encroaching subdivision development.
4. The owner of a valuable buildable house lot on the water donated a conservation easement forever prohibiting any building or structures, in order to preserve the view for the public from a heavily-traveled road across the lot to the water.
5. Not all easements are donated. The New England Forestry Foundation, in what I believe is the largest conservation easement transaction to date, purchased a conservation easement on roughly 750,000 acres of forestland in Maine. The easement prevents any residential development and prohibits all commercial activities except forestry and forestry-related activities. The easement protects miles and miles of backland, deep into the Northern Woods, but also protects miles of developable lakefront and riverfront property.

The October 25 article quoted me as saying that this is a "cozy little field." Just so there is no mistake about what I meant, let me clarify. For more than two decades, since I left the IRS, I have been telling people what great things are happening in the land trust field, what great deals are occurring, and what great people are involved. For about the same amount of time I have also been lamenting the fact that more people don't know about conservation easements. This has indeed been a "cozy little field," going about its business quietly, good ethical people doing good ethical deals with hardly a glimmer of either attention or praise.

Well, the word seems to have gotten out about conservation easements. Messrs. Ottoway and Stephens also quoted me as saying, "Bad conservation deals are starting to happen, albeit in small numbers…. The trend concerns me greatly." A few "bad" conservation deals are indeed starting to show up, but when people call me about them I tell them the tax rules and tell them these particular deals don't work. There were two fundamental points in my Sunday plenary speech. First, land trusts have done a good job with their work and land trusts have done a good job policing themselves for the last twenty years. Second, land trusts, and professionals in the private sector involved in this work, need to step up the training, the education, and the vigilance to see to it that the bad deals never get closed and the good deals keep on happening.