Georgia
Environmental Policy Institute and Sautee-Nacoochee Community Association
Resource Paper #1
© 1994
Conservation Easements for
Natural Resource Protection
Table
of Contents
Acknowledgements
What is a Conservation Easement?
Benefits to the Landowner
Calculating Income Tax Benefits
Mortgages
Liability
Flexibility
Governmental Cooperation
Other Means of Acquisition by Land Trusts
Conclusion: Critical Role of Land Trusts
Notes
Resources
Supplemental Material: Georgia Uniform Conservation
Easement Act
For Additional Reading
Sample Easement
Acknowledgements
This is one of a series of resource papers on environmental
protection published by the Georgia Environmental Policy Institute and
the Sautee-Nacoochee Community Asociation with funding from the Lyndhurst
Foundation, the Broad River Action Group, the Georgia Civil Justice
Foundation, the World Wildlife Fund, and the Sonoran Institute. This
paper was written by Laurie Fowler with research asistance by Courtney
Cuff. Many thanks to Camilla Herlevich, Hans Neuhauser, Melissa Heath,
John Fowler, Mark Williams, Kelly Strozeski, and Terry DeMeo for their
comments and suggestions.
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What
is a Conservation Easement?
A conservation easement is a legally binding agreement
between a property owner and a governmental body or a land trust that
restricts the type and amount of development and use that may take place
on the property. (The land trust, (1)
a non-profit corporation whose purpose includes acquiring and holding
land and interests in land for conservation purposes, must be recognized
as a publicly-supported charitable organization by the Internal Revenue
Service [IRS]). Conservation easements can be an effective complement
to government acquisition programs and the regulation of uses to protect
environmentally sensitive land. In 1992 the Georgia legislature passed
the Uniform conservation Easement Act, which authorizes and promotes
the use of conservation easements in Georgia. (2)
Ownership of land includes a "bundle" of rights - including
the right to subdivide, to sell, to farm, to cut timber, and to build.
A landowner may voluntarily agree to give up one or more of these rights
in order to protect a resource or conservation value. For example, he
might agree to prohibit any structures, roads, or clearcutting on a
parcel in order to protect wildlife habitat. Or he might restrict land
disturbance and chemical application within a river or lakeshore buffer
zone, or restrict dredging in a wetland.
In addition, he may reserve an number of basic rights
- to sell, lease, assign and use the property; to restrict public access;
to maintain the land for agricultural use subject to specified best
management practices; or to construct additional dwellings on specified
sites, for example. Under no condition may these reserved rights impair
the resource or conservation value the easement seeks to protect.
The agreement restricting and reserving certain uses is
binding on future purchasers of the property and is recorded as a Deed
of Conservation Easement. It is the responsibility of the easement holder
(the government or the land trust) to routinely monitor the property,
usually once a year, to ensure that the agreement is not violated and
to pursue legal recourse to compel compliance if necessary. The land
trust creates and maintains a stewardship fund to cover the costs for
perpetual maintenance of the easement. To ensure that they put their
limited resources to the best use, most land trust develop written criteria
to guide them in determining whether to pursue or accept an easement.
(3)
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Benefits
to the Landowner
By entering into a conservation easement, a landowner
ensures that his land will be protected for future generations while
remaining in private hands.
There may be financial benefits as well. If the landowner
gives the easement to a qualified charitable organization in perpetuity
for conservation purposes recognized by the IRS, he may deduct the value
of the easement from his personal federal and state income taxes. (4)
The Internal Revenue Code, Section 170(h)(4)(A), defines
conservation purposes as the preservation of land areas for
-
outdoor recreation by, or the education of, the general
public;
-
the protection of a relatively natural habitat of
fish, wildlife, or plants, or similar eco-systems;
-
the preservation of open space (including farmland
and forest land) yielding significant public benefit for the scenic
enjoyment of the general public, or pursuant to a clearly delineated
federal, state or local governmental conservation policy; or
-
the preservation of historically important land areas
or buildings.
The value of the easement is the difference between the
fair market value of the land without the restriction and the fair market
value after the restriction. (5) This
must be determined by a qualified appraiser if the gift's value exceeds
$5,000. (6) The land-owner can deduct
up to 30% of his adjusted gross income over a period of six years until
the value of the easement is exhausted if the property is a long-term
capital gain asset. (7)
Calculating
Income Tax Benefits
The Lullwaters own a 200-acre parcel of pristine hardwoods, wetlands
and fields adjacent to a river in a rapidly growing county. The
property's current value is $4,000 an acre or $800,000 for the
entire parcel. The Lullwaters convey a perpetual easement on the
entire parcel to the local land trust. The easement reserves for
the Lullwaters the right to live in the farmhouse and to construct
three additional houses on specified sites for their children,
to use the land for passive recreational purposes, and to use
designated portions for agricultural purposes. The easement specifies
that the land will not be subdivided, nor timber harvested. As
a result of these restrictions, the property's value is decreased
to $400,000. The Lullwaters' adjusted gross income is $80,000
and will remain constant over the next six years.
| Value of the Lullwaters' Easement Donation |
= |
Fair market Value (FMV) of land |
- |
FMV of land subject to easement restrictions |
|
$400,000
|
=
|
$800,000
|
-
|
$400,000
|
| Annual amount of Lullwaters' deduction (The
donor can take this deduction every year for six years or
until the value of the easement is exhausted, whichever occurs
first) |
= |
30% of the Lullwaters' Adjusted Gross Income |
|
|
|
$24,000
|
=
|
.30 x $80,000
|
|
|
The Lullwaters can take this deduction every year for six years
for a total deduction of $144,000. An experienced tax or estate
attorney should be consulted in order to ensure maximum financial
benefits to the donor.
|
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Donors who overvalue their easements may be penalized
by the IRS, as may the appraiser. The IRS requires that baseline data
be compiled to establish the condition of the property at the time of
the gift. This data must be accompanied by a statement asserting its
accuracy, signed by the landowner and a representative of the land trust.
High estate taxes, which have forced the sale of many
treasured family lands, may be similarly decreased through the use of
conservation easements satisfying the internal Revenue Code. If a property
owner restricts the use of his property through a conservation easement
prior to his death, the estate tax is assessed on the restricted value
of the property. When the landowner bequeaths a conservation easement
to a land trust in his will, the value of the easement is deducted from
the estate.
Property taxes may be decreased as well since restricting
various development rights may diminish the fair market value of the
land. (8) The public benefits from
resource protection afforded by the easements should substantially outweigh
the costs in terms of decreased revenue to the local government. Easements
restricting land-disturbing activities and chemical handling on a river
bank, for example, may result in decreased costs of drinking water treatment
and increased revenues generated by recreational users. Easements protecting
agricultural uses on a tract of land help assure the viability of agricultural-dependent
open space and scenic views may result in increased property values
on adjacent land.
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Mortgages
In the case of land subject to a pre-existing mortgage,
the lender must agree to subordinate its rights in the property to the
rights of the easement holder to ensure that the easement is not extinguished
in the event of foreclosure.
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Liability
The Georgia legislature has exempted the easement holder
(land trust or local government) from liability for damages or injury
that may be suffered by any person on the property. (9)
Where an easement provides for public access for recreational purposes,
the property owner will be protected against liability in most cases
as well. (10) The Land Trust Alliance
provides land trust with low-cost general liability and related insurance
coverage under its "Green Umbrella" program. (11)
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Flexibility
While this flexible management tool is new to Georgians,
conservation easements have been used to protect valuable resources
for many years in other parts of the country. There are over 900 land
trust in the United States protecting 2.7 million acres of farms, wetlands,
wildlife habitat, urban gardens and parks, forests, watersheds, coastlines,
river corridors, aquifer recharge areas and trails. (12)
The possibilities of designing a conservation easement
tailored to the wishes of the landowner, the natural features of the
property, and the goals of the land trust, are endless. For example,
the Red Hills Conservation Association was incorporated to protect the
natural, historical, cultural and scenic features of Southwest Georgia's
Red Hills Region while providing for consumptive use of wildlife and
forestry resources. (13) A typical
easement of this land trust specifies timber practices such as selective
harvesting and uneven age management to be used on the tract.
The Delaware and Raritan Greenway is establishing a connecting
network of greenways along a 60-mile canal in New Jersey. (14)
Some of these greenways will include pedestrian trails. Conservation
easements held by this land trust require that the public be granted
pedestrian access to specified segments of some tracts and provide that
the land trust indemnify the property owner in the event that a pedestrian
is injured using the trail. Conservation easements protecting particular
ecosystems or resources do not have to provide for public access, but
those falling within the IRS conservation purpose of "recreation or
education of the general public" do. Visual access may be sufficient
for scenic and open space easements.
The Montana Land Reliance protects 200 miles of stream
bank through 64 easements across the state. (15)
One easement across a ranch protects twenty miles of habitat and spawning
grounds for the last major population of river grayling in the lower
48 states. This particular easement allows the landowner to continue
agricultural operations on the land but prohibits subdivision of the
tract. The agreement specifies grazing strategies to protect the riparian
area. These include both fenced and unfenced buffer zones to reduce
erosion and runoff, and special provisions for stock watering.
A local industry gave the Anderson Valley Land Trust in
Yorkville CA an easement for the use of all its water rights in Indian
Creek in order to conserve instream flow for salmon habitat. (16)
The land trust will withdraw water only where necessary to restore riparian
habitat.
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Governmental
Cooperation
Many government agencies work closely with private land
trusts, developers, and landowners to promote the use of conservation
easements. The Thousand Islands Land Trust in New York's St. Lawrence
River Valley, for example, obtained its first easement when the St.
Lawrence Eastern Ontario Commission conditioned its approval of an island
subdivision project on a requirement that the developers enter into
an easement including set backs and forest protection. (17)
In March 1993 windward Properties settled an EPA lawsuit
alleging that wetlands in its Alpharetta development had been filled
in without authorization from the U.S. Army Corps of Engineers. The
settlement included Windward Properties' agreement to purchase wetlands
within the Big Creek watershed and give a conservation easement to the
town of Alpharetta to preserve them in perpetuity. (18)
To facilitate such arrangements, local land trust should alert federal
and state agencies as to their existence and the types of properties
they will accept.
Federal funding may be available for the purchase of easement.
For example, funds are available under the Intermodal Surface Transportation
Efficiency Act (ISTEA) of 1991 for acquisition and development of trail
corridors, scenic easements and sites, and preservation of abandoned
railway corridors. The Land and Water Conservation Fund Act of 1965
provides grants to state and local governments for acquisition of land,
waters and interests in land or waters. (19)
Under a nine-state pilot project of the Federal Wetlands Reserve Program,
the Department of Agriculture may buy conservation easements from farmers
who permanently restore wetlands on their farms.(20)
Some states provide monies to local land trusts for the purchase
of easements and land in fee simple. The Marin Agricultural Land Trust
has received bond money slated for farmland protection to purchase easements
on 33 properties, protecting 22,098 acres from conversion to non-farm
use. The Maryland legislature has created and funded the Maryland Environmental
Trust to provide a number of services to local land trusts. (21)
The staff of seven includes three easement planners. The Trust administers
two grant programs for local land trusts. The Janice Hollmann Grant
Fund is applied toward land trusts' administrative expenses and the
$2 million Land Trust Grant Fund is a revolving loan program for acquisition
projects.
All levels of government in Georgia can provide critical
support to local land trusts by recognizing the land trusts as well
as the resources they seek to protect in the local, regional and statewide
land use plans required pursuant to the Georgia Planning Act. Madison
County's land use plan, for example, acknowledges the importance of
preserving the ecological value of the Broad River and its tributaries
and the role of the local land trust, the Broad River Watershed Association,
in protecting that ecological value. Designation as a Regionally Important
Resource, preferential zoning for open space, and tax valuation for
conservation uses, are other examples of governmental policies relied
upon by the IRS in evaluating whether a particular easement satisfies
a conservation purpose.
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Other
Means of Acquisition by Land Trusts
Besides accepting the donation of conservation easements,
many land trusts purchase easements and land. Membership and individual
donations fund about 70% of these purchases with other funds contributed
by government agencies, foundations and corporations. (22)
Where a landowner makes a "bargain sale" to a land trust, the landowner
receives some cash for his property as well as a tax deduction reflecting
the difference between the sale price and the fair market value of the
property.
In cases where land trusts borrow money from individuals
or banks to purchase land, repayment is made through fundraising, sales
to conservation buyers or sales to local, state or federal conservation
agencies. (23) In the past ten years
the Iowa National Heritage Foundation, a statewide land trust, has borrowed
over $3.2 million through 58 separate loans with interest rates ranging
from zero to 12.5%. (24) In carefully
controlled situations, a land trust may fund a purchase with limited
development that protects the land's conservation values. The Colorado
Open Lands land trust, for example, paid off a multimillion dollar foundation
loan to purchase a ranch by selling several parcels of the ranch for
development subject to conservation easements. (25)
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Conclusion:
Critical Role of Land Trusts
Though local, state and federal government agencies may
purchase and/or accept donations of conservation easements, land trusts
play the most critical role in working with landowners to protect conservation
lands in their local area. Some private landowners are reluctant to
give any gift, including an easement, to a governmental body but will
make a donation to a private non-profit group. Land trusts can often
step in to negotiate easements, and raise funds for their purchase where
necessary, more quickly than a public agency can. Land trusts may hold
and manage easements themselves or they may act as intermediaries for
public agencies in land transactions.
Over half of the land trusts in the United States are
run by volunteers. Their annual budgets range from under $10,000 to
over $1 million. Many are local in scope though there are also statewide
and national land trusts. There are twenty-two land trusts active in
Georgia (26); most were founded
in the past three years due to the tremendous popularity of the easement
approach to resource protection.
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Notes
-
Most land trusts are not trusts in
the legal sense. In order for a non-profit organization in Georgia
to use the word "trust" in its name, the organization must apply for
written permission from the Georgia Department of Banking Finances
at 2990 Brandywine Road, Suite 200, Atlanta, Georgia 30341. (back
to text)
-
This act, O.C.G.A. 44-10-1 et seq.,
repealed the Façade and Conservation Easement Act of 1976. A copy
of the act is included in the addendum section of this paper. (back
to text)
-
Sample criteria may be obtained from
the Land Trust alliance. See the Resource Section for their address
and phone number. (back to text)
-
The IRS requirements (Treasury Regulations
Section 1.120A-13 and 14) are appended to The Conservation Easement
Handbook and are explained in Steve Small's The Federal Tax Law of
Conservation Easements and Preserving Family Lands. (back
to text)
-
The appraiser must consider the impact
of the easement on adjacent land owned by the donor or his immediate
family and subtract the value of any enhancement to these lands from
the easements value. Appraising Easements: Guidelines for Valuation
of Historic Preservation and Land Conservation Easements, p. 22. (back
to text)
-
A qualified appraiser is a person
who holds himself out to the public as an appraiser, who is qualified
to make appraisals of the type of property being valued, and whose
relationship to the landowner or the land trust would not "cause a
reasonable person to question the independence of such an appraiser."
Federal Tax Law of Conservation Easements, p. 12-2. For more information
on appraisals, see Appraising Easements: Guidelines for Valuation
of Historic Preservation and Land Conservation Easements. (back
to text)
-
A long-term capital gain asset is
one that has been held for investment purposes for at least 12 months.
(back to text)
-
O.C.G.A 44-10-8 provides that recording
the easement in the office of the clerk of the superior court of the
county where the land is located shall be notice to the board of tax
assessors of the conveyance and shall entitle the owner to a revaluation
of the property. An aggrieved owner may appeal to the board of equalization.
(back to text)
-
-
-
For more information, call Ruth Taylor,
Program Coordinator, at (202) 638-4725. (back
to text)
-
-
To contact the Red Hills Conservation
association, call (904) 893-4153. (back
to text)
-
To contact the Delaware and Raritan
Greenway, call (609) 452-1441. (back
to text)
-
To contact the Montana Land Reliance,
call (406) 443-7027. (back to text)
-
To contact the Anderson Valley Land
Trust, call (707) 894-4272. (back to
text)
-
To contact the Thousand Islands Land
Trust, call Ken Deedy at (212) 794-5342. (back
to text)
-
-
Call the Georgia Outdoor Recreation
Planner at (404) 656-6530 for more information about these programs.
(back to text)
-
The states included in this pilot
program are California, Iowa, Louisiana, Minnesota, Missouri, Mississippi,
New York, North Carolina, and Wisconsin. For more information, contact
the Conservation and Environmental Protection Division of the Agriculture
Stabilization and Conservation Service at P.O. Box 2415, Washington
DC 20013 or call (202) 720-6221. (back
to text)
-
To contact the Maryland Environmental
Trust, call (410) 514-7900. (back to
text)
-
For information about foundations
that fund land trusts, see the Directory of Environmental Grantmaking
Foundations, available through the Environmental Data Research Institute
at (716) 473-3090. (back to text)
-
For a more complete discussion of
this topic, see The Land Trust Alliance's Starting A Land Trust, p.97.
(back to text)
-
To contact the Iowa National Heritage
Foundation, call (515) 288-1846. (back
to text)
-
-
To obtain a current listing of Georgia
land trusts, contact Hans Neuhauser at the Georgia Environmental Policy
Institute. See the Resource Section for address and phone number.
(back to text)
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Resources
Laurie Fowler, Director
Office of Public Service and Outreach
Institute of Ecology
University of Georgia
Athens, GA 30602
(706) 542-3948
Services: provides training on easement issues to attorneys and appraisers;
assists grassroots groups and state and local governments in the development
of policies to protect sensitive natural resources.
Hans Neuhauser
Georgia Environmental Policy Center
and
Georgia Land Trust Service Center
380 Meigs St.
Athens, GA 30601
(706) 546-7507
Services: Offers printed materials and programs on land trust formation,
operation and conservation easements; maintains current listing of land
trusts and land trust leaders in the state; offers assistance in the
organizational management of land trusts; maintains resource library.
Hans is Georgia's representative to the national Land Trust Council.
The Hyperion Society
University of California
Hastings College of the Law
20 McAllister Street
San Francisco, CA 94102
(415) 565-4857
Services: Publishes "The Back Forty," a bi-monthly journal covering
legal issues pertaining to land trusts.
Land Trust Alliance
1331 H St. NW Ste. 400
Washington, DC 20005
(202) 638-4725
Services: Clearinghouse for information on land trusts across the nation;
particularly valuable publications include "The conservation Easement
Handbook," "The Standards and Practices Guidebook: An Operating Manual
for Land Trusts," and "Exchange," a professional land trust journal.
Rand Wentworth
The Trust for Public Land
1447 Peachtree St. NE, Ste. 601
Atlanta, GA 30309
(404) 873-7306
Services: Provides technical assistance to land trusts on issues ranging
from incorporation to negotiating easements and to agencies, organizations
and individuals developing trail and greenway projects.
American Farmland Trust
1200 18th St. NW, Ste. 800
Washington, DC 20036
(202) 331-7300
Services: Provides technical assistance in preserving lands of historical,
agricultural and environmental significance and accepts easements on
agricultural land through its Farm Legacy Program.
Rivers and Trails Conservation Assistance Program
National Park Service Planning and Federal Programs Division
75 Spring St. SW, Ste. 1020
Atlanta, GA 30303
(404) 331-5838
Services: provides technical assistance to state and local governments,
land trusts, and landowners in the preparation of river conservation
and trail plans; inventories and evaluates river and trail corridors.
American Greenways Program
The Conservation Fund
1800 North Kent St., Ste. 1120
Arlington, VA 22209
(703) 525-6300
Services: Maintains a greenway project database including names, addresses,
phone numbers and background information on local greenway projects;
provides financial assistance to local greenways groups through the
Dupont Awards program.
Camilla Herlevich, Attorney
313 N. Front St., Ste. A
Wilmington, DE 38401
(910) 251-0666
Services: Assists landowners in evaluating conservation options; assists
land trusts in drafting conservation easements and complying with IRS
regulations; trains staff and volunteers in land trust management procedures.
State Outdoor Recreation Planner
Parks, Recreation and Historic Sites Division
Georgia Department of Natural Resources
205 Butler St., Ste. 1352-E
Atlanta, GA 30334
(404) 656-6530
Services: assists local governments in the acquisition and preservation
of public recreation lands by providing technical and financial assistance;
coordinates rail-trail conversions; promotes regional trail systems;
and coordinates local organizations and state and federal agencies on
trail issues.
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Supplemental
Material
Georgia Uniform Conservation Easement Act
ARTICLE 1
UNIFORM CONSERVATION EASEMENTS
44-10-1. Short title.
This article shall be known and may be cited as the "Georgia
Uniform Conservation Easement Act."
44-10-2. Definitions.
As used in this article, the term:
(1) "Conservation easement" means a nonpossessory interest
of a holder in real property imposing limitations or affirmative obligations,
the purposes of which include retaining or protecting natural, scenic,
or open-space values of real property; assuring its availability for
agricultural, forest, recreational, or open-space use; protecting natural
resources; maintaining or enhancing air or water quality; or preserving
the historical, architectural, archeological, or cultural aspects of
real property.
(2) "Holder" means:
(A) governmental body empowered to hold an interest in
real property under the laws of this state or the United States; or
(B) A charitable corporation, charitable association,
or charitable trust, the purposes or powers of which include retaining
or protecting the natural, scenic, or open-space values of real property;
assuring the availability of real property for agricultural, forest,
recreational, or open-space use; protecting natural resources; maintaining
or enhancing air or water quality; or preserving the historical, architectural,
archeological, or cultural aspects of real property.
(3) "Third-party right of enforcement" means a right provided
in a conservation easement to enforce any of its terms granted to a
governmental body, charitable corporation, charitable association, or
charitable trust, which, although eligible to be a holder, is not a
holder.
44-10-3. Creation or alteration of conservation easements;
acceptance; duration; effect on existing rights and duties; limitation
of liability.
(a) Except as otherwise provided in this article, a conservation
easement may be created, conveyed, recorded, assigned, released, modified,
terminated, or otherwise altered or affected in the same manner as other
easements, except that a conservation easement may not be created or
expanded by the exercise of the power of eminent domain.
(b) No right or duty in favor of or against a holder and
no right in favor of a person having a third-party right of
enforcement arises under a conservation easement before its acceptance
by the holder and a recordation of the acceptance.
c) Except as provided in subsection (c) of Code Section
44-10-4, a conservation easement is unlimited in duration unless the
instrument creating it otherwise provides.
(d) An interest in real property in existence at the time
a conservation easement is created is not impaired by it unless the
owner of the interest is a party to the conservation easement or consents
to it.
(e) The ownership or attempted enforcement of rights held
by the holder of an easement shall not subject such holder to any liability
for any damage or injury that may be suffered by any person on the property
or as a result of the condition of such property encumbered by a conservation
easement.
44-10-4. Actions affecting easements; parties; power
of court to modify or terminate easement.
(a) An action affecting a conservation easement may be
brought by:
(1) An owner of an interest in the real property burdened
by the easement;
(2) A holder of the easement;
(3) A person having a third-party right of enforcement;
or
(4) A person authorized by other law.
(b) The easement holder shall be a necessary party in
any proceeding of or before any governmental agency which may result
in a license, permit, or order for any demolition, alteration, or construction
on the property.
(c) This article does not affect the power of a court
to modify or terminate a conservation easement in accordance with the
principles of law and equity.
44-10-5. Validity of easement.
A conservation easement is valid even though:
(1) It is not appurtenant to an interest in real property;
(2) It can be or has been assigned to another holder;
(3) It is not of a character that has been recognized traditionally
at common law;
(4) It imposes a negative burden;
(5) It imposes affirmative obligations upon the owner
of an interest in the burdened property or upon the holder;
(6) The benefit does not touch or concern real property;
or
(7) There is no privity of estate or of contract.
44-10-6. Interests covered by article; interests not
invalidated by article.
(a) This article applies to any interest created after
July 1, 1992, which complies with this article, whether designated as
a conservation or facade easement, or as a covenant, protective covenant,
equitable servitude, restriction, easement, or otherwise.
(b) This article applies to any interest created before
July 1, 1992, if such interest would have been enforceable had such
interest been created after July 1, 1992, unless retroactive application
contravenes the Constitution or laws of this state or the United States.
(c) This article does not invalidate any interest, whether
designated as a conservation or preservation or facade easement or as
a covenant, protective covenant, equitable servitude, restriction, easement,
or otherwise, that is enforceable under other law of this state.
44-10-7. Construction and application of article to effect
uniformity of laws.
This article shall be applied and construed to effectuate
its general purpose to make uniform the laws with respect to the subject
of this article among states enacting it.
44-10-8. Recordation of easements; revaluation of encumbered
property; appeals.
A conservation easement may be recorded in the office
of the clerk of the superior court of the county where the land is located.
Such recording shall be notice to the board of tax assessors of such
county of the conveyance of the conservation easement and shall entitle
the owner to a revaluation of the encumbered real property so as to
reflect the existence of the encumbrance on the next succeeding tax
digest of the county. Any owner who records a conservation easement
and who is aggrieved by a revaluation or lack thereof under this Code
section may appeal to the board or equalization and may appeal from
the decision of the board of equalization in accordance with Code Section
48-5-311.
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For
Additional Reading
The Conservation Easement Handbook (269 pp./1988)
by Janet Diehl and Thomas S. Barrett;
published by the Trust for Public Land and the Land Trust Exchange (now
the Land Trust Alliance).
Provides land trusts and public agency personnel with detailed guidance
for operating a successful easement program.
Starting a Land Trust (175 pp./1990)
published by the Land Trust Alliance.
Guides a land trust through the early stages of organization including
incorporation, obtaining and keeping tax-exempt status, selecting a
board of directors, fundraising, and developing community support.
The Federal Tax Law of Conservation Easements (437 pp./1990)
by Stephen J. Small.
Interprets the IRS regulations on gifts of conservation easements and
discusses related issues.
The Standards and Practices Guidebook: An Operating Manual
for Land Trusts (363 pp./1994)
published by the Land Trust Alliance.
Explains how a land trust can operate responsibly and ethically; provides
examples and ideas to help land trusts develop their own policies and
procedures.
Appraising Easements (82 pp./1990)
published by the Land Trust Alliance and the National Trust for Historic
Preservation.
Describes general principles of easement evaluation.
Preserving Family Lands (100 pp./1992) by Stephen J. Small;
published by Landowner Planning Center.
Discusses tax strategies for families who want to conserve their land.
All of these publications are available through the Land
Trust Alliance, 1331 H St. NW Ste. 400, Washington, DC 20005, (202)
638-4725
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Table of Contents)
Sample
Easement
(Please note this is just one example of an easement;
each easement is different and reflects the needs and interests of
the landowner and the land trust involved.)
STATE OF GEORGIA
COUNTY OF MADISON
CONSERVATION EASEMENT
THIS CONSERVATION EASEMENT (herein "Conservation Easement") is made this
____ day of December, 1993, by and between JOHN AND MARY SMITH whose address
is Route X, Box Y, Royston, Georgia 30662 (hereinafter "Grantors") and
BROAD RIVER WATERSHED ASSOCIATION, INC., a Georgia nonprofit corporation,
with an address of Box 661, Danielsville, Georgia 30633 (hereinafter "Grantee").
RECITALS
A. Grantee is a nonprofit corporation established for the purpose of
promoting the preservation of environmentally valuable and sensitive lands,
recreational lands, agricultural lands, lands of historic or cultural
importance, and open space in the Broad River Watershed and other watersheds
within the State of Georgia for charitable, scientific, educational and
aesthetic purposes.
B. Grantors, husband and wife, own in fee simple as tenants in common
certain real property in Madison County, Georgia, being 53 acres, more
or less, and more particularly shown and described in Exhibit A attached
hereto, hereinafter "Property".
C. Grantors is willing to grant a perpetual Conservation Easement over
the Property, thereby restricting and limiting the use of the land and
contiguous water areas of the Property, on the terms and conditions and
for the purposes hereinafter set forth, and Grantee is willing to accept
such Conservation Easement.
D. Grantors and Grantee recognize the conservation value of the Property
in its present state, being adjacent to the Broad River and Hannah Creek,
as a significant natural area which provides a "relatively natural habitat
for fish, wildlife, or plants or similar ecosystems" as that phrase is
used in Section 170(h)(4)(A)(ii) of the Internal Revenue Code, including
habitat for deer, muskrat, raccoon, opossum, squirrel, beaver, red and
gray fox, otter, a variety of birds including turkey, and numerous fish
species.
E. Due in part to its location adjacent to Hannah Creek and the Broad
River, one of the last free-flowing rivers, unimpounded and unchanneled,
in the eastern Piedmont, Grantors and Grantee recognize the conservation
and open space values of the property in its present state, the preservation
of which (a) is pursuant to federal, state and local government policy
as evidenced by:
(1) the designation of all Northeast Georgia perennial streams, including
the Broad River and its tributaries, as Regionally Important Resources
pursuant to the Georgia Planning Act of 1989 at O.C.G.A. 50-8-3 et.
seq.
(2) the requirement that a Broad River corridor management plan be
developed pursuant to O.C.G.A. 12-2-8(g) for the purpose of protecting
the corridor, public water supply and wetlands;
(3) the recognition by the National Park Service in its 1982 Nationwide
Rivers Inventory that 99 miles of the Broad River, including the segment
adjacent to the Property, is pristine enough to qualify for consideration
in the Federal Wild and Scenic Rivers System
(4) the recommendation by the Georgia Department of Natural Resources
in 1976 that a "Broad River Environmental Corridor" be created and the
recognition of the Department of Natural Resources and the Georgia Natural
Heritage program of the outstanding ecological and recreational importance
of 175 miles of the Broad River system, including the segment adjacent
to the Property;
(5) the recognition in the Madison County Comprehensive Plan of the
importance of preserving the ecological value of the Broad River and
its tributaries and the Broad River Watershed Association's role in
the protection of that ecological value;
(6) the qualification of the Property for the special use ad valorem
provision of the state property tax regime for forestland, set forth
in O.C.G.A. 48-5-7(b.1) et.seq.;
and (b) the preservation of which will provide for the scenic enjoyment
by the general public, as evidenced by:
(1) the large number of canoeists and rafters who float the Broad
River to enjoy the scenery and wildlife;
(2) the fact that development of the Property would impair the natural
scenic character enjoyed by the public;
and (c) the preservation of which will yield other significant public
benefit including:
(1) preservation of the water quality of the Broad River through control
of point and non-point source discharges;
(2) preservation of the scenic and natural landscape which attracts
tourism and commerce to Madison County;
(3) continuation of the traditional use of the non-residential portion
of the Property for hiking, nature study, and other passive recreational
uses.
F. Grantee is a tax exempt public charity under Section 501(c)(3) and
509(a)(2) of the Internal Revenue Code, is authorized by the laws of the
state of Georgia to accept, hold and administer conservation easements,
possesses the authority to accept and is willing to accept this Conservation
Easement under the terms and conditions hereinafter described, and is
a "qualified organization" and an "eligible donee" within the meaning
of Section 170(h)(3) of the Internal Revenue Code and regulations promulgated
thereunder;
NOW, THEREFORE, as an absolute gift of no monetary consideration but
in consideration of the mutual covenants, terms, conditions and restrictions
hereinafter set forth, Grantors hereby unconditionally and irrevocably
grant and convey unto Grantee, its successors and assigns, forever and
in perpetuity a Conservation Easement of the nature and character and
to the extent hereinafter set forth, over the Property more particularly
described in Exhibit A together with the right to preserve and protect
the conservation values of the Property.
The purposes of this Conservation Easement are to preserve and protect
the conservation values of the Property and to maintain permanently the
dominant woodland, scenic, open, and natural character of the Property,
including land and water resources; to protect rare plants and animals
and animal and plant communities on or affected by the property's management;
and to prevent any use of the Property that will significantly impair
or interfere with the conservation values or interests of the property.
To achieve these purposes, the following conditions and restrictions are
set forth:
ARTICLE I. DURATION OF EASEMENT
This Conservation Easement shall be perpetual. It is an easement in gross,
runs with the land and is enforceable by Grantee against Grantors, their
personal representatives, heirs, successors and assigns, lessees, agents
and licensees.
ARTICLE II. PROHIBITED AND RESTRICTED ACTIVITIES
Any activity on, or use of, the Property inconsistent with the purposes
of this Conservation Easement is prohibited. Development that would significantly
impair or interfere with the conservation values of the Property is prohibited.
The Property shall be maintained in its natural, scenic and open condition
and restricted from any development that would significantly impair or
interfere with the conservation values of the Property.
All rights reserved by the Grantors are considered to be consistent with
the conservation purposes of this Conservation Easement and, except to
the extent that prior written approval of Grantee is required by any paragraph
of this Article, require no prior notification to or approval by Grantee.
Notwithstanding the foregoing, the Grantors and Grantee have no right
to agree to any activity that would result in the termination of this
Conservation Easement or would cause it to fail to qualify as a qualified
conservation contribution as described in section 170(h) of the Internal
Revenue Code, or any regulations promulgated therunder.
Without limiting the generality of the foregoing, the following activities
and uses are expressly prohibited or restricted on the Property:
A. Disturbance of Natural Features. Any change, disturbance,
alteration or impairment of the natural, scenic, and aesthetic features
of the property is prohibited.
B. Industrial and Commercial Use. Industrial activities are prohibited
on the Property. Commercial activities are prohibited except Grantors
can operate a consulting business with no more than one additional employee
in the residential dwelling so long as such a business conforms with local
zoning ordinances and regulations.
C. Agricultural and Horticultural Use. Commercial agricultural and horticultural
use and livestock production is prohibited. Existing agricultural and
horticultural uses may be continued but not expanded.
D. Silvicultural Use. Planting of loblolly pine and non-native species
is prohibited. Commercial timber cutting is prohibited. Cutting for Grantors'
household firewood use or to prevent imminent hazard is allowed.
E. Hunting and Fishing. The right to hunt and fish on the Property and
the right to lease all or any portion of the Property is allowed, provided
that all such activity is conducted in accordance with local, state and
federal regulations and provided that there shall be no material impairment
of any conservation value of the Property. Except as provided herein,
there shall be no disturbance of plant and animal populations and/or their
habitat, nor any introduction of any non-native animal species.
F.Signage. Display of billboards, signs or advertisements is prohibited
on or over the Property, except the posting of no trespassing signs, signs
identifying the conservation values of the Property and/or identifying
the Grantor as owner of the Property.
G. Dumping. Dumping of soil, trash, ashes, garbage, waste, abandoned
vehicles, appliances, machinery, or other materials on the property is
prohibited.
H. Mineral Use, Excavation, Dredging. There shall be no filling, excavation,
dredging, mining or drilling; no removal of topsoil, sand, gravel, rock
peat, minerals or other materials; and no change in the topography of
the land in any manner.
I. Conveyance and Subdivision. There shall be no subdivision of the Property.
J. Water Quality and Drainage Patterns. There shall be no pollution,
alteration, depletion or extraction of surface water, natural water courses,
subsurface water or any other water bodies, except that Grantors reserve
the right to continue to operate, maintain and replace the existing groundwater
well. Notwithstanding the foregoing, there shall be no activities conducted
on the Property or on adjacent property if owned by Grantors which would
be detrimental to water purity or which would alter natural water levels,
drainage, sedimentation and/or flow in or over the Property or to Hannah
Creek, or to the Broad River, or cause soil degradation or erosion. Disruption
of natural drainage patterns and creation of artificial drainage patterns
including but not limited to construction of check dams and other impoundments
is prohibited.
K. Public Utilities. Installation of overhead public utility lines is
prohibited. Burial of a line to conduct electricity or water is permitted
only where the width of the cleared area will not exceed ten (10) feet.
L. Path, Building, Road, and fence Construction. Paths can be constructed
only where they will not exceed a width of three (3) feet. The construction
of buildings, roads and fences are prohibited except as described in Section
N of this Article.
M. Residential Use, Improvements, New Construction and Access Thereto.
There shall be no residential use, nor any building, facility, or mobile
home constructed or placed onteh Property nor any construction of any
new permanent roads nor any widening of existing roads, nor construction
of fences, except that Grantors may exercise the following rights within
the residential boundary of the property a sshown and described on the
Map of the Property's Residential Boundary attached as Exhibit B hereto,
after providing written notice to Grantee:
1. To construct accessory buildings designed, constructed and utilized
for the purpose of serving the existing residence
2. To replace the existing residential dwelling and associated buildings
with buildings of similar size and purpose; to improve, including adding
a deck and boardwalk to the existing residential dwelling, repari, restore,
alter, remodel, and maintain all existing buildings;
3. To maintain reasonable means of access to the residential dwelling,
provided, however, that no road nor right of way may be wider than thirty
(30) feet and only semi-permeable or permeable materials shall be used
for road maintenance.
Notwithstanding the provisions above, construction of buildings or structures
visible from the river are prohibited, as is construction of buildings
exceeding a height of thirty (30) feet.
ARTICLE III. ENFORCEMENT AND REMEDIES
A. Upon any breach of the terms of this Conservation Easement
by Grantors or by a third party which comes to the attention of the Grantee,
the Grantee shall notify the Grantors in writing of such breach. The Grantors
shall have ninety (90) days after receipt of such notice to undertake
actions that are reasonably calculated to correct promptly the conditions
constituting such breach. If the breach remains uncured after ninety (90)
days, the Grantee may exercise any or all of the following remedies:
(1) Institute suits to enjoin any breach or enforce any covenant by
ex parte, temporary, and/or permanent injunction either prohibitive
or mandatory and/or to recover any damages from injury to any conservation
values protected by this Conservation Easement, including damages for
the loss of scenic, aesthetic, and environmental values; and
(2) Require that the Property be restored promptly to the condition
required by this Conservation Easement.
Grantee's remedies shall be cumulative and shall be in addition to any
other rights and remedies available to Grantee at law or equity. If Grantee,
in its sole discretion, determines that circumstances require immediate
action to prevent or mitigate significant damage to the conservation values
of the Property, the Grantee may pursue its remedies without prior notice
to Grantors.
B. Any cost incurred by Grantee in enforcing the terms of this Conservation
Easement against Grantors, including, without limitations, costs of suits
and attorney's fees, and any costs of restoration necessitated by Grantors'
acts or omissions in violation of the terms of this Conservation Easement,
shall be borne by the Grantors.
C. No failure on the part of Grantee to enforce any covenant orprovision
herof shall discharge or invalideate such covenant or any other covenant,
condition, or provision herof or affect the right to Grantee to enforce
the same in the event of a subsequent breach or default.
D. Grantee, its employees and agents and its successors and assigns,
have the right, with reasonable notice, to enter the Property at reasonable
times for the purpose of inspecting the Property to determine whether
the Grantors, their personal representatives, heirs, successors or assigns
are complying with the terms, conditions and restrictions of this Conservation
Easement.
E. Nothing contained in this Conservation Easement shall be construed
to entitle Grantee to bring any action against Grantors for any injury
or change is the Property resulting from causes beyond the Grantors' control,
including, without limitation, fire, flod, storm, and earth movement or
from any prudent action taken in good faith by the Grantors under emergency
conditions to prevent, abate, or mitigate significant inury to life, damage
to property or harm to the Property resulting from such causes.
ARTICLE IV. PUBLIC ACCESS
The granting of this Conservation Easement does not convey
to the public the right to enter the Property for any purpose whatsoever.
The public has the right of scenic enjoyment of the property from the
Broad River, however.
ARTICLE V. EXHIBIT, DOCUMENTATION AND TITLE
A. Legal Description. Exhibit A, Legal Description of the Property, and
Exhibit B, Map of the Property's Residential Boundary, are attached hereto
and made a part hereof by reference.
B. Easement Documentation Report. The parties acknowledge that the Smith
Property Conservation Planning Data Sheet dated December 21, 1993, a copy
of which is on file at the office of the Grantee, accurately establishes
the uses, structures, conservation values and condition of the Property
as of the date hereof.
C. Title. The Grantors covenant and represent that the Grantors are the
sole owners and are seized of the Property in fee simple and have good
right to grant and convey the aforesaid Conservation Easement; that the
Property is free and clear of any and all encumbrances; and Grantors covenant
that the Grantee shall have the use of and enjoyment of all of the benefits
derived from and arising out of the aforesaid Conservation Easement.
ARTICLE VI. MISCELLANEOUS
A. Subsequent Transfers. Grantors agree for themselves, their heirs,
successors and assigns, to notify Grantee in writing of the names and
addresses of any party to whom the Property, or any part thereof, is
to be transfereed at or prior to the time said transfer is consumated.
Grantors, for themselves, their heirs, successors and assigns, further
agree to make specific reference to this Conservation Easement in a
separate paragraph of any subsequent lease, deed or other legal instrument
by which any interest in the Property is conveyed.
B. Conservation Purposes.
(1) Grantee, for itself, its successors and assigns, agrees that this
Conservation Easement shall be held exclusively for conservation purposes,
as defined in Section 170(H)(4)(a) of the Internal Revenue Code.
(2) The donation of this Conservation Easement gives rise to a property
right, immediately vested in Grantee, with a fair market value equal
to the proportionate value that the Conservation Easement bears to the
value of the property as a whole.
That proportionate value of the Grantee's property rights shall remain
constant. If a change in conditions makes any continued protection of
the Property for conservation purposes impossible or impractical, the
restrictions contained herein may only be extinguished by judicial proceeding.
Upon such proceeding, the Grantee, upon a subsequent sale, exchange
or involuntary conversion of the Property, shall be entitled to a portion
of the proceeds at least equal to that proportionate value of the Conservation
Easement. The Grantee shall use its share of the proceeds in a manner
consistent with the conservation purposes set forth in the Recitals
herein.
(3) Whenever all or part of the Property is taken in exercise of eminent
domain by public, corporate, or other authority so as to abrogate the
restrictions imposed by this Conservation Easement, the Grantors and
the Grantee shall join in appropriate actions at the time of such taking
to recover the full value of the taking and all incidental or direct
damages resulting from the taking, which proceeds shall be divided in
accordance with the proportionate value of the Grantee's and Grantors'
interests as specified above; all expenses including attorneys fees
incurred by the Grantors and the Grantee in this action shall be paid
out of the recovered proceeds to the extent not paid by the condemning
authority.
(4) The Grantors and the Grantee agree that the terms of this Conservation
Easement shall survive any merger of the fee and easement interests
in the Property.
(5) The parties hereto recognize and agree that the benefits of this
Conservation Easement are in gross and assignable, provided,however,
that the Grantee hereby covenants and agrees, that in the event it transfers
or assigns this Conservation Easement, the organization receiving the
interest will be a qualified organization as that term is defined in
Section 170(h)(3) of the Internal Revenue Code of 1986 (or any successor
section) and the regulations promulgated thereunder, which is organized
or operated primarily for one of the conservation purposes specified
in Section 170(h)(4)(A) of the Internal Revenue Code, and Grantee further
covenants and agrees that the terms of the transfer or assignment will
be such that the transferee or assignee will be required to continue
to carry out in perpetuity the conservation purposes which the contribution
was originally intended to advance, set forth in the Recitals herein.
(6) The Grantors agree to pay any real estate taxes or other assessments
levied on the Property.
C. Construction of Terms. This Conservation Easement shall be construed
to promote the purposes of the Uniform Conservation Easement Act, O.C.G.A.
44-10-1 et. seq., which authorizes the creation of Conservation Easements
for purposes including those set forth in the Recitals herein.
D. Entire Agreement. This instrument sets forth the entire agreement
of the parties with respect to the Conservation Easement and supersedes
all prior discussions, negotiations, and understandings or agreements
relating to the Conservation Easement. If any provision is found to
be invalid, the remainder of the provisions of this Conservation Easement,
and the application of such provision to persons or circumstances other
than those as to which it is found to be invalid, shall not be affected
thereby.
E. Recording. Grantee shall record this instrument in timely fashion
in the official records of Madison County, Georgia, and may re-record
it at any time as may be required to preserve its rights under this
Conservaiton Easement.
F. Hazardous Waste. The Grantors covenant and represent that no hazardous
substances or toxic wastes exist nor have been generated, treated, stored,
used, disposed of, or deposited in or on the Property, and that there
are not now any underground storage tanks located on the Property.
G. Notices. Any notices shall be sent by registered or certified mail,
return receipt requested, addressed to the parties as set forth above,
or to such other addresses as the parties may establish in writing to
the other.
In any case where the terms of this Conservation Easement require the
consent of the Grantee, such consent shall be requested by notice to
Grantee. Such consent shall be deemed to have been given unless, within
forty-five (45) days after receipt of notice, Grantee mails notice to
Grantors of disapproval and the reason therefore.
TO HAVE AND TO HOLD unto the Broad River Watershed Association, Inc.,
its successors and assigns, forever. The covenants agreed to and the
terms, conditions, restrictions and purposes imposed as aforesaid shall
be binding upon Grantor, his personal representatives, heirs, successors
and assigns, and shall continue as a servitude running in perpetuity
with the Property.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals
and caused these presents to be executed in their respective names by
authority duly given, and their corporate seal affixed, the day and year
above written.
TO BE EFFECTIVE upon the date of recordation in the official records
of Madison County, Georgia.
GRANTORS:
_______________________________________
JOHN SMITH
_______________________________________
MARY SMITH
Witnesses:
_______________________________________
_______________________________________
NOTARY PUBLIC
GRANTEE:
BROAD RIVER WATERSHED ASSOCIATION, INC.
BY: ____________________________________
ROBERT ELISHA GRIFFITH, Chairman
Witnesses:
_______________________________________
_______________________________________
NOTARY PUBLIC
ATTEST:
_______________________________________
Witnesses:
_______________________________________
_______________________________________
NOTARY PUBLIC
This instrument prepared by:
Laurie Fowler, Esq.
Georgia Environmental Policy Institute
380 Meigs Street
Athens, Georgia 30601
706-546-7507
and
Camilla Herlevich, Esq.
313 North Front Street, Suite A
Wilmington, North Carolina 28401
910-251-0666
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