March 15, 1999
What is a Conservation Easement? It is a legal document, filed with the local Registry of Deeds, that transfers one, or more, of the bundle of rights that a landowner possesses, to a third party called a Holder. The term conservation in the title denotes that something has been done to preserve or protect a natural resource. In Maine the usual right transferred is the right of development; in other words, the right to build on the property. Thus the land owner has given up his right to ever build or develop that property.
What is protected is the right of the original owners to harvest trees. Since Maine has 17 million acres of forest land, most in private ownership, forestry is the basis business in Maine. In some few cases the resource protected is a farm. Therefore the conservation easement has become a popular instrument to protect forest land from development, and is heavily promoted by the environmental land trusts.
Now, what is a Land Trust?
A Land Trust is a non-profit organization, usually a corporation, established for the sole purpose of holding land for conservation purposes. The land may be owned in fee title, or rights of the landowner may be held under a conservation easement. There are 79 Land Trusts in Maine, which is the second or third highest in any state. This growth in Trusts is due to the environmental movement pressure and "spin" to "save" the resources (i.e. trees) here in Maine.
There is another key point in a conservation easement and that is the duration of the easement. In most cases the standard holding is in perpetuity. Forever. Thus future generations have been deprived of any possible use of all development rights. It is slowly dawning on folks that their children or their children's children have lost any say or use of their land that involves any kind of development. Many folks are now concerned over the use of the term "perpetuity" and consider that to be robbing future generations of their own right of decision. Much can change in man's plans, or change in society's views, and here we are making the decisions for them, into the endless future. Forever is a long, long time.
It is legally correct to place a time limit on the life of the easement. The conservation easement could be limited to 30 years, or forty, or fifty, or even one hundred years, which ever is appropriate. The time period could be considered under the current consideration of saving resources, but at the same time placed under a time constraint that will permit future generations to make decisions based upon their needs at that future time.
Under present tax law, placing a conservation easement upon the land usually reduces the assessed value of the land by removing the land from highest and best use classification. Thus when the taxes are reduced on that parcel, the neighbors, and the rest of the community must compensate for the loss by paying higher taxes. In other words the other land owners in the community will subsidize the reduction in taxes of the land owner who gave or sold the conservation easement.
One of the motives for giving an easement is that the easement can, and in many cases is, sold. It can be sold for up to 80 per cent of the appraised value of the land. This is a strong incentive for a land owner to retain title to the land, receive a sizable cash sum, and still be able to harvest trees or farm the land.
There are many aspects of the conservation easement that have received little attention. Many of these points about easements have simply not been understood or considered by the public in general because the concept, although not new, has not been prevalent. Now many Maine communities are being faced with the reality of having conservation easements within their town limits. Not only are they losing tax dollars, but they seem to have lost control over land that there may be a future public need for. The town may need a water access point in the future, or they may need a small park, or they may need land for a community center, but the easement is in perpetuity, and the town is forever denied use of that land. Should the town Fathers play an early role when the creation of conservation easements may effect their future planning?
Let us consider another aspect of a conservation easement. Take the case where an easement is sold, selling the development rights, and the land owner keeps the right to harvest trees. And the easement is as usual in "perpetuity." Suppose fifty years later some law or regulation prevents the owner from harvesting trees. This could be an Endangered Species Act enforcement, or a wetland, or some other restriction we haven't considered. What redress is there for the landowner? None at present. However, it is possible and legally correct to include a clause in the easement deed that would permit the cancellation of the easement, and let the conservation right revert to the land owner, should the landowner be denied his rightful use of the land. Then he could reconsider his situation and his plans for the land.
As a society it may be time that we took a good look at this conservation easement concept and see how it is going to affect our future. Do we really have the wisdom to make decisions for all future generations? Should we consider changes that would protect future generations' rights? Should we consider local community control and protect the rights and needs of the community? Do we really want to establish resource control in perpetuity that steals the rights of future generations?
Conservation easements have become a fad in our time because of the environmental zeal. Their growth in number, and acres under easement deed, have been phenomenal in the last decade. And there seems to be a growing momentum to move land, especially forest land in that direction. Witness the recent plan to place an easement on 750,000 acres of the Pingree land, here in Maine, the largest easement in the U.S. And of course being able to cash in on your investment in land, and still use and own the land is a powerful incentive, for those who benefit today at the expense of future generations.
R.O. "Bob" Voight is a founding member of the Maine Conservation Rights Institute.
"Courtesy of Scott Fish, AsMaineGoes.com."