Land Trust Standards and Practices 2004
Appendix 11I: Amendments
Conservation Easements Amendment Policy
GENERAL STATEMENT OF POLICY The Finger Lakes Land Trust acquires and holds conservation easements in order to protect significant natural habitat, water quality, farmland, and scenic views for the benefit of present and future generations. Because its acquisitions are accomplished through voluntary agreements with landowners, the success of the program depends on the confidence of these owners that the Land Trust will meet its obligation to monitor and enforce the agreements. This confidence would be seriously eroded if the Land Trust allowed modification of its conservation easements in ways that would weaken the protections they provide. Amendments could also raise potential problems with the Internal Revenue Service, both for the Land Trust in terms of its tax-exempt status, and for donors of easements in terms of any charitable deduction that may have been claimed as a gift (e.g. if the amendment might substantially increase the fair market value of the property). Therefore, it is the policy of the Finger Lakes Land Trust to hold and enforce its conservation easements as written. As such, it will permit amendments to easements only in exceptional circumstances. Any request for an amendment will be reviewed according to the procedures set forth in this Policy Statement, and will be implemented only when the Board of Directors determines that: 1. The requested modification is warranted under one or more of the Purposes set forth below; 2. It is the minimum change necessary to satisfy that purpose; and 3. It will not erode the confidence of the Land Trust’s supporters—including both past and future donors of conservation easements and other interests in land—in the goals of the organization and its intent to enforce its conservation easements. Unless specifically waived by the Board of Directors, the requestor shall pay all staff and legal costs for reviewing the change, whether or not the request is approved, and if approved, for its implementation. The Board of Directors will be extremely cautious in consenting to an amendment to a conservation easement, and will do so only where a change is clearly warranted and in the best interests of conservation. There must be no net loss in conservation value. PURPOSE OF REQUESTED AMENDMENT Most of our conservation easements include a specific provision allowing for amendment of the restrictions at a further date under specified circumstances. The Finger Lakes Land Trust will consider modification to its conservation easements only in the following circumstances: 1. Enhanced Protection. The proposed amendment would significantly enhance the resource protection of the easement. 2. Prior Agreement. The amendment: must be consistent with the general terms and conservation purpose of the original agreement; must not be inconsistent with the intent of the principal parties to the original;
Land Trust Standards and Practices 2004
Appendix 11I: Amendments
must be consistent with or enhance the conservation goals of the original agreement. For example, the Land Trust might permit the change of a house-site permitted as a Reserved Right, if a new location would not reduce the conservation values being protected by the easement. In no case will the Land Trust permit an additional house-site not provided for in the original agreement.
3. Correction of an Error or Ambiguity. The Land Trust may authorize an amendment to correct an obvious error or oversight made at the time the easement was granted. This may include correction of a legal description, inclusion of standard language that was unintentionally omitted, or clarification of an ambiguity in the terms of the restrictions in order to avoid litigation over the interpretation of the document in the future. 4. Settlement of Condemnation Proceedings. Conservation easements held by the Land Trust may be subject to condemnation for public purposes, such as highways, schools, etc. Where it appears that the condemnation power would be properly exercised, the Land Trust may enter into a settlement agreement with the condemning authority in order to avoid the expense of litigation. In reaching such an agreement, the Land Trust shall attempt to preserve the intent of the original conservation easement to the greatest extent possible. PROCEDURES FOR REQUESTING AN AMENDMENT Any landowner seeking a modification of an existing conservation easement shall file a request in writing with the Land Trust stating what change is being sought and the specific reasons it is needed or warranted. Where appropriate, the request shall also be accompanied by a map and other documentation. Unless waived by the Board of Directors, the request shall also be accompanied by a payment of $500 to cover the Land Trust’s costs. Any unexpended portion of the fee shall be refunded, and the landowner shall be responsible for all costs exceeding the initial fee, including legal costs. The Executive Director shall review all requests and, where appropriate, refer them to the Land Committee for evaluation, site visit, and recommendation. The review shall include consultation with the Land Trust’s legal counsel, and when feasible, with the principal parties to the original agreement, including the landowner who donated or sold the easement, any town or state agency that contributed funds to the acquisition, and any persons who supported the acquisition through financial gifts. If the Land Committee, Executive Director, and legal counsel conclude that the amendment is legally permissible, is consistent with the terms of this Policy Statement, and is clearly warranted by the circumstances, the recommendation shall then go to the Board of Directors for final action. However, if the Land Committee, Executive Director, and legal counsel together determine that the change is not advisable, this decision shall be final, unless the landowner requests further review by the Board of Directors. The Board of Directors shall approve, approve with modification, or reject the request for amendment at its next regularly scheduled meeting or at a special meeting called for that purpose. Approval shall require a two-thirds vote of the members of the Board of Directors present at a meeting at which there is a quorum.
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This material is designed to provide accurate, authoritative information in regard to the subject matter covered. It is provided with the understanding that the Land Trust Alliance is not engaged in rendering legal, accounting, or other professional counsel. If legal advice or other expert assistance is required, the services of competent professionals should be sought.