Document Sample
					Land Trust Standards and Practices 2004           Appendi x 8B: Project Selection and Criteria

 This example can be used as a starting point to create a policy or other
 document for your own land trust, but should be altered as necessary to
 reflect your organization’s unique circumstances using guidance found in the
 Land Trust Standards and Practices Guidebook text and corresponding
 Standards and Practices Curriculum.

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 also the Land Trust Accreditation Commission website for additional
 information. To search for policies from accredited land trusts, insert
 <<accredited>> along with the search term (e.g., conflict interest policy

              Taken from the Conservation Easement Policy Statement – Adopted 01/22/2005
                               Revised and adopted as an independent policy on 01/19/2008

                      HUDSON HIGHLANDS LAND TRUST


    Throughout the United States, conservation easements have proven to be strong
    and cost-effective tools for land conservation. Their flexibility and cost often
    make them preferable to fee acquisition. Properties subject to easement remain
    in private hands and on the local tax rolls.

    Since its inception, the Land Trust has acquired conservation easements
    throughout the Hudson Highlands for a variety of conservation purposes. It is
    clear that easements will continue to be an important element of the Hudson
    Highlands Land Trust’s program in the future, especially as development
    pressures continue to grow north of Westchester and Rockland counties.

    The Hudson Highlands Land Trust (“HHLT” or “Land Trust”) intends that its
    conservation easement acquisitions conform to all require ments of law, the Land
    Trust Alliance Standards and Practices, and all other HHLT policies. The purpose
    of this document is to memorialize the Land Trust’s policies for conservation
    easement acquisitions and guide HHLT’s easement acquisition practices.

    Conservation easement grantors may range from private landowner and
    foundations to other conservation organizations. All conservation easements
    must undergo the same level of scrutiny and review.


    Conservation easements may be sought by HHLT as part of our strategic plan to
    preserve key Hudson Highlands landscapes, or may be offered to the Land Trust
    by landow ners w ishing to preserve their property while retaining private
    ownership. As a first step of the review process, the Land Trust staff will compile
    all available information on each proposed easement, from the owner and other
    sources, to determine whether the land warrants protection and whether the
    findings described in Section 4 below can be supported.
Land Trust Standards and Practices 2004            Appendi x 8B: Project Selection and Criteria

    When considering a proposed easement, open space protection goals usually
    have the highest priority. Other values or characteristics to be considered

            Public recreation opportunities;
            Scenic or aesthetic importance;
            Preservation of rural character;
            Working landscape protection (e.g., agriculture or forestry);
            Wildlife habitat protection;
            Historic or cultural significance;
            Ecological signif icance (e.g., wetlands, surface water, aquifers); and,
            Proximity to other protected land.

    In reviewing an easement proposal, at least one site visit will be made to the
    property to identify the important conservation values, assess whether the
    property is worthy of protection and determine the potential components and
    structure of the easement. Ongoing discussions may be held with the owner, and
    extensive baseline data and documentation will be collected. In addition to
    evaluating the property’s conservation value(s), a site visit is required as a
    fundamental part of the Land Trust’s due diligence, and by LT A’s Standards and
    Practices. A first hand inspection of the property may well reveal negative
    factors that outweigh conservation values.

    Our strong preference is to receive easements that prohibit any further
    subdivision or development (other than that ancillary to an existing residence).
    Of course the landowner sometime proposes to reserve certain development
    rights. Ordinarily, we should resist such a proposal, and push the landowner to
    surrender all of the development rights. If the landowner will not proceed with
    the donation unless certain development rights are preserved, then the staff
    must consider carefully (i) the extent to which the reserved development rights
    may compromise the conservation values which we would seek to preserve by
    accepting the easement and (ii) whether HHLT, by accepting the easement, could
    be seen by the community to be in any way facilitating or endorsing
    inappropriate development.

    In any case, the staff must assemble all of the information required to support
    the findings described in Section 3 below before the easement is presented to the
    Land Conservation Committee for initial review and approval.

    As per the HHLT Conflict of Interest Policy, if any HHLT staff member has “(a)
    any Conflict or Potential Conf lict of Interest, or (b) any Interest in such
    Transaction by any other organization except under Section 501(c)(3) of the
    Internal Revenue Code” it “shall be noted in the written materials presented to
    the HHLT Board of Directors in connection with a proposed Transa ction, and
    brought to the attention of the Board at the meeting at which such Transaction is


    If staff review results in a recommendation to present the project to the Land
    Conservation Committee and/or accept the donation or purchase of a
    conservation easement, a Land Trust Conservation Easement Information and
    Approval Form and necessary supporting documentation will be prepared.
Land Trust Standards and Practices 2004              Appendi x 8B: Project Selection and Criteria

     As an initial step, the Land Conservation Committee of the HHLT Board shall
     review the proposed easement. If approved by the Land Conservation
     Committee, the easement shall be first considered by the Executive Committee
     and then the full Board of Directors.

     No easement shall be accepted without prior authorization of the full Boa rd of
     Directors by a vote of the majority of the full Board. The Executive Committee
     shall be delegated authority to approve easement acquisitions if time constraints
     prevent full Board review, with full board ratification required at the next full
     Board meeting.

     A record of the approval vote will be included in the full Board meeting minutes, a
     copy of which will be filed in the easement records along with the supporting
     Conservation Easement Information and Approval Form.

     Any of the following circumst ances shall be brought to the attention of the Board:
     (1) any prior subdivision approval or permit of which we are aware that has been
     made conditional on the creation of a conservation easement over the subject
     property, (2) any legally binding agreement by the donor with any person
     regarding the easement, (3) any agreement or intention, formal or informal, on
     the part of the donor, to contribute cash or other things of value to the Hudson
     Highlands Land Trust, and (4) any other fact or circumstance that could
     reasonably suggest the receipt by the donor of consideration or any “quid pro
     quo”, or otherw ise call into question the “donative intent” of the donor.

     As per the HHLT Conflict of Interest Policy, “if any Director (or Person who is an
     Associated Person by virtue of a relationship with such Director) has an Interest
     in, or any other Conflict or Potential Conflict of Interest in respect of, a
     Transaction, then such Director shall recuse himself or herself from the Board’s
     discussion and vote with respect to such Transaction.”


     In order to accept any easement, the Land Conservation Committee, Executive
     Committee and full Board shall each (a) make the specific findings outlined below
     (or as many as may apply), and (b) be presented with data, analysis and
     information reasonably sufficient to support such finding, which data, analysis
     and information shall be kept as an appendix to the minutes of the meeting at
     which such finding is made. The required findings, the necessary basis and
     required information to support each of them, are as follows:

Finding Re quire d by IRC        Basis for finding               Information required to
Section 170(h)                                                   support finding
(1) The easement will            This finding shall not be       The terms and conditions
result in the preservation       made unless the easement        of the easement requiring
of a land area for outdoor       requires, in perpetuity,        public access shall be
recreation by, or the            public access (e.g., in the     described in detail to the
education of, the general        form of a trail easement).      Board. The staff, based on
public                           Also, the Board shall make      use of similar public access
                                 a finding that they             easement on similar
                                 reasonably expect the           properties, also shall make
                                 public use of the land to       estimates of the nature
                                 be both “substantial” and       and amount of public use
Land Trust Standards and Practices 2004                     Appendi x 8B: Project Selection and Criteria

Finding Re quire d by IRC           Basis for finding                    Information required to
Section 170(h)                                                           support finding
                                    “regular”.                           that can reasonably be
OR (2) The easement will            This finding shall not be            The Board shall be
result in the protection of         made in respec t of land             informed if any
a relatively natural habitat        the major part of which is           governmental unit or third
of fish, wildlife, or plants,       occupied by a private                party has delineated,
or similar ecosystem.               residence or its                     classified or recognized the
                                    appurtenances, or by any             habitat or ecological value
                                    other use – such as a golf           of the land area (e.g.,
                                    course or playing fields –           though designation as a
                                    which have changed the               wetland, or designation of
                                    natural condition of the             a plant or animal as
                                    land. In due course, if the          endangered). If not, then
                                    Land Trust completes an              the Board shall be
                                    ecological survey of its             presented with an
                                    area of interest, the                analysis, by a qualified
                                    property should ideally              person, (i) delineating and
                                    also fall w ithin a pre-             describing the land area
                                    designated area previously           that qualify as relatively
                                    determined to contain                natural habitat and the
                                    critical habitat.                    plants or animals for which
                                                                         the land area serves as
                                                                         habitat, (ii) concluding that
                                                                         the current state of the
                                                                         land represents a relatively
                                                                         healthy functioning
                                                                         ecosystem worthy of
                                                                         protection and (iii)
                                                                         describing how the terms
                                                                         of the easement will result
                                                                         in the protection of those
                                                                         features of the land
                                                                         essential to its continuing
                                                                         function as natural habitat.
                                    This finding shall require a         The Board shall be
OR (3) The easement will            reasonably detailed finding          presented with excerpts
result in the preservation          of both (i) the nature of            from or detailed
of open space (including            the public benefit and               descriptions of the relevant
farmland and forest land)           basis for concluding that it         Federal, State or local
where such preservation             is signif icant and (ii) the         governmental conservation
(a) will yield a signif icant       clearly delineated                   policy that validates the
public benefit 1 and (b) is         governmental                         proposition that significant

                  IRS regulations identify eleven factors relevant to measuring public benefit : (1)
        uniqueness of property, (2) intensity of existing and planned development in area, (3) consistency
        with public conservation programs in the region, (4) consistency with private conservation
        programs in the region, (5) likelihood of development leading to degradation of scenic, n atural or
        historic character, (6) opportunity of public to use property or enjoy its scenic values, (7)
        importance of property in preserving local or regional landscape or resource that attracts tourism
        or commerce, (8) likelihood that the donee will acquire equally desirab le property or rights, (9)
        cost of enforcement, (10) population density in area and (11) consistency with legislat ively
        mandated program that identified specific parcels for protection.
Land Trust Standards and Practices 2004              Appendi x 8B: Project Selection and Criteria

Finding Re quire d by IRC        Basis for finding               Information required to
Section 170(h)                                                   support finding
either (i) for the scenic        conservation policy that        public benefit will result
enjoyment of the general         validates this (such as a       from the easement (e.g.,
public or (ii) pursuant to a     master plan, agricultural       the State open space plan,
clearly delineated Federal,      district, or priority open      the relevant State scenic
State or local                   space inventory) or, if         road designation, any local
governmental                     there is none, outlining the    scenic landscape
conservation policy.             basis for concluding that       inventory, etc.) In the
                                 the easement will preserve      absence of such a policy, a
                                 or promote the enjoyment        reasonably detailed
                                 by the general public of        professional quality
                                 scenery (a specific             viewshed analysis w ill be
                                 endorsement of public           presented to the Board,
                                 benefit from the town           demonstrating those
                                 board or other                  locations accessible to the
                                 governmental body should        general public from which
                                 also be considered). In         the property is visible, and
                                 any case, the finding shall     analyzing the basis for
                                 include a specific finding of   concluding BOTH that (i)
                                 “visual public access,”         the relevant scenery is of
                                 meaning that the subject        significant value and (ii)
                                 property is visible from a      the public exposure to the
                                 “park, nature preserve,         view is signif icant.
                                 road, waterbody, trail or
                                 historic structure or land”
                                 utilized by the public.
                                 Finally, the finding shall
                                 not be made if the
                                 easement permits “a
                                 degree of intrusion or
                                 future development that
                                 would interfere w ith the
                                 essential scenic quality of
                                 the land or w ith
                                 conservation policy.”
OR (4) The easement will         The Board will not make a       The Board will be
result in the preservation       finding that the easement       presented with maps and
of a certified historic          protects a “certified           documents demonstrating
structure or an historically     historic structure” without     the required listings or
important land area              specific advice of counsel      nexus to National Register
(defined as a land area          (the related IRS                or historic district
meeting National Register        regulations are                 properties.
criteria for evaluation, any     complicated). The Board
land area within a               will make a finding of a
registered historic district     “historically important land
that contributes to the          area” if the easement
significance of the district,    terms only permit future
or any land area adjacent        activities that conform to
to National Register             all relevant government
property).                       standards applicable to
                                 such historic areas.
Land Trust Standards and Practices 2004              Appendi x 8B: Project Selection and Criteria

Finding Re quire d by IRC        Basis for finding               Information required to
Section 170(h)                                                   support finding
AND (5) The easement by                                          The full text of the
its terms w ill apply to                                         easement shall be
produce the result(s)                                            submitted to the Board in
outlined above in                                                advance of the meeting,
perpetuity.                                                      with (i) any restriction that
                                                                 has less than perpetual
                                                                 effect being highlighted
                                                                 and (ii) the language
                                                                 specifying perpetual effect
                                                                 for other provisions being
AND (6) If the fee interest                                      The required easement
that is being subjected to                                       language shall be
the easement does not                                            highlighted for the Board
include ow nership or right                                      or, in the case of a
to exploit mineral interests                                     required finding of
(as is often the case in the                                     negligible probability of
Hudson Valley), the Board                                        mining, shall be supported
shall make a finding that                                        by a letter, dated within 10
the probability of surface                                       years of the meeting, of an
mining occurring on such                                         experienced real estate
property is so remote as                                         agent or attorney active in
to be neglible. If the fee                                       the area stating that title
interest includes the right                                      insurers routinely insure
to exploit mineral interest,                                     fee holders against the
the easement shall                                               exercise of retained mining
prohibit the extraction or                                       rights.
removal of minerals by
any surface mining
AND (7) The staff (or                                                         
counsel acting for the Land
Trust in respect of the
transaction) shall confirm
that the easement meets
each of the other
requirements of IRS
§170(h) and the
regulations thereunder,
including (i) subordination
of any preexisting
mortgages, (ii)
preparation of a “natural
resource inventory”, (iii)
required notice,
monitoring and
enforcement provisions,
and (iv) division of sales
proceeds in the event of
Land Trust Standards and Practices 2004          Appendi x 8B: Project Selection and Criteria

    The Land Trust is required to notify any donor if he or she has received any
    “goods and services” from the Land Trust in exchange for his or her easement
    donation. Related transactions that result in “enhancement” of value of the
    donor’s property (whether the property subject to the easement or other) are
    deemed to be “goods and services” for this purpose.


    Staff will not make representations about the federal or other tax implication of
    the proposed do nation. Also, staff will never render legal or tax advice to
    landowners, and will make it clear that the landowner should obtain independent
    professional advice.

    Although the Land Trust does not control and should not be responsible for the
    amount or nature of the benefit claimed by the donor of a conservation
    easement, the IRS has stated that it may attempt to penalize a charity that it
    believes is guilty of promoting or facilitating transactions that do not meet the
    standards set forth in Section 170(h) of the Internal Revenue Code for “qualified
    conservation contributions.” Accordingly:

        (i) No brochures or other w ritten materials published or
        distributed by or on behalf of the Hudson Highlands Land Trust
        shall make direct representations about the availability of, or
        implications of, the Conservation Easement transaction and a
        federal or state income tax benefit. Where appropriate,
        language such as the following should be included in Land Trust

        “Some conservation easements qualify as “qualif ied
        conservation contributions” under Section 170(h) of the
        Internal Revenue Code. To the extent they do, a federal
        income tax benef it may be available. A benefit generally is not
        available if the donor lacks “donative intent” – for example, if
        the donor is making the donation because he or she is required
        to (for example, pursuant to a condition in a subdivision
        approval or other permit or a legally binding agreement with a
        third party (other than the Land Trust)), or in cases where the
        donor is receiving some consideration or other “quid pro quo” in
        return for donating the easement. Each donor must consult
        with his or her own tax advisers. No person is authorized to
        make representations on behalf of the Land Trust regarding the
        availability or amount of any such benefits.”

        (ii) Each donor be required to sign a standard form (a)
        acknowledging that neither the Hudson Highlands Land Trust
        nor any person acting on its behalf has made any
        representations about the federal or other tax implications of
        the proposed donation, (b) representing that they are not, as of
        the date of the easement, required to do so under any
        condition to subdivision approval or other permit or any legally
        binding agreement, and (c) agreeing that they shall not claim
        any federal or other deduction or credit in respect of the
        donation unless, follow ing consultation with a professional tax
Land Trust Standards and Practices 2004           Appendi x 8B: Project Selection and Criteria

        adviser, they believe in good faith that they are entitled to such
        benefit. (In cases where the donor does not intend to seek a
        tax benefit in respect of the easement donation, a simple
        agreement to this effect may be substituted.)

        (iii) In view of the reputational and legal risks to the Hudson
        Highlands Land Trust, we assume (unless the donor agrees
        otherwise) that each donor intends to claim that the donated
        easement qualif ies as a “qualified conservation contribution” for
        purposes of Section 170(h) of the Internal Revenue Code, and
        that, accordingly, we do not normally accept any donated
        easement that we do not have a reasonable basis to believe s o

        (iv) As part of the required staff review of all easement
        donations, donors w ill be required to provide a copy of their
        title insurance policy (if available) and a Last Owner Lien and
        Title Search by a qualified title company or examiner.

        In the event a mortgage or similar lien encumbers the property,
        prior to accepting the easement donation the Hudson Highlands
        Land Trust will require that the mortgagee subordinate its
        rights in the property to the right of the easement holder
        (HHLT) to enforce the conservation purposes of the gift in
        perpetuity, in accordance with Treasury Regulation 1.170A-

        (v) The Land Trust Executive Director will not sign the donee
        acknowledgement on IRS Form 8283 unless all other sections
        have been properly completed and signed by the donor and the
        qualified appraiser.


     In each transaction the Land Trust shall be represented by counsel experienced
     with conservation easements. Each deed of conservation easement and
     accompanying documents shall be reviewed in full by HHLT’s counsel prior to
     closing, who will then provide a letter confirming that the transaction is legally
     sound, in compliance with Article 49 of the New York State Environmental
     Conservation Law, and consistent with Section 170 of the Internal Revenue Code
     and accompanying Treasury Depart ment Regulations.

     The Land Conservation Committee shall approve the selection of counsel.

     In each transaction, the Grantors shall be advised by the Land Trust to seek their
     own legal counsel and w ill be required to sign a standard form indicating that this
     advice was received.


     Multiple donations by adjacent landowners shall be structured without legally
     binding agreements among the neighbors to make donations (which may destroy
     donative intent), but may be structured as (i) options granted to the Land Trust
     or (ii) an escrow with release once the requisite number is reached.
Land Trust Standards and Practices 2004            Appendi x 8B: Project Selection and Criteria

     Conservation buyers should not agree with the seller to donate an easement, but
     may grant an option to the Land Trust prior to closing.


     Prior to the conveyance of the conservation easement to the HHLT, a detailed
     inventory of the initial property conditions must be conducted and the landowner
     must certify its accuracy. This baseline data provides a point of comparison for
     future monitoring, as well as for helping to resolve any land use and easement
     violation issues. The purpose of such documentation is to create a record of the
     prope rty’s physical characteristics against which future change may be measured.

     Documentation should address all attributes of the property protected by a
     conservation easement, such as habitat and scenic views, as well as areas
     reserved by the landowner for future use (e.g., building areas).

     Baseline documentation will be prepared by the Land Trust staff, or by a qualified
     consultant, prior to completion/closing of the easement. Staff shall make every
     effort to secure funds to cover the cost of preparing such baseline
     documentation, taking into account the same factors considered when
     determining the source of the stewardship contribution. Not only is this report
     good record keeping policy, but it is also an IRS requirement for landowners
     claiming an income tax deduction. The format and content of baseline
     documentation may vary, but at a minimu m it shall include the follow ing:

           Landow ner contact information.

           Tax map identification number for the property;

           Authorship & qualifications: The baseline documentation report preparer
            will be identified w ith a statement of his or her qualifications.

           Acknowledgement statement: The landowner and HHLT will sign a
            statement referencing the baseline and acknow ledging that it is accurate
            in its representation of the property’s condition at the time of the grant of

           Baseline Property Description: The baseline property description will
            include (a) an easement summary/introduction, (b) the conservation
            easement purpose, (c) background information (including the s tatus of
            any reserved rights at the time the easement is executed), (d)
            conservation easement restrictions, (e) conservation easement reserved
            rights, and (f) directions to the property.

           Maps and plans: The baseline documentation report will at a minimum
            include the following maps – USGS/topographic map, a parcel
            identif ication map, a wetlands and watercourses map, an orthophotograph
            of the parcel, a photolocation map with orthophotography, and a
            photolocation map w ithout orthophotography. When the conserv ation
            easement has specific building restrictions, maps identifying building
            envelopes or no-build areas will be included.
Land Trust Standards and Practices 2004            Appendi x 8B: Project Selection and Criteria

           Photographs documenting the property along with descriptions of location
            and direction.

           Legal information: At a minimu m, a copy of the conservation easement,
            title report, and any legal descriptions of the property will be included in
            the baseline documentation report.

    At least four copies of the BDR w ill be produced – an archive copy, one office file
    copy, a copy for the field binder and a copy for the donor.

    Both the Land Trust and the landow ner shall sign the baseline report at the
    closing, and each party shall keep copies on file. The Land Trust will keep a
    minimum of 2 copies.


    Article 49 of the Environmental Conservation Law governs conservation
    easements in New York State. ECL §49-0305(4) provides in part:

        A person causing any such document (i.e., a conservation easement)
        to be so recorded shall forthw ith forward a copy thereof to the
        depart ment, which shall maintain a file of conservation easements.

    As soon as practicable following closing, it shall be the responsibility of the Land
    Trust’s Director of Land Preservation to mail a copy of the executed ease ment
    and all amendments thereto to Depart ment of Environmental Conservation’s
    offices in Albany, to the attention of the Real Property Bureau.


    The Land Trust will request donors of conservation easements also to make
    monetary contributions to the Hudson Highlands Land Trust for its Conservation
    Easement Stewardship Fund. In order to ensure the proper, ongoing
    administration of its conservation easements, a Board restricted “Conservation
    Easement Stewardship Fund” shall be established that is funded by stewardship
    contributions from conservation easement grantors, other fundraising, or other
    unrestricted on-hand funds.

    Landow ners w ill be provided with the Hudson Highlands Land Trust Conservation
    Easement Stewardship Fund policy, which outlines the purpose of the
    Stewardship Fund and provides the recommended minimu m contribution. Taking
    into account factors such as the complexity of the particular easement, the
    extent of reserved development rights and the size and location of the property,
    the Land Trust staff will determine if a larger contribution request is justified in
    any particular case. When determining whether to seek a stewardship
    contribution from the landowner, staff shall take into account whether the
    conservation easement will be acquired at fair market value, significantly below
    fair market value or donated, as well as the grantor’s ability to make such
    contribution. In the event that the landowner does not provide a stewards hip
    contribution, the Land Trust staff will seek other sources of funding for the
    required addition to the Stewardship Fund. If no other sources are identified,
Land Trust Standards and Practices 2004                        Appendi x 8B: Project Selection and Criteria

    unrestricted on-hand funds may be transferred into the stewardship account at
    the direction of the Board.


    Please see the HHLT Conservation Easement Amendment Policy. Please note: The
    Land Trust may approach landowners to propose new restrictions or amend the
    conservation easement language to clarify ambiguity or strengthen the easement


    Potential easement donors sha ll be notified in writing that they will nee d
    to obtain a written qualified a ppraisa l, prepa red by a qua lifie d appra iser,
    if they plan to take a federa l tax deduction for the conservation
    easement donation. The information provided to the donor shall inc lude
    information on the timing of the appraisa l.

    Any donor c laiming a fe dera l tax deduction for a conse rvation easement
    donation shall provide the La nd Trust with a n original copy of the
    completed appraisal report and a copy of their complete d IRS Form

    If the land trust buys a conservation easement, it will obta in a qua lified
    inde pende nt appraisal to justify the purc hase price.

  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.