CONSERVATION EASEMENT BASELINE DOCUMENTATION HAZARDS ASSESSMENT by rtu13707

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									       CONSERVATION EASEMENT BASELINE DOCUMENTATION &
                     HAZARDS ASSESSMENT
        The Baseline Documentation is a record of a property’s condition at the time of a
conservation easement sale or donation. The Internal Revenue Service requires this document in
order for the donation of a conservation easement to be tax deductible. Baseline Documentation
can also serve as a guide to future land trust staff and a reference to landowners (current and
future) in monitoring and enforcing the condition of the easement.

Attachments

1. Thornton, Rebecca and Judy Anderson, “Baseline Documentation and Monitoring – Keys to
   a Successful Future Defense,” Land Trust Alliance Exchange, Summer 1998.........................1

2. Barrett, Thomas S. and Stefan Nagel, “Baseline Documentation” from Model Conservation
   Easement and Historic Preservation, 1996, Revised Easements and Commentary from The
   Conservation Easement Handbook. Land Trust Alliance, 1996...............................................5

3. Lind, Brenda, Appendices A and B from The Conservation Easement Stewardship Guide:
   Designing, Monitoring and Enforcing Easements, Land Trust Alliance, 1991.........................7

4. Oppedahl, Ruth, “Conservation Easement Baseline Documentation,” Wisconsin Land Trust
   Conference Handout, 1999. .......................................................................................................9

5. Sample Baseline Documentation Reports, Gathering Waters, December 4, 1998..................11

6. Danskin, Melissa, “Conservation Easement Violations: Results From a Study of Land
   Trusts,” Land Trust Alliance, 2000…………………………………………………..………21

7. “Why Conduct Environmental Hazards Assessments?”……………………………………..26

8. Environmental Assessment Form, Door County Land Trust…………………………...……28

Further Resources

Managing Conservation Easements, Land Trust Alliance, 1995.

The Standards and Practices Guidebook: An Operating Manual for Land Trusts, Land Trust
Alliance, 1993.
8                                       Land Trust Alliance                    EXCHANGE                                SUMMER 1998




Baseline Documentation and Monitoring
—Keys to a Successful Future Defense
by Rebecca Thornton and                        identifies the important landscape fea-      Maps drawn at 1 inch = 200 feet or 1
Judy Anderson                                  tures and preservation specifics of the      inch = 400 feet allow for interpretation
                                               conservation easement is time well           within 10 to 15 feet. Creating the orig-
                 of an
A new a owner restrictedeasement-
   protected property starts building a
house in field—a             “no-build”
                                               spent. For example, if there are reserved
                                               building sites or “no build” areas, the
                                               map should accurately identify these
                                                                                            inal map on mylar, rather than on paper,
                                                                                            will allow for more durable documen-
                                                                                            tation. Avoid making “blueline” copies
area covered under a conservation              areas.                                       as these fade with exposure to light.
easement held by your land trust. The              In addition, avoid future confusion           As part of the baseline package, con-
landowner wants the house in the field         by creating one map depicting the roads,     sider the importance of clearly enforce-
because of the fabulous views and is           existing structures, relevant fences and     able property boundaries. More land
willing to fight the easement in court.                                                     trust are requiring surveys, or at a min-
You must suddenly gear into action to                                                       imum metes and bounds descriptions,
stop the violation.                                                                         to ensure that they are enforcing the
    The case: every land trust’s night-                                                     easement on the right property.
mare. The reality: this is likely to hap-                                                   2 Photographs and supporting
pen more and more as easement-pro-                                                              text
tected properties change hands.
                                                                                                 The complexity of the baseline pho-
    How do you build an easement                    Future easement                         tographs will be determined by the terms
stewardship program to enable each
landowner to understand the terms of                                                        of the easement. For example, if the
their easement, while at the same time                monitors must                         easement controls building size and loca-
preparing for a possible easement vio-                                                      tion, you will need to document in detail
                                                                                            the existing size and placement of any
lation that will cost tens of thousands
of dollars in legal fees?
                                                     understand the                         relevant structures in addition to the
    The answer lies in drafting ease-                                                       greater landscape. However, if the ease-
ments with terms that your organization            property’s features                      ment simply establishes “no build areas”
will truly be able to enforce and mon-                                                      or does not regulate building size, you
                                                                                            probably will need to concentrate on
itor; creating clearly understood base-
line documentation; establishing a
                                                       at the time of                       areas where building can not occur in
landowner outreach program to assist                                                        the future.
the owners of easement-protected prop-                     easement                              Because future easement monitors
                                                                                            and future landowners must be able to
erty in understanding the terms of their
                                                                                            understand the baseline documentation,
easements; and implementing an effec-
tive stewardship monitoring program.
                                                          execution.                        photographs should be taken from iden-
Remember, acquiring or accepting an                                                         tifiable points on the property and keyed
important easement is only the first step.                                                  to a map showing the direction the
The real work lies in monitoring and                                                        photo was taken. Photographs should
enforcing the easement in perpetuity.                                                       include property lines and all other rel-
                                                                                            evant features. (If the easement controls
The Baseline File                                                                           structures, photograph all existing struc-
                                               trails, wetlands, water bodies, and any      tures and other improvements.)
    Before starting the baseline file, think
                                               special features you may be protect-              Wooded areas are difficult to pho-
about “perpetuity” and those who will
                                               ing (endangered plants, etc.) rather than    tograph from the ground. If the land
use the information. Future easement
                                               a series of maps. (Depending on the          trust cannot photograph the property
monitors must be able to easily under-
                                               scale and the map’s resolution, you may      from the air, aerial photographs (at the
stand the property’s features at the time
                                               not need to survey these internal bound-     scale desired) often can be purchased
of easement execution as well as
                                               aries.) This will allow the land trust and   from a company that routinely does
changes that have occurred over time.
                                               landowner to understand the easement         fly-overs. The photographs should be
    A baseline package should include:
                                               within the context of the entire             numbered and keyed in permanent ink
1. An easement map                                                                          to a baseline documentation map.
                                               property.
    As land trust staff changes, and as             The map should be drawn to a scale      Include clear descriptions of the loca-
new landowners purchase protected              that allows the reader to understand the     tion of each photo.
land, it becomes increasingly difficult to     easement. Each land trust must decide             Consider creating three sets of base-
interpret an easement’s objective with-        the level of accuracy needed to docu-        line documentation: one for the ease-
out a comprehensive map. The initial           ment an easement’s specific provisions.      ment donor, one for the land trust’s
time invested in creating a map that                                                        monitoring file, and one to be placed
                                   SUMMER 1998
COURTESY OF COLUMBIA LAND CONSERVANCY
                                                                           Land Trust Alliance                       EXCHANGE                                                9




                                                                                                                                                                                  COURTESY OF COLUMBIA LAND CONSERVANCY
                                   Shown above are photographs and a map of two separate conservation easements held by Columbia Land Conservancy (NY).
                                   Photographs should be taken from identifiable points on the property and keyed to a map, as part of an easement’s baseline
                                   documentation.




                                   in a fireproof, tamper-proof, climate-          original photographs have been substi-          this sheet as a “living document,” allow-
                                   controlled facility off-site with other orig-   tuted, or altered, this will clearly doc-       ing the land trust to record dates of
                                   inal materials and important legal doc-         ument their integrity.                          waivers and/or amendments as well as
                                   uments (waivers, amendments, impor-             4. A copy of the conservation                   any unusual circumstances.
                                   tant correspondence).                               easement                                    Monitoring
                                   3. Acknowledgment of baseline                        The conservation map should be
                                                                                                                                       Establishing a regular monitoring pro-
                                       Each landowner and land trust rep-          attached if possible.
                                                                                                                                   gram is critical to avoiding potential
                                   resentative should sign the baseline            5. A baseline data sheet                        easement violations. When designing
                                   documentation, acknowledging the con-                This separate, easy reference sheet        a monitoring program, consider the type
                                   dition of the property at the time of           summarizes the property’s condition at          of monitoring that best suits the land
                                   the easement gift. (This is required by         the time of the gift, as well as the restric-   trust. While individual site visits are very
                                   the IRS for tax-deductible easements.)          tions contained in the easement. It             labor intensive, they allow the land trust
                                   Some land trusts create a separate base-        should include the name, address and            to observe the property in detail, and
                                   line acknowledgment sheet and require           phone number of the landowner, loca-            create an opportunity to meet with the
                                   notarized signatures. Consider having           tion of the property, acreage, tax iden-        landowner. Aerial monitoring, on the
                                   the landowner and the land trust rep-           tification number(s), list of features and      other hand, can be an effective mech-
                                   resentative sign each photograph as well        improvements on the property at the             anism to monitor numerous properties
                                   as the supporting text. Should there            time of the donation, as well as any            within a short period of time, but requires
                                   ever be a question as to whether the            special conditions. It is helpful to design     skill in reading the land from the air.
10                                                                          Land Trust Alliance                       EXCHANGE                                   SUMMER 1998



       COURTESY OF COLUMBIA LAND CONSERVANCY




                                               A baseline documentation photo of a Columbia Land Conservancy (NY) conservation easement shows a ski cabin in one of
                                               the property’s fields. The conservancy also took photos from the cabin’s deck, and from different sides of the field as part
                                               of the documentation.

    Land trusts should follow up aerial                                             and photograph any significant changes.         fortable, not only with your staff or vol-
monitoring with a ground check if any-                                                  After monitoring, fill out the inspec-      unteers, but also with understanding the
thing looks suspicious. Each easement                                               tion form, sign and date it. Key any new        conservation easement. Maintain a good
should be monitored on an annual                                                    photographs to the map, label and file          relationship with the landowner and try
basis — regardless of the method. It is                                             them in the baseline file. Summarize the        to get them involved with your pro-
preferable to monitor wooded prop-                                                  findings in a letter to the landowner.          grams and successes.
erties in the fall, after the leaves have                                           The land trust may want to create a
fallen.                                                                             standard letter approved by its attorney,       Violations
    Before monitoring, the land trust                                               since the letter may be referred to in the           A land trust should develop a pol-
should always check property owner-                                                 event of a dispute over an easement             icy to address violations. If you suspect
ship for changes. Notify the landown-                                               violation.                                      a violation has occurred, first call the
ers of your visits and invite them along                                                                                            property manager and/or landowner to
or to meet with you before or after the                                             Communication                                   discuss what you have found in order
inspection. A letter and followup phone                                                 As protected land changes hands,            to clear up any misunderstanding.
call is recommended. Keep a copy of                                                 more and more violations are apt to             Follow-up with a letter reiterating what
the notification in the baseline file.                                              occur. Consequently, land trusts must           you discovered, noting the details of
    Review the baseline file and previ-                                             ensure that new landowners under-               your conversation with the landowner.
ous monitoring records. Bring an ease-                                              stand the terms of their easement. As           If a violation has occurred, the land
ment summary, camera, detailed map,                                                 part of this process, building trust            trust should work in consultation with
monitoring log, compass, measuring                                                  between the landowner and the land              its legal counsel and the landowner to
tool, and flagging. Inspect the proper-                                             trust becomes increasingly important.           establish a plan for restoration and a
ty checking likely trouble spots (eg.                                               Make every effort to introduce yourself         deadline for compliance. Follow up
boundaries, no-build areas, etc.). Note                                             to new owners. Make them feel com-              all contacts in writing, using certified
                                         SUMMER 1998                         Land Trust Alliance                    EXCHANGE                                     11

                                                                                                                                        If a conservation
                                                                                                                                        easement controls
                                                                                                                                        building size and
                                                                                                                                        location,
                                                                                                                                        photographs
                                                                                                                                        should help
                                                                                                                                        record the size
                                                                                                                                        and placement of
                                                                                                                                        structures on the
                                                                                                                                        property at the
                                                                                                                                        time the
                                                                                                                                        easement was
                                                                                                                                        established.
COURTESTY OF COLUMBIA LAND CONSERVANCY




                                                      An access road
                                                    borders property
                                                   protected under a
                                                         conservation
                                                           easement.
                                                   Documenting such
                                                 landmarks as roads
                                                   and structures will




                                                                                                                                                                       COURTESY OF COLUMBIA LAND CONSERVANCY
                                                    help orient future
                                               easement monitors to
                                                       the property’s
                                                   appearance at the
                                                  time the easement
                                                         was written.




                                         mail. Consult a lawyer if the violation    port, and undermines easement pro-           Conservancy (NY). Judy Anderson is
                                         continues or if the landowner refuses      grams. It is vital that land trusts manage   director of conservation and commu-
                                         to cooperate with the restoration plan.    their easement-protected properties well     nity programs for Columbia Land
                                         Consider court action as a last resort,    in order to ensure the perpetual nature      Conservancy, (NY).
                                         but follow through with it if necessary!   of conservation easements.
                                              Failure to enforce even one
                                         easement affects the land trust’s credi-       Rebecca E. C. Thornton is the exec-
                                         bility, results in decreased public sup-   utive director of the Dutchess Land                          B
                                      Conservation Easement
                            Baseline Documentation

Baseline Documentation records the condition of the property at the time of the
conservation easement acquisition. Good baseline data is essential because it:
          • provides evidence of the conservation values of the property
          • fulfills IRS regulations documenting condition of the property in order for
              the donation of a conservation easement to b deductible
          • provides the land trust with a summary of the project

Minimum requirements – the Baseline Documentation must contain:
     1) Documentation of the resource – see example
           • Use aerial photos and maps (topo, plat, site)
           • Make ground photos from key locations
           • Write a narrative description of the easement features
     2) Signed acknowledgment statement

         *Other elements – may be included such as a cover sheet, directions to property,
         summary, legal information, landowner information.



Resources
The Conservation Easement Stewardship Guide: Designing, Monitoring and
Enforcing Easements, by Brenda Lind, 1991. Land Trust Alliance. Learn about
baseline documentation, stewardship funds, easement enforcement, monitoring, back-ups,
comdemnation, amendments and more. Sample baseline documentation form and
checklist, basic rules for recordkeeping and sample monitoring form are included. 107
pp. ISBN 0-943915-07-4. $16

Managing Conservation Easements, 1995. This Land Trust Alliance Infopak contains
checklists, forms and policies used by experienced land trusts. It includes steps for
easement acquisition; baseline data forms; monitoring forms and easement violation
procedures. $15

The Standards and Practices Guidebook: An Operating Manual for Land Trusts,
1993. Land Trust Alliance. A comprehensive guide to running a conservation
organization with practical information on every aspect of land trust operations. $65



Wisconsin Land Trust Conference 9/19/99                                    Ruth Oppedahl




                                                                                       105
   Example Baseline Documentation Table of Contents


Easement Summary


Easement Map


Maps

       Plat Map
       Township-Section Map
       Land Use Map, Town of Windsor
       USGS Topographical Map
       Aerial Photograph
       SCS Soils Map
       Natural and Man-Made Features Map
       Mowed Areas within Easement


Photos – Land

       Photo Documentation
       Map of property with photo key
       Photos of land and natural features


Photos – Aerial

       1937 Aerial Photo
       1955 Aerial Photo
       1968 Aerial Photo
       1990 Aerial Photo


Management Plan


Annual Monitoring Reports




                                                  106
                        Gathering Waters, Inc.
         Conservation Easement Baseline Documentation Report
                                  Date: December 4, 1998

EASEMENT NAME:              XXXXX Easement


LOCATION:
              POSTAL ADDRESS:          Banker Road
                                       Rockbridge, Wisconsin
              TOWN:         Henrietta, Rockbridge
              COUNTY:       Richland
              STATE:        Wisconsin


DIRECTIONS:                 The XXXXX Property is located at the end of Banker Road northwest
                            of Rockbridge. The property encompasses the end of the coulee and
                            the surrounding ridges.

LANDOWNER:                  XXXXXXXXXXXX Joint Revocable Trust (XXXXXXX., Trustee)
        ADDRESS:            21 South Segoe Road
                            Madison, WI 53705
              Telephone:    (608) 238-1087


EASEMENT HOLDER:            Gathering Waters, Inc.
         ADDRESS:           303 S. Paterson Street, Suite 6
                            Madison, WI 53703
              Telephone:    (608) 251-9131


SUMMARY OF THE EASEMENT
The XXXXX property consists of 221.6 acres of forest and agricultural land in the Town of
Rockbridge ten miles north of Richland Center in Richland County. The property is a mixture
of forest types, open spaces and several small man-made ponds. The property presently has one
small house with several outbuildings.

Purpose of the Easement

The purpose of the conservation easement is to assure that the XXXXX property will be
retained forever predominantly in a scenic, open and forested condition and to prevent any use
that will significantly impair the conservation values of the property.

The easement delineates the property into three use zones: Building, Agricultural and Forest.
Building Zone (11.1 Acres)

      The Building Zone consists of 11.1 acres surrounding the existing house, garage, yard
      and several out buildings.

      Subdivision
      The Building Zone consists of 11.1 acres and may be subdivided up to 2 times into
      parcels of no more than 3 acres each. Up to 3 additional dwelling units (and related
      accessory buildings) may be built within the Building Zone provided that buildings and
      improvements do not exceed 15 % of the total area of the Building Zone. The three
      allowable buildings are intended to provide the grantor’s three adult children with the
      opportunity to construct dwelling units in the area adjacent to the homestead. If the
      property is subdivided, at least one parcel in the Building Zone must remain contiguous
      with the Agricultural and Forest Zones.

Agricultural Zone (Approximately 18 Acres)

      The Agricultural Zone consists of approximately 18 acres and overlaps slightly with the
      Building Zone. The Agricultural Zone has traditionally been planted in alfalfa and corn.

      Agricultural Conservation Plan
      Activities associated with agriculture and wildlife management (tilling, grazing, etc.)
      may be carried out in the Agricultural Zone in accordance with an Agricultural
      Conservation Plan prepared by the USDA or another qualified agent and approved by
      Gathering Waters. The plan must be renewed every 10 years if agricultural activities are
      to be carried out on the property. No portion of the Agricultural Zone may be used as a
      livestock feed lot.

      Structures
      Structures associated with agricultural or silvicultural activities may be constructed
      within the Agricultural Zone provided that such structures do not exceed 15% of the area
      of the Agricultural Zone.

Forest Zone (Approximately 192.5 Acres)

      The remainder of the property makes up the Forest Zone, which consists of
      approximately 192.5 acres.

      Forest Management Plan
      Trees and other vegetation may be planted, managed or harvested within the Forest Zone
      (and within the Agricultural Zone) in accordance with a Forest Management Plan
      prepared by the DNR or a qualified resource manager and approved by Gathering
      Waters. The long-term goal of the Forest Management Plan is to establish and maintain
      an all-aged forest of mixed tree, shrub and forb species, and that contains openings,
      prairies and snags for wildlife habitat.
      The grantor cannot cut more than 10 cords or 10,000 board feet in any one year unless
      the Forest Management Plan has been reviewed or prepared in the past year and cannot
      undertake planting, pruning or other forest management activities unless the Plan has
      been reviewed or prepared in the past 10 years.

Other Provisions:

      Allowable Commercial Activities
      Use of the property for commercial or industrial purposes is prohibited except for the
      following: agriculture, forestry, home occupations (including, for example, a Bed and
      Breakfast), rental of any portion of the property or use of the property for educational,
      research or recreational purposes.

      Other Allowable Structures
      Blinds and stands for hunting and wildlife viewing, and structures for wildlife cover and
      nesting and a bunk house for recreational purposes may be constructed within any of the
      zones provided that the aggregate area of these structures does not exceed 1000 square
      feet.

      Roads
      Roads up to 15 feet in width may be constructed on the property provided that the
      aggregate area of the roads does not exceed 15 % of the total area of the property.

      Management
      The grantee may maintain the property in an unmanaged, natural condition.

      Public Access
      No public access is granted under the easement.
L A N D T RU S T A L L I A N C E                                                                                         Exchange




Conservation Easement Violations:

Results from a Study of Land Trusts
by Melissa Danskin




THE OVERWHELMING                                                                                              considered “minor”
MAJORITY OF the                                                                                               by the land trusts
more than 7,400 con-                                                                                          and were corrected
servation easements                                                                                           without a significant
held by local and                                                                                             commitment of
regional land trusts                                                                                          resources.
have not experienced                                                                                          s There were 115
violations, according                                                                                         major easement
to a study by the Land                                                                                        violations that
Trust Alliance. LTA’s 1999 Conservation Easement Study                 required what the land trusts considered to be a signifi-
reveals that less than 7 percent of the easements held by              cant commitment of resources to resolve. Lawsuits were
land trusts have experienced violations, and land trusts               filed in 21 cases; the other 94 major violations were
considered most violations to be minor. Nevertheless, it also          resolved without litigation.
shows that some land trusts have incurred substantial
                                                                   s   In each case that was litigated, violations were not
costs in defending easements from violations committed by
                                                                       committed by the original grantors of the easements,
second generation landowners.
                                                                       but by subsequent landowners and, in two instances,
   While lawsuits were filed in 21 cases of easement viola-
                                                                       by third parties.
tions, most of these cases were settled prior to going to trial,
and only six cases have been adjudicated by a court. The           s   The most common major violations involved prohibited
courts did not overturn any conservation easements in these            surface alterations, such as leveling ground for roads and
violations cases. However, one land trust did report a court           digging drainage ditches, reported in 32 cases. The next most
ruling that seriously eroded certain terms of its easement.            frequent violation was the prohibited cutting of vegetation,
   The study was conducted to gain an understanding of                 with 28 such violations reported. The third most frequent
nationwide trends in easement violations and amendments                was the construction of prohibited or unauthorized struc-
and to identify problem areas to help minimize future viola-           tures, with 25 reported occurrences [see Figure 1, page 6].
tions. This article focuses on the study’s violations compo-
nent. Information on amendments will be included in a              Survey Methodology
future issue of Exchange.                                             The Conservation Easement Study was compiled through
   Among the study’s key findings:                                 a series of surveys completed in summer 1999. An initial
s A total of 498 violations were reported by local and             survey was sent to the 209 land trusts that indicated in LTA’s
   regional land trusts; the vast majority—383—were                1998 National Land Trust Census that they either had expe-


Winter 2000                                                                                                                       5
Exchange                                                                                        L A N D T RU S T A L L I A N C E



    FIGURE 1: Prohibited surface alteration was the most common type of major violation reported by land trusts in LTA’s 1999
    Conservation Easement Study. Note that some violations included more than one of these violation types.

                              Prohibited surface alteration                                                             32

                           Prohibited cutting of vegetation                                                      28

         Construction of prohibited/unauthorized structures                                                25

                 Construction outside of building envelope                                         20

                                 Prohibited timber harvest                                    18

                   Alterations of wetlands or watercourses                         11

                             Prohibited commercial activity                    8

                               Dumping of waste or debris                      8

                                     Prohibited subdivision                6

                            Denial of access for monitoring                6

                                         Unauthorized use              5

                   Non-compliance with management plan             3



rienced one or more easement violations or had amended              County Land Trust case study, page 8, and Exchange, Winter
a conservation easement. The response rate was more than            1997, page 5.]
70 percent. A follow-up survey was sent to 34 land trusts
that LTA either knew or suspected had experienced major,            Easement Monitoring
litigated violations.                                                  Of the 12 litigated cases for which monitoring data were
                                                                    provided, nine were monitored annually, one was monitored
Major, Litigated Violations                                         more than once a year, and two were monitored less than
    LTA was able to obtain detailed information on 15 of the        once a year. Violations were experienced by land trusts that
litigated cases.                                                    used staff to monitor easements as well as those that
    Nearly all of the analyzed, litigated violations occurred in    used volunteers.
the 1990s; one dated back to 1989. None were committed by              Information on how soon violations were discovered after
the original grantor of the conservation easement. Thirteen         they were committed was provided on 11 cases. All but one
were committed by subsequent landowners. Two were                   of the violations were discovered within a year; most were
committed by third parties: one by a neighbor who contracted        discovered within three months.
with a woodcutter to cut trees on the easement-protected               While most of the land trusts indicated that they discov-
property; and one by a camp operator who trespassed and             ered the violations through site monitoring, at least four
developed campsites on easement-protected property.                 violations were reported to the land trust by a neighbor or
    Many of the litigated violations occurred even though           local resident. Zad Leavy, executive director of The Big Sur
land trust representatives had met with the landowners to           Land Trust (CA), said that while his land trust has not
explain the easements’ terms. In a majority of cases, the           discovered any major violations this way, neighbors often
land trusts reported meeting with landowners prior to the           report questionable activities on protected land. “Neighbors
violations and that the landowner appeared to knowingly             are good monitors,” he observed. “We visit conservation
violate the easement.                                               easement-protected properties once a year, on a typical
    In nine of the litigated cases, the land trust initiated        inspection routine. If other people are there and know about
litigation against the violator. In one case, the land trust and    the easement, then they help keep an eye on it.”
the state attorney general co-initiated litigation. In two
cases, the landowner filed a lawsuit against the land               Costs of Resolving Violations
trust, asking for relief from the terms of an easement or a           Reported legal fees for major easement violations ran the
declaratory judgment of the terms in their favor. [See Napa         gamut, from $100,000 to $100; average legal costs of major

6                                                                                                                     Winter 2000
L A N D T RU S T A L L I A N C E                                                                                     Exchange




                                                Lessons Learned
    The results of LTA’s 1999 Conservation Easement Study and the experiences of seasoned land trust professionals
 and volunteers provide guidance on how to avoid violations and how to deal with them if they do occur:

 1. Easements must be carefully and clearly drafted. Land trusts should pay particular attention to their easements’
    prohibited uses sections, which are most frequently violated. Land trusts must carefully consider each restriction
    and consider how it might be interpreted (or misinterpreted) by a future landowner.

 2. Have policies and procedures in place before a violation occurs. Having a board-approved policy and procedures
    in place will guide land trusts in the event of an easement violation. This allows land trusts to focus on defending
    an easement—rather than having to develop procedures—when faced with a violation. Policies should address
    such questions as who is authorized to contact the landowner about a suspected violation, who will negotiate a
    resolution, how and when legal counsel should be consulted, and how a suspected violation should be documented.

 3. Regular, structured monitoring is essential, and contact with the landowner during monitoring visits is recommended.
    Monitoring inspection reports should be clearly documented, with a copy given to the landowner and a secure
    copy kept in the land trust files. Potential violations should be addressed immediately and properly documented
    on the assumption that any documentation could end up as evidence in a court of law. “Keep detailed, accurate
    notes from the very beginning of dealing with a violation, or potential violation,” advised David Shields, Brandywine
    Conservancy’s (PA) associate director of land protection. “This includes notes of phone calls, meetings, correspondences,
    and any actions taken regarding the situation in question.”

 4. Good landowner and community relations are critical. Extra effort should be made to track when properties change
    hands and to acquaint new landowners with the land trust, the terms and significance of the easement, and the
    land trust’s commitment to steward and uphold the easement. Good relations with neighbors of easement-protected
    properties can also help minimize third party violations and enforce a positive message about the land trust.

 5. Land trusts should have the financial resources to monitor, enforce and defend easements against violations.
    Land trusts should develop and maintain stewardship endowments and legal defense funds to uphold their easements.
    Attorney William Hutton of Coblentz, Patch, Duffy, & Bass (CA) maintains that all too often “land trusts have
    been satisfied with smaller stewardship funds than they should be.” Stewardship funding can come from a variety
    of sources, notes LTA Vice President for Programs Andrew Zepp: “Whether endowments are solicited from conser-
    vation easement donors, or raised in some other manner, it is essential that money is set aside for each and every
    conservation easement a land trust commits to own and uphold.”

 6. Land trusts should consult experienced legal counsel as soon as a violation is discovered or suspected. According
    to Karin Marchetti, general counsel to Maine Coast Heritage Trust, initial legal consultation should take place
    very early in a suspected violation case. If the situation is determined to be a violation, then the land trust should
    engage a litigator, preferably one familiar with conservation easements.


violations were about $10,000. The legal costs reported for         Staff time devoted to the resolution of all major violations
the litigated violations ranged from $5,000 to $100,000, and     ranged from one hour to 200 hours. Estimated staff costs
averaged $35,000.                                                ranged from $100 to $28,000. Associated costs for resolving
   The legal costs of defending conservation easements were      easement violations (including travel, supplies, etc.) ranged
fully recovered in about half of the litigated cases for which   from $100 to $4,000.
information was available. For a variety of reasons, land
trusts did not always seek recovery of costs. For example, in    Policy Changes as a Result of Violations
cases where an older easement document was difficult to             Forty percent of the 105 land trusts that responded to
interpret, some land trusts thought it would not be feasible     questions about policy changes said that they changed their
to obtain reimbursement for legal costs. Additionally, some      easement drafting, monitoring, or violation policies after
older easements do not specifically provide that the land        experiencing a major violation [see Figure 2, page 9]. The most
trust can obtain monetary damages for violations.                common change was clarification of easement documents.

Winter 2000                                                                                                                     7
Exchange                                                                                          L A N D T RU S T A L L I A N C E


   Land trusts also reported increasing their efforts to notify     violations, only 21 lawsuits were filed. Most of the litigated
new landowners of easements, to maintain good relation-             cases were settled prior to a court trial.
ships with all landowners, and to conduct more frequent and            No conservation easement has been overturned in a final
thorough monitoring inspections. Staff members at one land          court ruling. Of the six easement violations cases that were
trust that experienced two litigated violations believe that        decided by a court, the terms of the conservation easements
better relations with the landowners might have prevented           were upheld in all but one case. In this case, the judge was
the violations.                                                     convinced that the landowner (who was not the original
   Less frequently reported changes included implementing           grantor of the easement) did not fully understand the terms
stronger monitoring policies, refining easement acquisition         of the easement and had acted in good faith when building
programs and policies, creating violation policies and resolution   outside a designated building envelope. The prohibited struc-
procedures, and creating an amendment policy.                       ture and associated septic drain field were permitted to stay.
                                                                    However, following this initial ruling, the easement was
Resolutions                                                         reopened for discussion by the judge, and the land trust was
  The vast majority of conservation easement violations             able to strengthen it in other areas, gaining additional controls
were settled without litigation. Of the 115 major easement          over color and exterior materials of the building, and devel-



                  Stopping a Prohibited Action Before it Starts:
               Napa County Land Trust Blocks Commercial Venture
       In 1995, a landowner attempted to start a commercial winery on property where commercial activity was prohibited
    by a conservation easement held by Napa County Land Trust (NCLT) (CA).
       When the fourth-generation landowner applied for a permit to start a commercial winery in an existing structure
    on the 45-acre property, the land trust deemed it a violation of the easement.
       NCLT volunteers had been monitoring the property annually, and usually contacted the landowner during moni-
    toring visits. NCLT staff had also repeatedly informed the second, third and fourth-generation landowners that the
    structure could not be used as a commercial building. The structure had been built, as permitted in the easement, in
    the 1980s by the second-generation landowner.
       Despite two years of warnings and negotiations, the landowner continued to try to locate the business in the
    building. In 1997, she filed suit against NCLT, seeking a declaratory judgment to allow the commercial winery on the
    property. She maintained that, while the easement did not allow a commercial vineyard, a commercial winery was not
    specifically prohibited by the easement. She viewed the winery as the equivalent of a residence, which was permitted
    by the easement. NCLT counter-sued to enjoin the landowner from starting the winery.
       After two years of trial preparation, the landowner settled, forever waiving her claim to develop a commercial
    winery or make any other commercial use of the property. The settlement expanded and clarified the easement, giving
    NCLT greater leverage should the easement face violations in the future. NCLT Executive Director John Hoffnagle
    reported that media coverage of the case made it clear that the land trust is committed to defending and upholding
    the integrity of its conservation easements.
       The land trust incurred legal fees of $40,000 and staff time amounting to nearly 100 hours. None of these costs
    were recovered. When a favorable settlement seemed imminent, NCLT’s counsel advised that the risk of going to
    trial was not worth the damages that might be recovered.
       According to Mr. Hoffnagle, the easement’s defense would have been aided by better baseline documentation
    and a more clearly-drafted easement and set of exhibits. (The easement was drafted prior to the creation of LTA’s
    Model Conservation Easement, noted NCLT President Ann Schwing.) Mr. Hoffnagle said the land trust learned two
    other important lessons:
    s   Land trusts must prepare, when undertaking their monitoring, for the eventuality that any given situation may
        go to court.
    s   When a violation is likely to go to court, the land trust should hire a real estate litigator. “We learned that attor-
        neys who do real estate transaction work have a different set of skills than those who deal with lawsuits on a
        regular basis,” he said.
                                                                                 —Melissa Danskin



8                                                                                                                       Winter 2000
L A N D T RU S T A L L I A N C E                                                                                         Exchange


                                                                  associate director of land protection for Brandywine
 FIGURE 2: Clarifying easement documents was the most
 common policy change reported by land trusts that experi-        Conservancy (PA). “Land trusts should anticipate violations,
 enced major conservation easement violations. A total of         and be willing to tackle the nitty-gritty work of resolving them.”
 42 land trusts reported making one or more policy changes           The Conservation Easement Study provides a mixed
 as a result of major violations.                                 message, observed Andrew Zepp, LTA vice president for
                                                                  programs. “The good news is that most easements are not
                              Improve landowner                   experiencing violations and, for those that are, land trusts are
                              communications 17%
                                                                  following through to ensure that they are upheld.
                                                                     “On the other hand, it is sobering that several of the liti-
                                       Strengthen monitoring
                                                                  gated easement violations occurred even though they were
                                       standards 9%               diligently monitored and the landowner was clearly aware of
    Clarify                                                       the terms of the easement,” Mr. Zepp continued. “As more
    easement                                                      properties under easement are transferred to second gener-
    documents 52%                       Create or improve
                                                                  ation landowners, land trusts must be prepared for the
                                        easement acquisition
                                        policies 9%               eventuality that they will be required to defend some of
                                                                  their easements.” P
                                     Create violation
                                     policy/resolution
                                     procedures 9%
                                                                  Melissa Danskin is the information specialist for the Land Trust
                          Create amendment                        Alliance. She and Information Services Manager René Wiesner
                          policy 4%                               conducted the 1999 Conservation Easement Study.

                                                                     LTA thanks all who participated in this study. Without their
oping a vegetation restoration plan for screening vegetation      time and commitment, we would not be able to provide this
that was much more restrictive than the original requirements.    information. LTA continues to collect information on easement
   Typically, a lawsuit is filed if the two parties come to an    violations. If you are aware of a violation, please contact
impasse, said Mr. Leavy of The Big Sur Land Trust, adding         Melissa Danskin at 202-638-4725; mdanskin@lta.org.
that an attorney should be involved throughout the process
of dealing with a violation. “It’s really a judgment call” as
to if and when to file a lawsuit, he said. “You cooperate as
much as you can. If the other party refuses to cooperate,
then you go to litigation. If there’s cooperation, you can                              Resources
usually avoid litigation.”
   Of the litigated cases settled out of court, land trusts          The following publications on conservation easements
reported that they had reached acceptable agreements in all        drafting and stewardship are available from LTA:
                                                                   s The Conservation Easement Handbook
cases. Resolutions occasionally involved some compromise.
In one case, for example, an easement boundary was                 s   The Conservation Easement Stewardship Guide
redrawn around a prohibited structure and more land was
                                                                   s   Model Conservation Easement and Historic
added to the easement area to ensure the natural resource
                                                                       Preservation Easement, 1996
value of the protected land was kept intact.
   Other cases involved no compromise. For example, one            s   The Standards and Practices Guidebook
landowner violated an easement by failing to get permission        s   Managing Conservation Easements InfoPak
from the land trust to build a structure. The landowner was
required in the settlement to remove the structure and pay            To order, call LTA at 202-638-4725, or visit LTA’s Web
staff and legal fees to the land trust—between $25,000 and         site, www.lta.org.
$30,000 for legal fees alone.                                         LTA also offers training on conservation easements
                                                                   at its regional conferences and National Land Trust
Looking Ahead                                                      Rally, and through the Land Conservation Leadership
   Although less than 1 percent of the easements in the            Program, offered in conjunction with The
country have experienced major violations, easement stew-          Conservation Fund.
ardship continues to be vital.                                        Previous Exchange articles on violations have
   “If a land trust is going to hold conservation easements, it    appeared in the following editions: Spring 1999, page
should expect to be involved with their legal defense—             19; Winter 1998, page 17; Winter 1997, page 5.
including going to court, if necessary,” said David Shields,


Winter 2000                                                                                                                          9
   WHY CONDUCT ENVIRONMENTAL HAZARDS ASSESSMENTS?

1. To avoid acquiring properties contaminated by hazardous or toxic substances.

2. To protect land trust from liability and clean-up costs in the event such substances
   are found at a later date.

       o A current owner of property (e.g. the land trust) can defend against
         liability if they can prove they made inquiries into prior ownership(s) and
         uses of the property.

3. To ensure that the appraised value of the property is consistent with any known
   environmental hazards.


                WHAT SHOULD AN ASSESSMENT INCLUDE?

1. Physical Inspection of the property

       o Take photos of key features, potential hazards
       o Record on maps the route walked, photo points
       o Visit when ground will be visible – no snow cover

2. Investigation into land use history:

       o   Current and historic aerial photos
       o   Interview with current landowner
       o   Federal and state environmental records
       o   Title reports
       o   Environmental assessments
       o   Tax assessment records
       o   Building permits

3. Documentation of steps taken and findings


                       WHAT ARE YOU LOOKING FOR?

1. Potentially hazardous current or past uses of the property:

       o Mining
       o Garbage dumps
       o Production, storage or transportation of hazardous wastes, chemicals or
         other substances
       o Filling station or automobile repair facility
2. Potentially hazardous facilities:

        o   Aboveground storage tanks
        o   Underground storage tanks
        o   Transformers with PCBs
        o   Wells
        o   Septic systems

3.   Surface features:

        o Stains or discolorations of the soil
        o Depressions or mounds
        o Stressed vegetation

								
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