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Re: SG-W:/ Preserving Land



Kristen,
You've asked a number of questions, and I'll try to provide enough 
information to get you started.  A good source of information is the website 
of the Land Trust Alliance, the national organization which serves over 1,200 
land trusts across the country.  Their website address is www.lta.org.  The 
Southeast Michigan Land Conservancy also has a website at 
www.comnet.org/smlc.  You can download the Michigan Model Conservation 
Easement from our site under "Creating a Conservation Easement".  Most land 
conservancies in the state utilize the Michigan Model as their base easement. 
 Modifications are made to fit each particular property.

A "conservation easement" and "transferring the development rights" to a 
property are virtually the same thing.  They are merely two different ways to 
describe what is taking place to a property.  I prefer the phrase 
conservation easement, because it imparts a more positive connotation.  Some 
states call their farmland protection programs "Purchase of Agricultural 
Conservation Easements" (PACE)...while Michigan calls it's program "Purchase 
of Development Rights" (PDR).  Regardless of what it is called, it involves 
the legal establishment of a third party interest (an easement) to protect 
the property by prohibiting certain development activities.

Let me back up a bit.  An easement is a third party interest (in addition to 
buyer and seller) to a property.  Most people are familiar which utility 
easements.  Detroit Edison may have an easement on your property so that they 
can install and maintain electrical lines.  With that easement, they have the 
legal right to access that portion of your property to tend to those lines.

A conservation easement, however, confers a right (and obligation) to a third 
party to see to it that a certain activity does NOT take place on the land.  
For example, if a landowner wants to prevent all types of development on a 
property, a conservation easement stipulating those wishes can be transferred 
to a qualified conservation organization.  A qualified conservation 
organization under the Internal Revenue Code includes primarily private 
nonprofit land conservancies and government agencies.  (Note:  I strongly 
advise against donating conservation easements to a government entity, 
especially the state.  Land trusts are legally bound to uphold the easement, 
whereas a state government may not be.)  Only conservation easements that are 
perpetual in nature can be tax deductible.  A conservation easement may also 
reduce the property tax burden on a particular property, and it may alleviate 
estate taxes (a number of new federal laws give tremendous tax benefits to 
those granting conservation easements).

Conservation easements that are perpetual "run with the land", that is, 
future owners are bound by the same restrictions which are embodied in the 
easement.  Conservation easements may be donated (most land trusts receive 
conservation easements through donations), they may be purchased, or they may 
be acquired through a "bargain sale"--which is part purchased and part 
donated.

When a landowner establishes a conservation easement, they retain ownership 
of the property.  No public access is required, and they can enjoy the land 
just as they always have.  They only change is that they cannot develop the 
land to the extent that they have restricted it.  A conservation easement is 
very flexible.  The owners can retain future building spots, and they can 
retain certain development or use options.  But overall, the conservation 
easement has to fulfill a significant conservation purpose in order for the 
landowner to qualify for the tax advantages.

The Southeast Michigan Land Conservancy has established conservation 
easements with a number of landowners, and we have also helped a number of 
farmers apply for the state PDR program.  The first PDR purchase in Washtenaw 
County was on a farm on which we had submitted the application.  The 
Washtenaw Land Trust (formerly Washtenaw-Potawatomi Land Trust) has also been 
quite effective in helping farmers to apply for the state PDR program.  I 
believe that they also recently purchased a conservation easement on a local 
farm.

The Southeast Michigan Land Conservancy also has the distinction of selling 
our development rights to 171 acres in Superior Township to the state under 
the farmland PDR program.  We retain full ownership and control, but the 
state monitors the property once a year to make sure that is remains 
undeveloped.  (Again, I would recommend that those who sell their development 
rights to the state also create an "overlay" easement to be held by a 
nonprofit land trust).

In addition to conservation easements, other protection measures are 
available to landowners.  An outright donation to a land conservancy is 
probably the most fitting legacy which a landowner can establish.  A 
landowner may also donate a property while retaining a lifetime estate.  
There are a number of options available to landowners to protect their 
land--they just need to become informed.

I hope this helps.  Please see end note.

Jack Smiley
President
Southeast Michigan Land Conservancy
www.comnet.org/smlc

P.S.  I would add that "deed restrictions" are an unsatisfactory way of 
protecting land.  Deed restrictions are difficult to enforce due to lack of 
legal standing and, over time, become simply unenforceable as the original 
owners are no longer around.




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