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Re: SG-W:/ Preserving Land
- Subject: Re: SG-W:/ Preserving Land
- From: Smileysmlc@aol.com
- Date: Fri, 11 May 2001 15:40:08 EDT
- Delivered-To: firstname.lastname@example.org
- Delivered-To: email@example.com
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
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
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.
Southeast Michigan Land Conservancy
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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