Zoning for Conservation Easements

By Richardson, Jesse J., Jr.; Bernard, Amanda C. | Law and Contemporary Problems, Fall 2011 | Go to article overview
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Zoning for Conservation Easements


Richardson, Jesse J., Jr., Bernard, Amanda C., Law and Contemporary Problems


"It will be extremely difficult to commit the sin of choosing too much open space in getting started (or at almost any other time, for that matter), and any planner who can't think now of some land worth saving ought to get into another line of work." (1)

I

INTRODUCTION

Federal and state income tax and other tax benefits have spurred a huge increase in the number of conservation easements, private agreements that restrict the development of property. Most conservation easements are perpetual and may have a huge impact on the land use in a community. With few exceptions, however, conservation easements have not been incorporated in any meaningful way into local land-use planning. Local comprehensive plans establish goals and set out a vision for the future land use of the community. Many comprehensive plans contain future land-use maps, delineating the future vision graphically. These maps rarely include designation of areas for conservation easements.

Land-use regulations, like zoning ordinances, implement the comprehensive plan. Zoning ordinances generally delineate districts allowing certain uses "by right" (without further permissions), prohibiting other uses, and allowing some uses only with additional levels of review ("conditional uses"). To this date, however, zoning ordinances fail to incorporate conservation easements into zoning ordinances in this way.

While no known zoning ordinances address conservation easements as a use, a handful of states link conservation easements to land-use planning. Eight state conservation-easement-enabling statutes explicitly link conservation easements with local land-use planning. The provisions in these enabling statutes fall into four categories: (1) review and approval by local governments, (2) required consultation with local government planning authorities, (3) consideration of land-use planning factors, and (4) conformity with the local comprehensive plan. Although most easement-enabling statutes incorporating zoning and land use focus exclusively on the initial placement of conservation easements, a few statutes incorporate land-use planning factors into subsequent easement decisions such as whether to terminate the easement.

II

CONSERVATION EASEMENTS

The Uniform Conservation Easement Act (UCEA) defines "conservation easement" as

   a nonpossessory interest of a holder in real property imposing
   limitations or affirmative obligations the purposes of which
   include retaining or protecting natural, scenic, or open-space
   values of real property, assuring its availability for
   agricultural, forest, recreational, or open-space use, protecting
   natural resources, maintaining or enhancing air or water quality,
   or preserving the historical, architectural, archaeological, or
   cultural aspects of real property. (2)

The number of conservation easements meeting this definition has grown dramatically over the past several years.

The number of land trusts--private nonprofit organizations that currently hold conservation easements--stands at 1,667, a thirty-two percent increase from 2000. (3) When private nonprofit land trusts are added to state easement holders, the combined rate of conservation easement creation between 2000 and 2005 more than tripled. (4) As of 2005, local, state, and national land trusts held easements on thirty-seven million acres, a fifty-four percent increase from five years earlier. (5) These statistics are based on data gathered by The Land Trust Alliance Census and actually undercount the total number of conservation easements. For example, while the Land Trust Alliance includes large national land trusts like the Nature Conservancy and Ducks Unlimited, the census does not count the increasingly numerous easements held by governmental entities. (6)

Despite the rapid growth in the deployment of conservation easements, reliable data regarding them is difficult to locate.

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