Conservation Easements: Now More Than Ever - Overcoming Obstacles to Protect Private Lands

Article excerpt

I.  INTRODUCTION
II. BACKGROUND
    A. Land Losing Ground
    B. Why Conservation Easements?
III. STATUTORY AUTHORITY FOR CONSERVATION EASEMENTS
    A. Federal Legislation
    B. State Legislation and the Uniform Conservation Easement Act
    C. A Sampling of State Conservation Easement Enabling Legislation
       1. Maryland
       2. New York
       3. Oregon
       4. Alabama
    D. Federal and State Legislation Gives Life to Land Trusts

IV. LEGAL AND POLICY CONCERNS
    A. Termination Methods
       1. Eminent Domain
       2. Abandonment
       3. Doctrine of Changed Conditions
       4. Marketable Title Acts
    B. Complications for Landowners
       1. Valuation Conflicts
       2. Concerns Over Local Government Commitment
       3. Incentive Limitations
    C. Conservation Easement Holder Liability Under CERCLA
V. ADDRESSING CONCERNS
    A. Ensuring an Effective Conservation Easement
    B. Taxes: Allaying Concerns and Enhancing incentives
VI. CONCLUSION

I. INTRODUCTION

Conservation easements are one of the most important and fastest growing instruments used to protect private land in the United States. (1) Even so, conservation easements must assume an even larger role in private land conservation due to increasing land turnover and urban sprawl. (2) To this end, increasing their appeal and effectiveness is essential. (3) Further population growth is inevitable, (4) and with the nation as a whole growing older, aging private landowners must decide what is to become of their land. (5) One expert anticipates that "between 2005 and 2020 many millions of acres of farmland, forestland, ranchland, wildlife habitat, of important family land will change hands and potentially change use." (6) More than any other land management tool, a conservation easement is best suited to protect these private lands. (7)

A dramatic example of the capacity of conservation easements to protect valuable private lands is evidenced by the American Land Conservancy's pursuit of a section of 18 miles of California coastline owned by the William Randolph Hearst empire. (8) The goal is to establish a conservation easement on the land while allowing the Hearst Corporation to retain ownership of the property. (9) Acquisition of the development rights to this land would preserve in perpetuity a "vast, unspoiled tract" of ecologically rare and vital coastline. (10) This is a perfect example of how a conservation easement can protect valuable private land under increasing development pressure. (11)

A conservation easement is a legal agreement in which a landowner agrees to permanently restrict the development and possible uses of the land in furtherance of conservation values. (12) A landowner creates an easement by conveying a deed (13) to a qualified easement holder, such as a government agency or a qualified tax exempt land trust. (14) While changing landowners leads to changes in land protection and land use in some instances, general land-use trends also provide the impetus for the use of conservation easements.

Urban sprawl is the spread of population and associated infrastructure away from metropolitan areas and into surrounding lands. (15) Many communities are wrestling with preserving natural resources, wildlife, farmland, and open space while housing developments and new roads push farther from urban centers to accommodate people seeking a suburban lifestyle. (16) Instead of metropolitan city centers, suburban fringe areas bore the brunt of growth in the United States during the twentieth century. (17) As a result, natural resources, open space, and traditional land uses faced much pressure. (18) In the quest to preserve open space and existing land uses in the face of continued growth and changing landowners, conservation easements must maintain a leading role. (19)

Ultimately, the private landowner decides whether an easement is placed on the land; therefore, incentives encouraging use of conservation easements are vital. …