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Conservation Public Benefit on Trial

January 21, 2014 | Land Trust Alliance | Washington, D.C.

Conservation proponents entered a strong case before the highest court in the Commonwealth of Massachusetts. On trial was whether to tax conservation land. Conservationists argued that a determination of worthiness for real estate tax exemption for any land owned by a conservation charity should be based on the public benefit of that particular tract and the charity’s mission.

The Massachusetts Appellate Tax Board (ATB) ruled against the New England Forestry Foundation (NEFF) on its appeal of the refusal of the Board of Assessors of the Town of Hawley to abate real estate taxes on a 120 acre parcel of forest land bordered on two sides by the Commonwealth of Massachusetts Department of Conservation and Recreation’s Dubuque State Forest located in Hawley and owned by NEFF with a Conservation Restriction. New England Forestry Foundation v. Board of Assessors and Town of Hawley, Docket No. F306063, Commonwealth of Massachusetts Appellate Tax Board Promulgated: January 28, 2013.

In that case, the ATB dismissed the idea that preserving the property was a charitable purpose, citing a case which predates the conservation easement statute and states that “simply keeping land open and allowing its natural habitat to flourish is not sufficiently charitable.” It also rescinded the previously standard statutory right for NEFF to be exempt from property taxes because the ATB assessment of the type and volume of access to the property the Town felt was inadequate. These decisions had no basis in statutory law and are not an accurate measure of public benefit of conservation. The older statute predates the flowering of both land conservation and the American environmental consciousness. In the last four decades, significant advances in understanding of ecological processes and environmental science have changed our views. We now recognize that many public benefits flow from protecting land. And sometimes public access is detrimental to overall public benefit of conserved land.

The ATB focused solely on how many people visited the forest and how many people knew they could visit the forest. The New England Forestry foundation allows a variety of pedestrian activities in the preserved forest and posted signs saying “We invite respectful public visits.” The ATB decided, however, that New England Forestry Foundation did not do enough to publicize the availability of public access and, therefore, they should return the preserved forest to the tax rolls.

In a modern case of first impression, the New Mexico Appeals Court held that a 60-acre conservation property owned by Pecos River Open Spaces subject to an open space conservation easement granted to the Santa Fe Conservation Trust prohibiting all construction is a “charitable use” exempt from property taxes under Article VIII, Section 3 of the New Mexico Constitution.

The County taxing authority (Board) argued that conservation was not a charitable use because “land that is idle, unimproved and not in actual use” has “… no direct and immediate charitable use, and for which the claimed environmental benefit – even if construed to be a charitable purpose – is, at best, remote and consequential.” See below for a similar case with a contrary holding at the Board of Tax Appeal.

This case is the first published opinion on property tax exemption for conservation properties since the 1990’s. See Adirondack Land Trust v. Town of Putnam Assessor, 203 A.D.2d 861 (N.Y. App. Div. 1994), for the last such case. For a similar case that considered the term “use,” see Turner v. Trust for Public Land, 445 So. 2d 1124 (Ct. App. Fla. 1984).  This modern line of cases reflects the current societal understanding of the public benefits of conservation.

The recited facts do not explicitly address public recreational access but the apparent lack of recreational use is important because a handful of trial-level, unpublished opinions identify recreational access as a key factor in determining whether there is any public benefit from conservation of a property. The Court found New Mexico’s “strong public policy encouraging conservation” and the County’s “goal of conservation within its borders” showed that “conservation of land in its natural and undeveloped state generally benefits the public in the context of environmental preservation and beautification of the State of New Mexico.” Pecos River Open Spaces, Inc. v. County of San Miguel, No. 30,865, slip op., 2013-NMCA-___ (N.M. Ct. App. 2013).

Numerous conservation organizations filed amicus briefs in the NEFF case including The Trustees of Reservations, the Massachusetts Audubon Society, the Massachusetts Land Trust Coalition in collaboration with the Land Trust Alliance and Massachusetts Association of Conservation Commissions and The Compact of Cape Cod Conservation Trusts. The Association of Assessing Officers also filed an amicus brief in support of the Hawley assessors. The Supreme Judicial Court opinion is expected this summer and conservationists feel they offered a very strong case. The media has played the dispute nationally with multiple stories starting with headline news in the Boston Globe.

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