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Massachusetts groups use innovative overlays to ensure permanence

December 2008 | Massachusetts

“Land trusts need to act responsibly towards their lands or people will stop donating to us,” says Mark Robinson of The Compact of Cape Cod Conservation Trusts, Inc. He encourages land trusts to take extra steps to put a conservation easement or other overlay protection on parcels that the land trust owns. The Compact developed a backup-holder technique now used by 17 land trusts in Massachusetts that has already prevented a number of land conversion proposals.

All land trusts have the power to sell the land they own provided that they use the proceeds for conservation. The issue is what representations and understandings did the land trust have with the donor who gave the land to the land trust, and to its members and the public? Are all the parties’ expectations documented in writing and honored in perpetuity? Land trust charters are often very broad and can allow land to be disposed of in a way that does not advance conservation of the particular parcel, according to Mark who characterizes himself as a “strict constructionist”. "Our first duty is to the land we are entrusted with," he says, "Not to the general cause of environmental protection."

The Compact developed a technique now used by 17 land trusts in Massachusetts to add a layer of protection to fee-owned land that land trusts intend to hold as permanent conservation property. Those land trusts either gave The Compact a full conservation easement on the fee property or conveyed the land in fee to The Compact who in turn re-conveyed it immediately to the land trust with certain restrictive language included in the deed back thereby creating a charitable trust arrangement.

The Compact technique has already prevented a number of land conversion proposals and has been understandable by the agencies that the land trust said no to. Mark believes that fee owned land should never be used as a bargaining chip and that land trusts have a duty to the particular piece of land given to it. Mark is fond of quoting Steve Small, a well-known and respected tax attorney, as saying that he “never trusts an unrestricted piece of land!”

From a donor, member and public relations point of view, land trusts need to be clear up front about what the land trust might do with the land including conveying it to a government agency where it might be used for hunting or other uses that a donor or neighbor might not expect to occur. Land trusts also have to be clear at the outset of land acquisition whether the land is trade land or conservation land and then stick with it. For those lands that are to be held for conservation, the overlay additional protection may be a way to provide additional defense as well as providing a back-up holder in the event that a land trust goes out of business.

Land Trust Standards and Practices also address several of these points. Standard 12 Practice G addresses a contingency plan and back up holder for all fee owned land. Standard 9 Practice K and L address land sales, transfers and exchanges and Practice F requires documentation of the purposes and intended uses of each property. Finally Standard 5 Practice B requires donor accountability.

Of course, back up holders can take many forms. The back up holder need not actually hold a conservation easement or a charitable deed to be a back up. Other forms are Executory Interests and Right of Entry or merely a written agreement or contract (this last is not likely to be a property right in most states). All of these have trade offs and each land trust should evaluate the characteristics of each in light of state laws with land trust counsel. Co-holding arrangements can also provide back-up and back bone in difficult situations. Any back up method requires a clear understanding in writing among the parties about roles and responsibilities in the event the back up is activated. Many options exist for collective defense. The Compact’s techniques are proving useful and effective for many Massachusetts land trusts.

Links to:
Legal Opinion
Letter from Rand
Protective Overlays Completed as of December 2008
Sippican transaction

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