Evolving Conservation Easements Prove ‘problematic’ in Western U.S.

By Sun Advocate

In the early 20th century, municipalities started to enact zoning laws in order to gain some control about what happened on property.
As the years passed, zoning has become significantly more prevalent at locations across United States. The rules and regulations govern what people can build or place on a parcel of land.
At the time zoning actions started, local governments needed control to protect communities and residents.
When zoning laws were passed, most officials thought the related problems were resolved. But during the years, the involved parties have found that zoning laws are continually evolving – not only to change with the times, but to reflect the views of the affected communities.
Through conservation easements, owners can restrict what happens on properties in perpetuity. The easements were initially thought to be a fixed land enforcement tool.
But after several decades of dealing with the easements, many people are finding that the actions are evolving and changing in unexpected ways.
“The idea of preservation is, to me, an extraordinarily problematic one,” commented University of Virginia law professor Julia Mahoney, an expert in land law, during an address tothe Property Rights Foundation of America.
“Land preservation has become now a multi-billion dollar enterprise and it is field in large part by direct payments to private landowners from governmental organizations as well as by the availability of special federal tax and local (tax) benefits,” pointed out Mahoney.
Problematic appears to accurately describe how many county and city officials in the western U.S. feel about conservation easements.
While some municipalities and states have jumped on the bandwagon of promoting the easements, many more local governments are concerned about not only relegating land to uses that provide little or no tax base, but making decisions for future generations.
Current conservation easements really began with the 1976 National Tax Reform Act. Provisions of the federal statute fueled the growth of private land trusts, many of which have sprung up to provide vehicles for conservation easements
According to the National Center for Policy Analysis, between 1988 and 1998 the number of land trust organizations in the United States increased by 63 percent.
At the same time the center also says that the amount of acreage protected by easements quadrupled.
Some people sneer at such easements, thinking that, like zoning, they can often get away with doing things on protected property because of a shortage of inspectors and personnel to watch what is going on. However, conservation easements work much differently than the local zoning officer might, largely because easement protection is often held by land trusts that are worth millions of dollars and they have the money to not only monitor land use but also have the monetary and philosophical power to litigate it.
Take the case of Augustine Natale of Chester County, Pa. Natale bought some farmland in the late 1980’s but paid little attention to an easement that had been added to the 42 acres in 1967. Basically the language in the easement stated that the land could only be used for farming or nature conservation.
In the mid-1990’s Natale decided to build a new farmhouse on the property. But the trust that was in charge of watching the land filed a lawsuit stopping the construction. However, at that time a county court ordered that the construction could continue, because the judge saw the farmhouse as incidental to the farming operation.
Natale went ahead and finished his house, but in the meantime the trust appealed the decision. The first courts decision was reversed. By 1995 an appeal by Natale reached the Pennsylvania Supreme Court and they ruled against the farmer.
One of the problems in dealing with conservation easements is that there are so many players involved, including land trust companies, environmental groups and government agencies. Those agencies can include local and state government as well as, of course, the federal authorities who are involved in the bulk of these.
An entire industry has grown up around land conservation and conservation easement processing. All one has to do is get on the internet and any number of firms pop up that specialize in law practices having to do with the issue or real estate companies that “help” owners protect their property.
The governmental groups that are taking these approaches are almost too numerous to mention. They range from the United States Fish and Wildlife Service to the National Resources Conservation Service.
But behind almost all of this action seems to be some of the largest environmental groups on the planet. Stories about conservation easements often have ties to local environmental groups, but stories about where The Nature Conservancy, the Trust for Public Land, Natural Resources Defense Council, the Conservation Fund and Environmental Defense are involved are proliferating.
For instance, by size in terms of dollars taken in, The Nature Conservancy is the largest organization, with revenues of $704 million in 2000. When dealing with conservation easements, dollars mean almost everything from securing an easement to defending it with vigor.
And when the opponent is a small farmer like Natale, even a local environmental group, like the French and Pickering Creeks Conservation Trust can handle it.
In 1998, the Pennsylvania farmer who had saved for 15 years to build the farmhouse that he intended to pass on to his kids, had to watch as the almost new structure was bulldozed to the ground after a final demolition order was issued.
Some would say this is an extreme case, and in it’s pure nature of destroying someones dream as represented by the house, it is. But the fact remains that conservation easements are powerful legal and political tools that groups can use to keep land from being developed.
Many easements put on property are so broad that the guidelines can force out recreation uses and, more importantly, agriculture in the long run.