This article explores the uses of conservation easements in Florida and the benefit not only to the environment, but also the advantages to the landowner.
Methods for Preserving Property for Conservation Purposes
A conservation easement is a perpetual interest (1) in land provided by a landowner to a governmental entity or nongovernment conservation organization. Conservation easements may only be held by governmental or charitable entities that have the conservation purposes described in F.S. [section]704.06(3).
In order for a governmental entity or charitable organization to accept the conservation easement, F.S. [section]704.06 (2014), specifies that the conservation easement must serve the purpose of:
[R]etaining land or water areas predominantly in their natural, scenic, open, agricultural, or wooded condition; retaining such areas as suitable habitat for fish, plants, or wildlife; retaining the structural integrity or physical appearance of sites or properties of historical, architectural, archaeological, or cultural significance and maintaining existing land uses. (2)
Most people regard a conservation easement as only a method to preserve property in its natural state and as "suitable habitat for fish, plants, or wildlife." (3) However, as indicated in this statutory language, conservation easements may also be utilized to maintain the existing land use or retain land or water areas in an open, agricultural, or wooded condition, or even to protect sites that have "historical, architectural, archaeological or cultural significance." (4)
Land uses that are maintained must be limited to exclude any or all of the following:
(a) Construction or placing of buildings, roads, signs, billboards or other advertising, utilities, or other structures on or above the ground.
(b) Dumping or placing of soil or other substance or material as landfill or dumping or placing of trash, waste, or unsightly or offensive materials.
(c) Removal or destruction of trees, shrubs, or other vegetation.
(d) Excavation, dredging, or removal of loam, peat, gravel, soil, rock, or other material substance in such manner as to affect the surface.
(e) Surface use except for purposes that permit the land or water area to remain predominantly in its natural condition.
(f) Activities detrimental to drainage, flood control, water conservation, erosion control, soil conservation, or fish and wildlife habitat preservation;
(g) Acts or uses detrimental to such retention of land or water areas.
(h) Acts or uses detrimental to the preservation of the structural integrity or physical appearance of sites or properties of historical, architectural, archaeological, or cultural significance. (5)
An important aspect of a conservation easement is that while the instrument is most commonly granted to a governmental entity, public access is not included. Although not necessary, most conservation easement instruments still specifically state that no rights are granted to the public in general and no public access is allowed.
There are several methods authorized by F.S. [section]704.06(2) to preserve land in perpetuity for conservation purposes. The most common method is the traditional conservation easement. Florida statutes also allows conservation easements to be created through less common methods, such as restrictive covenants, conditions in a deed, or restrictive language in an order of taking. (6) These methods will be referenced generically as conservation easements throughout this article.
Previously, plat restrictions were an additional conservation...