Dynamic Conservation Easements: Facing the Problem of Perpetuity in Land Conservation

• Publication year: 2005

SEATTLE UNIVERSITY LAW REVIEWVolume 28, No. 3SPRING 2005

Dynamic Conservation Easements: Facing the Problem of Perpetuity in Land Conservation

Duncan M. Greene(fn*)

As land is absorbed for urban purposes, open land areas disappear with finality. Thus, when the need for permanent open space is greatest the raw land is no longer there.(fn1)

I. Introduction

Public concerns about problems caused by sprawling urban development, from the loss of cherished open spaces and environmental degradation to haphazard development patterns and traffic gridlock, have created a groundswell of support among Americans for land conservation.(fn2) The phenomenal growth of private, nonprofit land trusts over the past two decades has been largely a response to these concerns.(fn3)

Transactions involving conservation easements have produced a large portion of the growth of the land trust movement.(fn4) A conservation easement is an interest in land, created by voluntary agreement between a landowner and a land trust (or another qualified easement holder), that restricts the uses and activities that may take place on the property.(fn5) Unlike most other land use controls, such as the regulation of private property through zoning ordinances, conservation easements are generally intended to last forever, or to "endure in perpetuity."(fn6) In only a few decades, the conservation easement has emerged from obscurity and is now one of the most popular methods of preserving open spaces and natural lands.(fn7)

Meanwhile, advances in ecological science are transforming human understanding of how the natural world works.(fn8) The static, "equilibrium" view of nature as unchanging is yielding to a dynamic model based on the conclusion that "natural systems change incessantly."(fn9) Yet, conservation easements traditionally have been drafted as unchanging legal agreements between landowners and easement holders, reflecting the obsolete model of nature as "static and unchanging."(fn10) The conventional conservation easement imposes fixed land use restrictions that, unlike the land, the circumstances of the landowner's life, and prevailing scientific thought, do not change over time. While commentators have praised conservation easements for their adaptability to a wide variety of landscapes and landowners,(fn11) this flexibility typically ends once an easement is finalized.(fn12) Traditional conservation easements are flexible during the drafting process but become inflexible once they are signed by both parties.(fn13) As a result, such static conservation easements may fail to adequately accommodate future events such as change in the land itself, change in a landowner's use of the land, or an advance in ecological science.(fn14)

Compared to traditional, static conservation easements, dynamic conservation easements capable of accommodating change over time are better suited to serving their unique conservation purposes. As a result, they are more likely to fulfill their promise to protect the land in perpetuity. For the purposes of this Comment, a "static conservation easement" is an easement whose terms provide unchanging land use restrictions. By contrast, a "dynamic conservation easement" is one whose terms provide land use restrictions that may change over time. Part II of this Comment provides a primer on land trusts and their use of conservation easements and discusses problems that arise from the perpetual nature of conservation easements. Part III examines arguments for and against dynamic conservation easements, illustrates their benefits in the context of working landscapes like timberland, farmland, and ranchland, and discusses the application of adaptive management to dynamic conservation easements. Part IV presents conclusions about the effective use of dynamic conservation easements by land trusts. Throughout this Comment, examples from the State of Washington will be used to illustrate the relevant principles of law and the realities of development and conservation.

II. CONSERVATION EASEMENTS AND THE PROBLEM OF PERPETUITY

Before discussing the merits of dynamic conservation easements, it is important to understand how land trusts use traditional, static conservation easements to protect land in perpetuity. Section A introduces the reader to the rapid growth of the land trust movement and the increased use of conservation easements in the land trust community. Section B discusses the purpose of conservation easements. It reviews the common law, Washington statutory law, and federal tax law that pertains to conservation easements, and outlines some common features of conservation easements. Section C examines the challenge of permanently protecting land in the face of constant change. Finally, Section D evaluates the strengths and weaknesses of static conservation easements.

A. The Land Trust Movement

Both land development and land conservation are flourishing in the United States.(fn15) Between 1992 and 2001, the rate of urbanization and development of rural land jumped from 1.4 million to 2.2 million acres per year, with the bulk of development occurring on forestland, cropland, and pastureland.(fn16) At the same time, private land trusts were successfully protecting land from development at an unprecedented rate.(fn17) Between 1998 and 2003, land trusts set aside twice the number of acres they had previously protected, at a rate of 800,000 acres per year.(fn18) In this climate of accelerating change, the rapid growth in the number and capacity of land trusts has positioned them at the forefront of the movement to preserve open space in the United States.(fn19)

Land trusts represent a unique blend of both public and private efforts to conserve land.(fn20) Typically, land trusts are organized as private, nonprofit corporations, recognized as public charities under § 501(c)(3) of the Internal Revenue Code.(fn21) Land trusts conserve land for the benefit of the public by acquiring and holding property interests and by assisting other organizations and government agencies in land transactions.(fn22) The Land Trust Alliance, an umbrella organization that supports member organizations of the land trust movement through trainings, strategic planning, lobbying services, and publications,(fn23) defines a land trust as "a nonprofit organization that, as all or part of its mission, actively works to conserve land by undertaking or assisting direct land transactions- primarily the purchase or acceptance of donations of land or conservation easements."(fn24)

While land trusts use a wide variety of methods to conserve land, three techniques are used most frequently: (1) acquisition of fee simple ownership; (2) acquisition of a conservation easement; and (3) acquisition and transfer of ownership (fee simple or conservation easement) to another nonprofit organization or governmental agency.(fn25) Land trusts can acquire fee simple ownership or a conservation easement through either purchase or donation-in other words, by either buying an interest or accepting an interest as a donation from the landowner.(fn26) The successful negotiation and acquisition of fee simple ownership or a conservation easement is not the only step in preserving a piece of property, however. Before finalizing an acquisition, land trusts typically prepare a baseline documentation report of the property's natural and manmade features and conservation values.(fn27) Land trusts generally use the term "stewardship" to refer to the various management activities they undertake after acquiring interests in land.(fn28) These activities include monitoring the property by inspecting it and comparing the baseline report to current conditions; managing access to and use of the property, and sometimes actively restoring the property's natural processes; and, in the case of conservation easements, enforcing easement restrictions.(fn29)

Land trusts have increasingly relied on the conservation easement to prevent the conversion of land to developed uses.(fn30) By 1990, land trusts had used conservation easements to protect 450,000 acres.(fn31) By 2000, conservation easements had been used by land trusts to protect nearly 2.6 million acres, representing an almost fivefold increase in their use.(fn32) And by 2003, conservation easements had been used to protect more than five million acres, tripling the number of acres protected three years earlier.(fn33) As discussed in the following section, the popularity of conservation easements can be attributed to the voluntary nature of their restrictions, their adaptability to a variety of situations, and the range of benefits they provide.

B. Conservation Easements

A conservation easement is a voluntary legal agreement that restricts the development and future use of a piece of property in order to protect its conservation values.(fn34) Conservation easements are "purely discretionary" and cannot be imposed on a landowner by anyone, not even the government.(fn35) Some landowners are willing to donate a conservation easement purely for the emotional satisfaction of knowing that a treasured piece of property will be protected.(fn36) However, most people who donate or sell conservation easements are at least partly motivated by incentives, such as federal and state tax breaks, that encourage their use,(fn37) and sometimes by the land trust's ability to offer estate planning assistance.(fn38)...