[MassChestnutOrchards] Conservation Easements and Conservation Restrictions

Wed Dec 2 09:47:02 EST 2009

John:

To illustrate what is involved in a Massachusetts Conservation Restriction (CR), I am attaching a recorded copy of one of the CRs that our Princeton Land Trust received.

The section on “Purpose” is important.  Massachusetts Department of Recreation and Conservation (DCR) and local town must be convinced that CR confers a public benefit.  In Princeton, that’s not usually a concern because every drop of surface water in Princeton ends up in a reservoir.  In other areas, approval may not be automatic, particularly if the town in which the land is located sees the CR has primarily benefiting the landowner by reducing the landowner’s real estate taxes (for example, a CR on an buildable lot adjacent to the donor’s house).

“Prohibited Uses” is pretty much dictated by the Mass DCR, and has been expanded in recent years in response to problems that DCR has encountered.  Generally, I find that potential donors are in agreement with DCR’s list of prohibited uses.

The section of “Permitted Uses” has some room for negotiation.  In a CR that is intended to allow a seed orchard, we’d probably want to make an explicit statement.

A CR needs a surveyed plan (so that boundaries can be determined and maintained).

A CR is a permanent gift.  For IRS charitable deduction purposes, an appraiser determines the value of the land without a CR, and the value of the land with a CR.  The decrease in value is a charitable gift, provided that the donee meets IRS regulations.  Gifting a CR to a qualified charitable organization also usually results in a lower assessment of the land for real estate taxes, although tax assessors are not automatically required to accept the opinion of the appraiser (nor is the IRS, for that matter).

In contrast to the permanence of a CR, an easement can be temporary or terminable,  according to the terms of the easement.  For example, an easement can be for a specific time (say, 30 years), and can be subject to specified conditions of maintenance (say, remove all brush and saplings other than chestnut trees in excess of 1” diameter).  At least in theory, an easement may also qualify for a charitable deduction, but the appraisal process if trickier because (usually) the easement is not a permanent gift.

Incidentally, the donee organization does not participate in the valuation of any gift (CR or easement).  The  donee organization does sign IRS Form 8283 to acknowledge receipt of the gift.

Hope this helps rather than burying you under esoteric legal principles.  Good subject for discussion at January meeting.

John

[cid:image003.jpg at 01CA7334.664B6070]

John O. Mirick | Partner
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From: masschestnutorchards-bounces at masschestnut.org [mailto:masschestnutorchards-bounces at masschestnut.org] On Behalf Of j. meiklejohn
Sent: Tuesday, December 01, 2009 8:38 PM
To: Roy; masschestnutorchards at masschestnut.org
Subject: Re: [MassChestnutOrchards] Conservation Easements

Roy,

Thank you for these leads.  I'd definitely be interested in seeing the manual providing no one is in pressing need for it prior to our January meeting.   I could look it over, copy what I need and bring the manual to our next mtg.  In 2010 my wife and I plan to create a CE for our property, part of which will be for a planned MA-TACF seed orchard.  If Jamie and the powers that be approve, you may send the manual to:

         J. Meiklejohn

         183 Silver St.

         Granville, MA 01034

In the meantime, can you send me the link for the on-line CE manual for MA created by the Audubon Society?

Thanks,

John

----- Original Message -----
From: "Roy" <Roy at Najecki.com>
To: masschestnutorchards at masschestnut.org
Sent: Tuesday, December 1, 2009 7:53:45 PM GMT -05:00 US/Canada Eastern
Subject: [MassChestnutOrchards] Conservation Easements

Last night the Narragansett Bay Research Reserve had a free 2-hour workshop
at RI Dept of Environmental Management HQ in Providence on the subject of
Conservation Easements. A 24-page manual was provided that has a checklist
of what a good conservation easement should contain, along with a sample
C.E.  The appendix has a list of resources, including an on-line
conservation easement manual for Massachusetts created by the Audubon
Society.

I have a spare copy of the manual for MATACF (who should I mail it to?).
Another workshop is scheduled for Dec 10th.
http://www.dem.ri.gov/news/2009/pr/1105091.htm

Roy
Glocester RI

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