[MassChestnutOrchards] conservation restrictions & easements

[Mirick, John O.]

John:

My recommendation is a CR to an established Land Trust with a proven track record and a likelihood of a strong, continuing future, with fairly explicit provisions written into the "permitted uses" section of the CR for the seed orchard and the BC3 orchard.  This would require a little "chicken or the egg" negotiation with everyone (TACF, Land Trust, Granville, and DCR) to be certain that everyone was comfortable with the seed orchard and the BC3 orchard as a permitted use.  Since there is a risk that TACF protocols could change over time span for seed orchard, and since there is a certainty the TACF personnel will change over time, the "permitted uses" language should be drafted to allow for some change.

Steps are probably:

(1)  Decide what TACF needs.  Not just size and location, but also care and maintenance of orchard.  For example, DCTR (and some towns) are super-sensitive to use of herbicides and pesticides on CR land.  At present, some of our orchards use herbicides.  There's a chance that as we move towards nut production, we'll want to use pesticides for control of chestnut weevil.  So the "permitted uses" is going to need some language along the lines of "use a portion of the land for a seed production orchard, which may involve the incidental use of herbicides and pesticides consistent with best practices."  Might need right to cut trees on adjacent land that could shade the orchard?  Right to pump water from stream/well for irrigation? (although presumably once trees are established, irrigation is no longer needed).  Developing this language requires use of a crystal ball, but the effort is essential.  Ideal for TACF is an easement, given and recorded immediately before CR is given and recorded, so that legally CR is subject to the easement.  In the (hopefully unlikely) event of a fight between TACF and land trust down the road, or in the (hopefully equally unlikely) demise of the land trust, the recorded easement insures that TACF's rights are protected.

(2)  Simultaneously identify and approach a land trust with a track record, initially just on concept.  Feedback from land trust will help shape language for TACF easement.  I don't know if Granville has a land trust.  If it does not, Granville Conservation Commission could be a possibility.  The Trustees of Reservations could be another possibility.

(3)  Once (1) and (2) look to be sufficiently in hand, approach Town of Granville on concept (which by statute MUST approve the gift of a CR).  In my experience, most towns respond positively, but there is still a definite protocol of exploratory talk(s) before anything formal is proposed.

(4)  Once (1), (2) and (3) look pretty definite, approach DCR on concept (currently that's Irene Del Bono).  Since it is not common for a CR to be subject to an easement of this nature, there  will be an educational process with DCR.  Very likely to be positive, but still an educational process.

(5)  Once everything else looks pretty definite, go to an appraiser with credential that IRS will approve for a valuation of the gift.  You need an appraisal that is approximately simultaneous with the gift.  Land Trust signs Form 8283 to acknowledge receipt of the gift.



I doubt that "National" is currently qualified to hold an interest real estate in Massachusetts.  National could probably become qualified, but in my experience most non-profits are leary about extending their commitments in that fashion.  Ruffin would have a sense of degree of interest in National in holding a Mass. CR.

Given the relative youth of the Mass Chapter of TACF, and our complete lack of familiarity with land ownership issues, I would not recommend a gift of a CR to Mass Chapter.  The easement is sufficient to protect the interests of the Mass Chapter.  We could probably increase our competence to become an owner of a CR, but that's a quantum leap for a volunteer organization.  IRS seems to be moving towards more and more formal requirements for maintenance of a CR.  We don't need those headaches.  My feeling is that we'd do better to concentrate on our volunteer orchard managers and our educational activities.

MUCH easier for the appraiser to deal with the entire gift of 50+ acres that to deal with gifts of a small parcel and a big parcel.




From: John Meiklejohn [mailto:j.johnmeiklejohn at comcast.net]
Sent: Saturday, December 05, 2009 5:08 PM
To: Mirick, John O.
Cc: masschestnutorchards at masschestnut.org
Subject: conservation restrictions & easements

To:  John Mirick
From:  John Meiklejohn
Re:  structuring conservation easements or restrictions

In reading the sample CR held by the Princeton Land Trust that you'd forwarded several questions arose pertinent to our planned CR or CE in Granville, MA, and the same questions may be relevant for others setting up seed orchard related easements on behalf of the MA/RI-TACF.  Briefly -
    1.  We expect to have two fields totalling about 2 to 2.5 acres that will need to be put into a CE or CR for the benefit of TACF.  One is a BC3 existing orchard and the other is the planned seed orchard.
    2.  These fields are a part of  50-55 acre parcel that we plan to put into a CE or CR in 2010.  These two fields are also on the edge of this larger acreage, so conceivably these fields could either be a part of the large CE/CR or a separate smaller one.

Questions:
    1.  Is it possible to set up, with a land trust, a CE or CR for the entire acreage in question, including the 2+ acres dedicated to TACF's mission, specifying carefully under "permitted uses" the various aspects of TACF's work?  Could this adequately protect TACF's access to and maintenance of the orchard fields?

    2.  If #1 is possible, is it preferable to setting up a CE or CR for the TACF fields, separate from the larger acreage?

    3.  What might the pros and cons be of #1 for TACF [and ourselves as landowners]?

    4.  Are either MA-TACF or the national TACF legally permitted to hold CEs or CRs or would a land trust or other entity need to be involved on TACF's behalf?  [I assume they will need an alliance with one or more land trusts.]

I look forward to and appreciate your thoughts on all this.

Thanks, in advance,

John





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