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May/June 2007
Volume I; Issue 2
Special Report:
Conservation Easements

The History of Conservation Easements

by Fred Kelly Grant

To many property owners, the issues surrounding the sale of conservation easements form a new chapter in the history of efforts to protect private property. As conservation easements spread through agricultural land, many landowners, who will be adversely affected by imposition of conservation easements on property adjoining theirs, are alarmed at this “new approach” to property control.

But, conservation easements are not new tools for control of land use. Property historians trace the use back to at least the 1880s when conservation easements were used to protect the parks and parkways designed for the city of Boston by noted landscape architect Frederick Law Olmstead. He helped design and implement the plans for Central Park in New York City, and designed the plan and development of the link of parks in Boston that form the famed Emerald Necklace. His work also included Prospect Park in Brooklyn, N.Y., the redesign of the Capitol Grounds in D.C., the World’s Fair and Jackson Park in Chicago, and the Stanford University campus.

The purpose of this article is not to trace the specific development of the early conservation easements, or even to specifically discuss the convoluted property laws that governed easements (such as the concepts of “gross” or “appurtenant” easements) at English Common Law or in early American law. The purpose is simply to point to the chronological use of, and dramatic increase in use of, such easements, particularly by private organizations.

At Common Law, easements were designed for uses which would benefit a parcel of land adjoining the land burdened by the easement. In other words, consider landowner “Whiteacre” and landowner “Blackacre” who own adjoining properties. “Blackacre” needs to cross “Whiteacre’s” property to get to “Blackacre’s” property. So, he offers to buy from “Whiteacre” the right to cross the property. If “Whiteacre” agrees, he grants and sells to “Blackacre” an easement or right of way to cross “Whiteacre’s” property to get to “Blackacre’s” property.
Under the law, the dominant interest in this situation is the right of way of “Blackacre.” His interest in crossing “Whiteacre’s” property is DOMINANT to “Whiteacre’s” use of his property. In other words, “Whiteacre” can do nothing with his property which would prevent “Blackacre” from crossing. So, “Whiteacre” holds a servient land interest to “Blackacre’s” right to cross, which means that “Whiteacre’s” use of his property must always be done in such a way as to serve and keep in existence “Blackacre’s” crossing. In today’s world, the landowner is the servient interest holder, and the government or non-profit organization easement owner is the dominant interest holder. If you sell a conservation easement under a standard easement form provided by the non-profit, you own your land only to serve the easement’s terms.

Since not recognized as true easements in early law, for many years in American history, conservation easements were constructed simply to protect parks and other open spaces for particular cities. Many histories of the early park designers discuss the role of the landscape architects in developing such easement protection devices. We are told by historians that the early easements for Boston were later ruled invalid because of technical drafting problems.

From at least the 1930s, federal and state governments have used conservation easements for scenic and habitat preservation purposes. During the ‘30s, the federal government started using the easement format to protect scenic lands along the Blue Ridge and Natchez Trace Parkways in the southeast United States. Several historians point to the National Park Service’s acquisition of scenic easements to protect 1500 acres along the Blue Ridge Parkway.

But obviously, governmental procurement of such easements has certain drawbacks: limited budgets make purchase and management of such easements very costly for government, and the strict regulations needed to prevent certain land uses really lay beyond the constitutional limits of government.

So, as early as 1959, the idea was developed for private land preservation efforts to supplant or supplement government efforts. In Whyte’s article, “Securing Open Space for America: Conservation Easements,” 36 Urban Land Inst. Techn. Bulletin 1 (1959), the idea was presented for private organizations to add to their arsenals the tool of conservation covenants (which serve the same purpose of conservation easements).

In 1972, David D. Gregory made it clear that one distinct advantage of the private conservation easement is that it makes it easier for the government to gain control of land use than through the more costly eminent domain process which is contemplated by the Fifth Amendment to the United States Constitution. Gregory, in collaboration with a French and a German expert, wrote a paper called “The Easement As A Conservation Technique” for the International Union for Conservation of Nature and Natural Resources in Switzerland. In Chapter 2 of that paper, the author discusses “The Need for Conservation Easements in the United States.” Part A of that chapter is titled “The Need to Regulate.”

Gregory makes it clear that government in the United States must find a way to gain land use control without resorting to the costly eminent domain tool. He states:

Broadly speaking, the need for an approach like that permitted by conservation easements is occasioned by limited objectives of land-use control, the achievement of which does not require assumption of full proprietary ownership of the land. This need arises for governmental agencies when the objectives are beyond their power to impose sufficient restrictions on property without compensation and in all cases for private organizations having no regulatory authority….

In the United States it is the governmental need that is particularly acute because traditionally a choice must be made between a limited regulation, which may not be sufficient to the purpose, and acquisition of full title to the land, which may not be necessary….

The cost to the government of paying the full value of land (particularly in areas most critically in need of preserving for scenic purposes, namely agricultural or undeveloped land located in prime areas for development) can be prohibitive; and, in addition to the high cost of acquiring full title, full acquisition may clearly not be needed to accomplish the governmental objective of preserving the land in its present state.

The author points out that what hampers the government in securing land use control is the fact that American law requires compensation for takings of land, and the fact that case decisions as to takings make it impractical for land use controllers to rely on winning a takings case without payment of a fair market value. In other words, the troubling thing in America, which is unique, is that the law protects landowners from governmental takings.

In Chapter 3, the author lays out the process by which the government can accomplish its land use control without resorting to takings: through use of “The Easement Device”. He points out that:

“Through this device [the conservation easement], then, the government can acquire and pay for those interests in real property specifically needed for the governmental objective, which would be beyond the reach of its purely regulatory authority and which could be achieved by purchase of the entire land only at a substantially higher price.”

He then points out that the “easement concept” is shrouded with all the convoluted rules of Common Law property principles, but that legislatively the government can overcome those principles and permit “easements” under purely legislative guidelines. Throughout this document, and others written around the same time, it becomes clear that the authors are urging the enactment of legislative authority for private groups to become involved in preserving land for the government interest of achieving scenic and habitat protection, and non-development restrictions on land.

In the 1970s, case decisions were rendered which affirmed the governmental right to obtain conservation easements, but statutory changes were necessary to allow the private, non profit land organizations to obtain such land use controls. Even though some states initiated early forays into authorization of private easement development, it wasn’t until 1981 that the mass passages of conservation easement statutes began.

In the late 1970s the National Conference of Commissioners on Uniform State Laws commenced work on the Uniform Conservation Easement Act. In 1981, work on the final document was completed. It was designed to serve as a model for state legislators to pass laws that would enable agencies and private conservation organizations to buy less-than-fee simple interests in land for the purpose of conserving and preserving the land in its “natural state.” By 2003, twenty-three states had enacted statutes based on the Uniform Act, and twenty-six others had enacted their own version of the statutory authority for purchase and sale of conservation easements.

As the non-profit organizations have become familiar with the authority they have acquired under these statutes, and as ever increasing government restrictions on farming and ranching have been put in place, the growth of land trusts with a principal goal of acquiring land interest control has been explosive. From 1988 to 2003, the number of land trusts expanded from 743 throughout the nation to 1,537, more than doubling those who seek to persuade agricultural land owners to sell the control of their land. During the same period of years, the number of acres under conservation easement “protection” increased 1,624 percent.

In the year 2003, voters throughout the nation approved 100 ballot measures to commit 1.8 billion dollars to land conservation and preservation in twenty-three states. In the same year there were over 17,847 identifiable conservation easements in place, covering and restricting more than five million acres.

In 2003 several land trusts made surveys and audits which gave us the figures for that year, and for the increases from 1988. No doubt, the number of conservation easements and the number of restricted acres has dramatically grown in the three full years since 2003. An article in this issue of Standing Ground shows the material advantage that at least one of the conservation easement leaders, The Nature Conservancy, has over those who contend for private property owners to maintain control of their own lands.

As one reviews the statistics as to the material assets of the non-profit organizations, the question must come to mind: what’s in it for these organizations of realty and power brokers? If one believes that the answer is pure philanthropy, it would be hard to explain the doubling of the number of philanthropic organizations in the last two decades. Perhaps a more reasonable read would be: the financial interests that are served by tax breaks and the wealth that emanates from land control.

As the land trusts look to the future, a handbook sponsored by the Land Trust Alliance, points out that:

“Given the trends in the creation of conservation easements, it is likely that their use across the country will continue to increase at a rapid pace….

Not only will the number of acres protected with conservation easements increase in the years ahead, but trends indicate a corresponding increase in the sophistication of conservation easement documents and easement holders as well. Easements are becoming increasingly complex, allowing for the protection and management of multiple conservation values on a single site, such as historic, natural, farm, and forest resources. Many of these easements with multiple purposes require management plans or review and approval of future actions by the holder [the non profit organization or government which owns the easement]. With such increasing complexity and requirements for review and approval, comes the need for the holder [the non profit organization or government which owns the easement] to have professional expertise in drafting and stewarding the easement.”

Note that there is no specific need detected by the Land Trusts for the landowner to have such professional help in crafting the documents which give control to the easement holder. Note also there is no specific need detected for the landowner to make sure that he or she is involved in the management and review of future actions on the land.

The future which is desirable for the land trusts is the continued spread of conservation easements which take land control decisions from the landowner and put them in the hands of the trusts as long as they keep the land, and then transfers those decisions to the government when the cycle of use control closes.

If private property interests are to remain strong and viable, the desirable future is for landowners to resist what looks like “easy money” through the conservation easement process, and, if pressed into a conservation easement situation, to insist upon language which protects current agricultural uses as well as changes and expansions to such uses, and to insist upon being a critical part of the management team that oversees land use during the life of the easement.

Many “landowner friendly” organizations have jumped on the bandwagon to promote conservation easements as a means of preventing sale of agricultural land for subdivisions. But, the fact that such easements are promoted by “landowner friendly” groups makes them no less dangerous. No matter who promotes and directs negotiations for a conservation easement, the landowner will suffer material loss of property ownership and control unless his or her interests are specifically provided for in the documents creating the easement. Many of the local organizations promoting conservation easements may not even be aware of the dangers, but all landowners have the obligation to be aware and to take care to protect against them.

Perhaps a unique organization is the California Rangeland Trust which has been created by landowners for the purpose of assisting other landowners in preserving agricultural use of their land. The stated purpose of this organization is to protect such use as desired by the landowner--and its actions seem to evidence that its purpose is for protection of rangelands and agricultural uses not “open space” preservation. One of the most famous of the conservation projects negotiated by the CRT is the Hearst Ranch Project in San Luis Obispo County, California. The Hearst Ranch operates the largest active cattle ranch in California. In addition, other agricultural uses include vineyards and orchards. The easement agreement allows for homesite developments for members of the family, building and maintenance of residents for agricultural workers, and future intensification of agricultural uses. A representative of the Hearst family is a member of the team that will oversee use of the land.

The terms negotiated by the Hearst interests with the California Rangeland Trust make it clear that a landowner does not have to sell away full control of his or her property in order to protect it against development. But, keep in mind that the Hearst family is in a unique position to negotiate a more favorable deal. They have the financial resources to hire the expertise needed to draft a favorable agreement, and to pursue legal action if a third party challenges the agreement. The size of the Hearst holdings and the family assets provide a major incentive for an organization to negotiate an agreement favorable to the landowner.

Most landowners enticed by the “protection” and financial gain of a conservation easement are not in the Hearst position. Often the enticement results from a need to reduce taxes and ensure financial stability. And, often the signing of a conservation easement ensures just the opposite. But, always, unless the landowner acts with caution and expert help, the easement creates the vehicle through which the Land Trust will have complete control over the land and its future use.
Even when presented with a conservation easement negotiated by an organization like the California Rangeland Trust, the landowner must act with caution, and must be expertly represented. In order to avoid the traps discussed in this Standing Ground, he or she must insist on provisions which involve the owner in oversight of future uses of the land, which specify a dispute resolution process and guarantee the owner a critical role in that resolution process, and which provide for changes in use which will be dictated by the market, by governmental regulations, and by future interests of the owner and his or her family.