What are conservation easement amendments?
VLT’s conservation easements are intended to protect land in perpetuity. However, situations that landowners and VLT could not have anticipated when an easement was originally drafted can arise; in these situations, VLT and the landowner may consider amending the easement.
An amendment is a change to an easement that can strengthen an easement’s conservation values. An amendment can also clarify intentions of the landowner and improve enforceability.
The perpetuity of the purpose and intention of a conservation easement
The purpose of a conservation easement is to protect one or more publicly recognized functions of the land that are important to a landowner or a community.
Most of VLT’s conserved lands have easements whose purpose is to protect agriculture, forestry, recreation, natural resources, or specific ecological features.
The purpose of the easement is something that exists in perpetuity. That is, the intention of the landowner at the time of conservation is honored during any amendment process.
Easements also include specific “permitted and restricted uses.” This section guides management of the land and the activities that are permissible in support of the purpose of the easement. This is where some limited flexibility is important.
Permitted and restricted uses are written into the easement with the best information available at the time of conservation. They are written to support the conservation purpose of a property.
In some instances, years later, these permissions and restrictions become barriers to promoting the very same conservation purpose they were intended to protect.
For instance, the agriculture and forestry sectors evolve over time: there are technological innovations and new knowledge about land management. Management techniques that promote recreation can change over time. Land management practices that support ecological integrity, wildlife habitat, and water quality adapt to new scientific discoveries and new threats, such as climate change and invasive species.
A farmland easement with permissions and restrictions originally designed for a dairy may not support the transition to a vegetable operation. A natural area easement that prohibits management techniques in support of ecological values may unintentionally prohibit necessary invasive species management.
An easement may not include river buffers and water quality enhancements that would serve to protect communities from floods and allow for the natural processes of rivers. The original easement simply may not have anticipated change or risks.
Current Law and Policies Concerning Amendments
Current law allows a land trust and the owner of conserved land to amend or terminate a conservation easement, with no public notice, no clear criteria, and no third-party approval.
It should be noted that VLT has never terminated an easement and has never considered such drastic action. Still the fact that easements are amended at all may be a surprise to many people. That they are unregulated may also come as a surprise.
Currently, VLT has a rigorous policy and process in place to carefully review amendment requests and to ensure that any amendment supports the conservation easement’s purposes and values. VLT staff apply high standards before recommending any amendments to our Board of Trustees.
This process conforms to national Land Trust Alliance standards and practices, and with federal law. While we have faith in the process we use for reviewing amendment requests, we also have advocated for more oversight of amendments—clear, strong criteria, public notice, an opportunity for public input, and approval by a qualified, impartial third party.
Public Investment in Conservation Easements
Under Vermont law, conservation easements exist for the public purpose of protecting land “predominantly in its natural, scenic, or open condition, or in agricultural, farming, forest, wildlife or open space use, or for public recreation.”
Further, land subject to a permanent conservation easement must be reassessed for property tax purposes, taking into consideration the impact of the easement on the land’s value. When an easement is donated, the landowner often receives federal and state income tax benefits, and may also receive estate tax benefits. When an easement is purchased in Vermont as occurs most often when operating farms are conserved, funding comes from a variety of federal, state and philanthropic sources.
Conservation easements are a product of Vermont statute, they each serve one or more public purposes, and almost always involve a direct or indirect public investment. So the has a stake in the conservation values protected by all VLT easements.
For these reasons, we recommend that all but the most minor amendments be reviewed by a public entity, preceded by public notice, and applying rigorous criteria that protect public conservation values. This approach tracks Vermont’s town meeting tradition of discussing important public issues in an open setting.
Any review process to amend easements will only strengthen the public’s role in future decisions and ensure that land trusts today and in the future will continue to uphold the values and benefits that come with conservation easements.
If you have any additional questions about conservation easement amendments please contact us at (802) 223-5234.
Examples of Easement Amendments
Twenty years ago, the owner of a beautiful hill farm donated an easement on land overlooking the Connecticut River Valley. The easement did not include a highly visible, five-acre building lot located on the farm’s most productive field.
Years later, the owner deeded the building lot to his former spouse. Then, he sold the remaining conserved farmland to a buyer who also purchased the building lot from the former spouse.
The new owner wanted to restore the farm, so he made the following proposal: eliminate the five-acre building site and add that land back into the conserved farm field. In return, he would construct a guest house, which was not permitted in the original easement, near the main house, in the woods, and not visible from any public road.
The 158-acre former Larrabee Orchard has been operating for 130 years. VLT purchased a farmland conservation easement on the land in 1998, enabling the current owners to buy the land. The easement protected important soil resources in support of active farming, and it permitted the expansion of the main farmhouse into a duplex to provide future housing for farm employees.
Now known as Champlain Orchards, the farm business has continued to grow and innovate and currently employs 20 people. To support this expansion, the owner asked for the right to build a bunk house as the second story of a farm store allowed in the easement, rather than adding a second unit to the farm house. This change would allow for more workers to be housed on the farm.