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Vermont Land Trust Conservation
Stewardship Program Amendment Principles
Philosophy. Amendment requests that
satisfy an expressed landowner need, have a better or at least neutral
effect on the resources conserved, and improve ease of implementation
and administration for stewardship staff and the landowner may be
recommended for VLT Board approval. To be recommended for approval,
stewardship staff must reconcile any conflicting values or multiple
goals of the conservation easement. To do this stewardship staff
considers all the facts and circumstances and examines the following
principles and considerations. There may be other considerations
relevant in individual circumstances and those will be examined too. The
following principles and considerations, and any additional ones, will
be weighed as appropriate to each individual circumstance. No
conservation easement has only one goal. With multiple goals there will
be tensions. Amendments can redefine the balance among multiple goals
over time or to reflect changes in policy.
Principles
and considerations.
- it is consistent with the overall
purposes of the conservation easement;
- it will enhance the resource values
conserved or have a neutral effect;
- there are no feasible alternatives
available to achieve a similar purpose;
- denial will cause undue hardship
over which the landowner had no control;
- there are no issues regarding
private benefit or any issues can be adequately addressed;
- it is consistent with any other
written expressions of the original Grantor’s intent;
- conservation easement co-holders
approve of the amendment;
- the likelihood of land ownership by
those working the land is increased or the economic sustainability
of the agricultural or forestry operation on the land is increased;
- it is consistent with one of the
below circumstances.
Circumstances of the Requested
Amendment. VLT's Conservation Stewardship Program will recommend an
amendment to a conservation easement in the following circumstances:
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Prior Agreement. In a few cases, a
conservation easement has included a specific provision or an
unrecorded agreement or letter allowing modification of the
restrictions at a future date under specified circumstances. Such
agreements must be set forth in the conservation restriction
document or in a separate document signed by all parties including
VLT at the time or prior to when the conservation easement was
executed. The amendment must be consistent with the terms and
conservation intent of the original agreement.
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Upgrade Standard Language and Format.
The standard language and format of conservation easements are
periodically revised to reflect new standard clauses, statutory
changes, changes in policy, or to improve enforcement and
administration, or enhance the protection of the conservation values
of the protected property, or consolidate the legal documents in
order to simplify the protection regime. Amendments for any of these
purposes will be recommended so long as the changes are consistent
with the intent and objectives of the original conservation
easement.
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Correct an Error or Ambiguity. An
amendment may be recommended to correct an obvious error or
oversight that was made at the time the conservation easement was
entered into. This may include correction of a legal description,
inclusion of language that was unintentionally omitted, or
clarification of an ambiguity in the easement in order to avoid
litigation over the interpretation of the document in the future, or
to cooperate in a boundary adjustment based on a survey or in an
exchange of land if the resource values of the land to be received
are at least equivalent to the land exchanged.
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Settle Condemnation Proceedings. VLT may
recommend a settlement agreement with the condemning authority where
it appears that the land to be taken has little or no resource
value, is not central to the purpose of the conservation easement
and where condemnation power would be properly exercised for a
recognized public purpose. If the condemnation proposed is
significant, affects valuable resources and is central to the
conservation easement, and there is no other better alternative site
for the proposed facility, VLT may still recommend a settlement
agreement with the condemning authority if the public health,
welfare and safety significantly outweighs the conservation resource
values, but will do so only with great caution. In reaching such an
agreement, the intent of the original conservation easement must be
preserved to the greatest possible extent.
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Amendments to Leverage Additional
Conservation. VLT welcomes amendments to add additional land to a
conservation easement. VLT also welcomes the return of reserved
rights by landowners.
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Amendments to Reconfigure Conservation
Easements: Modifications or additions of reserved rights in exchange
for additional land conservation may be recommended provided that
the above principles and other considerations are substantially met.
We will not accept agricultural options or cash as the primary value
equivalent exchange for adding reserved rights. Adding farm labor
housing may be an exception where we would possibly accept an
agricultural option on the farm land or the whole farm. In those
circumstances, we would also seek to limit the size and value of the
additional housing unit by imposing size limits and value per square
foot limits to the agricultural option. We might also accept them to
close a value gap between the additional land conserved and the
right released.
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Amendments Consistent with Conservation
Purpose. Other amendments of a conservation easement may be
recommended where the modification is consistent with the goals of
the original conservation project, there is no or only incidental
private benefit, the amendment is substantially equivalent to or
enhances the resource values protected by the conservation easement
and any additional burden on the Stewardship staff is outweighed by
the increased conservation value. Requests made under this section
will be reviewed carefully.
Private Benefit Test. Conferring
benefit (from a legal perspective) upon private parties without those
private parties reciprocating with an equivalently valued public benefit
to the VLT could threaten the tax-exempt status as an organization that
is federally recognized as “operated exclusively” for charitable
purposes. Treasury regulations set forth the “private benefit test” and
reflects the legal requirement that VLT be “primarily engaged in
activities which accomplish one or more of the exempt purposes specified
in section 501(c)(3)” – that it be operated exclusively for charitable
purposes and not confer benefit on private parties. Private benefit
issues must be resolved before an amendment can be approved.
Conflict of Interest: Any
conflicts of interest or potential conflicts must be resolved before an
amendment can be approved. The conflicts of interest procedures must be
followed.
Requesting an Amendment. Any
landowner seeking an amendment shall write or call staff at VLT's
Conservation Stewardship Program stating the change being sought and the
specific reasons for it.
Staff Costs. VLT may request the
landowner to pay all staff costs pertaining to reviewing the change,
visiting the site, and preparing the paperwork but only if the amendment
is approved. The Stewardship Director may waive some or all costs for
the following reasons: hardship, contributing errors by VLT, costs
covered through a separate project or other grant especially if
additional land is conserved. The amendment BDR will state our rationale
and principles served by allowing the amendment.
All current project BDRs will recite the
reasons for all exclusions due to future audit sensitivities and to
provide documentation for future amendments.
Stewardship Endowment. VLT may
request the landowner to pay an additional stewardship endowment
sufficient to generate income to cover staff costs likely to be incurred
under the new provisions. The usual endowment formula will be consulted
to determine this amount. The Stewardship Director may elect to apply
for grant funds to cover the endowment if the amendment is to conserve
additional land.
Last revised September 2005
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