This column has been primarily concerned with the
?what, who, when, where, and why?? of land trust ?
nonprofit public benefit organizations that either buy
or receive land or easements on land for conservation
purposes. Under California law, an easement is not a
?conservation easement? unless it is owned by a
nonprofit land trust.
Land trusts provide unique services to sustain
conservation easements. Staff and volunteers
photograph, appraise, and monitor the land they
receive. The Board of Directors has a legal duty as
trustees to make sure the organization lives up to its
ethical and legal obligations. When an individual
property owner wants to donate a conservation
easement, a $10,000 cash donation is on the low end of
the amount needed to fund or ?endow? the perpetual
obligations of the land trust organization. Many
landowners want to preserve their land but can?t
afford land trust fees.
What can be done? Let?s look at a common road access
easement. The original sub-divider put in the road
easement so the last owner on the road was assured
deeded access to their parcel. New owners buy subject
to the existing common road easement. The owner at
the end of the road never has to worry about losing
access to her parcel.
Landowners are used to living with a common road
easement. The same experience applies to a common
conservation easement. Consider the following
scenario:
Suppose Emma and Arlene each own 45 acres. They each
want to preserve their view of each other?s land.
They exchange mutual restrictive easements. Emma
grants grants to Arlene the right to preserve and
protect Arlene?s view. Arlene simultaneously grants a
reciprocal ?view easement? to Emma so Emma has the
right to enforce her view-shed. It works. But it is
fragile. Emma dies or sells her land. Arlene
convinces the successor to let her cut down all the
trees in Emma?s view-shed.
There is critical strength in numbers. If Emma and
Arlene agreed with Laura that all three of them had to
agree to change any view-shed easement on any one of
their separate parcels, the likelihood of any change
is significantly reduced and the likelihood of
enforcement is significantly increased. If 15
landowners entered reciprocal easements requiring the
consent of each and every one of the 15 landowners
before any changes could be made, it starts to look
like a permanent and perpetual easement.
Mutual interlocking restrictive uses of the land have
been used by private owners and major cities to
control and preserve land uses. Instead of a land
trust monitoring the view-shed easements, the owners
of the view-shed monitor the easements. To avoid
conflict over different terms, a master easement
agreement is recorded, and each landowner who wants to
participate refers to the master agreement and
incorporates it by reference, thereby granting the
same rights and duties to everyone who is named on the
easement. The master agreement could allow voluntary
entry but no voluntary exit. Or it could include a
voluntary exit for the first generation of landowners
but no exit for the next generation of owners, i.e.
unless the landowner opts out of the easement before
they die or sell the land, it becomes a permanent
protection for all succeeding owners. Creating
easements that meet the needs of concerned landowners
is the core of the idea. Our common law and
constitutional heritage grant us an expansive power to
freely enter into contracts with each other. Almost
any interest in land can be created out of simple
contract law.
Using a master interlocking easement, the burdens of
perpetual monitoring and enforcement are spread across
all of the owners in the view-shed. Separate master
easement agreements could be used for protection of
the forest, the streams, and the watershed. Those who
are only concerned about views could accept the
?view-shed? common easement. Those who are concerned
about internal roads, forest health, streams, and
watershed issues could have separate master easement
agreements. Thinking further ahead, once neighbors
find themselves on common ground, they could create a
joint timber management plan to generate income to all
of the owners in the joint timber management plan.
Bottom line: Two land owners could take leadership
and exchange mutual restrictive conservation type
easements. Direct action by a larger group of
landowners can generate enough ?synergy? to conserve
land and save forests without the higher costs of
?conservation easements.?
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TOC for Forest & River News, Spring 2001