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Conservation Restriction Process
The process of conserving property is one that varies considerably depending upon the circumstances of the landowner, the land in question, the conservation organization involved, and the means by which the property is to be conserved. The following is a simplified overview of the process through which a conservation restriction (conservation easement) is created.
The land trust:
- Meets with land owner and any other relevant parties to explore the objectives of the landowner and discuss conservation options. Multiple meetings may be required to fully define objectives. During this time, the land trust will walk the land to determine its conservation significance1 and its suitability for the land trust’s objectives.
- Outlines the basic terms of the conservation restriction (CR). The land trust will begin to develop funding options for the project, if required.
- Conducts a more extensive site walkover for photos and field notes, develops material for baseline narrative and appendices.
- Using the model document required by the Massachusetts Executive Office of Environmental Affairs (EOEA), the land trust drafts the CR document and reviews with landowner / landowner attorney. This document may go through multiple iterations until all parties are satisfied.
- Performs due diligence including surveying the land (if necessary) and researching the deed. Any mortgages, or other encumbrances that could be foreclosed, must be subordinated to the CR.
- Secures an appraisal if it is required for funding; otherwise, the owner secures an appraisal for tax deduction purposes. (IRS rules currently require the owner’s appraisal to be done no sooner than 60 days before the gift.)
- Once the CR document is completed and finalized (including baseline documentation2), approvals must be obtained from local municipality (city/town); and then from the EOEA, the state agency responsible for review and approval.
- Incorporates any changes requested by EOEA, then provides the final CR draft for landowner, landowner’s attorney and land trust attorney to review. The land trust Board of Directors votes to formally accept the CR.
- Executes the CR by collecting signatures from landowner, the land trust, municipal authorities, and finally the state through signature of the Secretary of the Executive Office of Environmental Affairs.
- Records the CR at the Registry of Deeds or Land Court Registry.
- Provides copies of the CR documentation to owner and city/town.
Notes:
1. Property is considered to have conservation significance when it contains important resource or public benefit values for ecological, agricultural, scenic, historical or recreational purposes. Examples of resource conservation values include: significant fish, wildlife or plant habitat areas; important farming or forest uses; and water supply protection. Examples of public benefit values include outdoor recreation and preservation of scenic view.
2. Baseline documentation is intended to depict the condition of the property at the time the CR is executed and may include narrative description of the property’s conservation values and condition, boundary survey, maps, and photos.
K. Mcgrath / MLTC / February 2007
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