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Standard language of Conservation Restrictions(NOTE: THIS DOCUMENT IS FOR INFORMATION PURPOSES ONLY. The Massachusetts Land Trust Coalition does not represent that this language is acceptable to the IRS for tax deductibility of a conservation restriction. Each conservation restriction must be tailored to the specific needs of the grantor and grantee and to the unique features of the property. Legal advise is strongly recommended.) CONSERVATION RESTRICTION [Property Name] [Donor's name] with an address of [Donor's Address], grants, with quitclaim covenants, to LAND TRUST NAME, ADDRESS & ESTABLISHMENT OF LAND TRUST, its successors and permitted assigns, ("Grantee") in perpetuity and exclusively for conservation purposes, the following described Conservation Restriction on a parcel of land of approximately ___ acres located in the Town of ________________, Massachusetts, said parcel being described in Exhibit A attached ("Premises"). Hereafter the term "Grantor" shall mean the said ______________ and [his][her][their] heirs, devisees, successors and assigns. Purpose. This Conservation Restriction is defined in and authorized by Sections 31-33 of Chapter 184 of the General Laws and otherwise by law. Its purpose is to assure that the Premises will be retained in perpetuity [predominantly] in [their natural, scenic, and open condition] [agricultural, farming or forestry use] and to prevent any use of the Premises that will significantly impair or interfere with the conservation values of the Premises. The public benefits resulting from conservation of the Premises include, without limitation: [Insert site-specific rationale for preservation] The terms of this Conservation Restriction are as follows: A. Prohibited Uses. Except as to reserved rights set forth in paragraph B below, the following acts and uses are expressly prohibited on, above and under the Premises: (1) Constructing, placing or allowing to remain any building, tennis court, landing strip, mobile home, swimming pool, asphalt or concrete pavement, sign, fence, billboard or other advertising display, antenna, utility pole, tower, conduit, line or other temporary or permanent structure or facility on, above or under the Premises; (2) Mining, excavating, dredging or removing from the Premises of soil, loam, peat, gravel, sand, rock or other mineral resource or natural deposit; (3) Placing, filling, storing or dumping on the Premises of soil, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, waste or other substance or material whatsoever or the installation of underground storage tanks; (4) Cutting, removing or otherwise destroying trees, grasses or other vegetation; (5) Activities detrimental to drainage, flood control, water conservation, water quality, erosion control, soil conservation, or archaeological conservation; (6) The use of motorcycles, motorized trail bikes, snowmobiles and all other motor vehicles, except as reasonably necessary in exercising any of the reserved rights in paragraph B, or as required by the police, firemen or other governmental agents in carrying out their lawful duties; (7) The use of the premises for more than a de minimis commercial recreational activity; (8) Any other use of the Premises or activity thereon which is inconsistent with the purpose of this Conservation Restriction or which would materially impair significant conservation interests unless necessary for the protection of the conservation interests that are the subject of this Restriction; and (9) Conveyance of a part or portion of the Premises alone, or division or subdivision of the Premises (as compared to conveyance of the Premises in its entirety which shall be permitted) without the prior written consent of Grantee. B. Reserved Rights. All acts and uses not prohibited in paragraph A are permissible. Notwithstanding the provisions of paragraph A, the following acts and uses are also permitted but only if such uses and activities do not materially impair the purpose of this Conservation Restriction or other significant conservation interests: [Insert appropriate reservations of rights such as the practice of agriculture and forestry, the construction of farm buildings or necessary utilities] The exercise of any right reserved by Grantor under this paragraph B shall be in compliance with the then-current Zoning By-Law of the Town of ______________, the Wetlands Protection Act (General Laws Chapter 131, Section 40) and all other applicable federal, state and local law. The inclusion of any reserved right in this paragraph B requiring a permit from a public agency does not imply that Grantee takes any position on whether such permit should be issued. C. Notice and Approval. Whenever notice to or approval by Grantee is required under the provisions of paragraphs A or B, Grantor shall notify Grantee in writing not less than sixty (60) days prior to the date Grantor intends to undertake the activity in question. The notice shall describe the nature, scope, design, location, timetable and any other material aspect of the proposed activity in sufficient detail to permit Grantee to make an informed judgment as to its consistency with the purposes of this Conservation Restriction. Where Grantee's approval is required, Grantee shall grant or withhold its approval in writing within sixty (60) days of receipt of Grantor's written request therefor. Grantee's approval shall not be unreasonably withheld, but shall only be granted upon a showing that the proposed activity shall not materially impair the purposes of this Conservation Restriction. Failure of Grantee to respond in writing within such 60 days shall be deemed to constitute approval by Grantee of the request as submitted, so long as the request sets forth the provisions of this section relating to deemed approval after the passage of time. D. Extinguishment. If circumstances arise in the future such as render the purpose of this Conservation Restriction impossible to accomplish, this Restriction can only be terminated or extinguished, whether in whole or in part, by judicial proceedings in a court of competent jurisdiction. If any change in conditions ever gives rise to extinguishment or other release of the Conservation Restriction under applicable law, then Grantee, on a subsequent sale, exchange or involuntary conversion of the Premises, shall be entitled to a portion of the proceeds in accordance with paragraph D.1. below, subject, however, to any applicable law which expressly provides for a different disposition of proceeds. Grantee shall use its share of the proceeds in a manner consistent with the conservation purpose set forth herein. D.1. Proceeds. Grantor and Grantee agree that the donation of this Conservation Restriction gives rise for purposes of this paragraph D to a property right, immediately vested in Grantee, with a fair market value determined by multiplying the then-current fair market value of the Premises unencumbered by this Restriction (minus any increase in value after the date of this grant attributable to improvements) by the ratio of the value of this Restriction at the time of this grant to the value of the Premises, without deduction for the value of this Restriction, at the time of this grant. The values at the time of this grant shall be determined using the methods used to calculate the deduction for federal income tax purposes allowable by reason of this grant, pursuant to Section 170(h) of the Internal Revenue Code of 1986, as amended. For the purposes of this paragraph, the ratio of the value of this Restriction to the value of the Premises unencumbered by this Restriction shall remain constant. D.2. Condemnation. Whenever all or any part of the Premises or any interest therein is taken by public authority under power of eminent domain or other act of public authority, then Grantor and Grantee shall cooperate in recovering the full value of all direct and consequential damages resulting from such action. All related expenses incurred by Grantor and Grantee shall first be paid out of any recovered proceeds, and the remaining proceeds shall be distributed between Grantor and Grantee in shares equal in proportion to the aforementioned ratio (though if a less-than-fee interest is so taken, the proceeds shall be equitably allocated according to the nature of the interest taken). Grantee shall use its share of the proceeds in a manner consistent with the conservation purpose set forth herein. E. Access. The Conservation Restriction hereby conveyed does not grant to Grantee, to the public generally, or to any other person any right to enter upon the Premises except as follows: (1) There is hereby granted to Grantee and its representatives the right to enter the Premises (a) at reasonable times and in a reasonable manner for the purpose of inspecting the same to determine compliance herewith and (b) after 30 days prior written notice, to take any and all actions with respect to the Premises as may be necessary or appropriate, with or without order of court, to remedy, abate or otherwise enforce any violation hereof. (2) There is hereby granted to Grantee the right to erect and from time to time replace, at appropriate locations near the boundaries of the Premises mutually agreed upon, suitable signs identifying Grantee as the holder of this Conservation Restriction. F. Legal Remedies of Grantee. The rights hereby granted shall include the right to enforce this Conservation Restriction by appropriate legal proceedings and to obtain injunctive and other equitable relief against any violations, including without limitation relief requiring restoration of the Premises to its condition prior to such violation (it being agreed that Grantee will have no adequate remedy at law), and shall be in addition to, and not in limitation of, any other rights and remedies available to Grantee. Grantor covenants and agrees to reimburse Grantee all reasonable costs and expenses (including without limitation reasonable counsel fees) incurred in enforcing this Conservation Restriction or in taking reasonable measures to remedy or abate any violation thereof, provided that a violation of this Conservation Restriction is acknowledged by Grantor or determined by a court of competent jurisdiction to have occurred. By its acceptance, Grantee does not undertake any liability or obligation relating to the condition of the Premises, including with respect to compliance with hazardous materials or other environmental laws and regulations. Enforcement of the terms of this Restriction shall be at the discretion of Grantee, and any forbearance by Grantee to exercise its rights under this Restriction shall not be deemed or construed to be a waiver. G. Acts Beyond Grantor's Control. Nothing contained in this Conservation Restriction shall be construed to entitle Grantee to bring any action against Grantor for any injury to or change in the Premises resulting from causes beyond the Grantor's control, including, but not limited to, fire, flood, storm and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Premises resulting from such causes. H. Duration and Assignability. The burdens of this Conservation Restriction shall run with the Premises and shall be enforceable against Grantor in perpetuity. Grantee is authorized to record or file any notices or instruments appropriate to assuring the perpetual enforceability of this Conservation Restriction. The benefits of this Conservation Restriction shall be in gross and shall not be assignable by Grantee, except in the following instances from time to time: (i) as a condition of any assignment, Grantee requires that the purpose of this Conservation Restriction continue to be carried out, and (ii) the assignee, at the time of assignment, qualifies under Section 170(h) of the Internal Revenue Code of 1986, as amended, and applicable regulations thereunder, and under Section 32 of Chapter 184 of the General Laws as an eligible donee to receive this Conservation Restriction directly. Grantor and Grantee intend that the restrictions arising hereunder shall take effect when all requisite signatures pursuant to Section 32 of Chapter 184 of the General Laws have been obtained and the document has been recorded in the ___________ County Registry of Deeds. I. Subsequent Transfers. Grantor agrees to incorporate by reference the terms of this Conservation Restriction in any deed or other legal instrument by which Grantor conveys any interest in all or a portion of the Premises, including, without limitation, a leasehold interest. Grantor further agrees to give written notice to Grantee of the transfer of any interest at least twenty (20) days prior to the date of such transfer. Failure of Grantor to do so shall not impair the validity of this Conservation Restriction or limit its enforceability in any way. J. Termination of Rights and Obligations. Notwithstanding anything to the contrary contained herein, the rights and obligations under this Conservation Restriction of any party holding any interest in the Premises terminate upon transfer of that party's interest, except that liability for acts or omissions occurring prior to transfer, and liability for the transfer itself if the transfer is in violation of this Conservation Restriction, shall survive the transfer. K. Estoppel Certificates. Upon request by Grantor, Grantee shall within forty-five (45) days execute and deliver to Grantor any document, including an estoppel certificate, which certifies Grantor's compliance with any obligation of Grantor contained in this Conservation Restriction, and which otherwise evidences the status of this Conservation Restriction as may be requested by Grantor. L. Miscellaneous.
No documentary stamps are required as this Conservation Restriction is a gift. Executed under seal this _________ day of ________________, 19__. _____________________________ _____________________________
COMMONWEALTH OF MASSACHUSETTS _______________, ss. ____________________, 19__ Then personally appeared the above-named ________________________ and acknowledged the foregoing instrument to be his or her free act and deed, before me.
_____________________________
ACCEPTANCE OF GRANT The above Conservation Restriction is accepted this _______ day of _______________, 19__. [land trust name here]
By __________________________ Its__________________________ COMMONWEALTH OF MASSACHUSETTS _______________, ss. ____________________, 19__ Then personally appeared the above-named_______________________and acknowledged the foregoing instrument to be the free act and deed of The Trustees of Reservations, before me.
_____________________________
APPROVAL OF SELECTMEN We, the undersigned, being a majority of the Selectmen of the Town of ____________________, Massachusetts, hereby certify that at a meeting duly held on _________________________, 19__ the Selectmen voted to approve the foregoing Conservation Restriction to The Trustees of Reservations pursuant to M.G.L. Chapter 184, Section 32. Selectmen
_____________________________
_____________________________
_____________________________
COMMONWEALTH OF MASSACHUSETTS _______________, ss. ____________________, 19__ Then personally appeared the above-named ________________________,
_____________________________,
and _____________________________,
_____________________________
APPROVAL BY SECRETARY OF ENVIRONMENTAL AFFAIRS
The undersigned, Secretary of the Executive Office of Environmental Affairs of the Commonwealth of Massachusetts, hereby certifies that the foregoing Conservation Restriction to The Trustees of Reservations has been approved in the public interest pursuant to M.G.L. Chapter 184, Section 32. Date: ____________________, 19__ ____________________________________ COMMONWEALTH OF MASSACHUSETTS _______________, ss. ____________________, 19__ Then personally appeared the above-named ________________________ and acknowledged the foregoing instrument to be his or her free act and deed, before me.
_____________________________
5/97 Standard |
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