(backyard)

Locking Up Your Land

With a conservation easement, you can preserve your piece of the larger landscape forever.

By David Dobbs

Peter and Sheila Herman's place may look familiar. Their 60 acres help provide the backdrop of field and forest that makes Topsham Village, in central Vermont, one of New England's most photographed views. Along with looking lovely, their land features a particularly robust mix of wildlife habitat. Softwood and hardwood forests shelter songbirds, small mammals, amphibians, reptiles, and deer. Brush-bordered pastures give cover to gamebirds. Wooded streambanks host yet more birds—kingfishers, phoebes, kingbirds, yellow warblers—and offer the sort of shaded, trout-friendly stream environment that is increasingly rare even in conservation-minded Vermont.

To preserve this Eden, the Hermans recently took the irrevocable step of "locking up the land" with a conservation easement that bars them and future owners from ever—as in never ever—subdividing, building on, or otherwise developing their land. For the Hermans, that means saying goodbye to what could be tens of thousands of dollars in development proceeds. But with a modest retirement set aside and their kids grown, the couple is glad to forgo any financial windfall to protect their land forever.

"I believe keeping large chunks of land open is the most important thing we can do," says Peter Herman. "This is not a very big chunk, of course. But it's all we've got."

In taking this step, the Hermans have joined thousands of like-minded landowners who have used conservation easements to protect tracts ranging in size from a few acres to whole landscapes. An easement—technically a "grant of development rights and conservation restrictions"—powerfully combines simplicity, accountability, and permanence. Scarcely more complex than a standard real estate contract, a conservation easement retires the property's development rights by passing them to a conservation-minded organization that is legally bound never to exercise those rights and to monitor the property to prevent anyone else from using them.

In addition to providing the standard ban on development, an easement can allow or prohibit other specific uses. An easement could permit farming, sustainable logging, hunting, and snowmobiling, for example, or it could specify a hands-off, "forever wild" stewardship—whatever the donor and the monitoring organization agree on. Some organizations, such as the Vermont Land Trust (VLT), which accepted the Hermans' easement, favor "working landscapes" like farms and sustainably managed woodlands. Other groups, such as the Nature Conservancy, commonly accept forever-wild easements. Still others emphasize land that preserves particular habitats or even historic value. Most easements cover properties smaller than 500 acres, and in theory, no piece of land is too tiny to be covered. The Nature Conservancy has an easement on a half-acre; most run 50 to 500 acres.

In any case, the owner retains all rights and privileges of ownership not barred by the easement. He or she can sell the land, but neither the current owner nor subsequent owners can develop it. (Usually, however, a bit of land can be set aside for current or future home sites.) Best of all, an easement is permanent: Of the more than 12,000 easements nationwide, fewer than a dozen have seen challenges go as far as a court decision, and in every one of those the court upheld the easement. If an easement-holding organization goes under, its monitoring duties can be passed on to a group with similar goals. An easement thus offers one of the more lasting and enforceable contractual restrictions a piece of land can carry.

No other conservation tool presents a simpler, more flexible way to conserve land while retaining ownership. These advantages have made easements the nation's fastest growing conservation tool, greatly expanding both conserved land and the land-trust movement that pioneered their use. While federal and state governments used a few conservation easements in the 1930s and 1950s, private groups adopted them only in the 1960s. That use accelerated in 1976, after Congress made easement donations tax deductible. At that time privately held easements conserved only a few thousand acres; by 1990 the total had swelled to 450,000 acres. By 2000 the nation's land trusts held almost 12,000 easements, conserving about 3 million acres.

Given the scale of this movement, the Hermans were not sure their 60 acres would interest the VLT, one of the nation's oldest and largest trusts. Peter and Sheila bought the first half of the land in 1968, "for the river, the brook, and the trees," says Sheila, then moved there from the New York City suburbs and spent three years rehabbing the farmhouse. They raised two kids and a few cows and pigs, while Peter worked as a planner with the state and then privately as a consultant. Along the way they bought an adjoining 30 acres.

In the late 1990s they began pondering how to conserve their land. They initially considered placing restrictions on the deed that would prohibit future owners from developing or subdividing. But as a lawyer friend pointed out, "Unless you had someone living next door to the land forever, there was no way to enforce it," says Peter. "Eventually, someone would build on the land and get away with it."

So they began looking into easements. Though they had long supported the VLT, which had become a leader of the country's land-trust and conservation-easement movement, they had never studied what an easement might mean for their own land. A call to the VLT answered the question: The trust's standard easement would leave the land and house in the Hermans' hands and enlist the VLT as the easement enforcer.

The Hermans doubted the Vermont trust would want a piece of land as small as 60 acres. But Mark McEathron, the VLT's central Vermont director, says that when he took a look around, he found that "it's an extraordinary property. Most of our easements cover more ground, but the scenic and natural qualities of the Hermans' land raised its overall conservation value to the level of many larger places."

McEathron and the Hermans soon had a handshake deal. The Hermans then paid a lawyer a few hundred dollars to confirm their existing title and deed, while the VLT surveyed the property's boundaries and inventoried its natural resources. The land trust also paid an appraiser to assess the property's pre-easement value (what a developer might pay for it) and its post-easement value (what it would be worth carrying the the easement's restrictions). The difference represented the financial value of the Hermans' donation, which would be tax deductible over the next few years as a charitable deduction. Their property taxes and any eventual estate or gift taxes should also fall modestly to reflect the land's reduced property value.

Over the next few months they finalized the paperwork and terms. All development and subdivision are prohibited, but sustainable logging and farming along VLT guidelines are okay, as are trails for hiking, skiing, horseback riding, and snowmobiling. No ATVs are allowed, however, and no dumps, billboards, or gravel pits. A 1.5-acre set-aside allows the Hermans or future owners to expand, remodel, or rebuild their house. All restrictions will "run with the land"—that is, pass with every transfer of ownership.

All that done, McEathron and the Hermans met one December day, as the first snows softened their fields, for a different sort of real estate closing. They signed the contract, and the VLT cut the Hermans a check for $10, the traditional token payment. No keys were exchanged—just handshakes, smiles, and the knowledge that another piece of nature's work was forever out of harm's way.

David Dobbs lives on an 0.18-acre lot in Montpelier, Vermont. His next book, Reef Madness: Alexander Agassiz, Charles Darwin, and the Meaning of Coral, will be published by Pantheon in 2003.

© 2002  NASI

Sound off! Send a letter to the editor
about this piece.

Enjoy Audubon on-line? Check out our print edition!