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Using Easements to Protect Historic, Cultural, and Natural Resources  

12-09-2015 17:35

The desire to preserve whole cultural landscapes is well established in our movement. We want to revitalize Main Street, not just a few landmark buildings. We want to save not just the farmhouse and barn, but the farmyard, the stone walls, and the fields as essential elements. However, our use of easements as a tool to meet these holistic preservation goals lags behind our desire to identify and protect these special places.

The rise of the local and state land trust movement— which doubled the amount of land protected by easements between 2000 and 2005 according to the Land Trust Alliance— has made this need and opportunity even more apparent. Land conservation organizations generally focus on their core competency, natural resources, and often leave historic resources like the farmhouse, barn, farmyard, and stone walls unprotected.

Preservation and land conservation organizations and policy-makers can play a role in increasing the use of easements that blend historic preservation and land conservation goals. This article addresses strategies for building effective relationships with land conservation organizations and an analysis of different ways to approach easement acquisition and management. But first, here is an introduction to easements and the similarities and differences between the land conservation and preservation movements.

Preservation and Conservation Easements
Easements are voluntary legal agreements that govern the current and future owners’ treatment of a property. Under the contractual terms of these easements, the property owner (grantor) grants certain rights to an organization (grantee) whose mission includes preservation or conservation goals. Standard preservation easements prohibit demolition of significant structures and require review and approval by the grantee of major renovations or additions that could affect character-defining features of a property. Conservation easements typically protect environmentally significant land and restrict future development. To obtain federal tax benefits for a preservation easement, property must be listed in the National Register of Historic Places, and the easement must be perpetual. For a conservation easement, its terms must include protecting outdoor recreation areas, natural environmental systems, or open space for scenic enjoyment.

While the scope of a preservation easement can be limited to a significant street facade or an interior space, the National Trust for Historic Preservation and the National Park Service, as well as the Land Trust Alliance (which promotes accreditation and national standards and practices), encourage easement evaluators to be inclusive and consider all of the character-defining features of the whole property as part of the easement development and acquisition process.

Easements offer more protection than government regulations. For example, a local historic district could have less stringent standards or may be downgraded or compromised. Also, easements can be used to help meet larger, strategic goals such as protecting a critical gateway into a community, managing land uses around a public drinking water source, or preventing a mega-development by controlling a few key properties.

Some Differences in Approach
Land conservation and preservation organizations are both concerned about protecting the character of communities and promoting the connections between people and their environment, but may go about this differently. Land conservation is often achieved through the purchase of an easement, and public funds are often the leading source for acquisition. With preservation, regulation is often the primary tool, and projects rely more on private investment for acquisition or protection than government funding.

At times, our training and the state and federal programs we utilize can also focus practitioners too narrowly. Conservationists may be ready to celebrate when the land is protected on a historic ranch, but preservationists want the land and the buildings protected. And preservationists might miss an endangered species or fail to look beyond the cultivated landscape to forest or wetlands. In either case, sites of archeological significance may be overlooked.

First Steps Toward an Easement
A three-part assessment helps determine how an easement project can best proceed.

What is the significance of the resource and its relative importance? This process is both quantitative and qualitative. Is the historic resource eligible for the National Register individually or does it contribute to a district? Do natural resources appear on a state or national list of species of concern? Does the building’s design include craftsmanship that is the last of its kind in the region? Is the land a missing link in a regional wildlife corridor project?

What are the motivations of the owner? Easements may be donated or sold by a property owner. The owner’s goals for the long-term stewardship of the property will likely shape the easement process. Does she care about maintaining farming and the farm buildings? Does he want the family summer cottage protected as well as the shoreline? If the owner is donating the easement, he might look for maximum tax benefits and low easement costs. With a publicly financed acquisition and protection project, donors (individuals, foundations, or government sources) may require easements with certain conditions to guard their investment.

What is the capacity and interest of the prospective easement holding organization? The tendency of land conservation organizations to focus on natural resources and historic preservation organizations to focus on historic and cultural resources is not surprising considering the serious responsibilities associated with easement stewardship. Beyond the complexity of securing easements, these organizations must monitor easement properties regularly, respond to requests for building alterations or changes in land-use practices, serve as advisors to current and future owners, and respond to violations to enforce the terms of the easement. Some organizations specialize in both types of resources. Others collaborate with partners or stretch into the other mission area if the type of resource, owner motivations, and terms of the easement align with their interest and capacity.

Types of Easements
The types of easements that emerge from these assessments can take different forms. The first two are the most common ones.

Two separate but complementary (“side-by-side”) easements. This scenario consists of two separate easements—one for historic preservation, the other for conservation—on the same property, but held by two separate organizations. This method works best where buildings are clustered in a single area.

Side-by-side easements were desired by the stakeholders and required by donors in the recent rescue and revitalization of the Daniel Webster Farm in Franklin, N.H. (included on the National Trust’s 11 Most Endangered Historic Places list in 2005). The Trust for Public Land purchased the site, and held it off the market while advocates raised $2.5 million to stabilize the buildings, secure preservation and conservation buyers, and purchase two separate easements for a 16-acre campus of 12 historic buildings (which included statesman Daniel Webster’s farmhouse and a range of institutional buildings erected for an orphanage), as well as 122 acres of highly valued farmland.

Coordination of the two easements and the entities receiving them can be tricky. There is always the potential for future conflicts, particularly where buildings are used or occupied. Costs to a property owner dealing with two easements may be higher than with one because of the need to draft two legal documents and establish two stewardship funds. However, two easements allow each organization to focus on its mission and area of expertise.

A single easement held by one grantee that addresses both historic and natural resource values. This option relies on a single grantee and an arrangement that serves both preservation and conservation purposes. The easement can be held by either a conservation or preservation organization. Who takes the lead is generally determined by the owner’s wishes and the nature and extent of land or buildings involved.

This structure works well when the grantee is comfortable with the restrictions or secures outside assistance. The Teton Regional Land Trust in Idaho acquired a conservation easement in 2003 on the 40-acre Hollingshead Homestead which is now listed in the National Register of Historic Places. The property includes a 100-year-old homestead with eight buildings as well as spectacular mountain views and land valued as wildlife habitat. In addition to reliance on the Secretary of Interior’s Standards, the single easement includes measurable historic preservation restrictions (such as no change in building footprint and no additional stories) that the land trust feels comfortable in monitoring.

The North Carolina Coastal Land Trust holds a conservation easement that includes a plantation house. The restrictions on the plantation house incorporate specific preservation guidelines for any repair or renovation work that is done on the house. The executive director anticipates contracting outside help for any historic preservation review. A fee structure that is part of the easement terms can help underwrite these costs for easement holding organizations.

A single easement co-held by a land trust and a historic preservation organization (two grantees). This option is usually discouraged by legal advisors. While this arrangement seems to promise that the resources and expertise of both organizations are used to their best advantage, and offers the simplicity of one easement document, it can lead to future conflicts between the two grantees if they are not unified in their management and enforcement decisions.

Increasing the Use of Easements
How can preservationists increase the use of easements that blend conservation and preservation goals?

Build a working relationship with land conservation organizations. Be a member of your local land conservation organization and promote its activities. Look for volunteers and donors in common. Map out a strategy for securing easements on properties to meet conservation and preservation goals.

Provide useful information to land conservation organizations on preservation easements. Understand their motivations, help them do their jobs, and create possibilities for collaboration or referrals. Offer a conference or workshop. Share existing information on preservation easements or customize it for your locality.

Be clear and be flexible. Easement projects are complicated by owner’s wishes, legal terms, funding pressure, and deadlines. If serving as an advisor or partner, agree on roles and responsibilities regarding schedule, communication with the owner and the public, fundraising, and other issues. Compromise, while guarding key preservation needs, is also essential.

Easements that blend conservation and preservation goals are opportunities to preserve special places and forge stronger relationships with key partners in our work to protect the character of our communities.

Publication Date: January/February 2008

#Legal #easements #ForumNews

Author(s):Jennifer Goodman