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I. RESTRICTIONS ON THE PROPERTY OWNER

The fundamental purpose of this agricultural conservation easement is protection of certain identified resources. The way this is accomplished is described in Section 3. IMPLEMENTATION as “…limiting and restricting the development, management and use of the Property… .” It is important to understand that not only are the development rights removed from the property, but also the owner is subject to further restrictions on the subsequent use of the property and the particular management approaches the property owner may employ. The Columbia Land Conservancy (CLC), as grantee, assumes the role of monitoring the easement.

The property is divided into three categories: Acceptable Development Area (ADA), Farm Area (FA), and Resource Protection Area (RPA). These areas are subject to increasingly restrictive conditions respectively. In general the ADA is where structures and other improvements related to the primary residence and farm operations and accessory uses are centered. The FA is generally the largest area of the property and is devoted to the land-dependent farm operations (i.e. crops and pasturage). The RPA contains “unique or special natural features including, but not limited to, streams, wetlands or steep slopes and their supporting buffer lands” and may, depending on the specific circumstances, prohibit all farm operations.

The table below summarizes the restrictions on various activities as one moves from the ADA, to the FA, and finally to the RPA categories.

It is clear that the above restrictions on both uses and management options introduce an additional layer of oversight for the farm owner/operator in addition to all existing local, state, and federal laws and regulations governing the business of agriculture. In summary then, those who choose to place this agricultural conservation easement on their property are:

• Limited to farming activities as defined by Ag & Markets Law Section 301 as
  amended,
• Required to operate consistent with sound agricultural practices as defined by
  the Commissioner of the Dept. of Ag. & Markets,
• Required to have a conservation plan in place or prepared within one year of
  receiving the easement,
• Required to observe size and placement restrictions for various buildings and
  improvements, and
• Provide request for permission (documentation and justification) to Grantee to
  undertake the following activities:
  • Home occupations or rural enterprises in the ADA,
  • Farm support housing in the FA
  • Permanent buildings/improvements for ag-related commercial activities in
    the FA,
  • Recreational events in the FA,
  • Construction of ponds and reservoirs in the FA, and
  • Water resource projects in the RPA
• Provide 30 day advance notice (documentation and justification) for: * Any subdivision in the Residential Area, and
  • Any construction of buildings and improvements
• Provide 45 day advance notice (documentation and justification) for:
  • Timber harvesting in the FA and RPA

Section 7. RESTRICTED USES of the agricultural conservation easement lists additional prohibited uses including placement of impervious surfaces in the RPA, the dumping of
any kind of waste on the property other than ag-related waste or biodegradable materials from the property, any use of chemicals on the property not in accordance with applicable laws, sound agricultural practices, and a conservation plan, and commercial mining operations.

Additional responsibilities of the property owner detailed in Section 8. ADDITIONAL
COVENANTS AND PROVISIONS include:

• Upon written notification by the Grantee (CLC) refrain from undertaking any threatened violation of the easement, cease an existing violation, or restore the property to the condition before such violation,
• Reimburse Grantee for all expenses incurred in enforcing the easement in the
  event of a violation, preparing baseline documentation for a subdivision extending into the FA, executing any amendment to the easement, or evaluating a request to reconfigure the ADA boundary,
• Include encumbrance language in any subsequent conveyance,
• Remain liable for acts and conditions done or occurring during the period of
  his/her ownership, and
• Provide written notice before exercising any reserved right (those rights not
  extinguished by the easement).
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II. POWERS OF THE COLUMBIA LAND CONSERVANCY

In many respects the powers of the CLC resemble those of a government agency with regulatory and enforcement powers. The specific powers enumerated in the easement include:

• Providing written permission to the owner to undertake certain specified activities. The Grantee has a minimum of 45 days to respond to the owner’s request for permission. This is a minimum because the Grantee has the right to extend this time period if it is determined that the owner has not provided sufficient information to make a determination. This is also a discretionary power because the Grantee may deny permission for any activity deemed to have an “adverse affect on the agricultural viability, forestry uses, or water quality of the Property.”
• In the case of a timber harvest, the right to review the forest management plan and timber harvest plan, the right to inspect trees marked for harvest prior to removal, and to require “reasonable modifications” to the harvest plan.
• Determining whether baseline documentation for a subdivision in the FA is necessary.
• Enforcement of the easement “at law or in equity, including, without limitation, pursuant to the provisions of Article 49 Title 3 of the Conservation (sic) Law, against any or all of the owners of the Property.” Grantee also has the right to “seek immediate injunctive relief and shall have the right, but not the obligation, to correct it by direct action, as well as by pursuing all available legal remedies.”
• Granting amendments, variances, and waivers. This too is a discretionary power for the Grantee may deny any owner request if it is deemed to “adversely affect in any way the farmland and forestry conservation and other protective goals” of the easement.
• Monitoring and Inspection. The Grantee has the “right to enter the property for the purpose of inspection to determine whether the provisions of this Conservation Easement are being observed and upheld.” And the inspection can occur at “any time, without prior notice” if the Grantee has reasonable cause to believe that a violation may or is occurring on the property.

Agricultural conservation easements have recently become a popular tool in the farmland preservation movement. These legal instruments shift certain development rights for a parcel of land from the property owner to government or a not-for-profit land conservancy. The rights may be donated, leased or purchased, but the effect is the same in that the property owner voluntarily gives up the right to develop the parcel for either a set period or in perpetuity. The easement document spells out in some detail the purposes of the easement and restrictions and procedures that will apply to the property in the future. Any property owner considering voluntarily placing an agricultural conservation easement on their land should carefully investigate the requirements of this legal instrument and consider how it may impact future use and development of that land.

Property owners should consider, at a minimum, the following implications of the agricultural conservation easement:

1) Are the property owner’s purposes consistent with those of the land conservancy as described in the agricultural conservation easement?

The purpose clause of the easement is a primary focus as it lists the purposes which are important to the land conservancy and it will be key to the future interpretation of the easement when there are differences of opinion between the property owner and the land conservancy. For example, the agricultural conservation easement model used by the Columbia Land Conservancy (CLC) in their recent projects (2000) lists four purposes:

a) “conserve productive agricultural and forestry lands [and their associated unique and special natural features, including wetlands and stream corridors];
b) enable the Property to remain in agricultural or forestry use for current and future production of food and fiber, and livestock and livestock products, by protection in perpetuity its agricultural and forestry values, soil resources, use and utility;
c) prevent any use of the Property that would significantly impair or interfere with its current or potential agricultural and forestry viability or use; and
d) conserve and protect the Property’s scenic and open space resources, and rural character, insofar as they do not conflict with the agricultural and forestry purposes as referenced in the recitals above.”

From this list we see that the first goal is primarily a resource or landscape preservation goal. While the second and third goals appear to promote the continuation of production agriculture & forestry, the mere provision of a piece of land with the biological potential for agricultural and forestry uses does not guarantee that this piece of land will retain its economic potential for these limited uses over time. The inclusion of the fourth goal shows that scenic and open space protection is intimately intertwined with farmland protection. Some interesting questions arise relating to the response of the land conservancy to a future decision by the property owner to halt farming. How many land conservancies would view the abandonment of production agriculture on parcels with agricultural conservation easements as a serious problem? Would they take steps to proactively encourage the property to remain in farming or would they be equally content to see the property revert to second growth open space?

The property owner should also carefully note the prohibited uses listed in the easement. For example, some agricultural conservation easements (including CLC’s) prohibit any commercial mining on the property, even though this activity has traditionally been one of many enterprises undertaken by farmers to improve their economic situation and remain in productive agriculture. Mining can be viewed as a transitional use which does not preclude the site from being restored to agricultural production in the future.

2) Is the property owner comfortable with the additional level of review and control over land use and management which the agricultural conservation easement creates?

Fundamentally, a conservation easement takes property rights away from the landowner and introduces a third party, the land conservancy, as a partner in the management of the land. The farmer already operates within a framework of control due to the numerous local, state, and federal rules and regulations with which he must comply in order to farm. Therefore before the farmer invites another not-so-silent “partner” (the land conservancy) into the picture, it is important to understand the consequences.

The easement sets forth numerous permitted uses, but these come at the cost of increased restrictions above and beyond those of government. The farmer with an agricultural conservation easement will have to negotiate a whole set of procedures and restrictions not applicable to his neighbor who does not have his land easement restricted. These include meeting legislative definitions of agriculture & bureaucratic interpretations, possessing current conservation, forest management, and timber harvesting plans (all prepared by certified professionals), and requesting (and waiting for) written approval of the land conservancy for many actions.

As a consequence, the cost to conduct operations will increase due to the new requirements to compile and submit information (in essence, an application) to the land conservancy, pay for the preparation of mandatory plans, and incur costs associated with delays in securing approvals from the land conservancy.

3) Is the property owner comfortable with the interpretive powers granted to the land conservancy and with the uncertainty surrounding; future interpretation of the language of the agricultural conservation easement?

Probably the biggest unknown factor for the future will be the interpretation of the language of the easement by the land conservancy staff. The CLC agricultural conservation easement (2000) gives the land conservancy broad interpretive powers to determine:

• whether the property owner has provided “sufficient information” for the land conservancy to determine whether or not to grant permission for an activity (note: there is no application form or check list provided to guide the property owner)
• whether there is an “adverse impact” on “agricultural viability, forestry uses, or water quality”
• whether there is negative impact on state or federally designated wetlands
• whether proposed forestry activities result in “significant soil degradation or erosion”
• whether proposed activities are “consistent with the purposes of this Conservation Easement”

It is important to understand that these are discretionary powers and while there is a hammer clause to require the land conservancy to respond to requests for permission within 45 days, there is no such time frame attached to determinations of the need for “sufficient information.”

There is simply no way to ensure that two parties have the identical understanding of the terms of a conservation easement. This is true between the original parties to the easement, but even more likely to occur when one or both of the parties to the easement change. This occurs when the property changes ownership and when staff changes at the land conservancy. It is entirely plausible that a property owner could find himself dealing with new land conservancy staff in the future who could pursue the above described discretionary powers in much more strict ways.

Conclusion

Agricultural conservation easements are viewed by many as a win-win proposition. Entering into such an arrangement with a land conservancy certainly affords the property owner a level of control that he doesn’t have with statutory and regulatory requirements because it is a purely voluntary arrangement. However, because each farmer, their goals, and their property are unique, agricultural conservation easements may or may not be appropriate. The decision to enter into such an easement should happen only after thoughtful consideration of the ramifications of the easement restrictions on future use and management of the land.

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