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Property Rights Foundation of America®
Founded 1994

A COMPILATION OF THE RESTRICTIONS ON THE
PROPERTY OWNER
AND THE POWERS OF THE
COLUMBIA LAND CONSERVANCY
AS FOUND IN THE

COLUMBIA LAND CONSERVANCY DRAFT SAMPLE AGRICULTURAL CONSERVATION EASEMENT: 2000

PREPARED BY: ROLAND R. VOSBURGH, DIRECTOR OF PLANNING COLUMBIA COUNTY PLANNING DEPARTMENT
2 JANUARY 2001

 

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.

ACTIVITY ADA FA RPA
Farming Activities As defined by A&M Law Section 301 As defined by A&M Law Section 301 As defined by A&M Law Section 301
OR PROHIBITED
Agricultural Buildings & Improvements Used only for agricultural purposes, consistent with sound agricultural practices, and a current NRCS conservation plan or its equivalent Used only for agricultural purposes, consistent with sound agricultural practices, and a current NRCS conservation plan or its equivalent NOT LISTED
Other Buildings & Improvements NOT LISTED NOT LISTED Buildings shall not exceed 400 sq. ft., Animal housing facilities are PROHIBITED
Fences NONE NONE NONE
Residential Dwellings NONE NOT LISTED NOT LISTED
Single Family Residential Dwellings NOT LISTED Limited to one single-family residential dwelling for each designated "Residential Area" (each area not to exceed 3 acres) NOT LISTED
Farm Support Housing Footprint of improvements not to exceed 10,000 (7,000) sq. ft., Must be completely located in ADA, and May not be subdivided from the ADA Prior written permission from Grantee (based upon a finding) and no more than one such building envelope NOT LISTED
Agriculture-related Commercial Activities Must be completely located in ADA Activities which do not require the construction of permanent buildings and improvements,
OR
Prior written permission from Grantee (based upon a finding) for activities which would require the construction of permanent buildings and improvements upon owner providing advance notice with sufficient information
NOT LISTED
Home Occupations or Rural Enterprises Prior written permission from Grantee (based upon a finding) upon owner providing advance notice with sufficient information, Must not exceed 10,000 (7,000) sq. ft. and Must not "adversely affect the agricultural viability, forestry uses, or water quality of the Property." NOT LISTED NOT LISTED
Recreational and Educational Uses Must be completely located within APA, Total aggregate footprint for improvements may not exceed 10,000 (7,000) sq. ft., "Golf courses and other recreational facilities that significantly disturb the soil profile and could adversely affect agriculture and forestry uses on a continuing basis," are PROHIBITED Aggregate footprint for improvements may not exceed 400 sq. ft. NOT LISTED
Water Resources Only uses expressly permitted Must be carried out in accordance with sound agricultural practices and a current NRCS conservation plan or its equivalent.
Construction of ponds or reservoirs upon prior written permission of Grantee (based upon a finding) upon owner providing advance notice and sufficient information
Prior written permission from Grantee (based upon a finding that it is in accordance with sound agricultural practices and a current NRCS conservation plan and
Does not negatively impact State or Federal wetlands) upon owner providing advance notice and sufficient information
Forestry Management NOT LISTED Must be carried out consistent with sound agricultural practices and a current NRCS conservation plan or its equivalent
OR
In accordance with generally-accepted forest best management practices (as outlined in a forest management and harvest plan) that shall not result in significant soil degradation or erosion,
Timber cutting shall be carried out in accordance with a plan prepared by a reputable and qualified forester and owner must provide 45 days advance notice to Grantee (consisting of forest management and harvest plan)
Must be carried out consistent with sound agricultural practices and a current NRCS conservation plan or its equivalent
OR
In accordance with generally-accepted forest best management practices (as outlined in a forest management and harvest plan) that shall not result in significant soil degradation or erosion,
Timber cutting shall be carried out in accordance with a plan prepared by a reputable and qualified forester and owner must provide 45 days advance notice to Grantee (consisting of forest management and harvest plan)
       

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:

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:

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:


AGRICULTURAL CONSERVATION EASEMENTS:
SOME CAUTIONS FOR PROPERTY OWNERS

PREPARED BY: ROLAND R VOSBURGH, DIRECTOR
COLUMBIA COUNTY PLANNING DEPARTMENT 10 JANUARY 2001

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:

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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