CONSERVATION EASEMENTS

In case you maybe haven't noticed it, there is a growing movement among property-owners around the country to place or designate their land into so-called "conservation easements". I say "so-called" because the term itself, which probably has lawyerly origins, seems to me to be rather misleading -- sounding like you are opening up your property to be overrun by a mob of environmentalists.

Actually a "conservation easement" is quite the opposite of anything like that. It is simply a legal document restricting future development of the property in question to certain specific limits that are binding on future owners, whether they be heirs or purchasers. In this way the present owners of valuable recreational property, especially those tracts which are critical to the well-being of the ecosystem, can insure that their property won't be chopped up into small parcels or stripped of its resources by any future owner who might see the property mostly as a way to make a fast buck.

As promoted by such organizations as the "Headwaters Land Conservancy", which volunteers to help landowners make such arrangements in a ten-county area of northeast Lower Michigan, the landowner may also realize tax-benefits in one or another of several ways. One possibility is an income-tax deduction, in that the Conservancy (as a 501c tax-exempt organization) becomes the beneficiary of the development rights, allowing the landowner to deduct the difference between the property's "not-to-be-developed or subdivided" value as against it's developmental value on the open market. Another possibility might also be in lower inheritance taxes. Finally, future property-tax assessments -- although county assessors are understandably reluctant to admit this -- should follow suite as well.

The disadvantages, are, of course, only if you change your mind. You can still sell the property, but you will have to find a buyer who will live up to the same restrictions, which the Conservancy fully intends to legally enforce. And, of course, your heirs, when approached by the developers, as they surely will be, might end up cursing you -- especially if you failed to pass on your values as well as your genes. But by then that will be their problem, not yours. Meanwhile you get the satisfaction of knowing that at least some of your values will be respected, whether they like it or not.

Given all this, plus the notion that "you can't take it with you" -- "funeral shrouds having no pockets", so to speak -- why would anyone hesitate to make such bargain, particularly when certain conditions or exemptions can be written into any such agreement, such as allowing for one or more other cottages or homes in a specific location or whatever? Is this not an enlightened way of protecting the environment and the future at little or no real cost, and even perhaps at some gain, monetary or otherwise, to oneself?

So it would seem, at least until a bigger bargain seems to be in the offing, one in the form of state purchase of development rights. This prospect seems to have emerged with the DNR's announcement (in the May 31, 1999 edition of the DNR calendar) that development rights were or were about to be purchased by the state on 90 acres in Leelanau county and some 76 acres in Ingham county (both supposedly purchases of farmland to forestall further urban sprawl). But there also has been a persistent rumor that State Land Trust money (that gained from oil & gas royalties from state land) might be used to purchase development rights on much more extensive tracts of land that the DNR deems necessary supervise for various environmental reasons, but which the present owner is unwilling to sell outright.

At first glance, this seems like a great idea. After all, if the object is to prevent unnecessary or unwanted development, and to protect the environment from misuse by land speculators, why shouldn't the state be offering such an incentive? Should not this policy be seen as working hand-in-glove with the "conservation easement" movement so that by one means or another the environment is protected for generations to come? Perhaps, but I think we should remain skeptical about the state getting involved in this way -- and this for several reasons.

One reason for extra caution is that while tax-deduction incentives might be one thing, outright "purchase" of development rights is something else. The latter could spark a whole new round of real-estate speculation, like making the state an "offer it can't refuse -- or else!" The state land purchase agency has already run into this kind of attitude from some of those who have offered their land to the state for outright purchase. Does the state now want to engage in this kind of bargaining with those "who want to eat their cake and have it too"? Because, let's face it, why should public money be used to finance non-development of land from which the public itself is excluded? In Michigan we've already seen the public fleeced by mineral rights holders for "takings" of speculative profits from land that Federal law forbade to be drilled. But at least the land in question was public land. Now are we going to see payments made to private owners for speculative "takings" on land that hasn't been "took"? (Kind of reminds you of all the payments made to farmers for not growing crops!)

This is not to say there shouldn't be some incentives for non-development of privately-held land. Certainly tax write-offs seem reasonable. Or even how-about state (DNR) payment of all or at least part of local property taxes on land that is so set aside? It seems to me that this might be a reasonable compromise, especially if there were some sort of clause in the agreement that would oblige the land-owner, if the land is ever sold in the future, to give the state the first right of option to buy the land at fair market price -- less past taxes paid.

True, such an agreement between a private land-owner and the state is probably not fool-proof and the land-owner might want to insist, if such were possible as part of any such agreement, that the development rights given to the state do not include any rights to clear-cutting, something that the Headwaters Conservancy and many other similar land conservancy organizations insist upon. In fact, this might be the strongest argument for going with the private organizations rather than any offer made by a state agency. The private conservancies offer legal protection of your land in perpetuum. The state agencies, unless circumscribed by further legal restraints, like those promoted by the conservancies, are most likely to administer the development rights according to the prevailing political pressures of the moment.

This is particularly seen, I think, when it comes to timber harvesting. Recent studies have shown that logging, particularly clear-cutting, degrades the environment significantly more than does recreational development or even road-building. (Although this hardly seems like a surprising new finding -- after all, how many roads or summer cottages were along the AuSable when the grayling became extinct?) Yet the clear-cutting continues, or with the latest "wood-products" industry -- the real "timber" now for the most part long- gone -- with its heavy equipment dominated harvesting on the increase, especially on public or state-administered land, suggests that anyone who is truly conservation-minded will do his or her utmost to keep their land out of the hands of the developers and the state's industrialists, and under their own control.

However, life being as short as it is, and the environment being as fragile as it is, we all should seek to do the next best thing. Prudence, as well as increasing experience, suggests that land conservancies, along with conservation easements, might be that next best thing.

RWK 6/10/99


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