Steve Small will go through and analyze a lengthy conservation easement document and a 40+ item conservation easement project checklist, with attention to often-hidden tax, legal and appraisal issues and the most common land trust document mistakes he encounters. Participation will be encouraged.
Session Level: Intermediate Session Location: Colorado Convention Center Price: $120 LT Member/$135 Gen Admission CLE: CLE
Many land trusts are required to work with multiple landowner conservation easements, which frequently present difficult legal challenges for the land trust holding the easement. In this seminar, we will examine several issues, such as amendments of multiple owner conservation easements, financing for construction, family succession and partition, administration of uses and land trust business decisions on structuring conservation easements involving multiple owners now or later.
Session Level: Advanced Session Location: Colorado Convention Center Price: $120 LT Member/$135 Gen Admission CLE: CLE
This session will take attendees through a journey of how a land trust prepares for and approves a land conservation project. Utilizing an interactive platform, a fictional case study is presented to enable those not familiar with the intricacies of land transactions to peak behind the curtain and experience the thrill of the deal first hand. Then a fast-paced discussion will help attendees better understand pitfalls to avoid when negotiating the terms of a conservation easement, including avoiding restrictions that you cannot reasonably monitor or enforce. The audience members will then learn about principled negotiations – a methodology focused on people, not positions, and one that enables parties to address issues while preserving their relationship.
This session will dive deeply into the nuts and bolts of documenting changes on conservation easement lands. We will examine various types of change, such as ownership and management changes, easement violations and third-party trespass, amendments, natural disasters, and chronic issues like climate change, erosion, and the spread of invasive weeds which can trigger a need to document changes over time. We will examine the various tools that conservation organizations apply to document changes such as photographs and GPS/GIS, monitoring reports, current condition reports, and baseline updates, and explore the thresholds at which those tools function best.
Land conservation projects are, at their core, sophisticated real estate transactions. This workshop is intended for non-attorneys and will acquaint participants with basic real estate concepts, legal elements of real estate transactions, and outline the acquisition process from property identification through title searches and related due diligence to closing. Emphasis will be placed on basic legal terminology, possible pitfalls, and practical advice. The topics will include: types of ownership and how interests in property can be held by different people; title searches, title insurance, and problems; liens and encumbrances; surveys and legal descriptions; environmental due diligence and liability; letters of intent, purchase contracts, options, and rights of first refusal; basic information on deeds, conservation easements and other documents; and closing and recording.
Land trusts can and should tackle trespassers. Trespass is the fastest growing class of conservation easement violations and encroachments on fee land. Using a participatory format the presenters will address the legal bases for reaching violators who are not parties to the conservation easement, encroachers on fee land as well as apply practical and drafting lessons to their own situations. Attendees will take away sample easement language anticipating third party violations and lessons learned.
Session Level: Intermediate Session Location: Colorado Convention Center CLE: CLE
Join two seasoned land use/legal professionals to help you navigate what you and your organization should be considering with respect to the title and title issues that will inevitably arise in your projects. Title can sometimes feel like a maze leaving you with questions like: “I have insurance on my car, but do I really need it for my conservation project?” and “Uh oh, the person I have been meeting with all these years doesn’t really own all of the property, now what do I do?” Come learn strategies for dealing with this complicated maze as these experienced practitioners guide you to becoming a more informed conservationist when it’s time to request, review, and understand “title” on your next project.
Session Level: Basic Session Location: Colorado Convention Center
There’s a lot going on at the Tax Court and at the IRS. We’ll bring everyone up to speed on the latest developments in case law, IRS rulemaking on amendments, and actions to curtail conservation easement syndicated deals.
It has been said that the acquisition of a conservation easement is just the tip of the iceberg, the exciting part we focus on during project development. This workshop will focus on the rest of the iceberg: the long-term stewardship that is required of easement holders. We'll start with a discussion of the important baseline documentation reports, then move on to monitoring procedures, tools, and protocols. We'll also discuss monitoring reports, and how to review these reports and determine next steps. The importance of landowner relations will be discussed, as well as principles of enforcement, and we'll touch on conscientious easement stewardship in a changing climate.
Correctly completing Form 8283 can make or break a conservation easement deduction. The IRS has fully denied deductions because of improperly completed forms or the lack of required documentation. A contemporaneous written acknowledgement from the donee is not required to be attached to the Form 8283, but is required to be received by the donor for the donation to be deductible. Knowing what transaction expenses are deductible is also critical, as many are unaware that reimbursing a landowner for such expenses could render the donation a "bargain sale." While donors are legally responsible for substantiating donations, land trusts may assist donors to understand the forms, so long as they don't provide legal advice. The session will also discuss how a donee organization should review a donor's appraisal, what to do if the claimed value is so high as to "shock the conscience," and recent changes to Land Trust Standards and Practices and recent court cases related to Form 8283 and the contemporaneous written acknowledgement.
The focus of this workshop is new practice 11 F., “Approvals and Permitted Rights”, and the quandaries land trusts face when requested to exercise discretion to approve activities, improvements, or uses on or of conserved property. The can occur where the easement holder is given express authority in the deed to grant or to withhold consent, often in its sole discretion. More problematically, it can be where the proposed activity or use is neither expressly prohibited or allowed in the easement deed, or when faced with a possible violation. This workshop will explore the issues involved in facing those decisions, including easement drafting considerations in light of IRS scrutiny, the interpretation and implementation of discretionary approvals, when a request for approval should be treated as an easement amendment, and the development of policies and procedures. These issues also raise questions of the interplay of discretionary approvals and private benefit and private inurement prohibitions. We will center the discussion on the variety of cases between those that are easily permissible and those that are easily rejected, with case studies, to provide the audience with problem solving tools and the questions they should ask when facing these often difficult scenarios.
In the exuberance of completing projects, it is easy to say "Yes!" to a project that perhaps your organization should say "No!" to instead. Maybe you said "Yes!" to a great project at first introduction, but at some point along the line, negotiations took a turn, and the project wound up being not as strong as it should or could be. How do you avoid these pitfalls? How do you step back and reconsider – or redirect an interested landowner? This interactive session will help participants sharpen their focus on key parts of the acquisition process that may have significant implications on the permanence of the conservation.
Session Level: Intermediate Session Location: Colorado Convention Center
Four experienced easement appraisers from Pennsylvania, California and Colorado address current issues facing land trusts and easement grantors. Using pertinent scenarios, presenters offer practical solutions to assist workshop participants in completing successful projects. Topics include evaluating and engaging appraisal and consulting services, dealing with natural resource valuation issues, and considerations surrounding markets where encumbered properties do not exhibit value loss. This advanced session presumes attendees are familiar with the general meaning of terms such as qualified appraiser, qualified appraisal, yellow book and highest and best use.
As land trusts grow in size, mature in sophistication, and protected property changes hands, they will more frequently find themselves in court, and not just on conservation matters. Vendor disputes, contract claims, employment issues, will contests, and even personal injury cases will materialize that spawn litigation. This workshop will provide pointers on how to prepare for those eventual court cases before the appear; correct common misconceptions about relevant privileges; identify critical steps to take when litigation looms; alert people to the challenges they’ll face with lawyers, judges, mediators, and their own staff and board and offer tools to overcome them; and outline ways to be positioned with the best chance of succeeding in the end.
Conservation easements are a good tool for telling landowners what they can’t do, especially when it comes to the built environment: no houses, no roads, etc. However, when it comes to addressing what landowners should do (or even must do!) in regards to vegetation management, the limits of an easement becomes tested. Many land trust funders and easement holders are becoming more interested in the “performance” of private lands to meet certain societal goals such as organic farming, climate change, or invasive species. In the eyes of many, it’s no longer enough just to keep land from being developed through a negative covenant. However, when we demand certain management regimes on private land through an easement, it stretches the legal and practical relationship between easement holder and private landowner. This session will explore the range of options for addressing the ephemeral nature of land/vegetation management in a perpetual document. It will include land trust experts who will review the business ramifications of being more involved in a landowner’s land management decisions in both a wildlife management context and an agricultural context, and an attorney who will highlight the legal issues involved. This will be a facilitated conversation with audience participation to daylight how others are addressing the topic.
Excess benefit, impermissible private benefit and private inurement trouble land conservationists every day. What does it really mean in daily practice as we work with landowners, trustees, donors and corporations to develop effective conservation strategies? How to distinguish incidental and insubstantial conferment, and how do you document and measure it?We will look a the definitions of key terms, identify the risks and analyze strategies through a series of case studies.Common issues include service delivery to landowners, transfer of development rights, program facilitation fees, conservation easement violations, fundraising and marketing to name a few.
This session will use actual examples of building clauses to highlight issues such as floating building envelopes, restrictions that are unnecessary or difficult to monitor and other drafting pitfalls. We will address the wide spectrum of types of buildings often permitted on conservation lands and challenges that arise. We will also teach participants methods useful in gathering necessary information from landowners before the drafting begins. The session will be interactive with time for audience input on the issues discussed.
The Conservation Easement Stewardship Roundtable continues to get better each year, entering its 10th iteration at Rally! This session is ideal for conservation easement stewardship staff and experienced volunteers. Via peer-to-peer lightly structured discussion, this session provides key opportunities to network with colleagues across the country, discuss pressing and emerging issues for stewardship, and introduce further engagement with stewardship practitioners via The Learning Center resources and online forums. Bring troubling questions for objective feedback as well as success stories to provide examples to colleagues. Themes covered may include technology options, recordkeeping challenges, landowner relationships, second and third generation landowner issues, violations across the spectrum, staffing and organizational challenges, and new monitoring ideas.
Session Level: Advanced Session Location: Colorado Convention Center
A well-supported estimate of value of a conservation easement is of critical importance, both for the substantiation of a tax deduction and for obtaining funding for an acquisition. This workshop will introduce the fundamentals of the appraisal process as it relates to conservation easements and discuss: relevant Treasury Regulations and “Yellow Book” standards, methods of appraising conservation easements, the importance of Highest and Best Use, how encumbrances affect value, commonly encountered problems and deficiencies, the importance of using a qualified appraiser and emerging issues in conservation easement appraisals.
To the cash-strapped land trust stewardship program, volunteer labor can seem like a windfall. In particular, conservation easement and fee land stewardship activities such as monitoring and land management involve time- and labor-intensive tasks across wide geographies. In addition, volunteer programs can help humanize a land trust; they engage donors and community members in a way that esoteric property rights language decidedly does not. At the same time, while volunteer labor is free, volunteer programs are not. Taking on volunteers requires organizational resources – both staff time and expertise – and increases organizational risk. This interactive workshop will share knowledge gained from the management of the Minnesota Land Trust’s volunteer monitor certification program, which is over 100 volunteers strong. We will discuss how to assess your organization’s need for and capacity to manage volunteers, mitigate organizational risk related to volunteers, and create standards and protocols that help recruit and maintain a trained cadre of professional volunteer monitors. Volunteer monitoring programs are not for every land trust, but a well-managed program could be the tool you need to conserve your financial and human resources while meeting your stewardship obligations and engaging communities.
Behind on your baselines? Not sure what needs to be included in them? Need to update your older baselines to a new format or add new information? Then, join this workshop as we will cover the theory and practical application of these important stewardship tools. During this interactive workshop, we will cover the basics of drafting baselines, when an update or baseline supplement is needed and how current conditions reports are a useful variation of the baseline. Participants will hear about how Mass Audubon addressed their baseline backlog with more than 60 current conditions reports and how they’ve kept their baselines up to date documenting a variety of changes to conserved lands.
Land trusts invest significant time on tasks that can seem secondary to stewardship, including record keeping, documentation, and relationship building. This session will share litigators' war stories to illustrate how crucial these seemingly mundane, day-to-day tasks are when a land trust is suddenly faced with an easement violation, trespass, encroachment, partition action, or other unexpected prospect of litigation. We will walk through three case studies to illustrate—and ask participants to predict—how each violation progressed from initial discovery by the land trust to final resolution.
The session will frame three types of enforcement in which land trusts have addressed violations through a collaboration with the violator, a formal agreement reached in lieu of threatened litigation, or litigation. In each instance, the presenters will highlight specific practices that the land trust had in place prior to the violation, which then put it in a strong position to resolve the violation on favorable terms, including restoration of damaged properties to the land trust's high standards. Presenters will share both painful lessons learned and insight into how to work with outside counsel and technical experts to maximize negotiating leverage.