This workshop will cover the difference between discretionary approval and amendment, and explain when and how to design and execute these tools. Included will be IRS views on amendment, current caselaw on amending conservation easements, Land Trust Alliance Risk Management Drafting Pointers, rules for a good amendment, discussion of who must sign, due diligence necessary for every amendment and state law differences.
It is understandable that many land trusts are spooked by the IRS in drafting conservation easement restrictions. There are many considerations if the easement is wholly or partially donated, there are estate tax considerations, and, of course, nonprofit rules. In response, some land trusts and attorneys are suggesting tight restrictions on commercial uses, building, renewables and subdivision. While this may seem like a reasonable strategy now, it may not be the best approach for long term conservation and can present stewardship challenges. We will present considerations and tools for crafting easements that protect conservation values keeping in mind long-term stewardship, adaptability and commitment to inclusive conservation.