In perpetuity, or not?

A view of Mettowee Valley fields and surrounding hills from a hillside vantage point in Rupert. Photo by Tom Slayton

A view of Mettowee Valley fields and surrounding hills from a hillside vantage point in Rupert. Photo by Tom Slayton

UPDATE: On Friday, the Vermont Land Trust issued a statement on its website retracting support of S.119 in its current form.

Vermont has one of the most extensive private land conservation efforts in the country. Over the past 30 years, the Vermont Land Trust, community land trusts and The Nature Conservancy have preserved hundreds of thousands of acres in Vermont.

The cornerstone of the land conservation movement has been the notion that property — working forests, farms and ecologically important lands — would remain undeveloped in perpetuity.

One of the tools used to conserve parcels is a legally binding land covenant known as a conservation easement. An easement eliminates a landowner’s interest in “development rights.” Those rights, which have monetary value, are transferred to a land trust that holds the easements in perpetuity.

About 10 percent of Vermont’s land is protected under conservation easements at a cost of hundreds of millions of dollars in federal funds, donations, state grants and forgone income tax revenues.

Several conservation groups are questioning whether the word “perpetuity” should apply to all conservation easements. Prominent Vermont conservationists, led by Darby Bradley, the former longtime director of the Vermont Land Trust, are now arguing that in certain instances limited development should be allowed.

Darby Bradley, former director of the Vermont Land Trust.  Courtesy photo

Darby Bradley, former director of the Vermont Land Trust. Courtesy photo

Bradley and The Nature Conservancy are asking the House Judiciary Committee to pass S.119, a bill that would allow easement holders — such as the trust and the conservancy — to make minor changes to the agreements without seeking the approval of a judge.

The legislation, however, also includes a provision that would give an easement-holder, typically a land trust, the ability to make major changes to the development rights as long as a special panel approves.

Others who have been active in conservation efforts — including former Gov. Howard Dean, the head of the Upper Valley Land Trust and a professor at the Vermont Law School — believe S.119 could give easement holders, including the land trust, the ability to significantly change land protections. Critics say the “Category 3” provision in S.119 would allow a land trust to revoke easements, eliminate the obligation to protect land and effectively allow development on property that was legally bound to be preserved.

“Category 3” also undermines the expectation among donors that “forever” means “forever,” according to John Echeverria, a Vermont Law School professor and former director of the environmental law and policy institute at the Georgetown Law School.

Legal experts, including Echeverria, say the IRS has no authority to challenge changes to easements that have been purchased.

John Echeverria, Vermont Law School professor. Courtesy photo

John Echeverria, Vermont Law School professor. Courtesy photo

But for easements that have been donated, Echeverria says the state legislative proposal creates a slippery slope. Under a provision of the bill, conservation groups could renege on promises made to donors who have taken tax deductions for the value of the easements. Changes to donated easements could violate the spirit of the charitable trust doctrine, he said, and leave donors and trusts vulnerable to IRS audits of property no longer protected in perpetuity.

“This legislation basically says the land trust and the landowner can go to a board or hold their own friendly proceeding and say, ‘well we think it’s best for Vermont if we move the easement,’” Echeverria says. “I think the most fundamental policy problem with that is that it breaks the promises that have been made to hundreds if not thousands of landowners here in Vermont who have made conservation donations on the clear understanding that their land — not some other land — will be subject to permanent protection.”

Roughly 30 percent of the easements in Vermont have been donated to conservancy organizations.

The amendment process, Echeverria said, could allow trusts to “swap” easements, eliminate protections and change house locations. He says the legislation violates the charitable trust doctrine, established under state law, and undermines the public’s perception of a trust’s obligation to keep land perpetually free of development. Changing the terms of an easement on donated land is a partial extinguishment under the law that should be amended by the courts under federal law, in Echeverria’s view.

In a hypothetical scenario, Echeverria says the easement for a Taylor Valley Conservation Area in Strafford could be passed into the hands of an investment group that wants to build 25 rural estate properties. In theory, he says the group could go to conservancy and offer to buy easements for land along the Connecticut River, which has a higher conservation value in exchange for the right to develop the Strafford conservation area.

Gil Livingston, the executive director of the Vermont Land Trust, says Echeverria’s example is extreme.

“When he speaks to the Vermont Land Trust erasing conservation easements and swapping conservation easements elsewhere — that hasn’t happened in Vermont,” Livingston said. “We are not going to sell conservation easements. The first time we do something like that is the last time we receive a donation. Our goal is to create and maintain a trusting relationship with each landowner. We work with them to have faith that we’ll honor commitments we’ve made.”

Bradley and Livingston, the current director of the Vermont Land Trust, say the working landscape evolves over time and they don’t want to “shackle” farmers. There are currently no explicit state guidelines for amending easements. Bradley and Livingston both support the adoption of S.119, because it would create a process and criteria for changes to covenants for conserved land.

“Land uses and the context in which conservation easements exist change over time,” Livingston said. “Easements can be amended under current law, but there is no process, no explicit criteria, no test to be applied when organizations are considering an amendment. Nor is there public review or public engagement.”

Echeverria says there is extensive legal precedent on the steps charities must take to carry out donor intent. “The problem is not that there are no criteria, but that the Vermont Land Trust would like to have the Legislature erase the current criteria, so the trust can proceed without regard to donor intent,” he said.

In an email, Dean, who was governor of Vermont from 1991 to 2003, wrote that he respects Gil Livingston and the Vermont Land Trust, “but I am alarmed by the idea.” Dean made land conservation a signature part of his legacy. (He was involved in the preservation of the former Champion Lands forestland in Essex County among other areas.)

“There is a real chance that the passage of this bill could undo decades of significant progress in keeping Vermont sustainable,” Dean said in an email. “Time to slow this train down so the public can learn more before we alter Vermont for the worse forever.”

Why create an easement panel?

Bradley, the much-revered former head of the Vermont Land Trust, had an “epiphany” in 2007. He began to question whether easements should never be changed. There are practical reasons to amend the legal covenants, he said, that are beneficial to the public good.

Bradley began to collect examples of easement changes that do little harm and provide a public benefit. A volunteer fire department in Woodstock needed a half acre to expand, but the department was surrounded by conserved land. The town asked for an amendment and because the change didn’t “materially change” the conservation value of the remaining land, he said, an amendment to allow construction on the parcel served the public good.

When farmers want to put a cellphone antenna on an silo, for example, there is no universal state process for changing an easement to allow that use, Bradley said.

Johnson Farm map

Former game warden Paul Fink of Canaan (pointing) and Monty Montplaisir of Averill examine the map of the Johnson Farm in Canaan, which has been conserved. Photo by Tom Slayton

Bradley points to a land swap at an orchard in Shoreham in which a conservation easement created 20 years ago retained the right to build a second home on the property. Recently, a new owner wanted to conserve that land and exchange the easement restriction for the right to build worker housing on the farm compound.

In rare cases, Bradley said, easements on whole parcels that are of lesser conservation value can be swapped for easements on land that is of higher conservation value, as long as the amendment does not create a financial windfall for the landowner.

Livingston says there is no process for amending easements under the current state law. That is to say there is no criteria, no test, no public review and no public engagement for the amendment process in state statute. Only the Vermont Attorney General as enforcement authority under state law and can challenge amendments if they are contrary to the public interest or violate charitable trust requirements.

As land uses change, Livingston says, easement holders like the Vermont Land Trust need to be able to consider the context in which people are using land for farming and forestry.

The farm building compound, for example, might need to extinguish easements on small parcels in order to add another barn or more housing for workers. Or new restrictions for river protection might need to be added.

Most farmland easements, Livingston says, are not donated. Typically, the land trust purchases the easements because an operating farm is the principal asset for a landowner rarely able to donate the capital value of the easement.

“The theory is, if we want people to contribute to charity, the law has to require the recipient to carry out the donor’s wishes, otherwise the donors stop giving.

John Echeverria

 

The Vermont Land Trust holds easements on about 1,700 properties. About 700 are held on farms. Vermont has about 2,000 properties in all that have been conserved through easements.

“The statute we’re proposing, S.119 is designed to create a single process for all classes of easements (purchased or donated),” Livingston said.

That process creates a set of criteria under three categories of easement amendment. Under category 1, amendments would include adding or enhancing protections under an easement, the right of first refusal for the easement holder to obtain an ownership stake and merging conservation easements. Category 2 amendments would allow changes to 2 acres to 5 acres under an easement.

Category 3 allows the panel to remove a “protected quality from the easement” or changes to the hierarchy of the easement’s stated purposes or “materially reduces the safeguards afforded to the protected qualities of the easement.

Under any of these circumstances, the easement holder would apply for an amendment review by the Vermont Natural Resources Board and a five-member Easement Amendment Panel to review changes to an easement that removes conservation protections or changes an easement’s stated purpose. The members of the panel would be chosen by the board and the governor.

Applicants for category 3 easement amendments must notify the Vermont Attorney General, the Vermont Housing and Conservation Board, the local planning commission, the municipality, and anyone who has an interest in the easement.

Tax implications?

John Echeverria, who has represented the National Audubon Society and American Rivers, says Category 3 amendments could allow for the “taxicab” theory of conservation to take hold, the notion that land trusts could move easements around from “low priority” conservation parcels to “higher priority” land.

“Part of the problem with that is that people (donors) have been told and told by the land trusts, that the land trusts will protect their particular property,” Echeverria said. “That’s the mantra of the land trust community. If you look at the websites of the land trusts in Vermont, they’re very clear that they are encouraging donations by landowners in order to ensure the perpetual protection of their individual property.”

In his view, when a landowner makes a charitable donation for an easement on that particular property, the land trust has a fiduciary duty to protect that land.

The Internal Revenue Code states that if someone is going to donate a conservation easement to a conservation organization, Echeverria says, it has to be a perpetual conservation easement on that particular property. “The reason is, Congress didn’t want to have a situation where people were putting easements on a property, getting tax deductions, then hold property for 30 to 40 years then selling it off at an enormous profit, with a subsidy from the taxpayer,” he said.

Andy Farmer (left) discusses his young wine grape vinestocks with Vermont Land Trust regional representative Donald Campbell. The Land Trust has been instrumental in getting young farmers established in the Mettowee Valley, one of the most scenic and productive farm regions of Vermont. Photo by Tom Slayton

Andy Farmer (left) discusses his young wine grape vinestocks with Vermont Land Trust regional representative Donald Campbell. The Land Trust has been instrumental in getting young farmers established in the Mettowee Valley, one of the most scenic and productive farm regions of Vermont. Photo by Tom Slayton

Under the Charitable Trust Doctrine, Echeverria says, land trusts are obliged to materially maintain the overarching intent of each donated easement (he does not object to “de minimis” or small changes under category 1 and 2 of the proposed state law).

“The theory is, if we want people to contribute to charity, the law has to require the recipient to carry out the donor’s wishes, otherwise the donors stop giving,” he says.

The courts, Echeverria said, have dealt with charitable gifts that fail or become impossible to carry out. Charities that want to change the use of a gift must go to the courts.

Under the proposed state law, land trusts would not have to seek approval for changes to conservation easements from the courts.

Echeverria says S.119 sets up a complicated amendment system that makes it possible to terminate easements or substitute amendments.

“To make matters worse, as I read the legislation, it does not provide for the review process to be conducted by an independent body,” Echeverria says. “In the case of category #3 amendments, this legislation provides for a process that is directed and run by the nonprofit organization that holds the conservation easement.”

Livingston says Echeverria “is operating in the context of national law” and the Internal Revenue Code; Vermont’s Real Estate statutes supercede the jurisdiction of the IRS in his view.

“I think that John is not accurately describing even the national law on the subject,” Livingston said. “There’s a pending national conversation about what the Internal Revenue Code requires with respect to conserved land. John and the authors (of a recent commentary on VTDigger) are in one school. Their perspective is not shared by a majority of land practitioners. We don’t happen to agree.”

A working group that was charged by the Legislature to study the changes (the group included Bradley, other land trust officials and Bob Klein of The Nature Conservancy, among others) found that “a state-sanctioned process such as the one we propose, and where IRS issues are clearly involved,” creates a “pathway to Superior Court.”

Jeanie McIntyre, director of the Upper Valley Land Trust, has been a member of the working group. McIntyre opposes the Category 3 provision of S.119.

“Our organization is not saying this bill is terrible, we’re saying let’s have a bill that takes care of donors,” McIntyre said. “I don’t think people who give conservation easements should be second class citizens. I don’t know why they (VLT and TNC) can’t agree to that. We should be able to find common ground on that.”

McIntyre said the working group’s pursuit of a state-sanctioned amendment process raised questions about whether donors could run into difficulties with the IRS. She contacted an official at the federal agency and came to the conclusion that a change in state statute would not protect donors from federal income tax regulations. Only a court proceeding allowing the “extinguishment” an easement would be acceptable, according to a letter from Karin Gross, an attorney for the IRS.

In a worst case scenario, donors could be audited and required to pay back tax deductions. Land trusts could be audited as well.

Stowe Land Trust deal

In 2004, Johannes Von Trapp bought 513 acres adjacent to 1,100 acres owned by the Trapp Family Lodge in Stowe. He let word out that he wanted to put about 50 houses on the adjoining land, which is home of the Stowe Derby and Catamount cross country ski trails.

Before long, the Stowe Land Trust offered to buy a conservation easement on the property.

“Things are going to change over time in ways that no one could have anticipated, and land trusts are going to have to respond to that change.”

Darby Bradley

 

The pricetag? $1.75 million. The trust didn’t have the money, and embarked on a fundraising drive that despite donations, a $450,000 municipal bond and a $600,000 grant from the Vermont Housing and Conservation Board fell short by $750,000, according to news reports.

Von Trapp offered to trade the value of an easement on 32 acres of the 1,000 acre property for the remaining $750,000. The Stowe Land Trust agreed to the easement exchange, and the land was protected.

Echeverria says the Stowe Land Trust easement swap is illegal and sets a new precedent.

Bradley sees it differently. In a speech to the Vermont Bar Association, Bradley said there was “a vague uneasiness about lifting perpetual restrictions on the 32 acres even though the overall transaction resulted in a clear ‘win’ for the public.”

“Things are going to change over time in ways that no one could have anticipated, and land trusts are going to have to respond to that change,” Bradley wrote. “Changes in technology, in conservation opportunities, in the business of agriculture, in community needs, in plant and animal species, even changes in climate will test the permanence of the conservation choices that we make today. To say ‘no’ to cell antennas on silos, to let 500 acres of high conservation-value land go for the sake of 32 acres of low conservation-value land, to require the Village of South Woodstock to go through an eminent domain process to secure a site for a needed community facility, these positions would be untenable for a land trust that tries to do its work in a “community” context. The question is not whether conservation easements will change, but under what criteria and through what process they will be allowed to change.”

Editor’s note: This story was updated at 5:15 a.m., 6:04 a.m. and 6:34 a.m.

Anne Galloway

Comments

  1. Bob Hawk :

    When you write, Anne: “About 10 percent of Vermont’s land is protected under conservation easements at a cost of hundreds of millions of dollars in federal funds, donations, state grants and forgone taxes.”, what is your source for that information? It is my understanding, for example, that no town taxes are reduced because of a conservation easement.

    • My source is Darby Bradley. The forgone taxes are deductions on the income tax.

  2. Joanna Cummings :

    VTDigger: articles that are written about the topic of land conservation and include broad statements such as “at a cost of hundreds of millions of dollars in federal funds, donations, state grants and forgone income tax revenues”, must include the economic benefits of conserving land as well. The price we pay for compromised ecosystem services (the provisioning, regulating, cultural and supporting services that provide us with clean air, clean water, bee pollination, nutrient cycling, decomposition of waste, flood control …) is often higher than development, and always needs to be included in these discussions.

    • Right on! This is beginning to feel and sound like another “opportunity” for deals such as the XL Keystone Pipeline and assorted gas lines to be shoved in. We have seen the lack of respect for the land from many Big Business deals. We do not need anymore. Certainly not to pad the wallets of those who don’t live here and are selling their product to the highest bidders elsewhere!

      • Shoshana Boar :

        I agree Pam. The beautiful state of Vermont will become just like any other state. It will be “tamed” and developed to the point of ugliness.

        • Shoshana Boar :

          Once a little bit of development is allowed on one piece of conserved land it will then open the flood gates to repeat this “special case”, until all the land goes up to the highest bid for developing. then there goes the neighborhood…again.

    • Joanna Cummings :

      I would like to clarify my post about including cost of impact to ecosystem services: the intent of my post is to point out that the impact and cost of development on ecosystem services is often higher than the cost of conserving land.

    • Deirdre Smith :

      Brilliant.

  3. Darryl Smith :

    “Gil Livingston, the executive director of the Vermont Land Trust, says Echeverria’s example is extreme.”
    This may very well be an extreme example, but with the VPIRG and the like supporting the leveling our mountain ridges maybe Vermont conservation organizations can no longer be trusted.

    • Paul Lorenzini :

      AYE!!!!!

  4. Conseved land is appraised at its fair market value. If the easement reduces the fair market value of the land, then the town should (and usually does) reduce the appraisal and the tax is reduced accordingly. Studies have shown that the decreased value of the conserved land is more than made up by the increased values of the surrounding land. Conserved land does not send more kids to school.
    As a farmer who has sold the development rights to my farm twenty some years ago, I appreciate the need to be able to conform easements to changes is technology and farm business practices. I am very wary of category #3 amendments and question the political appointment composition of the panel. Increasingly, conservation projects rely on donations from local individuals and towns, in addition to state and federal sources. These folks may have an intimate connection with the land being conserved and their intent must be considered too in switching easements. Perhaps passing the first parts of the bill, dealing with important, current day issues, this year and saving the longer term vision for category #3 amendments to be worked out in the next biennium would be a good idea. As noted, the risk of losing donations is not worth going ahead now.

    • Tom Pelham :

      Darby….the best outcome of this controversy would be the weakening of your concentration on the golf course with the result that your current enviable handicap is not so enviable.

      On the merits, I like Sam Burr’s idea above.There is something very comforting about perpetuity. You know the effort put into the conservation and OPAV of this farm, but now that it’s done and knowing it’s conserved forever for agricultural purposes at best, and conservation purposes at worst, makes it worth the effort. Watching young farmers get a foothold in the business because the land is affordable is very rewarding. Yes the Dog River may reshape the land a bit and global warming change the flora and fauna characteristics, etc., but by and large this land is removed from the rat-race market place and will chart its own course over time.

      One of my best days as Finance Commissioner was when Governor Dean popped into my office, with you sitting in his at the other end of the hall, looking for money for the Champion Land deal. One of his rewards for his conservative fiscal policies was our ability to appropriate the necessary $4.5 million in the 1999 budget adjustment. Certainly at some future date some lumber company will be eyeing a parcel with some desired timber and contemplating what land swap might be cut. Hopefully, the gate will always be well locked in that regard.

      One other concern. I have great respect for the work you, Gil and VLT have done, but as much as you worry about the changing pressures on land, we need to worry about the changing pressures on organizations as well. VLT has been entrusted with highly valuable assets. What happens if the land management bureaucracy needs improved cash flow or its leaders sour or get greedy or even corrupt and look to flip VLT assets for the benefit of not the land, but of the land management bureaucracy or the individuals that lead it? That’s why Michael Lamere’s point below is well taken and the safeguard of “perpetuity” is an important value to protect.

  5. Michael Lamere :

    The notion that” in perpetuity” means forever, except when it doesn’t, guts the basic premise that has been the driving force behind easements and land conservancy. Land trusts should be facilitators, not some kind of governing body that decides if the owner’s wishes for the care for their land is, or is, not best for society.

    • Shoshana Boar :

      Michael I guess rules were made to be broken or so the saying goes. This is not the first time Vermont has sold out.

      • Paul Lorenzini :

        More rules made, more rules broken, many times as often, except with better results, for those that made the rule.

        True or False?

  6. Jamie Carter :

    “The pricetag? $1.75 million. The trust didn’t have the money, and embarked on a fundraising drive that despite donations, a $450,000 municipal bond and a $600,000 grant from the Vermont Housing and Conservation Board fell short by $750,000,”

    So they received $1.05 Million in a bond and grant plus some other amount from fundraising… they ended up $.75M short … on a $1.75M deal ??? Am I the only one that doesn’t make sense too?

    • The easement on the 37 acres was worth $750,000.

      • Cairn Cross :

        I think Jamie is saying that $450K + $600K = $1,050K . Therefore the project would have been short $700K not $750K.

  7. Faeterri Silver :

    So, want the cake and eat it too? It’s bad enough that we choose to conserve land to not do anything with but then to allow development is just not ok. It’s all about tax breaks and where this state is going. I say, keep your land yourself and work on the legislature to lower taxes. Such a rich state we live in. I feel for those who are property rich and cash poor.

  8. Grant Reynolds :

    The fundamental point of a conservation easement is to keep the land from man-induced changes. The easement may permit change to happen as a result of proper agricultural practices or forest management actions, but if it requires a state of nature, as some do, then there should be no occasion to conform to technological change or any other change. I am very sorry to see VLT, of all people, pushing this. I would expect them to be at the forefront of opposition. How can they be trusted to hold perpetual conservation easements if they want to be land managers?

    • Paul Lorenzini :

      Wherever you took a crap it ended up somewhere. That was a human induced change.
      I wish you would stop calling our race “man”.
      It pisses off the feminists.
      Rightly so.

  9. Governor Dean says :

    “There is a real chance that the passage of this bill could undo decades of significant progress in keeping Vermont sustainable, time to slow this train down so the public can learn more before we alter Vermont for the worse forever.”

    Very good advice from Gov. Dean.

    This same advice aptly applies to the rush to cover the state with industrial wind and solar projects so the public can learn more before we alter Vermont for the worse for ever.

  10. Kim Fried :

    Let’s hope the final version of s.119 makes it illegal to use the words “Land Trust” in the names of theses corporations. Come on Vermont what’s going on, is nothing now sacred???

  11. Andrea McAuslan :

    When land trusts first started to become popular in Vermont, the zeal was impressive. Of course conserving land was a wonderful project to pursue. And the (then) Ottaqueechee Land Trust was full of eager, caring people wanting to do right by Vermont’s heritage and landscape. However, despite my parents’ and many of their friends’ strong support of such endeavors, I have always been suspicious of these land trusts. I took the long view. I said to myself, okay, first generation efforts are always pure, true to cause, grass roots, small “d” democratic, etc., and generally address some very real need. Second generation brings a little more structure and long term stability to an organization, allowing it to be more effective in its laudable goals. The third generation and beyond bring “the problems” as I see them. Organizations become “expert” driven, staff get hired at decent (and sometimes indecently high) salaries, develop their own agendas, become “stakeholders” and supposed spokespeople for the masses. They decide they know best how to make things work.

    I have feared from the beginning that the (now) Vermont Land Trust, as well as national groups, such as The Nature Conservancy, would decide that they should be the expert arbiters of which conservation projects were the most important to continue into perpetuity, and which were to become the sacrificial lambs to make possible the continuation of others. As VLT became larger and larger, I became alarmingly concerned that such a small group of people would be responsible for making decisions about such a large part of Vermont. This legislation to change land conservation in Vermont is a dangerous proposal.

    When people put their property in TRUST, one could easily conclude that despite the probably very narrow legal definition of “trust” (I am not a lawyer), there was a large level of “trust” as more commonly defined by the public as “confidence in or reliance on some quality or attribute of a person or thing…” (from the Oxford English Dictionary online) that the property being put in trust would be protected IN PERPETUITY. If the rules want to be changed for all future agreements, and it is made blatantly clear that the VLT or any successor organization may alter things, then fine. But to ask the legislature to break trust so that the land trusts can have more concentrated power is not acceptable to this lifelong Vermonter.

    Perhaps a law could be passed that allows the original donor to modify the trust agreement. Things do change in the world. And the Land Trust could have been encouraging folks putting land into conservation to allow for some flexibility. The one project I was involved in because I belonged to an organization putting land into trust, I insisted just such a clause be included. And it has been used by the organization. The land trust was neither thrilled at my insistence nor interested in letting other clients know of this option.

    Citizens: land use, conservation, and modification decisions belong to all of us, not an organization dedicated to its self-defined purpose, no matter how much one might agree with its mission.

    • Karl Riemer :

      That is one beautiful bit of commentary: nicely, cogently and precisely written!

    • Annette Smith :

      Yes, well said. I’ve observed some third-generation businesses in Vermont behave in ways that people familiar with the family have said “their grandfather never did business this way.”

      Readers would benefit from reviewing this vtdigger.org/Barton Chronicle article from October 2010 http://vtdigger.org/2010/10/02/vermont-land-trust-deal-in-lowell-sours-over-wind-project/ which details the involvement of Vermont Land Trust in a “deal” being put together with GMP behind the scenes but not disclosed to the landowners for months, with its genesis during the time that Mary Powell was chair of VLT’s board.

    • Patrice Maloney :

      Well said, Andrea. I am an advocate for conservation measures, but have mistrust for some of these large “nonprofits”. Many start out being funded by rich and powerful donors, wielding large lobbying budgets and outsized influence on bureaucrats and elected representatives (and their campaigns), who then make available taxpayer dollars in the form of grants used to pay big salaries and buy up conservation easements. I have read reports about west coast organizations that decided they needed to unload some of their inventory of properties; and guess what? They somehow had a clause in the fine print that allowed members of their board of directors to get first dibs at foreclosure sale prices.
      There is much to dislike about the fact that taxpayers dollars are used to set aside land that we still have to pay property taxes on, and then not have it preserved. If conservation was so important to these groups, why not put up their own money from beginning to end. That is what philanthropy used be. Now it’s become just another agency of government, taking in the name of public good and turning around and benefiting a private elite group or person.

  12. Bud Haas :

    This reminds me of the Adirondack Lands, preserved “forever wild” in the New York State Constitution, until the real estate industry folks decided otherwise. Forever and Wild redefined to allow, however you want to say it, development.

  13. doug carroll :

    dean needs to get to schumlin about this and get it vetoed if it is passed by legislature.
    this is the worst idea i have heard of in land conservation in 30 years.
    large corporate interests will gradually influence the outcomes as there are billions of dollars of profits at stake in undoing land conservation.
    passage of this bill will end the land trust movement nationally, and weaken the will of all involved in it.

    doug carroll, maryland

  14. Frank Chance :

    Not fair to the property owners who invested in their property on the value of the land adjacent to land trust parcel.

  15. Christopher Irion :

    It’s hard to assume that even with the detail of this article and the very thoughtful comments that have been made, that in fact all possible issues and ramifications have seen the light of day.

    Just this is reason to GO SLOW. If VLT really is the wise steward it likes to think of itself as, then they also should see the wisdom of slowing down the legislative process. Proceed with the non-contraversial aspects of the proposed legislation, and build in concrete assurances for those of us who fear the worst, rather than just saying, “That’s an extreme example, that will never happen.” And take the remainder up in the next session.

    “Trust” and “Government” often no longer go hand in hand, and we have learned that the hard way. Transparency, safeguards and thoughtful legislative detail would be a big help.

  16. Much of this discussion could be stemming from a very real concern about having the resources to effectively manage so much conserved land with so many differing easements. Parts of this legislation might help reduce some of the stewardship costs by merging easements and such.

    That said, I am skeptical of the need for Category 3 and concerned that it could be misused by future, less trustworthy organization leaders or even future state leaders, as this would give the state a new foothold in conservation easement management.

    Meanwhile, Categories 1 & 2 seem to be on the right path toward allow for a third party to help make sure that small changes really are just small changes to easements. This might help make these minor changes go forward without causing alarm at the IRS.

    Having led a conservation organization myself, this makes me think about the need for increased public and private support for stewardship of conserved lands. While it is extremely important to help conserve land for future generations, managing that land, especially to assure that the requirements of the conservation easement are met, is expensive and amazingly complex. With so much land protected over the last few decades by great organizations like VLT, TNC, UVLT, and GMC, I think it’s important that more of an emphasis be put on paying to steward that land. Reducing the complexity and/or scale of the stewardship responsibility – as this legislation might help with – coupled with increased support for addressing that responsibility appears to be a challenge we are just beginning to face as a state.

  17. Karl Riemer :

    “The first time we do something like that is the last time we receive a donation.”
    Actually, the first time you start seeking permission to do something like that may be the last time you receive a donation, which appears to be where we are.

    This is a classic case of seeking broad authority to accomplish something beneficial, acknowledging it could be used perniciously, with the argument that the authority will only be used sparingly, and only for good, because it’s sought by good people. “We promise…” That’s abjectly specious. Authority outlasts people. Two questions: who decides what is beneficial? and: who decides who is qualified to decide what is beneficial? The petitioners know themselves to be honorable and knowledgeable, therefore assume anyone in their positions will behave honorably and knowledgeably. It’s beyond their comprehension that a developer might decide a worthwhile investment would be to simply take over a conservation organization or land trust in order to abrogate easement agreements. (That’s not overstating. Category 3 changes abrogate easement agreements.) It’s beyond their comprehension that one generation can separate one sincere vision of public good from an equally sincere unrecognizably different vision. Because such things are beyond their comprehension, the agreements were not made contingent on these people’s, any particular people’s, continued beneficence, they were made abstractly in perpetuity, which means they take precedence over convenience, whim, opportunity, the winds of change or the shifting sands of personal opinion. They constitute promises, vows, and one would think honorable people would hold vows in higher regard. There are always temptations to break vows, to see the value of reneging to accommodate subsequent situations or take advantage of subsequent opportunities. (“… had an epiphany…” that fidelity is relative, and optional.) But the point of vows, their entire value, lies in that they constitute giving up the right to change ones mind. Giving up that right legally, in exchange for custody, then petitioning the legislature to get it back ex post facto, in order to take advantage of the custody, is neither honorable nor (consequently) strategically intelligent.

    We’re going to lose this battle. All that beautiful land will eventually be developed because the pressure to do so is implacable and insatiable. It would be nice, though, if the supposed guardians of the gate were a little less eager to open it.

    • Robert Joseph :

      Well said!

      Find the VLTs view disturbing to say the least.

  18. This discussion of “in perpetuity” is one that those of us advocating for land preservation to accommodate green burial legislation and how this could be partnered with existing land trusts have been exploring for some time now. I doubt that most people would have any real problem with having compostable dead bodies put on specially designated preserved lands. This is an idea that many Vermonters now want to pursue. Why pay for expensive monuments and well maintained cemeteries when natural forest lands could be so designated? Many of our concerns are about the words “in perpetuity” which would make those wanting such a green, sustainable option in Vermont a viable choice for those not currently owning land on which they could be buried anyway. This may be a side issue, but it certainly is one that I hope land trusts will consider when setting aside land for preservation in a sustainable manner. No markers would be needed and this is how many of us would like to be remembered.

    • doug carroll :

      good point ,ms bisbee,
      the green burial movement is indeed as worthwhile a one as land preservation and is a great method to finance land preservation as well.
      Future easements may be written with this use in mind, however, past easements did not consider this use, and should not be amended to include it, or any other newly invented non-agricultural, semi commercial, use.
      A gold standard in enforcing easements is worth whatever sacrifices that may be needed.

  19. Henrietta Jordan :

    As a consultant to land trusts who works with organizations in 15 states and a former staff member of the national Land Trust Accreditation Commission, I know that S.119 is being watched closely by land conservation practitioners across the nation. The possibility that “Category 3” amendments could be used to effect terminations of conservation easements (in whole or in part), easement “swaps,” and other breaches of a land trust’s promise to conserve a specific parcel of land in perpetuity will not only attract the attention of the IRS; it will also cause landowners to wonder whether the land they thought they were protecting with a conservation easement will actually be protected. Yesterday, I described the controversy over S.119 to a landowner who has conveyed easements on a mile of shoreline along the Chesapeake Bay—beloved lands that have been in her family for generations–to a Virginia land trust. Her eyes widened and then filled with tears: it hadn’t occurred to her that a land trust would ever swap easements in the interest of “conservation gain.” For her, no land has greater conservation value than the freshwater ponds and marshes where she played as a child, the loblolly pine forests she walked with her grandparents, and the pristine beach along an endangered water body of national significance. Even though she lives far from Vermont, she feels kinship with those Vermonters who have entrusted their lands to land trusts and horror at the thought that those lands might be forsaken by those who had promised to protect them. As a former Vermonter, I know that legislative controversies may seem like a tempest in a small state’s teapot, but they can have national significance. If enacted in its present form, S.119 will not only undermine Vermonters’ confidence in land trusts; it will cause easement donors across the nation to wonder whether land trusts intend to deliver on their promises of perpetual protection.

  20. Townsend Peters :

    While those who disagree with the bill make cogent arguments, one overlooked point is that nothing actually lasts forever. In reality, there is no such thing as “in perpetuity.”

    Therefore, it is not necessarily reasonable for land conservation organizations to represent, and donors to expect, otherwise.

    • doug carroll :

      that is defeatist reasoning
      since the earth is overpopulated and ocean levels are rising, better just allow pollution

      or another analogy is that since your dog is going to die anyway , just shoot it.

      doug carroll

  21. “Things are going to change over time in ways that no one could have anticipated, and land trusts are going to have to respond to that change,” Bradley wrote.

    I disagree. Things don’t have to change over time. I have made a gift easement on a 105.4 acre parcel, at my own expense in terms of legal fees and the abundance of time spent in the process and in fact was charged by the VLT for the privilege of making a conservation gift and covering their costs in the process of the application and processing. My municipality does not reduce taxes on that parcel which I have since sold. All I received was the deduction value of the development value, after taxes, arbitrarily determined by an appraiser that I also had to pay.

    Even talking about leaving me behind and moving on to allow the VLT or ANYONE to change that easement is frankly and simply offensive.

    My view is if they (any trust) purchased the easement, albiet with funds that one way or another were the property of the public, and for the public good, then fine, let’s have a conversation about what is for the public good today and determine if the change should be allowed. But that can stay in the courts where there is no difficulty following the process. But in the case of a flat out gift easement, where no funds were exchanged in the direction of the giver, then by all means leave that easement alone or go back to the giver of the gift as a mandatory provision of any proposed reevaluation of the easement. If the giver has died then talk to his estate and heirs.

    If you promised me that you will never change your mind, and then I make a gift of an asset and then you change your mind, I want my legacy to be brought back to my family legacy for consideration. I still own a substantial parcel adjacent to the gift parcel and that gift was a gift to my family forever. They would never have to think about that parcel again as anything other than bucolic west facing views.

    This bill is a very dangerous and destructive concept and is not ready for law.

    Wm Roberts, MD, PhD

  22. David Chipman :

    I agree most emphatically with Dr.Roberts. I “gifted” an easement on 183 acres (all but six of the acres I owned) which decreased the appraised value of the land by about 50%. Although the one-time tax benefit arising from the gift was welcome, gaining a tax benefit was not my motive. I simply wanted to make sure that land that I held and cared for for more than 50 years (mostly a heavily wooded mountainside forest, but with a mile of road frontage) would be “forever” preserved for the benefit of the the “fauna, flora and fungi” which it shelters and that future generations could enjoy its peaceful beauty.
    Although the conservation easement significantly reduced the value of what my children might inherit from me, they all supported my decision.
    If the trust were to propose relinquishing the easement, or changing its terms, I would insist on being given an opportunity to review the proposal, and the right to prevent it if I felt the proposal would diminish the protection I was promised in return for my gift.

  23. Robert Fisher :

    I am a Board member of a land conservancy in Wisconsin and also a donator of a 33 acre easement of rural woods and cropland to that organization. I, and others expect “perpetual” protection of “our” land, long after we are gone. However we have as a Board, wrestled with the issue of divesting the conservancy of some donated “fee” land we have been given. It would be given to other “conservation” groups, with a conservancy easement placed on it at the time of ownership transfer…but none-the-less, that raises questions of the original donator’s intent. We decided we would only do the transfer if the original donator of the fee title agreed. The least the Vermont Land Trust can do is place its new policy (if allowed) on NEW easements only. ALL old or existing easements should not be included in the possibility of change.

  24. Richard G Rogers :

    From my reading of this article it sounds like VLT can already do what it wants to do but it is a slow, difficult process that requires going through the courts. VLT seems to want to change the process by making it easier. I believe that would be a mistake and the process should be slow and difficult.

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