CONSERVATION EASEMENT ACCEPTANCE CRITERIA AND TAX REQUIREMENTS
The Board of Directors of the Hudson Highlands Land Trust has adopted criteria governing the acceptance of conservation easements. The reason for this is to assure that preservation activities are directed toward properties that are truly worthy of protection. Easements must be accepted by a majority vote of the Land Trust’s Board of Directors, or the Executive Committee acting on behalf of the Full Board.
To accept an easement, the Hudson Highlands Land Trust Executive Committee or Board of Directors must find that all of the Conservation Objectives, and at least one of the Public Benefit criteria below, have been met. If all four of the Conservation Objectives and/or one of the Public Benefit criteria are not met, but the property has special significance in relation to any of the criteria, the Land Trust Board may accept an easement with a written explanation of its reasons for doing so. If the Land Trust does not accept a proposed easement, a landowner may still be able to protect the land using private deed restrictions (see "The Landowner's Options").
Any development permitted under the easement should not unduly compromise the scenic, agricultural, watershed, recreational, or other resource values of the property, and there should be adequate opportunity for the Land Trust to review any proposed development. The Land Trust will request an endowment for monitoring and enforcement.
Criteria For Acceptance Of Conservation Easements
To qualify for selection property should meet ALL of these criteria:
- The property is located within the Hudson Highlands Land Trust area.
- The property is in a relatively undisturbed natural, scenic or historic condition, has recreational or agricultural value, or is in active agricultural use.
- The property is of sufficient size that its conservation resources are likely to remain intact, even if adjacent properties are developed; or sufficient neighboring property is either already protected or to be included as to have the same result.
- Protection of this property aids sound land use planning, promotes land conservation, and encourages careful stewardship of land and water resources.
Public Benefit Checklist, Including Natural Resource Value
To quality for selection a property must meet 1 or more of these criteria:
- Contributes to protection of lands in furtherance of government plans or policies.
- Contains endangered, threatened, or rare species or natural communities.
- Contains relatively natural wildlife habitat, ecosystems, or natural features.
- Contains or has potential to contain natural features of educational or scientific value.
- Is in active agricultural use or provides an example of historic agricultural use.
- Contains wetlands, floodplains, waterways, riparian corridors, aquifer recharge areas, watershed or other lands necessary for protection of water supply, water resources or wetland habitat.
- Buffers agricultural land, wetlands, wildlife habitats, or other sensitive areas.
- Provides a buffer for or is close or contiguous to existing conservation easement, park, preserve or other protected land.
- Protects scenic views from public roadways, waterways or recreation areas.
- Public access for education or recreation will be permitted.
- Sets an important precedent for resource or open space protection in a targeted area.
- Provides connection to other open protected or open space lands that is important for movement of wildlife between habitats or through developed corridors so that natural areas do not become isolated "islands".
- Has historic or archaeological value, or is adjacent to and buffer for such lands.
- Contains unique or outstanding physiographic characteristics.
- Offers significant relief from urban closeness and/or helps define community character.
Some conservation easements qualify as "qualified conservation contributions" under Section 170(h) of the Internal Revenue Code. To the extent they do, a federal income tax deduction may be available. A deduction generally is not available if the donor lacks "donative intent" – that is, the donor is making the donation because he or she is required to (for example, pursuant to a condition in a subdivision approval or other permit), or in cases where the donor is receiving some consideration or other "quid pro quo" in return for donating the easement. Each donor must consult with his or her own tax advisers. No person is authorized to make representations on behalf of the Hudson Highlands Land Trust regarding the availability or amount of any such deduction. If a landowner intends to seek a tax deduction from the IRS for making a charitable contribution of development rights, an appraisal of the property must be obtained and submitted to the land trust.
As part of the closing, each donor is required to sign a standard form (a) acknowledging that neither Hudson Highlands Land Trust nor any person acting on its behalf has made any representations about the federal or other tax implications of the proposed donation, (b) representing that they are not, as of the date of the easement, required to do so under any condition to subdivision approval or other permit, and (c) agreeing that they shall not claim any federal or other deduction or credit in respect of the donation unless, following consultation with a professional tax adviser, they believe in good faith that they are entitled to such deduction. In cases where the donor does not intend to seek a tax deduction in respect of the easement donation, a simple agreement to this effect may be substituted.
Treasury Regulation Section 1.170A-14(g)(2) requires that any mortgage or similar lien existing at the time of the conservation easement donation be subordinated to the conservation easement. As such, HHLT will ask for a copy of the owner’s current title report and then undertake a last owner and lien title search by a license title examiner. If a mortgage currently encumbers the property, the property owner will need to work with their lender to obtain a signed subordination agreement that states that the mortgagee subordinates its rights in the property to the right of the conservation easement holder (HHLT) to enforce the conservation purposes of the gift in perpetuity, in accordance with Treasury Regulations. This document will be legally filed by HHLT at the respective county prior to the recording of the conservation easement donation. The HHLT staff and legal counsel are available to assist with any subordination requirement that arises during the easement process.