December 20, 2010
Conservation Easements - The view from the other side
The common law has long encouraged the use and development of land.
This policy favoring land use and development certainly made sense during America's infancy, when the country boasted seemingly inexhaustible stretches of land. But today you cannot find property that is not subject to zoning restrictions. What seemed unlimited is now increasingly scarce. Over-develpment generates multiple problems ranging from pollution to species endangerment. Forty million acres of land - larger than the state of Florida - were newly developed between 1992 and 2007.
One of the reactions to perceived over-development and receeding "wild" lands is the conservation easement, which is (generally speaking) a voluntary agreement to refrain from developing land. Much has been written about the effectiveness of this legal tool, but the arguments in this recent online publication seem disingenuous. The article characterizes the conservation easement as a clever tool wielded by a surreptitious government. The article warns private landowners to be wary of the conservation easement and the government's desire to restrict their rights.
Land trusts exist to remove private property from production.
They do this by acquiring ranch, farm, forest, or other private land either through donation, purchase, or by acquiring CEs to property as well as water. They act as unofficial arms of government agencies—third party intermediaries or ‘land agents’—and routinely flip (sell) donated as well as purchased land and CEs to these government agencies. When they do, they’re paid with tax dollars which, in turn, are used to purchase more private property.
The Conservation Easement is vulnerable to many legitimate criticisms; that it is a tool enabling a government conspiracy to rob private landowners should not be among them.
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