Easement revitalization: a problem-solving guidebook for land trusts

NEW YORK, NY - March 18, 2013 - The Open Space Institute and Solid Ground Consulting recently led a 14-month nationwide effort to develop strategies to strengthen conservation easements, one of the land protection movement’s oldest and most effective tools.

Easements—voluntary, binding agreements that restrict the development or subdivision of a property while protecting its open space values—have protected millions of acres of wildlife habitat and open space nationwide. 

The model is attractive because a land trust can purchase an easement on a property—protecting it from development but leaving it in the landowner’s hands—without acquiring the property outright. 

Because of their effectiveness and the benefits they offer landowners, nearly all land trusts and public conservation agencies have included easements in their land protection arsenals in the four decades since Congressional tax credits popularized the model. 

During those 40 years, however, land trusts' standards and practices for administering these critical tools have evolved in sophistication and rigor. Consequently, there are organizations nationwide with portfolios that include 30- to 40-year-old easements that lack critical elements. 

The most typical challenges emerge when land trusts combine their efforts, or fail programmatically and have to find a home for their troubled easements. These are particularly difficult challenges for small organizations. 

“The problem is that we’re better at this work than we were three decades ago,” said Marc Smiley, the co-owner of Solid Ground Consulting, the Portland, Oregon-based firm OSI contracted to lead research on the issue. “Our knowledge of what makes a great conservation easement is evolving, but these legal documents are fixed in time. We need to find a way to strengthen them to make sure that the best conservation—the intended conservation—is achieved.”

Recognizing the critical need within the conservation community to improve the effectiveness of the easement model, OSI and Solid Ground, with generous funding from the Geraldine R. Dodge Foundation, the Kohlberg Foundation and the Resources Legacy Fund, assembled a team of attorneys and long-time land trust practitioners to develop comprehensive strategies and tools for organizations desiring to resolve or upgrade their older easements. 

In late 2011, Solid Ground began conducting in-depth field studies with six conservation organizations working in seven states (California, Colorado, Maryland, Massachusetts, New Jersey, Washington and Oregon). These case studies served as field tests to examine the range of issues that exist with regard to easements, and to focus on how land trusts can remedy or otherwise manage problem easements. 

From these studies, OSI developed its guidebook outlining specific tools to help land trusts, legislators and public agencies deal with troubled easements. 

“A lot of land trusts are intimidated that there’s nothing they can do, and nothing they should do,” Smiley said. “We know better than that now. There are a number of very important, very cost-effective ways to bring our conservation work up to 21st century standards. That holds true for our work going forward and our work from the past.”

Rather than waiting and tackling troubled easements when they become a liability, OSI and Solid Ground recommend that conservation organizations take a proactive approach by planning for a thoughtful and orderly analysis of their easement portfolio that heads off problems. The Easement Revitalization Initiative Guidebook pulls together such approaches and defines strategies that the land trust community can use.

“This report, in its thorough analysis of various types of easements, provides the framework to ensure that going forward they are the critical tool for conservation that they were designed to be,” said Kim Elliman, OSI’s president and CEO. “There is no one better than Marc Smiley and his team at Solid Ground to review the issues and provide comprehensive solutions.”

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