For owners of environmentally sensitive land, granting a conservation restriction (also referred to as a conservation easement) is a land use tool that may make sense in some cases. Though they are a voluntary limitation on the use of land, common reasons to grant a conservation restriction include,
- landowner's desire to make a charitable contribution (with/without a claimed IRS income tax deduction);
- required by a local or state permitting process;
- required for certain special permit approvals; or
- required by a wetlands protection (M.G.L. c. 131, § 40) Order of Conditions.
In our office, for example, we assisted a client creating a forty-six (46) lot residential subdivision, which was required (under a local zoning bylaw open space provision) to permanently protect at least 50% of the site's upland area as open space. Our assistance during the permitting process ultimately resulted in the perpetual protection of thirty-three (33) acres of upland and seven (7) acres of wetlands as open space via a conservation restriction.
As defined by M.G.L. c. 184, § 31, a conservation restriction means
a right, either in perpetuity or for a specified number of years, whether or not stated in the form of a restriction, easement, covenant or condition, in any deed, will or other instrument executed by or on behalf of the owner of the land or in any order of taking, appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming or forest use, to permit public recreational use, or to forbid or limit any or all (a) construction or placing of buildings, roads, signs, billboards or other advertising, utilities or other structures on or above the ground, (b) dumping or placing of soil or other substance or material as landfill, or dumping or placing of trash, waste or unsightly or offensive materials, (c) removal or destruction of trees, shrubs or other vegetation, (d) excavation, dredging or removal of loam, peat, gravel, soil, rock or other mineral substance in such manner as to affect the surface, (e) surface use except for agricultural, farming, forest or outdoor recreational purposes or purposes permitting the land or water area to remain predominantly in its natural condition, (f) activities detrimental to drainage, flood control, water conservation, erosion control or soil conservation, or (g) other acts or uses detrimental to such retention of land or water areas.
For those wishing to create a conservation restriction, they must submit an application to the Massachusetts Executive Secretary of Energy and Environmental Affairs (EEA) for approval (pursuant to M.G.L. c. 184, § 32). The application form itself (available online in Word format at the EEA's website) is eleven (11) pages, exclusive of requisite document attachments and the draft conservation restriction. The application form strongly encourages the use of the EEA's Model Conservation Restriction, which is also available (PDF format) on the EEA's website noted above. Once submitted, the application form will be reviewed for approval by counsel within the EEA's Division of Conservation Services (DCS).
Just a few things to consider when contemplating a conservation restriction:
- Will the restriction exist in perpetuity (forever) or be limited in duration? (Note: The application form expressly states that it is not DCS policy to approve anything less than permanent restrictions, except in exceptional circumstances.)
- If there is a mortgage on the property, a subordination will need to be obtained from and executed by the lender(s) and duly recorded.
- A restriction may fit into other categories (agricultural preservation restriction, historical preservation restriction, and/or watershed preservation restriction) and thus notification about other joint holders (i.e. Massachusetts Historical Commission) and pending approvals is required.
- All encumbrances and improvements on the property must be disclosed.
- Geographic information, including topography, acreage and type of land (vegetated wetland, upland forest, etc.) must be described, as well as past and present use of the subject property and adjacent parcels.
- Will public access be allowed (and if yes, any limitations must be explained)?
- Copies of any applicable Orders of Condition, special permits, USDA soil data, court orders, settlement agreements, surveys, plot plans, and other similar documentation (set forth in a checklist within the application) must be submitted.
- The local conservation commission must certify (via signatures) that the proposed restriction is in the public interest. If the conservation restriction will overlap more than one municipality, each of the relevant conservation commissions must provide their approval and certification.
- The proposed conservation restriction must be approved by DCS, and prepared in a form that is ultimately suitable for recording in the appropriate Registry of Deeds.
In our experience, the process for obtaining an approved conservation restriction can be time and information intensive, but it is made all the more easier given the approachability of DCS's staff and their technical assistance.
Written by Kristen M. Ploetz, Esq., of Green Lodestar Communications & Consulting, LLC, on behalf of Jeffrey T. Angley, P.C. Edited by Jeffrey T. Angley, Esq.
Copyright (c) 2011-2013 by Jeffrey T. Angley, P.C. All rights reserved.
Disclaimer: The information contained in this post is general in nature and for educational purposes only. No personal legal advice is being provided. If you have an actual legal issue that needs to be addressed, you should seek the advice of competent legal counsel. This post does not create an attorney-client relationship between the reader and Jeffrey T. Angley, P.C., Phillips & Angley or their attorneys.