Conservation Easements – Part 1

[ 0 ] January 15, 2015 |

strawberriesBy Tom Deweese

Tom Deweese is the founder and president of the American Policy Centre and is one of America’s leading advocates of private property. The OLA was fortunate to have Mr. Deweese as one of our guest speakers at our conference in October 2014. The following article is printed with kind permission of Mr. Deweese and the American Policy Centre. The article discusses conservation easements, the American version of our Ontario Farmland Trusts. See http://www.ontariolandowners.ca/news/beware-of-organizations-bearing-gifts/ for a discussion on Ontario Farmland Trusts.

Conservation easements. The Green Mafia tells us this is the only way to save the family farm. Without its tax credits and restrictions on development rights, America (and Canada) will be paved over and Astroturf will replace sod. We’re in crisis, they tell us. However, as H.L Mencken once warned, “A plan to save humanity is almost always a false front for the urge to rule.”

Conservation and environmental groups openly advocate the conservation easements as the answer to saving farm land, as do state departments of agriculture, farm bureaus, and the federal government. A full court press is on to lock in millions of acres of private property under the blazing headline “Save the Family Farm.”

There’s no question that the family farm is under assault. Taxes, international trade agreements, inflation, and government regulations are eating away at the ability to keep the farm operating. I’ve never met a farmer who wanted to give up and stop working the land that perhaps his ancestors first acquired. In most cases it’s agony for a farmer to decide to sell his property. On the other hand, the land is his main asset. To provide a good life for the family, selling the land, many times to developers is necessary for survival.

However, there is now a much more lethal threat facing small farmers, and the outrageous fact is, this threat is being disguised as a way to help them. The real threat is the green solution – “conservation easements.” And farmers are falling into its trap across the country.

Conservation easements are promoted by land trusts and environmental groups. Tax breaks are promoted. Even cash is offered those farmers willing to sell their development rights, under the argument that this will drive away the temptation to sell the land to nasty developers, thus keeping it farm land. The clever slogan, “farm land lost is farm land lost forever” helps sell the case for easements.

The promoters of such ideas are very good with the sales pitch. If it were politically correct to do so, one could actually hear “God Bless America” playing in the background as the promises to save the family farm roll off the pitchman’s tongue.

Say proponents, “A conservation easement is a voluntary perpetual agreement that restricts non- agricultural uses such as mining and large scale residential and commercial development.” They boldly promote the easements by promising that “the landowner continues to own, live on and use the land.” They even promise that the land can be passed down to heirs, along with generous tax credits. What’s not to like? Desperate farmers are flocking to the pitchman’s wagon to buy his life-saving potion.

Of course, as another famous pitchman, P.T Barnum, once said, “there’s a sucker born every minute.” Farmers beware the slick talker who has the answers to your woes. His answers may well be your demise – and your farm’s. It’s wise to read the fine print of a conservation easement agreement. Here are some facts.

The facts about conservation easements

In a typical conservation easement, a private Land Trust organization purchases some or all of the “bundle” of a property owner’s rights. The bundle includes development rights for the property; the ability to overrule the owner’s choice of how to use the property, including adding more buildings or renovating or rebuilding existing buildings; in the case of farmers, it may include decisions on which fields to use for planting , or even which crops to grow and the technique to be used. All of these things come under the command of the easement. And all of it may become the decision of the Land Trust, because once the conservation easement agreement is signed the owner’s rights are legally subservient to his new partner, the Trust.

True, in exchange, the property owner receives charitable deductions on federal taxes based on the difference between the values of the land before and after granting the easement. The property owner receives relief from federal estate or inheritance taxes. Many states provide income tax credits and property tax relief. And the owner receives a payment for his development rights.

In the beginning it all sounds good. Money in the pocket; the farm safe from development; and the ability to practice the beloved tradition of farming. Well, maybe.

The fact is, under the easement, the owner has sold his property rights and therefore no longer has controlling interest in his property. Through the restrictions outlined in the easement, property usage is now strictly controlled, including everyday decisions on running the farm. In many cases, the Conservation group that controls the easement demands strict adherence to “sustainable” farming practices.” That means strict controls on how much energy or water can be used in the farming process, access to streams for the livestock, use of fertilizer, etc, are all under the direction of the Land Trust. And there’s more. Certain details weren’t revealed to the land owner as he signed on the dotted line. For example:

  • Trusts often re-sell the easement to other conservation groups. They sell and resell them like commodities. The farmer may not know who holds the control over his land. For these groups, the easements become a significant profit center as they rake in fees for each new easement they sign up.

 

  • Worse, the conservation group may work directly with government agencies, helping to establish new regulations which alter best management practices, driving up compliance costs. Eventually these cost increases can force owners to sell their land at a reduced price.

 

  • This is especially effective when trying to dislodge a land owner who has refused to sell his land to the government or sign a conservation easement. The Nature Conservancy is a master at this trick, creating millions of dollars of income for the group. Its favorite practice is to tell the land owner that the government intends to take the land, but if they sell to the Conservancy then it will guarantee that the land will stay in private hands. But of course, since the government intends to take the land it is now worth much less. So they get the landowner to sell at a reduced rate. Then the Conservancy calls the government agency to tell them the good news that they have the land. And the agency pays the Conservancy full market value. They call that “Capitalism with a heart!!”

 

  • Because ownership rights are muddled between taxes, restrictions and best practices requirements, it can be difficult to find a buyer willing to pay a fair market price for the land. In a sense, once the easement is signed, the owner has just rendered his land worthless on the open market.

 

  • Conservation Easement deeds use broad language that expands the trust’s control but very specific language that limits the landowner’s rights.

 

  • When productive land is taken off the tax rolls, a revenue shortage is created that has to be made up by other tax payers, causing rate hikes in property taxes and other tricks the government can come up with.

Part 2 here

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Category: Your Rights