S O U N D   O F F

February 15, 2008

A) Sent: Wednesday, February 13, 2008 12:11 PM

We are working with a local government to preserve an historic farm in a relatively suburban area. The farm has historic buildings as well as meadows, orchards and ponds. The owner was in the midst of donating a conservation easement to us when she died, and the heirs, instead of a post mortem ce donation,upon advice of estate trustees, have sold the farm-at a bargain sale- to the local municipality.The heirs have taken a tax deduction for the difference between the appraised value and the sale price.

The heirs were persuaded to sell to the town upon the agreement by the town to grant us a conservation easement on the property . This decison was part of a town resolution at a public hearing at which the town announced that a conservation easement would be donated to us. The farm was purchased using funds from a town bond raised for "open space."The sale of the farm took place before the easement could be finalised and now a new town attorney has decided that to grant the easement would be considered alienation of parkland, and would violate New York Finance law because the value of the farm would be greater than the actual price paid by the town.

The town wants us to provide a legal explanation of why these issues are not a barrier to following through with the easement grant. I pointed out that becuase the town purchased the farm with funds dedicated to open space, that to grant the easment raised no valuation issue because the property can only be valued as open space- not for its development potential.
Does anyone have experience with this? Or know of an attorney familiar with these issues under New York law?

Judith G.

B) Judith, This is a really interesting question. We have several easements with municipalities, but usually we try to structure it so that the easement goes on during the deal, so the easement precedes the deed. However, we do have two easements donated by a town for no monetary compensation, for which we promised to not only monitor the property each year, but to also provide a report to the city council and to provide management recommendations. In addition, we have worked with the communities on making sure these parcels are kept clear of litter using community volunteers. The city's interpretation of this arrangement is that they are being given value for the easement, although I imagine it could be challenged. With these easements, we have not asked for stewardship, which would require a direct payment from the city to the land trust.

C) Sent: Wednesday, February 13, 2008 11:22 AM
Subject: Conservation easement on municipal property
Let me get this straight, they use tax dollars to promote taking taxable property off the records (open space comment), tell the taxing authority that its a better deal to the tax payers to absorb the land for lesser values and no taxes to the infrastructure (in contest of what the tax payer attorney has discovered and pointed out in terms of value lost) and use "volunteers" to do their dirty work so the land trust still doesn't pay a dime into this effort and in fact demand getting paid for promoting all of this as tax exempt entity???