Legal Aspects of Conservation Easements: A Primer for Transportation Agencies (2013) / Chapter Skim
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8 works. For example, state, regional, and local authorities have long used transferable development rights (TDR)
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9 tation agencies may encounter land subject to conservation easements during the infrastructure expansion planning and acquisition processes. The purpose of this section is to provide greater detail regarding these two general categories using specific examples of particular relevance.
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10 management agency) the right to enforce site protections and provide the third party the resources necessary to monitor and enforce these site protections."64 The parties involved in the conservation easement negotiation will vary depending on how the mitigation is being provided.
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11 Case Study: SCDOT Big Pine Tree Creek Mitigation Bank The SCDOT, in partnership with the South Carolina Department of Natural Resources (SCDNR) , has developed the Big Pine Tree Creek Mitigation Bank in Kershaw County to mitigate the impacts of ongoing and future transportation projects in the Sand Hills ecoregion of South Carolina.
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12 any effect on threatened and endangered species habitat.74 Section 7 of the Endangered Species Act75 requires that a federal agency (or the proponent of a project receiving federal funding or a federal permit) consult with the U.S.
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13 Recent Development The March 15, 2012, Federal Register contained a Notice of Rulemaking on this precise topic. Public comments were due May 14, 2012.85 The purpose of the rulemaking was to streamline environmental documentation in response to a Presidential Memorandum on the subject; ‘‘Speeding Infrastructure Development through More Efficient and Effective Permitting and Environmental Review,'' issued August 31, 2011.
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14 tuity a large and ecologically important piece of property along a byway. Case Study: Hearst Ranch Scenic Conservation Easement95 -- San Luis Obispo County, California In 2004, a group of private and public stakeholders worked to place conservation easements on more than 1,445 acres of scenic rangeland and coastline property between the Pacific Ocean and Highway 1, using approximately $21 million of TE funds.
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15 condemn conservation easements held by lower levels of government, but not vice versa, on preemption grounds.100 One rationale behind the prior public use doctrine is to prevent governmental agencies from continuously condemning and recondemning each other's property.101 This is an important consideration for transportation agencies because conservation easements are often held by governmental entities at the federal, state, and local level. New Hampshire provides an interesting example of the prior public use doctrine in action to protect conservation investments.
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16 "In any legal proceeding to condemn land for the purpose of construction and operation of a linear facility…the court shall consider the public benefit provided by the conservation easement and linear facilities in determining which lands may be taken and the compensation paid."111 Linear facility is defined to include "electric transmission and distribution facilities, telecommunications transmission and distribution facilities, pipeline transmission and distribution facilities, public transportation corridors, and related appurtenances."112 As of the date of this writing, no reported cases in Florida have been decided that actually litigated the issue of the merit of the public benefit of a conservation easement as compared to the proposed linear facility. Similarly, New York legislation places special procedural requirements on condemning government-held conservation easements in that State.113 Beyond conservation easement enabling legislation, some states with agricultural lands preservation programs, like Rhode Island, afford added protection for conservation easements acquired with state funds for such purposes.114 Such provisions, where applicable, invite an additional measure of judicial scrutiny and may provide legal grounds for those seeking to defend a conservation easement against eminent domain proceedings.
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17 restricts the development of real property that is needed for a school, hospital, or publicly aided housing, eminent domain may be exercised."123 This power also extends to property condemned for public transportation infrastructure. As a result, conservation easements may be terminated by condemnation either directly or in virtue of condemnation of the underlying subject property.124 The fact that a conservation easement was donated for charitable purposes does not preclude later acquisition of the easement through eminent domain,125 though some have argued otherwise.126 As a result, conservation easements may be condemned by state transportation agencies, whether by express statutory authority or under the common law, depending on the state.
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18 often purchased by a governmental entity or donated by a private party to a nonprofit organization, not bought and sold in competitive and open markets.134 Therefore, as a practical matter, it is difficult to establish the fair market value of an individual conservation easement. Nonetheless, courts have recognized alternative valuation methodologies, which offer some guidance to transportation agencies.135 Among the various valuation methodologies, commentators view the before and after methodology to be the most appropriate for conservation easements.136 This approach holds that the value of a conservation easement equals the difference between 1)
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