HomeMy WebLinkAboutCAC Minutes - February 23, 2017Danby Conservation Advisory Council Meeting – DRAFT Minutes –
February 23, 2017
Members Present: Matt Ulinski, Don Schaufler, Mary Woodsen, Bill
Evans, Joel Gagnon, Dan Klein
Non‐Members present: Guy Krogh, Ronda Roaring, Leslie Connors, CJ
Randall, Zack Blazek, Frank Darrow, Clare Fewtrell?
Minutes by Dan Klein
Guy Krogh, Town Attorney for Town of Danby, gave us information
about easements and tax implications of easements.
Guy feels that the most important thing to remember is that the CAC
should never offer tax advice to a potential donor. However, Guy
thought it would be acceptable to have an estate planner, for example,
give a general seminar for residents of Danby.
How do we weigh the public benefit of adding housing against
preserving open space? There can be competing public benefits. We
should also look to our comprehensive plan.
Guy believes eventually easements will lower the assessed value of the
land if it lowers the development potential, especially in areas of high
development pressure.
CJ would like the CAC to establish an NRI (Natural Resource Inventory)
subcommittee (along with Leslie Connors and Anne Klingensmith) by
next meeting. Matt suggested we review the NRI scope again and let
Matt know if we want to join the NRI subcommittee.
CJ would like the CAC to start receiving development application
packets.
Next meeting: March 27.
Here is the complete text of Guy’s handout:
CONSERVATION EASEMENTS AND TAXES
TOWN OF DANBY CONSERVATION ADVISORY COMMITTEE
23 FEBRUARY 17
I. A Brief History of Conservation Easements.
II. Types of Conservation Easements.
III. Federal Recognition and Tax Deductibility Rules.
IV. New York State Tax Rules and Programs.
V. Conclusion.
I. HISTORY
The history of conservation easements dates back well into the 15th Century and the law of easements.
Under common law an easement was generally a restriction or right attached to adjacent land primarily
designed to benefit someone other than the owner of such adjacent land. These were broken down initially
into two encampments—easements appurtenant and easements in gross. Appurtenant easements
traditionally created a benefitted estate and a burdened estate, today called the dominant estate and
servient estates. These were traditionally private property rights, and enforced as such. Today there are
literally hundreds of types of easements. Some are licenses, some are mere rights-of-way, and some run
with the land forever.
Conservation easements are a species of easement that vary considerably from traditional easements as
they benefit the public at large, and as they do not benefit only a specific dominant estate holder, and as
they give a third party enforcement powers. Because they vary so much from the traditional common law,
conservations easements are usually a creation of the sovereign—if the King says you can have then, then
they are allowed. Today, the validity and existence of conservation easements is generally vested in state
law.
The first known conservation easements in the US arose in the late 1800s, to protect Frederick Law
Olmstead’s designed parkways in greater Boston. By the 1930s they were in common use to protect
important and federally recognized resources, such as the scenic lands of the Blue Ridge Mountains and
the Natchez Trailways. By the 1980s the Uniform Conservation Easement Act was being widely adopted,
in varying forms, by a majority of the states (~30), and today a vast majority of states authorize or recognize
conservation easements in one form or another (~49).
II. TYPES OF CONSERVATION EASEMENTS
Just as there are hundreds of types of easements, there are many different types of conservation easements.
As the rules proliferate, the tax rules will change to keep up, often to avoid abuse. So, a purely visual or
open space conservation easement does not require public access as a condition of tax deductibility, but an
easement based upon recreation or education may well so require access and use.
Easements today cover open lands, wetlands, rivers, scenic areas, historic places, places of cultural
significance, gardens, parklands, recreation and hunting preserves, farms, ranches, watershed protection,
agricultural preservation, wildlife habitat areas, buildings, battlefields, significant landscapes, whether
natural or created, etc. It can cover just about anything as long as it is tangible and imbued with a cognizable
public interest. But what is meant by “types” of conservation easements is more aimed at the overarching
purpose of the easement, for which there are two main categories: conservation easements and preservation
easements. Knowing why this distinction exists, particularly in drafting, matters.
III. FEDERAL RECOGNITION AND TAX DEDUCTIBILITY RULES
Both the donation and the sale of an easement can allow the donor or seller to declare a tax deductible
charitable gift. This is, for example, the purpose of buying development rights under the FPIG program.
Whether the donation is real (a “gift” requires true “donative intent”), whether it is deductive, and “how
much” are beyond the scope of this presentation as much turns on things pertinent to the particular donor
or seller, such as is it a trust, a corporation, and individual, a foundation, or is the seller or donor subject to
the AMT or is the deduction being used to offset restricted income, such as passive income, etc. However,
to generally qualify for a deduction the easement must serve a “conservation purpose.” This is federal
recognition of something largely defined by state law. There are 5 broad categories of purposes, further
discussed below:
Preservation for outdoor recreation or education for the benefit of the general public
Protecting pristine or largely undisturbed natural or important habitats and ecosystems, including
birds, plants, animals, and even geologic systems where nothing may be unique but the diversity
or range of habitats within a confined distance are none-the-less significant (e.g., El Mapais NM,
Red Rocks, NV, or Chittenango Creek, NY).
Preservation of open space, including farmland and forestlands, for public scenic enjoyment or
pursuant to a clear and defined governmental program for conservation of such area.
Preservation of historically or culturally significant sites.
Active farmland protection programs.
In general, to qualify as a tax-deductible gift, an easement must meet three requirements outlined in
Internal Revenue Code (IRC) §170(h)(1):
(A) It must be a qualified real property interest;
(B) It must be given to a qualified organization; and
(C) It must be donated exclusively for conservation purposes.
An easement usually meets these requirements if it passes the four requirements set forth in the IRC, TRs,
revenue rulings, and various cases and common law precedents, as summarily noted below.
1. THE QUALIFIED REAL PROPERTY INTEREST REQUIREMENT - The easement gift is a qualified
real property interest because it is:
A permanent restriction on the rights and use of real property. IRC §170(h)(2)(C).
It is enforceable under state law.
It is upon property where title is in fee simple absolute (except for qualified mineral interests).
It transfers a real, tangible interest in title that materially touches the fee.
This generally requires a specific and material listing of prohibited uses, and usually a title commitment
to verify that the owner’s interests meet the standards of TR §1.170A-14(b).
2. The QUALIFIED ORGANIZATION REQUIREMENTS - The gift is given to a qualified organization
and such organization meets the other two tests:
A Basic Qualification of Organizational Donee:
Donee is a governmental unit. IRC §170(h)(3)(A) and IRC §170(b)(1)(A)(v).
Donee is a charitable organization described in IRC §501(c)(3) that meets the public support
test of IRC §509(a)(1) or IRC §170(b)(1)(A)(vi).
Donee is a charitable organization described in IRC §501(c)(3) that the IRS has determined is
publicly supported in accordance with IRC §509(a)(2). IRC §170(h)(3)(B).
Donee is an organization under the control of one of the above three qualifying donee
organizations, and such control meets the controlled supporting organizational tests of IRC
§509(a)(3) and IRC §170(h)(3)(B)(ii) and TR §1.170A-14.
B. The donee has the resources and organizational commitment to actually protect and enforce the
conservation easement. TR §1.170A-14(c)(1).
C. The easement is transferable only to other qualified organizations (including upon dissolution of
the qualifying donee). See TR §1.170A-14(c)(2).
To boot, there are rules on proving that you have met these tests, such as governmental resolutions,
verification of § 501(c) status, foundational organizational documents, such as articles of incorporation,
showing the primary purpose is for conservation purposes, certificates of good standing, proof of the
ability to steward the easement, key person resumes, etc.
3. THE CONSERVATION PURPOSES REQUIREMENTS – The gift must be made for conservation
purposes and it will, verifiably and in fact:
Preserve land areas for outdoor recreation by, or for the education of, the general public. IRC
§170(h)(4)(A)(i) and TR §1.170A-14(d)(2).
Preserve, conserve, or protect natural flora and fauna habitats or ecosystems. IRC § 170(h)(4)(A)(ii)
and TR § 1.170A-14(d)(3).
Preserve open space, including farmland and forestland, for the scenic purposes pertaining to the
use and enjoyment of the general public, and there will be, in fact, significant public benefit. IRC §
170(h)(4)(A)(iii)(I) and TR §§ 1.170.A-14(d)(4)(i), (ii), (iv), and (v).
Preserve open space, including farmland or forestland, pursuant to a clearly articulated or defined
governmental conservation policy, and there will be, in fact, significant public benefit. IRC
§170(h)(4)(A)(iii)(II) and TR §§1.170A-14(d)(4)(i), (iii), (iv), and (v).
Preserve a historically important land areas, a certified historic structure, or an area of significant
cultural importance. IRC § 170(h)(4)(A)(iv) and TR §1.170A-14(d)(5).
To support these facts you will need detailed evidence, as this is the principal determinant of the
qualification question relative to the deduction, and its valuation.
4. THE EXCLUSIVELY FOR CONSERVATION PURPOSES TEST - The gift is given exclusively for
conservation purposes (though other uses are allowed, but there is no “bright line rule”), as shown by
particular hallmarks, such as (and including all of the following):
The conservation purposes are protected in perpetuity. IRC §170(h)(5)(A) and TR 1.170A-14(e).
Surface mining is not permitted (if surface and subsurface rights have been and remain separated)
or the likelihood of future surface mining is so remote as to be negligible. IRC § 170(h)(5)(B) and
TR §1.170A-14(g)(4).
Any mortgages deed of trust is duly subordinated.
The donor’s reserved rights are not inconsistent with the conservation purposes.
There is a “gift,” donative intent, and the easement is not secondary to a need to comply with a
land use approval or a mitigation requirement, etc.
To support these facts you will need opinion letters, carefully crafted easement clauses, surface mining
clauses, title history declarations and analyses, clearly drafted clauses defining the conservation
purposes, proof of subordination and recordation, etc.
A qualifying conservation easement also has other miscellaneous requirements in the IRS Code, such as
certain notice requirements concerning the right to inspect and enforce the easement (TR §1.170A-
14(g)(5)(ii)), or the requirement for baseline documentation (TR §1.170A-14(g)(5)(i)), or the need for an
extinguishment clause and a stated formula for future proceeds arising from use or sale (TR §1.170A-
14(g)(6)). Also, TR §1.170A-14 has many hidden requirements, such as:
Baseline documentation rules when the donor reserves the exercise of rights that may impair the
conservation interests.
A requirement for a real right of entry for inspection.
Express prohibitions against antithetical uses (if the allowed use could defeat the conservation
purposes, the deduction can be wholly denied). Thus, for example, a farmland preservation
easement would fail to qualify if its terms do not protect a significant natural ecosystem from the
use of pesticides, but on the other hand selective timber cutting is not fatal if done “correctly.”
Destructive uses will usually require a Notice of Intent to the done before the action is undertaken.
The donee must be able to enforce the easement, including to expressly protect its underlying
conservation purposes, both in law and in equity.
There are also rules about extinguishment, the division of proceeds, proportionate value
calculations, and assignment restrictions.
A significant likelihood of the need for a qualified appraisal to determine the value of the gift,
particularly in bargain and sale transactions.
Finally, a failure to subordinate a mortgage or deed of trust can result in disqualification.
Remember -- state law governs the creation and enforcement of easements and, therefore, under state
law the right of the donee to perpetually hold the gift would be impaired if a mortgage foreclosure
(also governed by state laws) would extinguish the easement.
In New York, this is a problem and thus an issue to address.
IV. NEW YORK STATE TAX RULES AND PROGRAMS
New York has several ways to recognize the dedication or donation of conservation easements. There can
be offsets to income through deductibility rules (that largely follow federal rules, due to NYS importing
the AGI), there can be reductions in assessment values due to the reduced value of the ownership of such
lands, now being deemed impaired by the conservation easement, as it may reduce the value of the land
under the highest and best use criteria, but the credit most sought is the Conservation Easement Tax Credit
(CETC).
Starting in 2007, the CETC offers New York State taxpayers a refundable income tax credit of 25% of their
school district, county, and town property taxes paid during the year. The tax credit is available to owners
of land under a conservation easement, and it does not matter if it is a new or a previously existing
easement, as long as the easement is held by a public conservation agency or private conservation
organization. The maximum credit available is $5,000, but it is a credit and not a deduction. Thus, if the tax
credit exceeds taxes due NYS issues a payment for the difference.
For unclear reasons, this has yet to be recognized as the estate and long-term financial planning tool it can
be.
Conservation easements were authorized by NYS in ECL Article 49, Title 3 (c. 1985), and require that the
conservation easement be registered with the DEC to get the CETC. The DEC issues a CEIN (conservation
easement identification number) and that number must appear on the NYS tax form for the credit (an IT-
242 or CT-242). There are other rules, requirements, and recommendations, such as:
The CETC is available only to individual landowners, estates and trusts (including beneficiaries of
an estate or a trust), to partners in a partnership (including LLCs that file a Schedule K under the
IRC), and business corporations taxed under NY Tax Law Article 9-A. The CETC is not available
to Subchapter S corporations, not-for-profit corporations, or other kinds of corporations.
The CETC does not require NYS residency or domicile, only land ownership in NYS.
Village and City taxes, and special assessments for benefit districts, do not qualify for the credit.
To qualify an easement must generally follow the federal rules regarding perpetual existence (as
more specifically defined in the ECL), the donee must be a public or private conservation agency,
private agencies must meet charitable purposes tests, and private agencies must have the power to
acquire interests in real property.
The easement must serve to protect open space, biodiversity, or scenic, natural, agricultural,
watershed, or historic preservation resources by limiting or restricting development, management,
or the use of the property.
The easement must be wholly or partially donated. The CETC does not apply to non-conservation
easements, or those created in relation to a received benefit, such as obtaining a land use review
approval or permit, or as required for environmental or impact mitigation (this comports with IRC
§ 170(h) as there is, by definition, not a primary donative intent in such a situation—there is no
“gift”).
Deed restrictions must materially conform with the definitions of “conservation easement” in
Article 49, Title 3. If they do not they fail to qualify even if they have a conservation purpose.
You can claim multiple credits for multiple easements on one parcel of land, but not by merely
making a single easement “divisible.” Likewise, multiple owners may each claim the credit, but
only to the extent of actual taxes paid and not in an amount as will exceed $5K.
You must prove compliance with IRC §170(h). Often, a copy of the Form 8283 as filed at the time
of the donation works. If it was a nominal donation, then a verification letter can suffice, but if it
was a partial donation (bargain and sale) you will usually need a certified appraisal (just as you do
to verify the value under the IRC).
If the easement covers only part of a parcel you usually need the assessor to fractionalize your
taxes, but any reasonable method of allocation can suffice.
If the landowner is already receiving other credits (including the Farmer’s School Tax Credit) then
the credit applies only to the portion of taxes on the affected land not rebated by other credits.
The CETC credit runs with the land, but the new owner-purchaser must apply for the deduction
and meet eligibility criteria.
You can file an easement with DEC years later—you simply cannot obtain the credit until filed.
The full text of the ECL Article 49, Title 3, covering conservation easements is set forth below and, as you
will see, the simplicity of the statutes belie the complexity of the actual rules, including those of
construction, validity, and qualification for tax benefits.
§ 49-0301. Declaration of policy and statement of purpose.
The legislature hereby finds and declares that in order to implement the state policy of conserving, preserving and
protecting its environmental assets and natural and man-made resources, the preservation of open spaces, the
preservation, development and improvement of agricultural and forest lands, the preservation of areas which are
significant because of their scenic or natural beauty or wetland, shoreline, geological or ecological, including old-
growth forest, character, and the preservation of areas which are significant because of their historical, archaeological,
architectural or cultural amenities, is fundamental to the maintenance, enhancement and improvement of recreational
opportunities, tourism, community attractiveness, balanced economic growth and the quality of life in all areas of the
state.
§ 49-0303. Definitions.
When used in this title:
1. "Conservation easement" means an easement, covenant, restriction or other interest in real property, created under
and subject to the provisions of this title which limits or restricts development, management or use of such real property
for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural
condition, character, significance or amenities of the real property in a manner consistent with the public policy and
purpose set forth in section 49-0301 of this title, provided that no such easement shall be acquired or held by the state
which is subject to the provisions of article fourteen of the constitution.
2. "Not-for-profit conservation organization" means a not-for-profit corporation organized inter alia for the
conservation or preservation of real property and which has the power to acquire interests in real property. Such
organization must have qualified as exempt for federal tax purposes pursuant to Section 501 (c)(3) of the internal
revenue code or any similar successor statutory provision.
3. "Public body" means the state or a municipal corporation as that term is defined in section two of the general
municipal law or the United States of America acting by and through the department of the interior. Such term shall
further include the Palisades interstate park commission; the Central Pine Barrens joint planning and policy
commission; and a soil and water conservation district as that term is defined in section three of the soil and water
conservation districts law.
4. "Third party enforcement right" means a right which may be granted in a conservation easement which empowers
a public body or a not-for-profit conservation organization which is not a holder of the easement to enforce any of the
terms of the easement.
§ 49-0305. Conservation easements; certain common law rules not applicable.
1. A conservation easement may be created or conveyed only by an instrument which complies with the
requirements of section 5-703 of the general obligations law and which is subscribed by the grantee. It shall be of
perpetual duration unless otherwise provided in such instrument.
2. A conservation easement shall be modified or extinguished only pursuant to the provisions of section 49-0307 of
this title. Any such modification or extinguishment shall be set forth in an instrument which complies with the
requirements of section 5-703 of the general obligations law or in an instrument filed in a manner prescribed for
recording a conveyance of real property pursuant to section two hundred ninety-one of the real property law.
3. (a) A conservation easement shall be held only by a public body or not-for-profit conservation organization, except
that the state shall not be authorized or empowered to acquire or hold any conservation easement which is subject to
the provisions of article fourteen of the constitution.
(b) Any conservation easement created pursuant to this title shall not limit, restrict or modify the right to construct,
operate or continue the use of any facility, or impede any activity, duly authorized under the applicable provisions of
the federal natural gas act (15 U.S.C. §§ 717-717 w).
4. A conservation easement shall be duly recorded and indexed as such in the office of the recording officer for the
county or counties where the land is situate in the manner prescribed by article nine of the real property law. The
easement shall describe the property encumbered by the easement by adequate legal description or by reference to a
recorded map showing its boundaries and bearing the seal and signature of a licensed land surveyor, or if the easement
encumbers the entire property described in a deed of record, the easement may incorporate by reference the description
in such deed, otherwise it shall refer to the liber and page of the deed or deeds of the record owner or owners of the
real property burdened by the conservation easement. An instrument for the purpose of creating, conveying,
modifying or terminating a conservation easement shall not be effective unless recorded. A person causing any such
document to be so recorded shall forthwith forward a copy thereof to the department, which shall maintain a file of
conservation easements.
5. A conservation easement may be enforced in law or equity by its grantor, its holder or by a public body or any
not-for-profit conservation organization designated in the easement as having a third party enforcement right, and is
enforceable against the owner of the burdened property. Enforcement shall not be defeated because of any subsequent
adverse possession, laches, estoppel or waiver. No general law of the state which operates to defeat the enforcement
of any interest in real property shall operate to defeat the enforcement of any conservation easement unless such
general law expressly states the intent to defeat the enforcement of such easement or provides for the exercise of the
power of eminent domain. It is not a defense in any action to enforce a conservation easement that:
(a) It is not appurtenant to an interest in real property;
(b) It can be or has been assigned to another holder;
(c) It is not of a character that has been recognized traditionally at common law;
(d) It imposes a negative burden;
(e) It imposes affirmative obligations upon the owner of any interest in the burdened property, or upon the holder;
(f) The benefit does not touch or concern real property; or
(g) There is no privity of estate or of contract.
6. The holder of a conservation easement, its agents, employees, or other representatives may enter and inspect the
property burdened by a conservation easement in a reasonable manner and at reasonable times to assure compliance
with the restriction.
7. The department shall promulgate regulations establishing standards for conservation easements which shall
specify but not be limited to:
(a) the minimum term for a conservation easement as is necessary and appropriate to achieve the policy and purpose
of this title, except that such standards shall not preclude taxpayers who own or convey conservation easements from
qualifying for benefits under federal or state tax laws when such benefits would otherwise be available by virtue of
such ownership or conveyance; and
(b) standards and procedures which require each conservation easement held by a public body to include terms
under which the easement shall be modified where the commissioner has found after a non-adjudicatory public hearing
at which the public shall be given opportunity to be heard, that such easement is inconsistent with any other interest
in land required for the local gathering, transmission or distribution of gas, electricity, water, telephone or cable
television services and that no reasonable alternative exists for the local gathering, transmission or distribution of such
service. Notice of any such hearing shall be given to the public pursuant to thirty days published notice in the state
register, the environmental notice bulletin and in a newspaper having general circulation in the county where the real
property burdened by the easement is situated and individual notice shall be given in writing to any person who may
be entitled to enforce such easement pursuant to the provisions of subdivision five of this section at such address as
such person shall file with the commissioner.
8. Where a conservation easement is modified pursuant to subdivision seven of this section, or pursuant to any
regulations promulgated thereunder, such easement shall be modified only to the minimum extent necessary to
accommodate the local gathering, transmission or distribution of gas, electricity, water, telephone or cable television
service.
9. Written notice shall be provided to the director of the budget and notice published in the state register and the
environmental notice bulletin at least thirty days prior to the acquisition, or entry into a contract for the acquisition, on
behalf of the state of any conservation easement.
§ 49-0307. Procedures for modifying or extinguishing conservation easement.
1. A conservation easement held by a not-for-profit conservation organization may only be modified or extinguished:
(a) as provided in the instrument creating the easement; or
(b) in a proceeding pursuant to section nineteen hundred fifty-one of the real property actions and proceedings law;
or
(c) upon the exercise of the power of eminent domain.
2. A conservation easement held by a public body outside the Adirondack park or Catskill park, as defined in section
9-0101 of this chapter, may only be modified or extinguished:
(a) as provided in the instrument creating the easement; or
(b) in a proceeding pursuant to section nineteen hundred fifty-one of the real property actions and proceedings law;
or
(c) upon the exercise of the power of eminent domain; or
(d) where land subject to a conservation easement or an interest in such land is required for a major utility
transmission facility which has received a certificate of environmental compatibility and public need pursuant to article
seven of the public service law or is required for a major steam electric generating facility which has received a
certificate of environmental compatibility and public need pursuant to article eight of the public service law, upon the
filing of such certificate in a manner prescribed for recording a conveyance of real property pursuant to section two
hundred ninety-one of the real property law or any other applicable provision of law.
3. A conservation easement held by a public body inside the Adirondack park or the Catskill park, as defined in
section 9-0101 of this chapter, may be modified or extinguished:
(a) as provided in the instrument creating the easement; or
(b) upon the exercise of the power of eminent domain; or
(c) unless such easement is held by the state, in a proceeding pursuant to section nineteen hundred fifty-one of the
real property actions and proceedings law; or
(d) where such easement is held by the state, upon a determination by the commissioner, after a non-adjudicatory
public hearing, at which the public shall be given opportunity to be heard, that the easement can no longer substantially
accomplish its original purposes or any of the purposes set forth in section 49-0301 of this title. Notice of any such
hearing shall be given to the public pursuant to thirty days published notice in the state register, the environmental
notice bulletin and in a newspaper having general circulation in the county where the real property burdened by the
easement is situated and individual notice shall be given in writing to any person who may be entitled to enforce such
easement pursuant to subdivision five of section 49-0305 of this title at such address as such person shall file with the
commissioner; or
(e) where land subject to a conservation easement or an interest in such land is required for a major utility
transmission facility which has received a certificate of environmental compatibility and public need pursuant to article
seven of the public service law or is required for a major steam electric generating facility which has received a
certificate of environmental compatibility and public need pursuant to the former article eight of the public service
law, or a major electric generating facility or repowering project which has received a certificate of environmental
compatibility and public need pursuant to article ten of the public service law, upon the filing of such certificate in a
manner prescribed for recording a conveyance of real property pursuant to section two hundred ninety-one of the real
property law or any other applicable provision of law, provided that such certificate contains a finding that the public
interest in the conservation and protection of the natural resources, open spaces and scenic beauty of the Adirondack
or Catskill parks has been considered.
4. Where a conservation easement is modified or extinguished pursuant to paragraph (d) of subdivision two or
paragraph (e) of subdivision three of this section, such easement shall be modified or extinguished only to the
minimum extent necessary to accommodate the facility which is the subject of the certificate of environmental
compatibility and public need.
5. Nothing in this section shall be construed to preclude the extinguishment or modification of a conservation
easement pursuant to the applicable provisions of the federal natural gas act (15 U.S.C. §§ 717-717 w).
§ 49-0309. Scope of this title.
This title shall not affect any interests or rights in real property which are not conservation easements, and shall not
affect the rights of owners to convey any interests in real property which they could now create under existing law
without reference to the terms of this title. Nothing in this title shall diminish the powers granted by any other law to
acquire interests or rights in real property by purchase, gift, eminent domain or otherwise and to use the same for
public purposes. Nothing in this title shall be construed to alter the authority otherwise available to any public body
to acquire conservation easements for the purposes of section 49-0301 of this title by eminent domain.
§ 49-0311. Severability.
The provisions of this title shall be severable, and if any clause, sentence, paragraph, subdivision or part of this title
shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or
invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision
or part thereof directly involved in the controversy in which such judgment shall have been rendered; provided that if
a conservation easement created pursuant to this title is determined by any court of competent jurisdiction to be land
or water or an interest in land or water subject to the provisions of article fourteen of the constitution then the authority
of the state to hold or acquire such easement and the conveyance to the state of such easement shall be void ab initio.
V. CONCLUSION
IF YOU TAKE AWAY NOTHING ELSE, REMEMBER THAT AS THE PROPOSED
RECIPIENT DONEE YOU ARE NOT IN A POSITION TO ADVISE A DONOR AS
TO THE TAX IMPACT OR DEDUCTIBILITY OF THE CONSERVATION
EASEMENT.
THE LAWS OF UNINTENDED CONSEQUENCES PLAY LARGE HERE, SO
REFER DONORS TO A QUALIFIED PROFESSIONAL.