Stewardship, Enforcement and Legal Defense Costs,Polices and Procedures: Recommendations forFoothills Land Trust (FLT) Pre...
Stewardship, Enforcement and Legal Defense Costs,Polices and Procedures: Recommendations for FoothillsLand Trust (FLT)May ...
AcknowledgementsMiistakis would like to thank a number of individual’s who we involved in discussions about stewardship an...
Table of Contents   Acknowledgements.........................................................................................
INTRODUCTIONThe purpose of this report is to provide an assessment of the costs associated with stewardship and legal defe...
4. Rately-Beach L. 2009. Managing Conservation Easements in Perpetuity: Fulfilling the Promise of       Permanence through...
Once a land trust starts to hold a number of easements it may be advisable to rate each easement in terms of the    risk t...
It is recommended that FLT develop a policy for addressing new land owners. FLT should also consider building             ...
defense. However some land trusts prefer not to charge the land owner if a violation is settled throughcommunication betwe...
Amending CE’sA land trust may recognize that an amendment to an already registered CE may strengthen the CE or improve the...
Reviewing request (Does the amendment comply with land trust policies).            o   Review                         Proc...
o Write up,             o Review of monitoring report by board member, and             o Follow up with land owner.    2. ...
Generating Stewardship FundsThe most common practice for ensuring a land trust has the funds for stewardship in perpetuity...
What are the stewardship costs to be covered?             o   Managing the Fund                       Building the fund   ...
Some land trusts use stewardship funds to support legal defense, while others develop separate stewardship andlegal defens...
for legal defense. This type of approach would require the development of a set of criteria to enable thecommunity to deci...
o   Review stewardship calculator to assess the costs per unit, hours, responsibilities and frequency                for e...
REFERENCES        Aldrich, R. and J. Wyerman. 2005. National Land Trust Census Report. Land Trust Alliance.        Bates, ...
Appendix 1: Violation Policy and Procedure Template Example  DUTCHESS LAND CONSERVANCY, INC. CONSERVATION EASEMENT VIOLATI...
IV. Steps to Take in the Event of a Violation:Violations may be discovered in any number of ways: through annual monitorin...
b) If the Land owner does not agree to voluntarily restore the Property, the President then                consults with t...
should consult with an experienced trial lawyer to assess the merits of the case, the documentation of          the allege...
Appendix 2: Amendment Policy Example  GALLATIN VALLEY LAND TRUST: CONSERVATION EASEMENT AMENDMENT POLICYI. General Policy ...
B. Correction of an Error or Ambiguity. GVLT may authorize an amendment to correct an error or oversight       made at the...
•   Additional third parties, public or private, whose opinions or expertise GVLT determines may be                helpful...
Appendix 3: FLT Stewardship Calculator Manual  STEWARDSHIP CALCULATOR FOR CONSERVATION EASEMENTS MANUALINTRODUCTIONA wide ...
Unit Cost Tab                                        Volunteer / Personnel                  Cost/hr     Paid None         ...
Stewardship activities do not always occur annually, such as enforcement of violations or    amendment of a CE. The calcul...
????? Conservation Easement                                                                                   Primary     ...
TOTAL ANNUAL COSTS TABIn the total annual stewardship tab costs are rolled-up for all properties and costs associated with...
Total Annual Costs                                                           Time                    Primary              ...
Legal defense costs 2009 18 foothills land trust $24,420 2 of 5
Legal defense costs 2009 18 foothills land trust $24,420 2 of 5
Legal defense costs 2009 18 foothills land trust $24,420 2 of 5
Legal defense costs 2009 18 foothills land trust $24,420 2 of 5
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Legal defense costs 2009 18 foothills land trust $24,420 2 of 5

  1. 1. Stewardship, Enforcement and Legal Defense Costs,Polices and Procedures: Recommendations forFoothills Land Trust (FLT) Prepared for:
  2. 2. Stewardship, Enforcement and Legal Defense Costs,Polices and Procedures: Recommendations for FoothillsLand Trust (FLT)May 2010Prepared by Tracy Lee and Kim GoodMiistakis Institutec/o EVDS – University of Calgary2500 University Drive NWCalgary, ABT2N 1N4Phone: (403) 220-8968Email: institute@rockies.caWeb: www.rockies.ca
  3. 3. AcknowledgementsMiistakis would like to thank a number of individual’s who we involved in discussions about stewardship and legal defense toinform this report; Barbra Heidenreich (Ontario Heritage Trust), Renny Grilz (the Nature Conservancy of Canada -Saskatchewan), Sue Michalsky (Paskwa Consulting), Dave Walker (Canadian Land Trust Alliance), Sheila Harrington (BC LandTrust Alliance), Alan Gardner (Southern Alberta Land Trust Society) and Guy Greenaway (Miistakis Institute).FLT and Miistakis Institute would like to thank the Alberta Real Estate Foundation and The Calgary Foundation for theirsupport.FLT Stewardship and Legal Defense i
  4. 4. Table of Contents Acknowledgements.................................................................................................................................................... iIntroduction ..................................................................................................................................................................... 1Reducing the Risks......................................................................................................................................................... 2 Maintain healthy land owner relations .................................................................................................................. 3 Clarity of Language and Record Keeping.............................................................................................................. 4 CE Violation Policy and Procedure ......................................................................................................................... 4 Amending CE’s............................................................................................................................................................ 6Stewardship Calculator................................................................................................................................................. 7 Costs per Unit Tab...................................................................................................................................................... 7 Costs per Property Tab ............................................................................................................................................. 7 Total Annual Costs Tab ............................................................................................................................................. 8 Stewardship Calculator Results.............................................................................................................................. 8 Generating Stewardship Funds............................................................................................................................... 9 Stewardship Fund Policy.......................................................................................................................................... 9Legal Defense ............................................................................................................................................................... 10 Communal Defense Approach............................................................................................................................... 11 Legal Defense Learning Centre ........................................................................................................................ 11 Third Party Assistance ....................................................................................................................................... 11 Communal Defense Insurance.......................................................................................................................... 12Summary of Recommendations to FLT on Stewardship ....................................................................................... 12References .................................................................................................................................................................... 14 Appendix 1: Violation Policy and Procedure Template Example .................................................................... 15 Appendix 2: Amendment Policy Example ............................................................................................................ 19 Appendix 3: FLT Stewardship Calculator Manual.............................................................................................. 22 Appendix 4 Stewardship Funding ......................................................................................................................... 28 Appendix 5: Stewardship and Legal Defense Fund Policy Example............................................................... 30FLT Stewardship and Legal Defense ii
  5. 5. INTRODUCTIONThe purpose of this report is to provide an assessment of the costs associated with stewardship and legal defenseand to provide recommendations to FLT for reducing the risks relating to enforcement and defense of aConservation Easement (CE).A wide variety of stewardship costs are associated with holding a Conservation Easement. A land trust needs tobe aware of the costs associated with stewardship and ensure they have policies and plans developed to accountfor how they will acquire, save and allocate stewardship funds to protect CE lands in perpetuity. StewardshipCosts are composed of three main components: 1. annual monitoring, 2. maintaining ongoing good land owner relationships, and 3. enforcement and resolution of violations.It is important to determine the funds needed to support each stewardship component. The first two components,annual monitoring and maintaining land owner relations are predictable and can be tracked over time to determinean accurate annual cost to the land trust. Enforcement and resolution of violations is much more difficult toestimate. In addition, a land trust must be prepared to defend a CE in the event of a legal challenge by a landowner aiming to amend or terminate the CE.Since enforcement and legal defense are difficult to assess, a land trust should consider factors that influence riskand ensure they have policies in place to reduce risk where appropriate. Factors associated with risk includenumber of easements held by a land trust; restrictions associated with conservation easement; relationship withland owners; change in land ownership; quality of CE agreement, baseline and monitoring reports; and/orprice/value of the land.Many land trusts have developed a separate legal defense fund for addressing enforcement where legal council isrequired and to defend against a legal challenge. In this report we have defined legal defense as either a violationthat requires action such as mediation or litigation to resolve or a legal challenge to the land trust. If, however, aviolation is resolved through communication between the land owner and land trust we consider these activitiesstewardship. Therefore, in this report legal defense costs and guidelines are addressed independently ofstewardship costs; although, it is important to understand that implementing stewardship best practices andmaintaining good records will help to reduce the risk of needing legal defense. FLT should have discussions at the discussionsboard level to ensure agreement with this definition of legal defense.A number of manuals / modules dedicated to stewardship and legal defense funding were reviewed to develop aset of recommendations for FLT, including; 1. Doscher, P., B. Lind, E. Sturgis and C. West. 2007. Determining Stewardship Costs and Raising and Managing Dedicated Funds. The Land Trust Alliance. 2. Heidenreich, B. Draft 2009. A Stewardship, Monitoring and Costing Guide for Natural Heritage Conservation Agreements. Ontario Heritage Trust and Ontario Land Trust Alliance. 3. Michalsky, S. 2010. Dedicated Stewardship Funding Training Module. Alberta Land Trust Alliance.FLT Stewardship and Legal Defense 1
  6. 6. 4. Rately-Beach L. 2009. Managing Conservation Easements in Perpetuity: Fulfilling the Promise of Permanence through Keeping Records, Managing Amendments and Upholding Conservation Easement Integrity. Land Trust Alliance.REDUCING THE RISKSBefore we calculate stewardship and legal defense costs it is important to understand the role a land trust canplay in reducing risks associated with violation rates and legal defense. There are a number of variables that caninfluence easement violation rates, many of which the land trust has some control over.The Land Trust Alliance (LTA) has identified a number of variables that may influence risk to a land trust: • Number of CE’s held by a land trust (more easements = more risk) • Types of restrictions (affirmative obligations = more risk) • Quality of CE, baseline and monitoring reports (clearly written CE, baseline and monitoring report that follow a consistent policy = less risk) • Consistency in monitoring (regular monitoring = less risk) • Record keeping (well kept, clearly written records = less risk) • Relationships with land owners (open and communicative relationship with land owner = less risk) • Developing good violation and amendment policies to guide the land trust in violation resolution (developing procedures for violation resolution = less risk).In addition there are some external factors over which the land trust has little influence. A survey by the Universityof Wisconsin (Betterley Risk Consultants, 2008) highlights some external variables that can increase the risk of aCE being challenged, such as: • Increasing real estate prices as a result of alternative land uses, • Increased conversion rate - changes in surrounding land use, such as development pressure or cultivation, • Sales of conserved land to successive owners, and • Third party trespass.While a land trust may not be able to control external variables, an understanding these variables in the context ofthe local setting can assist a land trust in assessing the risk to a CE. For example, although not a commonoccurrence, a property’s value for development may become so high, it becomes possible that a developer maypurchase the land and try to terminate the CE in court. The amount a developer could make from a development onthe CE property would enable the developer to justify the expense of litigation. Even though it is likely the CE wouldbe upheld, the land trust would need to have a substantial amount of funding available for legal defense in thiscase. In other words (all other things being equal) a CE associated with areas where land prices and land useconversion rates are high are at a greater risk and need more attentive monitoring and communication with landowners than CE properties where land prices and conversion rates are significantly less.There are cases where a third party trespasses and violates an easement, such as a neighbor, oil and gasdeveloper and/or utility company removing vegetation or trees. Many land trusts stress the importance of gettingto know neighbors and others active on the landscape where they hold CE’s. This can be done through meet andgreet events or workshops hosted by the land trust. In addition, designing best practice manuals and working withthe land owner and utilities or resource extraction companies can help to reduce any negative impact on theconservation value of the CE.FLT Stewardship and Legal Defense 2
  7. 7. Once a land trust starts to hold a number of easements it may be advisable to rate each easement in terms of the risk to easement violations and challenges. This enables a land trust to prioritize monitoring or determine the intensity of monitoring as well as prioritize programs aimed at building positive relationships with land owners. A sample template has been drafted for FLT to evaluate the level of risk (for violations and legal challenge) for each conservation easement property (see below – numbers included are only examples). FLT should review the template and assess each property to determine current risk levels. propertyConservation Property Risk Assessment T(0)/F(1) Property Property Property PropertyInternal Factors 1 2 3 4 Baseline completed/signed 0 1 0 0 Annual monitoring reports completed and signed 0 0 0 0 No violations recorded 0 0 1 0 Intent of landowner for CE was conservation 0 0 1 0 Dealing with original land owner 0 0 1 0 Good relationship with land owner. 0 0 0 1External Factors Land prices stable 0 0 0 1 Land conversation rates low 0 0 0 1 No third party concerns 0 0 0 0 Risk Level 0 1 3 3*Risk increases with higher number (scaled 0-8), with zero as lowest risk Many of the variables identified above can be influenced by land trusts to reduce the risk associated with a CE. A land trust can reduce the risk of easement violations and increase its ability to defend an easement by maintaining healthy relationships with the land owner, ensuring good record keeping and developing a violation resolution policy and procedure to guide enforcement of conservation easements. Maintain healthy land owner relations Land trust experts consulted in Canada and literature from the Land Trust Alliance stress the importance of building and maintaining healthy land owner relationships. Violations and challenges are often associated with second or third generation land owners who did not enter into the CE with the land trust. A policy geared toward new land owners, such as meeting and reviewing the CE with new land owners as soon as possible is important. owners, owners Surveys in the US indicate violations by new land owners often occur prior to meetings held with the land trust holding the easement. Often, land trusts are not notified when land changes hands and many land trusts do not have a mechanism for notification. Regular communication with the land owner will help to increase the likelihood that a land trust is aware of an ownership change. Regular communication with the land owner is the first line of enforcement and legal defense and should be considered a high stewardship priority. Many land trusts work with land owners on habitat management projects (e.g. weed pulls, fence mending, and water systems), publish newsletters and host workshops to help communicate best management practices. Outreach activities with land owners help to strengthen the relationship between land owners and land trusts and also establish comfortable communication channels, thus reducing the risk of violations and challenges to the CE. FLT Stewardship and Legal Defense 3
  8. 8. It is recommended that FLT develop a policy for addressing new land owners. FLT should also consider building owners.and maintaining land owner relationships as an important component of stewardship (including associated importantstewardship costs).Clarity of Language and Record KeepingOther areas where a land trust can help to reduce risk relates to the development and implementation of protocolsaround CE, baseline documentation and monitoring reports. All of these documents may be needed to help upholdthe easement in court. A land trust needs to consider all official documents as lines of defense and thereforeremove all vague language from templates and protocols, ensure the intent or purpose of the CE is well defined,maintain good records of all communications with land owners and maintain clear, consistent baseline andmonitoring reports. It is advisable that land owners and land trusts sign baselines and monitoring reports to helpdocument communication and agreement over the condition of the land.The wording of easement restrictions should be carefully considered. A land owner should be able to easilyinterpret the restrictions to increase likelihood of compliance. In addition, a land trust needs to have detaileddocumentation on how they are monitoring the property to determine if restrictions have been violated. Some CE’shave affirmative obligations, whereby a clause in the CE outlines management goals or conditions that need to bemet. For example an affirmative obligation may be that range health condition must be maintained at a certainlevel. A land trust with affirmative obligations needs to consider how they will monitor and measure the clause toensure the property is in compliance.It is recommended that FLT document the process for how records are kept (electronic, hard copy), shared,maintained and destroyed.CE Violation Policy and ProcedureThe expected rate of violations to a CE is difficult to determine. The LTA provides a rough guideline – for every 20CE’s a land trust holds one violation of varying degree can be expected annually. For FLT, at this point one violation CE’s.every 10 years can be expected based on current number of CE’s. Resolving a violation may involve a series ofsteps depending on the severity and scope of the violation in terms of impact on the intent of the CE andwillingness of the land owner to resolve the violation. A land trust may resolve the violation throughcommunication with land owner, negotiations with the land owner, amending the CE, entering into a mediationprocess or through litigation. A number of these steps will require legal advice.FLT should track the number of violations annually, how they were resolved and the costs associated with costsresolution to ensure enforcement costs are accurately considered in the future.The ultimate goal for the land trust when addressing a violation is to implement a violation resolution with the landowner that ensures the purpose of the CE is upheld for the least amount of cost while minimizing damage to therelationship with the land owner. Many land trusts have developed policies and/or procedural templates fordealing with violations to increase the likelihood of finding a desirable resolution for all parties involved. Policiesand procedures for addressing violations should consider who determines the best course of action and who inthe land trust organization should be in contact with the land owner to present a resolution. For violations deemedmajor, land trusts should consider legal advice before approaching a land owner.A land trust should also identify who pays for the costs of addressing violations, in some cases the land owner isrequired to pay the costs back to the land trust associated with enforcement of easement violations or legalFLT Stewardship and Legal Defense 4
  9. 9. defense. However some land trusts prefer not to charge the land owner if a violation is settled throughcommunication between a land owner and land trust as a way of maintaining good relations. However, many landtrusts have a clause in the CE that requires the land owner pay for the legal costs associated with a law suit. including:FLT should develop a violation policy and procedures guide including o Philosophy statement Why is it necessary to enforce a CE? FLT’s approach to enforcing conservation easements supports the mission. FLT’s philosophy on upholding grantors interest and purpose of easement. o Discovering and Assessing the extent of the violation Describe a system of how FLT discovers and responds to violations. How to verify the violation. Determine who violated the easement. Determine severity of the violation (e.g., impact on the intent of the CE, area impacted, location impacted, level of difficulty in fixing the problem, legal implications and public perception of the issue). Identify types of violations (e.g., technical, minor, moderate or major) and possible responses to each type. o Determining Reponses to Violations List of potential responses based on the context of the situation: o Is the violation a clear breach of restrictions in the CE? Is the language in the CE ambiguous? Is the issue mentioned in the CE? o Will the violation set a precedent? o Accidental or intentional, repeat violation? o Who caused the violation? o What are the tools/approaches for addressing the violation? o Are there third party interests that have to be engaged? o Who is responsible for different components of violation process? o Documenting the Violation Identify what level of documentation is important depending on the severity. Who will document the violation (ties into monitoring reports)? o Addressing the Violation How to communicate with the land owner? Who will communicate with the land owner? What is the process if the land owner disputes the violation? Steps to remediate the violation. Who responds to media inquires or calls from third party? o Additional Requirements Whether the land trust will require the land owner to reimburse the organization for its costs? A prohibition against private benefit. o Statement about post enforcement assessment, education and review of violation policy o Insert the date of the policy and the date of its last revision.Appendix 1 includes an example of a violation policy from the Dutchess Land Conservancy in Dutchess County,New York (www.dutchessland.org/).FLT Stewardship and Legal Defense 5
  10. 10. Amending CE’sA land trust may recognize that an amendment to an already registered CE may strengthen the CE or improve theability of a land trust to defend the CE. Usually a land trust has a policy that all amendments result in a neutral orpositive change to the conservation value of the property. For example, a land owner may want to remove thebuilding rights from a CE or change the location of a building envelope and it does not result in a negative impactto the intent of the CE. The land owner in this case may request an amendment to the CE. Most land trusts willface the issue of having to amend an easement to clarify language or intent or to resolve a violation where there isno loss of conservation value to CE. Amending a CE is an evolving field and requires each situation to be assessedin the context of the CE, local law and requires a balanced approach of upholding the conservation interests of theproperty and maintaining good land owner relations.Within the land trust community there is some disagreement on how often a land trust should consider anamendment from almost never, (e.g., it should always be discouraged) to amend at will. In Canada a land trustmust also consider “change in use” concerns with respect to Eco-gifts. FLT should engage in discussions at theboard level to decide on their philosophy and develop an amendment policy to guide future decisions.FLT should develop an amendment policy including the following information: o Philosophy statement Why is it a necessity to amend a CE? Amendments in relation to FLT’s mission and goals. FLT’s philosophy on upholding the grantors intent and purpose of CE. o Amendment Principles (to be acceptable an amendment meets certain guidelines): Serves the public interest and is consistent with FLT’s mission. Complies with national, provincial and municipal laws. Does not jeopardize the tax exempt status or standing as a charitable organization. Does not result in private benefit. Consistent with conservation purpose and intent of donor or grantor of funding. Has net benefit or neutral effect on conservation values protected by the CE. o Other Considerations Public perception test – how will amending the CE be perceived by other land owners, local community, land trust community and public? Will the amendment effect stewardship and administration costs of the CE? Are there other stakeholders or parties that should be involved in the process (e.g., Environment Canada if CE was an Eco-gift)? o Allowable purposes of Amendments What are the circumstances where a CE could be considered for an amendment? Consider: • Prior agreement, • Correction of an error or ambiguity, • Consistent with conservation purpose and enhances value, • Upgrade language and format, and • Reconfiguring of easement area. o Amendment Procedures Initiating the proposed amendment (process for land owner vs. land trust initiating the amendment. Costs (Who pays for amendment?). Decision-making (who evaluates, when legal council is involved and who makes final decision?).FLT Stewardship and Legal Defense 6
  11. 11. Reviewing request (Does the amendment comply with land trust policies). o Review Process and timeline for policy review and updates. Always include the date of policy and of last revisions.Appendix 2 includes an example of an amendment policy from the Gallatin Valley Land Trust in Bozeman, Montana.(www.gvlt.org/). CALCULATORSTEWARDSHIP CALCULATORA wide variety of stewardship costs are associated with holding a conservation easement. A land trust needs tobe aware of the costs associated with stewardship and ensure they have policies and plans developed to accountfor how they will acquire, save and allocate stewardship dollars to protect conservation easement lands inperpetuity. The stewardship calculator was developed to assist FLT in estimating the annual costs of stewardship.The calculator currently supports cost tracking for 15 conservation easement properties. Once FLT has more than15 properties they will likely need to change the way costs are tracked, such as by setting annual stewardshipcosts based on small, medium and large properties. Or if FLT would like to continue tracking costs on a case bycase basis, a stewardship calculator could be developed using database software such as Microsoft Access.Stewardship Costs are composed of three components: 1. annual monitoring, 2. maintaining ongoing land owner relationships, and 3. enforcement and resolution of violations.The calculator does not currently have a line item for legal defense, but it could be added in per property. Thecalculator was developed in Excel and is composed of three main tabs in the spreadsheet, unit costs, CEProperties (labeled 1-15) and Total Annual Costs.A manual has been developed to aid FLT personnel in using the calculator (see Appendix 3).Costs per Unit TabFLT stewardship activities are currently undertaken by volunteers from the board and a seconded staff member 1day a week from the MD of Foothills. The stewardship calculator has been designed to enable FLT to track costsassociated with a variety of personnel (staff, MD Foothills staff, volunteers, board members, consultants, legalcouncil) both paid and unpaid. In addition a cost per hour has been estimated for paid and unpaid personnel. FLTcan add personnel into this tab, such as new partners and can adjust the cost per hour. It may be important totrack the contribution (in paid time) from volunteers for stewardship to enable FLT to report on volunteercontribution for grant writing or to better understand the costs of staffing needs in the future.Costs per Property TabCosts associated per CE are divided into six components; 1. Annual monitoring: o Preparing for site visit: review CE restrictions and baseline report, calling land owners and setting up visits, o Site visit: fill out monitoring template, meeting/interviewing land owner,FLT Stewardship and Legal Defense 7
  12. 12. o Write up, o Review of monitoring report by board member, and o Follow up with land owner. 2. Communication with Land owner o Permissions activities within the CE that require communication, permission from the land trust, such as areas for future development. These typically are different per CE and require time for communication, it is important to access how frequently these activities will occur. o Information transfer – time for FLT to communicate materials of interest to the land owner. 3. Administrative costs o Records management, communicating with board members and coordinating volunteers to undertake monitoring. 4. Insurance costs 5. Minor violations/Amendment to CE o Over time there are likely to be minor violations to the CE. Hopefully minor violations can be addressed through communication with the land owner, but may require some legal advice. o It may be necessary to amend the conservation easement agreement, although this is not a common practice, there are costs associated with it. o Legal counsel may also be required to provide clarification on the CE or advice on how to address a violation. 6. Expenses o Expenses associated with each CE include insurance, mileage for site visit, air photo purchase, printing, and postage costs.Total Annual Costs TabThe costs per property are rolled up into the total annual costs tab. There are a number of annual costs associatedwith stewardship that are common to all CE’s, these are tracked under the total annual costs tab. Cost associatedwith general stewardship include: 1. Land owner Outreach Activity o Building land owner relations through habitat management projects (e.g., fencing, weed control, water system), newsletters and/or hosting workshops on topics of interest. 2. General Stewardship Expenses o Administrative costs associated with office space and overhead. o Land owner Outreach Activities may have expenses for printing newsletters, organizing workshops and/or costs associated with land owner on habitat management projects.Stewardship Calculator ResultsThe resulting values will help guide FLT in the development of a stewardship plan for existing properties, includinga set of strategies to secure necessary funds to steward the properties in perpetuity.FLT currently has two conservation properties, an initial run through was completed with the calculator based oncurrent personnel and volunteer commitment estimates. FLT needs to generate approximately $2,000 annually tosupport annual stewardship costs of two conservation easement properties. This calculation is based primarily on annual conservation propertiesa volunteer work base and it does not include costs associated with legal defense. It is advisable that the boardreview the stewardship calculator to confirm the costs per unit, hours, responsibilities and frequency for each CE.FLT Stewardship and Legal Defense 8
  13. 13. Generating Stewardship FundsThe most common practice for ensuring a land trust has the funds for stewardship in perpetuity is to create astewardship endowment and a stewardship fund policy.To fund the two FLT conservation easement properties in perpetuity, based on the current estimate of $2,000 peryear, through a stewardship endowment, FLT would need to secure an endowment of approximately $50,000(based on expected 5% annual interest). If the fund achieved a 5% return rate and we considered a 1% inflationrate, approximately 4% of the endowment would be available for the land trust to use on an annual basis forstewardship.Alternatively, some land trusts currently support stewardship costs through operating funds, but usually this islinked to organizations with a strong membership base that pays annual fees. Technically a land trust could alsogenerate funds for stewardship per year through project grants, but over time as properties with CE increase thecosts will likely be more difficult to generate through project funding. This may be a short-term strategy while aland trust seeks funds to help build a stewardship endowment.FLT should develop a Stewardship Fund Policy to describe how funds will be raised, managed and distributed intothe future.The Land Trust Alliance provides guidelines to land trusts that have conservation easement properties without thefunds required for stewardship. The LTA suggests land trusts develop a five year stewardship plan for eachproperty that outlines how the land trust will acquire the funds to cover stewardship in perpetuity. Thestewardship plan should highlight how stewardship will be covered in the meantime as the land trust generatesthe funds for an endowment. There are a number of ways a land trust can fundraise to build a stewardshipendowment fund; see a listing of ideas in Appendix 4 4.Stewardship Fund PolicyA stewardship fund policy typically has four key components; o Way to determine costs, o Requirement to secure funds for stewardship at securement, o Highlights when there can be an exception for securing funds at securement, such as including the development of a stewardship plan, and o Investment strategy.Within this policy a land trust also needs to describe the operating procedures (e.g., who can do what),understand the board’s level of comfort with risk, define appropriate investment types and define allocations ofannual interest. A stewardship fund policy may be a component within a land trusts overall investment andfinancial management policy, whereby all funds associated with the land trust are described. Or a stewardshipfund policy may be part of a larger stewardship policy which also includes details on stewardship funding plansand violation policy and procedures.FLT should develop a Stewardship Fund Policy including: o Land trust philosophy: Why is an easement stewardship fund necessary? o Purpose of the fund Will it be used to support monitoring expenses only or some level of enforcement as well? Are there two separate funds for stewardship and legal defense?FLT Stewardship and Legal Defense 9
  14. 14. What are the stewardship costs to be covered? o Managing the Fund Building the fund • What methods are used to secure funds with the easement, and what sources are used? • What is the target amount per easement to be deposited to the fund? • Under what circumstances will the land trust accept an easement without an accompanying stewardship contribution? • How will the land trust add appropriate funding later (e.g., Stewardship Plan)? Fund management goals and guidelines • Is it a true endowment, in which principal cannot be eroded? • Can all of the income be used, or will part of it be reinvested to grow the fund? Authority governing management of the fund • Who is in charge of securing contributions, investing and managing the fund, and making decisions? • Who has authority to withdraw from the fund? Criteria for withdrawals • How much can be withdrawn? • Earnings or growth only? • Based on a three-year rolling average of principal? • Reinvest a portion of earnings? • For what purposes? • Direct monitoring expenses? • Support of stewardship program, including indirect and overhead costs? • For legal defense? • If the fund is drawn down for an enforcement action, will it be replenished? Review: What is the process by which the policy will be reviewed and updated?LEGAL DEFENSEA land trust needs to define when an enforcement action is considered legal defense; as previously mentioned, aland trust typically develops separate legal defense and stewardship funds and develops policies to identify howthe funds will be collected, managed and used. Although a land trust may consider itself low risk for requiring legaldefense, lessons from the LTA suggest that it is not a matter of if a land trust may need legal defense funding it is aquestion of when.Although a land trust aims to avoid litigation, sometimes in order to enforce a CE or defend against a challenge aland trust may find it has no other choice. This can be costly for a land trust. A review in 2005 of US land trustsindicated that the average litigation costs “range from $25,000 to $250,000 for a typical trial in a typical jurisdiction.The average historic cost of all claims was $38,000 including those that did not go to a full trial. This does notcapture the risk of an appeals process.” Although these are average costs, there are several examples where landtrusts spent well over $250,000 on “outside” litigation fees to protect or enforce an easement.The Land Trust Alliance has developed a general guideline for legal defense, whereby they recommend a landtrust acquire a minimum amount of $50,000. After a land trust has acquired 15 CE an additional $1,500-3,000 shouldbe added to the fund for each CE.FLT Stewardship and Legal Defense 10
  15. 15. Some land trusts use stewardship funds to support legal defense, while others develop separate stewardship andlegal defense funding. Land trusts that incorporate these funds have the advantage of having to manage only onefund. However, there are some clear disadvantages to this approach such as possibility of using all theirstewardship funds on a legal defense case. Land trusts are typically going the route of having two separate fundswith policies developed around each fund that state the purpose, how funds are generated, how they can be spentand who makes the decisions on the funds. Appendix 5 displays an example of a Stewardship Fund and LegalDefense Fund policy written up in one document from the http://www.ctnc.org/site/PageServer.A legal defense fund policy is written up in a similar format as the Stewardship Fund Policy; however, a land trustshould identify how they plan to replenish the fund if legal defense funding is utilized.Communal Defense ApproachResearch projects in the US have explored community approaches to reduce the burden of legal defense. Someof the activities include forums for sharing knowledge and lessons learned, relying on third party assistance ordevelopment of communal defense insurance. Discussion on communal approaches is less developed amongCanadian land trusts likely because CE’s are a newer conservation tool, land owners who signed the CE are still onthe property and as a result, cases of litigation in Canada are rare. Regardless, it is advisable that the land trustcommunity prepare itself for the possibility of a challenge. The ideas explored below are to instigate discussionwithin the Canadian land trust community. Communal approaches have not been fully explored in the Canadianlegal context. LEGAL DEFENSE LEARNING CENTREThe LTA has developed a legal defense learning centre, whereby land trusts can review documents, reports andresults of court cases to help inform their practices and reduce the risk of challenges. A Canadian equivalentwhereby land trusts can share lessons learned from enforcement and challenges will help the communityproactively reduce the risk of challenges. THIRD PARTY ASSISTANCEThere are examples where a third party may help a land trust defend a CE, such as government support, non-profits designed to protect conservation interests (e.g., Ecojustice),or pooled legal advice from law schools or lawfirms.In the US, a number of states actively protect the intent of a CE because it represents a public service. Forexample, the state of Massachusetts provides legal defense support to conservation easements, as all CE areapproved by the state, which has a vested public interest in upholding easements. A research paper by JessicaJay (2007), noted that “Massachusetts prepared to step into its first enforcement action in 1997, when the AttorneyGeneral wrote to land owners violating their conservation easement and indicated the Attorney General’s intent tobecome involved in the case. The land owners settled out of court shortly thereafter and it is thought that theperceived threat of government involvement in the enforcement action was enough to encourage these landowners to resolve the issue out of court.” Although this has proven to be an effective mechanism for protectingCE, government involvement may scare some private land owners into entering an agreement or it may not be anoption in many regions.Another possibility is the exploration of pooled defense approach; this could take on many forms, but oneapproach could include land trust pooling resources and fundraising as a community to generate a fund to be usedFLT Stewardship and Legal Defense 11
  16. 16. for legal defense. This type of approach would require the development of a set of criteria to enable thecommunity to decide on when and the funds would be dispersed.Additionally, groups such as Ecojustice (formally Sierra Legal Defense) could be approached to assist with legaldefense cases. Their ability to help would depend on timing, how precedent setting the case is and Ecojustice’scapacity. COMMUNAL DEFENSE INSURANCEThe LTA has investigated a communal insurance program, whereby land trusts pay a fee per easement per year toensure protection against challenges and assistance with enforcement of CE’s when violations occur. The risksassociated with these activities are often very difficult to assess and commercial insurance companies in the USwere not interested in providing group insurance. The LTA is in the process of establishing its own captiveinsurance program and are currently seeking commitment from membership to proceed with a national communaldefense program.Some of the concerns expressed by land trust experts in Canada include the variability in standards betweendifferent land trusts (e.g., tying one’s fate to another), a smaller number of land trusts and CE’s to contributetoward a communal defense approach and different insurance and CE legislation between provinces. Therefore, acommunal approach to legal defense is likely best explored by provincial / regional alliances aimed at supportingthe land trust community.Given the lessons learned from the US experience, it would seem prudent that the land trust community in Canadaproactively explore options to assist the community to enforce and defend conservation easements in the future.FLT should where possible support and encourage initiatives aimed at exploring a communal approach to legalFLTdefense.SUMMARY OF RECOMMENDATIONS TO FLT ON STEWARDSHIP AND LEGAL DEFENSE STEWARDSHIPThe following recommendations are provided to FLT to assist them in understanding costs and to reduce risksassociated with stewardship and legal defense; o Assess from FLT’s perspective the internal and external risks to the land trust to guide development of stewardship and legal defense policies and procedures (see Appendix 1). o Develop a New Land owner Policy; include the mechanism used to determine when there is a new land owner, who from the land trust communicates with the new land owner, what information will be provided to new land owner. o Establish guidelines for record keeping including storage of information (electronic and hard copy), maintenance and destruction of records. o Develop a Violation Policy, include information on documenting violations, assessing the impact, violation resolution procedures and tools to minimize impact on CE intent and relationship with land owners. o FLT should track the number of violations annually, how they were resolved and the costs associated with resolution to ensure enforcement costs are accurately considered in the future. o Develop an Amendment Policy include when it is acceptable for an amendment to be considered, Policy, components that can be amended and who makes the decisions.FLT Stewardship and Legal Defense 12
  17. 17. o Review stewardship calculator to assess the costs per unit, hours, responsibilities and frequency for each CE. o Board level agreement on definition of legal defense. o Board level agreement on the amount of funds being raised for stewardship and legal defense per property or in general. o Develop a Stewardship Fund Policy – that defines the process of acquiring funds needed for stewardship, financial model for funds and defines how the money can be spent. o Develop a five year Stewardship Funding Plan to fund the stewardship endowment fund for two existing conservation easement properties and others in process. o Board decision on how to address legal defense, if a separate fund is desirable, develop a Legal Defense Fund Policy. o Support and encourage initiatives aimed at a communal approach to legal defense. o Review and update the stewardship calculator annually to ensure it accurately reflects costs associated stewardship.FLT Stewardship and Legal Defense 13
  18. 18. REFERENCES Aldrich, R. and J. Wyerman. 2005. National Land Trust Census Report. Land Trust Alliance. Bates, Sylvia. 2007. Conservation Capacity and Enforcement Capability. Land Trust Alliance. Bertely Risk Consultants Inc. 2008. An Analysis of Historic Data Relating to Easement Violations, Land Protection and Defense Insurance Feasibility. Land Trust Alliance. Canadian Land Trust Alliance. 2005. Canadian Land Trust Alliance: Standards and Practices. Modified by the Canadian Land Trust Alliance from Land Trust Standards and Practices © 2004 by the Land Trust Alliance with permission from the Land Trust Alliance. Doren, J.V. 2004. 2004 Conservation Easement Violation & Amendment Study: Major Violation Follow-Up Questionnaire. Land Trust Alliance. Doscher, P., B. Lind, E. Sturgis and C. West. 2007. Determining Stewardship Costs and Raising and managing Dedicated Funds. The Land Trust Alliance. Heidenreisch, B. Draft 2009. A Stewardship, Monitoring and Costing Guide for Natural Heritage Conservation Agreements. Ontario Heritage Trust and Ontario Land Trust Alliance. Michalsky, S. 2010. Dedicated Stewardship Funding Training Module 3. Alberta Land Trust Alliance. Rately- Beach L. 2009. Managing Conservation Easements in Perpetuity: Fulfilling the Promise of Permanence through Keeping Records, Managing Amendments and Upholding Conservation Easement Integrity. Land Trust Alliance. Watkins, M.J. 2007. The Management of Private Conservation Lands by Land Trusts in Canada. Faculty of Graduate Studies, University of Guelph.FLT Stewardship and Legal Defense 14
  19. 19. Appendix 1: Violation Policy and Procedure Template Example DUTCHESS LAND CONSERVANCY, INC. CONSERVATION EASEMENT VIOLATION RESPONSE PROCEDURE. UTCHESSEasement EnforcementThe long-term effectiveness of conservation easements in protecting valuable lands depends on theConservancy’s ability to enforce the terms of the easements. Strong enforcement builds public confidence ineasements as a land protection tool. By swiftly responding to violations, whether actual or potential, theConservancy will preserve the legal right to enforce the easements it holds. In order to accept tax-deductible giftsand qualify for tax-exempt status, IRS regulations require that easement-accepting organizations commit toupholding the terms of an easement and maintaining the financial capability to enforce the restrictions. (SeeTreas. Reg. 1.170A-14(c)(1).) The Conservancy realizes that each easement violation represents a unique situationand requires a tailored approach. The following are guidelines to be used to help assure that appropriate steps aretaken to document and notify the property owner about the violation, a well as consult with legal experts.II. Overall Guidelines for Violation Response and Enforcement: 1. Maintain the conservation purpose of the Conservation Easement. 2. Maintain the Conservancy’s image both in its ability to achieve its mission overall and in its ability to enforce specific Conservation Easements. 3. Protect the Conservancy’s legal rights and economic value in the Conservation Easement. 4. Maintain the most constructive working relationship possible with the land owner. 5. No one person should make decisions on violation response – get counsel first. Never give a land owner an on-the-spot opinion about whether or not a violation exists. 6. Maintain professionalism and integrity. 7. Be flexible as the situation warrants. Balance the harm caused by the violation with the cost/benefit of the selected enforcement response. 8. Use litigation as a last resort and when there is a good chance of success. 9. Maintain consistent responses to similar Conservation Easement violations. ViolationIII. Violation Prevention Strategies 1. Maintain good land owner relations. Make a point of getting the land owner involved with the Conservancy. 2. Provide informal services to the land owner – advice on enhancing wildlife habitat, good forestry practices, etc. Send them newsletters, outing information, and event brochures, etc. 3. Provide an easement summary to land owners every three years as a reminder. 4. Staff to conduct annual monitoring. Send the land owner annual notification and monitoring follow-up letters and, if applicable, a written monitoring report. 5. Ensure that we are informed when properties change hands. Make sure local realtors know about Conservation Easement properties. Check real estate transactions town by town on a monthly basis. Remind land owners to check the Conservation Easement before altering the property in any way. Ask land owners to notify the Conservancy if they are planning to sell their land. 6. Provide a “new owner introductory package” to ensure that new owners understand the Conservancy’s mission, the Conservation Easement for their property, and the concept and purpose of Conservation Easements in general. 7. Maintain good relations with the local officials. Make sure that local building officials, town planning boards and conservation commissions are aware of properties with Conservation Easements. 8. Work to ensure tighter drafting of Conservation Easements.FLT Stewardship and Legal Defense 15
  20. 20. IV. Steps to Take in the Event of a Violation:Violations may be discovered in any number of ways: through annual monitoring inspection, as reported byneighbors, easement donors, new property owners, passersby, or Board or Advisory Committee members.If an easement violation is suspected, the President and/or stewardship staff should: 1. Review the Easement Terms. Review the easement document, baseline inventory, and monitoring reports to determine the exact nature of the suspected violation and when it took place. The President should carefully review the easement history to determine the original intent of the donor and the Conservancy, and refer to the Board minutes when the easement was approved. The President should also request an interpretation of the easement by legal counsel. 2. Document the Suspected Violation. Visit the site to inspect and document the suspected violation. The violation must be described in detail including material impact, location and extent. Photos keyed to a photo map should be taken, signed and dated by the photographer. Quantitative measurements of the violation should be noted as appropriate, e.g. area of impact, number of trees damaged. Field notes should be signed and dated by the person conducting the inspection. 3. Contact the Land owner. Meet with the land owner in person if possible to discuss the suspected owner. violation. Violations can be caused unintentionally. Listen to the land owner, ask questions, take notes, and ask them to CEse any further work until the matter can be reviewed by the Conservancy’s Board Chairman and the Executive Committee. Document all meetings and write a follow-up letter (send certified – return receipt requested) to the land owner confirming any on site discussion. 4 Hold a Meeting with the Board Chairman/Executive Committee. Review the suspected violation, easement interpretation and discussion with the land owner with the Board Chairman/Executive Committee. a) The President, Board Chairman and the Executive Committee shall review the easement, the Conservancy’s legal counsel’s interpretation of the easement, Board minutes when the easement was approved, baseline documentation and all other relevant information to decide whether there is in fact a violation under the terms of the easement. If the decision is no, it is not a violation, the process ends and a letter is sent to the land owner. b) If a clear violation of the Conservation Easement exists or if the Executive Committee determines under 4a) that a violation does exist, the Executive Committee then determines whether or not it is a minor or major violation. This determination is used to gauge the expectations for remediation and compensation. If it is major, and may require court action, then the Conservancy’s full Board of Directors will be consulted about the appropriate action. 5. Work with the Land owner to Correct the Violation. After the Executive Committee’s decision, the President calls the land owner concerning the Executive Committee’s decision and sends a follow-up letter (sent certified - return receipt requested) which specifies the Conservation Easement violation, references appropriate passages from the Conservation Easement document, and the Executive Committee’s decision. a) Ask the land owner to voluntarily correct the violation. If the Land owner voluntarily agrees to restore the Property, re-inspect the site on the deadline date. Carefully document the restoration work with photographs, narrative description, and quantitative measurements. Send the land owner a follow-up letter (send certified – return receipt requested).FLT Stewardship and Legal Defense 16
  21. 21. b) If the Land owner does not agree to voluntarily restore the Property, the President then consults with the Chairman of the Board and the Executive Committee to further discuss the violation and come to a final decision regarding its enforcement. c) If the land owner does not agree that there is a violation or does not agree on the solution to a violation, the President and Board Chairman consult the Conservancy’s legal counsel. i) If it is a major violation and the Conservancy has exhausted all attempts at negotiation, the Board Chairman will seek Board approval to take the violation to court. ii) If it is a minor violation, and after exhausting attempts at negotiation for removal and full restoration, the Conservancy may consider temporary approval (limited term) or less than full restoration. minor d) For either a major or a minor violation, the Conservancy may consider the use of an amendment or a waiver (similar to amendment but not signed by land owner) to resolve the violation. However, there are number of considerations that the Conservancy must weigh before pursuing this route (refer to DLC’s Conservation Easement Amendment Policy): i) Consider the precedent set of condoning a violation with an easement amendment. Consider encouraging easement land owners to ask for a review of a proposed change to the easement protected property whether or not it’s allowed under the terms of an easement in order to hold off a potential violation. ii) There has to be increased resource protection in exchange for any adverse impact of the amendment. If the monetary value of the Conservation Easement is increased or decreased by the amendment, an addition of other restrictions should be negotiated so that the easement value remains the same or is increased (requires an appraisal). Amendments should be either conservation neutral or improve the conservation value. iii) Consider whether or not the amendment would be controversial or incite negative public reaction in the community. iv) Consider the time and expense for the approval process (Board approval, appraisal, and any secured lender that must subordinate its interests to an easement amendment). Note: If an amendment is pursued, Board approval is required before informing the land owner. Document and update baseline data immediately. The Conservancy should refer to its amendment policy for guidance. The Executive Committee may develop alternative suggestions for remediation and/or compensation by the land owner and should present them to the Board. At this time, the Executive Committee may identify specific legal counsel to provide consultant legal services. 6. Going to Court Taking a violator to court should be considered as a last resort. Going to court is expensive and time consumptive and will likely irreparably damage the relationship between the property owner and the Conservancy. Court decisions can set precedent that will affect easements either favorably or unfavorably. In certain cases the Conservancy will have to go to court in order to defend an easement, stop damaging activities, or obtain reparations. In such cases, the ConservancyFLT Stewardship and Legal Defense 17
  22. 22. should consult with an experienced trial lawyer to assess the merits of the case, the documentation of the alleged violation and the likelihood that the court will interpret the activity as a violation of the easement. The Conservancy must also be sure to maintain adequate enforcement funds to cover legal expenses.FLT Stewardship and Legal Defense 18
  23. 23. Appendix 2: Amendment Policy Example GALLATIN VALLEY LAND TRUST: CONSERVATION EASEMENT AMENDMENT POLICYI. General Policy Statement A. The Gallatin Valley Land Trust (GVLT) acquires and holds conservation easements on property in order to protect, in perpetuity, the conservation values on the land, including scenic, agricultural, and/or wildlife resources of the property and surrounding areas, for the benefit of present and future generations. GVLT is committed to ensuring the perpetuity of the conservation easements it holds, and shall not seek termination of any conservation easement in response to a request for an amendment. B. Because GVLTs acquisitions are primarily achieved through voluntary agreements with land owners, the success of the conservation easement program depends upon the confidence of these land owners that GVLT will meet its obligation to monitor and enforce the agreements. This confidence would be seriously eroded if GVLT were to allow indiscriminate and unwarranted modification of its conservation easements. C. Furthermore, amendments to conservation easements can raise serious problems with the Internal Revenue Service. GVLTs tax-exempt status as an organization may be jeopardized if easements are amended gratuitously. An easement donor who has claimed a charitable deduction for a gift of an easement may lose that deduction if the easement is amended. Any amendment which results in a benefit to a land owner or any other private party may create “private inurement" or "private benefit," if the benefits conferred by the amendment are more than incidental. The U.S. Tax Code prohibits GVLT from engaging in any actions that create private inurement or private benefit. D. For these reasons and others, it is the policy of GVLT to hold and enforce its conservation easements as written. Amendments to conservation easements will be authorized only in limited situations and only in the types of conditions outlined below. No amendments to conservation easements will be granted which could jeopardize GVLT’s tax-exempt status, or which could cause the easement to fall out of compliance with applicable federal, state or local laws, regulations or ordinances. E. GVLTs policy is that the requester of the amendment shall pay all costs, including staff time and consulting fees for reviewing the request, whether or not the amendment is granted, and of implementing the amendment if approved. GVLT may require that the party requesting the amendment cover the cost of a qualified appraisal of the value of the requested amendment, in order to assess whether the amendment will result in any private inurnment or will confer any private benefit, if the amendment request is approved. At GVLTs sole discretion, GVLT may waive the foregoing requirement that the requester of the amendment pay all or some of the costs of amendment review, approval, appraisal, or implementation.II. Conditions Under Which Amendment Requests May Be ConsideredGVLT will consider amendments to its conservation easements only under the following circumstances: A. Prior Agreement In a few cases, a conservation easement may have a specific provision allowing Agreement. modification of the easement at a future date under specified circumstances. Such agreements must be set forth in the conservation easement document or in a separate written document signed by GVLT and the conservation easement grantor at the time the document was executed. The amendment must be consistent with the terms and conservation intent of the original agreement.FLT Stewardship and Legal Defense 19
  24. 24. B. Correction of an Error or Ambiguity. GVLT may authorize an amendment to correct an error or oversight made at the time the conservation easement was executed. Such errors or oversights may include, but shall not be limited to, correction of a legal descriptions, inclusion of standard language that was unintentionally omitted, or clarification of ambiguities. Any amendment authorized to clarify conservation easement ambiguities shall be supported by written statements, affidavits, agreements between GVLT and the conservation easement grantor, or other tangible evidence that the intention of the amendment is to clarify and implement the parties original intentions when GVLT first acquired the conservation easement from the grantor. C. Settlement of Condemnation Proceedings. Conservation easements GVLT holds in land are subject to condemnation for public purposes, such as highways and schools. Where it appears that the governments condemnation power will be properly exercised to terminate a GVLT conservation easement, GVLT may enter into a settlement agreement with the condemning authority and land owner in order to avoid the expense of litigation. In reaching such an agreement, GVLT shall attempt to preserve the intent of the original conservation agreement to the greatest extent possible. D. Amendments Consistent with Conservation Purpose and Enhancing Conservation Values. GVLT may authorize amendments to a conservation easement provided that the amendment is determined to be consistent with the original intent of GVLT and the donor, consistent with the statement of purpose in the easement, and provided that the amendment enhances, or has no adverse effect on the Conservation Values protected by the easement. No amendment will be granted under any circumstances if GVLT determines, in its sole discretion, that the amendment would affect the conservation easements perpetual duration, would afford less protection to the Conservation Values protected by the original conservation easement, or would result in private inurnment or private benefit to any party. Nothing in this policy statement shall be interpreted to require GVLT to grant a conservation easement amendment request, even if all of the foregoing criteria are met. GVLT shall have unlimited discretion to grant or to deny each amendment request and shall evaluate each request on a case-by-case basis.III. Amendment ProceduresAny land owner or other party seeking an amendment to an existing conservation easement must present to GVLTa request in writing, stating what change is being sought and the specific reasons why it may be needed orwarranted. The request shall be accompanied by appropriate maps and other documentation. A. Upon receipt of a request, GVLT will hold an initial consultation meeting with the land owner or other person who requests the amendment. During this initial consultation meeting, costs to review and process the request and payment arrangements will be discussed and agreed upon. A cost agreement will be developed and signed before proceeding. GVLT staff shall review all requests and, where appropriate, a representative of GVLT may conduct a site visit(s). B. Evaluation of requests shall include consultation with the third parties, when applicable and appropriate, including: • Reasonable efforts to discuss the proposed amendment with the principal parties to the original transaction, including the land owner who granted the restrictions or his/her heirs or successors. • Funders, if any, of the original easement. GVLT shall comply with all applicable funding requirements.FLT Stewardship and Legal Defense 20
  25. 25. • Additional third parties, public or private, whose opinions or expertise GVLT determines may be helpful to its evaluation of the amendment request. However, in all cases except funding requirements, GVLT shall have no obligation to confer with third parties, and, if it does, any third party opinions about the propriety of granting or denying an amendment request shall be advisory only. GVLT retains exclusive authority to grant or deny amendment requests, within the constraints of funding requirements. C. GVLT staff will compile information and review the request for amendment, and make a recommendation to the Lands Committee. If the Committee finds that the amendment is legally permissible, consistent with the terms of this policy, and clearly warranted by the circumstances, the Committee will forward the request and the Committees recommendation to the Board at its next regularly scheduled meeting. A decision by the Committee to disapprove the amendment will be final, unless the land owner presents a written request for review by the Board, with his/her reasons for requesting Board review. D. The Board may approve, reject, or approve with modifications the request; approval shall require a 2/3 majority vote of the full Board. FAll easement amendments that are approved by the Board must be made in writing, signed by both parties, and must be recorded in the land title records of the local jurisdiction in which the affected property is located. The appropriate planning board will be notified of any conservation easement amendments within that planning boards jurisdiction.Approved by GVLT Board of Directors November 9th 1999, revised, updated and approved June 23, 2008FLT Stewardship and Legal Defense 21
  26. 26. Appendix 3: FLT Stewardship Calculator Manual STEWARDSHIP CALCULATOR FOR CONSERVATION EASEMENTS MANUALINTRODUCTIONA wide variety of stewardship costs are associated with holding a conservation easement. A landtrust needs to be aware of the costs associated with stewardship and ensure they have policiesand plans developed to account for how they will acquire, save and allocate stewardship dollarsto protect CE lands in perpetuity. This stewardship calculator was developed to assist FoothillsLand Trust, and can be used or adapted by other small land trusts, in estimating the annual costsof stewardship. This calculator currently supports cost tracking for 15 CE properties. Once a landtrust has more than 15 properties they will likely need to change the way costs are tracked, suchas by setting annual stewardship costs based on small, medium and large properties. Or if the landtrust would like to continue tracking costs on a case by case basis, a stewardship calculatorcould be developed using Microsoft Access.Stewardship Costs are composed of three components: 4. annual monitoring, 5. maintaining ongoing landowner relationships, and 6. enforcement and resolution of violations.The calculator does not currently have a line item for legal defense, but it could be added in perproperty it the land trust. The calculator was developed in excel and is composed of three maintabs, unit costs, CE Properties (labeled 1-15) and Total Annual Costs. The Land Trust entersinformation into the green cells on the spreadsheet.UNIT COSTS TABThe unit costs tab enables a land trust to enter in the personnel involved in stewardship activities,cost per hour of personnel and if the position is volunteer or paid staff. Personnel involved instewardship may include staff, volunteers, board members, consultants, legal council orpartnering organizations. The cost per unit tab enables the land trust to track the number ofvolunteer hours and dollars saved through volunteer contribution to the land trust. Tracking thehours a volunteer contributes may be important for grant writing and/or for understanding the longterm costs associated with stewardship should the land trust evolve toward hiring staff to takeover volunteer activities. A land trust can add personnel and change costs per hour as they seeappropriate.FLT Stewardship and Legal Defense 22
  27. 27. Unit Cost Tab Volunteer / Personnel Cost/hr Paid None $0.00 Staff Member $50.00 P Partner Organization $50.00 V Legal Counsel (P) $120.00 P Legal Counsel (V) $120.00 V Board Member $50.00 V Volunteer $50.00 V Consultant $90.00 PCE PROPERTY TABThere are currently 15 tabs where individual CE properties can be entered, enabling a land trust totrack stewardship costs relating directly to the individual property. Costs associated withstewardship that could be applied across more than one CE, are included in the total annual coststab. The table is divided into five categories: 1. Monitoring 2. Landowner Relations 3. Administration Costs 4. Enforcement of violations and amendments to CE 5. Annual ExpensesAt the top of the excel spreadsheet on Tab 1, enter the name of the conservation easement(currently labeled as “????? Conservation Easement”). The following fields occur in the CEProperty Tab, information is entered into green fields. • Activities/hours field (to be filled in by land trust) A user can enter in the number of hours associated with the first four categories and there listed activities. Activities can be added in as appropriate to the CE, for example, under landowner relations, a user may add in a list of permissions in the CE that may take time for the land trust to monitor, grant permission or clarify with a landowner. • Primary responsibility field (to be filled in by land trust) responsibility Once the activities are listed for each category and the hour filled in, the user determines who is responsible for the activity by selected the appropriate person from a drop down list under the primary responsibility field. The drop down list is tied into the cost per unit; if the user wants to add a new personnel position they must enter the position on the cost per unit tab. • Unit Cost and volunteer/Paid Fields (generated by spreadsheet) The unit cost and if the role is undertaken by a volunteer or paid personnel is generated by the spreadsheet, based on the information filled in on the unit costs tab. This information can be changed on the Unit Costs Tab. • Frequency in Years Field (to be filled in by land trust)FLT Stewardship and Legal Defense 23
  28. 28. Stewardship activities do not always occur annually, such as enforcement of violations or amendment of a CE. The calculator therefore enables a user to enter the frequency in years of the identified activity occurring (default 1 year). This is important when calculating the annual stewardship costs as the costs are multiplied by the frequency of occurrence. • Expenses (generated by spreadsheet) The costs associated with each activity are generated by excel based on the number of hours, the cost per hour of specified personal and frequency of the activity. Annual Expenses for each property can be filled out as a cash value and frequency of expense can also be added. The spreadsheet calculates the total annual in-kind contribution from volunteers, the total needed for paid personal and total expenses for each property.FLT Stewardship and Legal Defense 24
  29. 29. ????? Conservation Easement Primary Volunteer/ Frequency Annual Stewardship Costs Template Time (Hrs) Responsibility Unit Cost Paid (yrs)* Costs Monitoring of Conservation Easement Staff time Pre-monitoring Prep None $ - 0 1 $ - Travel time to site None $ - 0 1 $ - Site Visit None $ - 0 1 $ - Post monitoring write up None $ - 0 1 $ - FLT Staff Review None $ - 0 1 $ - Monitoring follow-up None $ - 0 1 $ - Subtotal 0 $ - Landowner Relations Communication with Landowner **Permissions activity for landowner None $ - 0 1 $ - None $ - 0 1 $ - None $ - 0 1 $ - Information transfer 0 None $ - 0 1 $ - Subtotal 0 $ - Administrative costs Records management (posting to website) None $ - 0 1 $ - Communication with board members None $ - 0 1 $ - Co-ordinating volunteers None $ - 0 1 $ - None $ - 0 1 $ - None $ - 0 1 $ - Subtotal 0 $ - Minor Infringments/Ammendments to CE Mis-interpretation of easement restrictions, compliance None $ - 0 5 $ - Violations None $ - 0 5 $ - Ammendments to CE None $ - 0 10 $ - Legal Costs associated w ammendment, CE Clarifications None $ - 0 5 $ - None $ - 0 1 $ - None $ - 0 1 $ - Subtotal 0 $ - Annual Expenses Expense ($) Insurance 1 $ - Mileage assocaited with site visit (0.45) 1 $ - Air photos 3 $ - Printing costs 1 $ - Postage costs 1 $ - Subtotal $ - Total in-kind / volunteer $ - Total paid personnel $ - Total expenses $ - Total Cost Required $ -FLT Stewardship and Legal Defense 25
  30. 30. TOTAL ANNUAL COSTS TABIn the total annual stewardship tab costs are rolled-up for all properties and costs associated with stewardshiptasks that apply to all CE properties are tracked. The costs associated with each property, including in-kindvolunteer, paid personnel and expenses are rolled up into the total annual cost tab.Costs that are associated with stewardship for all properties include Landowner Outreach Activities and expensesrelating to landowner outreach activities, administration and monitoring.Landowner outreach activityThe calculator enables a land trust to identity and cost outreach activities, such as workshops, newsletters oractual habitat management projects with landowners. The user enters in number of hours required by the landtrust to undertake these activities, primary responsibility and frequency of the activity (in years). The fields are thesame as the CE Property.ExpensesA land trust is able to include administrative costs, such as office space, computer costs and general overheadinto its stewardship budget. In addition expenses associated with outreach activities and monitoring equipmentcan be included in the stewardship calculator.The calculator provides a land trust with the total paid personnel, total in-kind volunteer value, and total expensesand enables a land trust to add in a contingency budget (recommended at 5%). In addition the total annualstewardship funds required be the land trust to steward the land are identified and the total annual in-kindcontribution.SummaryThe stewardship calculator was designed to assist small land trusts in tracking costs associated with annualstewardship costs. Once a land trust understands the costs associated with stewardship it can develop a plan foracquiring the funds to ensure they are able to steward the land in perpetuity. For a description of fund raisingoptions please refer back to Stewardship, Enforcement and Legal Defense Costs, Policies and Procedures –General Recommendations on the Foothills Land Trust website (also in Module 3: Dedicated Stewardship FundingTraining Module of the Alberta Land Trust Alliance series).It is highly advisable that a land trust review the stewardship calculator at least once a year to access theaccuracy in hours, primary responsibility and frequency of occurrence.FLT Stewardship and Legal Defense 26
  31. 31. Total Annual Costs Time Primary Volunteer/ Frequency Unit Cost Annual Costs (Hrs) Responsibility Paid (Yrs)Conservation Easement Stewardship Costs 1 ????? Conservation Easement 0 $ - In-kind / volunteer 0 $ - Paid personnel $ - Expenses $ - 2 ????? Conservation Easement 0 $ - In-kind / volunteer $ - Paid personnel $ - Expenses 0 $ - 3 ????? Conservation Easement 0 $ - In-kind / volunteer $ - Paid personnel $ - Expenses 0 $ - 4 ????? Conservation Easement 0 $ - In-kind / volunteer $ - Paid personnel $ - Expenses 0 $ - Subtotal $ -Landowner Outreach Activity Stewardhip activity (Habitat management) 0 None $ - 0 1 $ - Newsletter 0 None $ - 0 1 $ - Workshop 0 None $ - 0 1 $ - Subtotal $ -General Stewardship Expenses Expenses ($)Administration FLT Overhead Costs $ - 1 Office Space $ - 1 $ - 1 $ - 1Landowner Relations Workshop expenses $ - 1 Stewardship activity expenses $ - 1 $ - 1 $ - 1Monitoring Camera $ - 1 GPS unit $ - 1 Computer $ - 1 Subtotal $ -Totals Total Paid Personnel Cost $ - Total In-kind/Volunteer Value $ - Total Expenses $ - Contingency Budget (5% total annual costs) $ - Total Annual $ Stewardship Fund $ - Total Cost (including in-kind) $ -Prepared by Miistakis Institute for Foothills Land TrustWith support from Alberta Real Estate Foundation and The Calgary FoundationFLT Stewardship and Legal Defense 27

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