Counting “Forever” in Years

Forever. Perpetual. Eternal.

These words seem to indicate time without end. We see them relating to conservation of open space and farmland, dedication of open space, historic preservation, and other high ideals. But are these the ultimate protection of what we signify as important?

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In several municipalities in the states where I am licensed, these are real questions. One municipality accepted state funds to acquire land as open space and parkland, funding that requires the lands to be used only for those purposes in perpetuity, but now has plans for another use for some of the acreage. Is that legal? Does planned construction of a municipal office building still fulfill open space and parkland ideals? Would such use be an adequate alternative benefit to the public?

In a much larger, longer, more public and contentious battle, part of an urban state park in northern New Jersey is eyed by a developer for an extension of his privately owned golf course. The first proposed tradeoff has been dollars for trails and other recreational development of the remaining public park. But the area freely available (no use fees) would be diminished.

Can we protect and share the places we value by dedicating them to the public? For a dedication to occur, there must be an offer of the land on the donor’s part and a clear acceptance by the recipient. Simply showing a street on a plat does not make it a public street if the local governing body has not accepted responsibility for that roadway. It remains private. The same situation applies to parkland or open space shown on a plat. Unless intentionally retaining some kind of ownership rights within the completed project, developers do not want to be stuck with the maintenance and possible legal liabilities associated with the non-buildable areas. Instead, they prefer such burdens to lie with either a homeowners’ association or the municipality or county. Even if the dedication is accepted, the next question is whether it has been a grant of fee interest (full title) or an easement.

When there is a specific purpose associated with a dedication of land, it is most likely an easement, unless it is determinable title that reverts to someone on cessation of that stated purpose. If it is a protective easement, does it really last forever? The answer, as in most surveying situations, is “it depends.” Did the document creating the easement contain any conditions allowing for termination? Is the area protected by the easement still in protection-worthy shape? Have conditions changed so that the purpose of the easement has become impractical or impossible?

Example One: The front of a historic building has been protected by a perpetual façade easement. But the building has fallen into such disrepair that it can’t be restored. If the structure fails, then the easement goes away along with the ruins. This is equivalent to “destruction of the servient estate.” But I have also witnessed façade easements being officially terminated when the structure could not be restored to any “proper use.” This is a development rights issue, usually fought out before a court and not just before the historic preservation entity holding the easement or having decision-making powers relating to historic structures.

Example Two: A tract of land under a farmland conservation easement is split by condemnation for a major highway. The taking may have eliminated enough of the conserved land to make it no longer meaningful to farm or conserve. Sometimes the condemnor will need to come up with replacement lands in some ratio to the value of the now-destroyed conserved area to offer the easement holder (definitely the landowner will need to be compensated), or the condemnor may just throw money at the conservator for the loss of value and then walk away. The highway will not be subject to any conservation easement, and if the lands remaining are impractical to farm, the easement is likely subject to legal action to terminate. In the best of all possible worlds, that would mean a formal filing of a document extinguishing the easement. In the real world, loose ends are not always tied up so neatly and title companies will keep reporting restrictions on the land.

There is another roadblock on the road to “forever,” and that is related to laws governing tax-deductible charitable contributions in the form of conservation easements. There are many hurdles at both the state and federal levels that must be maneuvered to keep the substantial tax breaks associated with the donation of land rights. If there are too many conditions favoring the would-be donor, the loss of tax abatement might result in recission of the easement by the donor, altruism failing when dollars are at stake. The conservation donee’s loss of ability to enforce the easement or failure to have the proper “commitment” to uphold it (as decided by the taxing agency) can also result in loss of tax-exempt status. “Forever” protection in these cases has lasted only a handful of years.

About the Author

Wendy Lathrop, PS, CFM, CFS

Wendy Lathrop is licensed as a Professional Land Surveyor in NJ, PA, DE, and MD, and has been involved since 1974 in surveying projects ranging from construction to boundary to environmental land use disputes. She is a Professional Planner in NJ, and a Certified Floodplain Manager through ASFPM.