Conservation Easement Transparency

A conservation easement is an agreement in which a landowner agrees to limit the use of his or her land in perpetuity in order to protect one or more specified conservation purposes. The easement is held by a third party (holder), which monitors the use of the land and ensures that the terms of the agreement are upheld.

Current law allows a taxpayer to claim a state income tax credit for a portion of the value of a conservation easement that is granted in perpetuity. A landowner must submit an application for the tax credit along with a fee, an appraisal setting forth the value of the easement, and other materials to the division of real estate in the department of regulatory agencies (division). The division reviews the application and, if the easement and its appraised value meet the applicable statutory requirements, grants the application to claim the tax credit.

Section 1 of the bill freezes the amount of the application fee to the amount charged as of January 1, 2018. Fees are not allowed to be reduced for multiple applicants. If the director of the division believes that the appraisal submitted by the landowner is not credible, the bill allows the landowner to submit 2 additional appraisals and the director must accept the average amount of the 3 appraisals as the value of the easement. The director is required to consider the appraisals as submitted and not attempt to influence the substance of the appraisals.

Section 2 requires the governing body of a local government in which a conservation easement is located to hold a public hearing before a conservation easement is created, modified, or transferred. Public notice is required prior to the hearing and the grantor of the easement, the holder of the easement, and the public are allowed to testify.

Section 3 limits the terms of conservation easements to 20 years. The instrument creating an easement is required to clearly set forth the conservation purposes of the easement and require the holder to provide a monitoring and compliance report to the landowner not less than annually. Prior to creating an easement a landowner is required to execute a disclosure form acknowledging certain specified consequences and risks associated with creating the easement.

Prior to incurring any costs associated with creating an easement, a landowner must sign a good faith estimate of the costs associated with the creation of the easement. The landowner cannot be held liable subsequently for any costs that exceed amounts in the estimate.

A holder of a conservation easement is prohibited from permitting or benefiting financially from any type of development on the property subject to the conservation easement including the development of wind, solar, oil, gas, or mineral resources on the property.

Section 4 specifies that any instrument modifying the terms of an easement must be recorded in the public real property records.

Section 5 allows a landowner to transfer or extinguish a conservation easement if the holder becomes insolvent, dissolved, or delinquent or otherwise fails to monitor and protect the conservation purposes of the easement.
(Note: This summary applies to this bill as introduced.)