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by Henrie a Jordan
October 2014


Henrietta Jordan is a consultant to land trusts who has worked for nonprofit organizations for
more than 30 years. She specializes in conducting organizational assessments and in helping land
trusts implement Land Trust Standards and Practices and apply for national accreditation. She
also assists land trusts with strategic planning, board training and development, and developing
strategic conservation plans. While working for the Land Trust Alliance from 2003-2009, she
conducted capacity-building and policy programs for land trusts and managed the application
review process for the Land Trust Accreditation Commission. She is a former member of the
Vermont House of Representatives, where she learned about land trusts while serving on the
Committee on Natural Resources.
Henri was born and now lives full-time in New Yorks Adirondack Mountains where stateowned lands are preserved as forever wild under the State Constitution. The landscape of her
town looks much the same as it did in her great-grandfathers day, thanks to forever wild and
landowners who have protected their lands by working with local land trusts.

This edition of Protecting What Matters is an ADVANCE COPY of a booklet that will be
published in 2015. It is being distributed by the author, Henrietta Jordan, and in its present form,
is not an official publication of The Land Trust Alliance or any other organization with whom
the author is affiliated. Reader comments are welcome and should be directed via email to or communicated directly to Henri Jordan at 518-576-2079. Please do
not copy this publication without permission.


Welcome to the land trust community! In agreeing to serve on the board of your land
trust, you are joining a nationwide network of volunteers who are passionate about saving land.
Nonprofit land trusts are as varied as the communities and purposes they serve: some are
organized to protect treasured community landscapes in a single town or county; others focus on
immense areas of wilderness or ecologically diverse lands across the country. Some land trusts
protect working lands like farms, ranches, and forests where timber is harvested; others protect
unique or locally important habitats such as shorelines, mountaintops, watersheds, prairies,
seacoasts, and swamps. Still others focus on community-building opportunities such as
recreational trails, neighborhood gardens, historic areas, affordable housing in combination with
open space, educational preserves and outdoor classrooms.
What they all have in common: a very long view and the commitment to protect
important natural resources for future generations.
Currently, there are over 1,700 land trusts in the United States, many thousands of board
members and volunteers, and a national association, the Land Trust Alliance, that works to
advance their goals.

The trust in land trust. Land trusts often work in partnership with landowners who
love their land and want it preserved forever. It might be a Vermont farm thats been worked by
one family for generations. Or a 380-acre redwood forest in California two sisters donated so that
their grandfathers home and lands would become a wildlife preserve instead of a development.
Or a spectacular rocky coastline that would otherwise have become dotted with Mc-mansions.
Landowners donate land and conservation easements restricting future development to land
trusts because they believe that land trusts will deliver on their promise to protect it from harmful
development, future owners who dont understand its environmental value, and those who would
exploit and sacrifice its natural resources.

Creating a legacy of conserved land and connecting people to the land and to each other
is your opportunity to give your community a gift of incalculable value. Your land trust has
pledged to protect important lands in perpetuity. Your diligence as a board member will ensure
that your land trusts intention enduresforeverand that future generations live in a world
with unspoiled natural areas, places to play and relax, thriving farms, healthy rivers and streams,
and habitats large enough to sustain species that might otherwise be threatened with extinction.

But for conserved lands to stay protected, land trusts need board members who make sure
that their organizations comply with laws and regulations, observe the highest standards of
ethics, engage in sound transactions, and perform the stewardship tasks necessary to uphold the
promise of perpetuity.
During your service as a land trust board member, youll learn a great deal about all of
these matters, but at first, you may find discussions about things like easements, baselines,
title reports and Section 170(h) rather confusing. This introductory guide is intended to make
your first months on your board a little easier and give you a solid foundation for the knowledge
and expertise youll be gaining over time.


Essential qualities of a nonprofit. Your land trust was incorporated as a nonprofit
organization with a mission that serves the public good. Simply put, this means that your
organizations activities benefit the public, and its directors do not gain from any surplus that
remains after the organization covers the expenses of running its programs. Nor does the
organization confer financial benefits on insiders (this is called private inurement) or on
private individuals, businesses, or for-profit corporations (impermissible private benefit).
Unlike for-profit corporations, your land trust doesnt pay any federal or state corporation
income taxes. And it cannot participate directly in partisan political campaigns or spend a
significant amount on lobbying.
Your land trust has an even more important designation: it is a public charity. This means
that it derives at least 1/3 of its revenues from the public, in the form of contributions from
individuals, businesses, foundations, and grants from public agencies, etc. And because it is a
public charity, contributors can take a tax deduction for donations of cash, land, and conservation
Your organization gets this special treatment because, in a sense, it is a public trust. To
maintain that trust, you and your fellow board members must be faithful to your mission, good
stewards of your assets, compliant with laws and regulations, and effective in planning and
carrying out activities that accomplish your goals.

Land trusts need active and diligent board members. Nonprofit board members have
three core duties. The duty of care requires that when you make decisions and take action, you
keep in mind that you are the steward of the organizations assets (including its reputation) and
always act with the care that an ordinarily prudent person would exercise in a like position and
under similar circumstances. This means that you read reports and other information sent to you
in advance of board meetings, that you attend meetings regularly, and that you and other board

members deliberate before making decisions. It also means that you help build a strong,
sustainable organization by assisting in the recruitment and training of knowledgeable and
effective board members and raising funds.
The duty of loyalty requires that you give your undivided allegiance to your organization
when making decisions or taking actions that affect it. You must disclose and your land trust
must manage conflicts of interest so that you do not use information you learned as a board
member for personal gain or participate in a transaction in which you or members of your family
have a financial interest.
The duty of obedience requires you to be faithful to your organizations mission and
never act in a way that is inconsistent with its goals, bylaws, and policies. Importantly, this duty
also requires you to manage contributions to the land trust so that they serve the organizations
mission and the donors intent, abide by all applicable laws, and observe the highest standards of
ethics. Some states have actually enshrined these three duties in state laws or regulations.
Your role in the governance of your land trust also requires you to make sure that land
and conservation easement transactions are thoughtfully and competently executed, and that the
land trust exercises careful stewardship of the lands it has conserved. Because land trusts need to
know about real estate and tax law as well as protecting natural resources, the responsibilities of
land trust board members can be more demanding than those of other nonprofits, especially
when the land trust is all-volunteer.
Recruiting board members with expertise and experience in law, accounting,
environmental science, real estate, communications, education, or fundraising is a great strategy
for ensuring that the board can effectively oversee the work of the land trust and ensure that it
meets legal requirements. For an all-volunteer land or minimally-staffed land trust, this is


Land trusts generally use two tools for preserving land: owning land outright, which is
frequently called fee ownership or holding land in fee, and holding conservation easements,
which are partial interests in land.
Fee lands. When a land trust owns land in fee, it usually manages that land for a
particular purpose. Perhaps it wants to preserve habitat, protect water quality, or save a beloved
landscape. As the owner of the land, the land trust can decide whether to open the land to the
public, in which case it might build trails or interpretive signs, or protect the land from human
intrusion. (Sensitive habitats for endangered species, for example, could be degraded by public
Land trusts acquire fee lands through donation or purchase. Sometimes a gift of land comes
with a restriction on what the land trust can do with it in the future because the donor wants to

make sure it is never developed. Or perhaps the donor wants to be sure there is always a public
trail to a special place, like a waterfall or pond. Other times, a donor gives land to a land trust
with the express intention that it be sold and the proceeds used to help the land trust in other
ways; such lands are commonly referred to as tradelands.
Conservation easements. When a land trust accepts a conservation easement, however, it
does not acquire fee title, and it does not own the land. A conservation easement is a voluntary
legal agreement in which a landowner agrees to forever relinquish some or all of the
development rights on his or her land. The rights dont get transferredthe conservation
easement effectively extinguishes them and gives the holder of the easement the right to
enforce the terms of the easement, which severely restrict how the landowner can use the land in
the future. But the landowner can still sell the property, bequeath it to heirs, and conduct any
activity on it that is not prohibited by the easement. The easement will run with the land, that
is, bind all future owners.
Conservation easements are often placed on privately-owned land, and the landowner is
generally not obligated to grant public access. But sometimes land trusts hold conservation
easements on lands that are owned by a government agency or another non-profit (including
another land trust). These lands are more likely to be open to the public.
Easements can be purchased or donated. The donation of an easement usually lowers the
economic value of the land, but private landowners may enjoy significant tax benefits that offset
part of that loss. But most landowners who donate a conservation easement to a land trust do so
not because of the tax benefits but because they love their land and they want to protect it for
future generations.
A conservation easement may allow some flexibility in future uses of the land. For
example, land trusts may agree to allow a landowner to build an additional house or barn in a
designated area, or cut trees for firewood, provided that these uses dont impair conservation
values. That is one of the reasons they appeal to landowners, particularly those who hope that the
protected land remains in the family.
When a land trust accepts a conservation easement, it also accepts the duty to enforce the
terms of that easement.
Other ways to protect land. Some land trusts hold neither easements nor fee lands. They
exist to help other organizations or governmental agencies acquire conservation lands. They
might hold a property for a short while before transferring it or they might just help with
fundraising or other aspects of the transaction.
Its all about permanence. Conservation easements are generally perpetualeasements
that only last a few years or decades do not qualify for tax benefits and would require a land trust
to invest time, energy, and money in lands that are not fully protected from development. And
when land trusts acquire conservation lands in fee, they usually do so with the intention of
protecting them permanently.

Protecting the lands that matter. The first thing a land trust needs to consider when
presented with an opportunity to hold a conservation easement or acquire a fee property is, Why
is it important to preserve this land? To help answer this question, many land trusts develop
project selection criteria. These generally focus on certain natural resources the land trust is
especially interested in, such as wetlands, riparian areas, habitat, prime agricultural soils, scenic
vistas, or landscapes that help define a communitys character, such as undeveloped ridgelines or
open lands between developed areas. If the project does not contain a critical mass of the natural
resources the land trust seeks to protect, the land trust will likely turn it down.
Selection criteria should also take into account factors that might impede a conservation
projects success. If, for example, the property would be too time-consuming or too expensive to
steward, or there are unavoidable threats, such as nearby development, to the projects goals, or
there are hazardous wastes, then the land trust would probably not want to proceed with the
project. Many land trusts refine their selection criteria by developing a strategic conservation
plan that analyzes the unprotected and/or under-utilized lands in the area where the organization
works, considers the land trusts mission, values, and goals, and establishes priorities.

Due diligence is an important land trust responsibility. A land trust that purchases or
accepts a donation of land or an easement will be spending time, energy, and money before and
after the transaction, and its important to make sure that each acquisition truly merits the land
trusts investment. An in-person inspection of the property is necessary to confirm the presence
of natural resources and other attributes worth protecting (often called conservation values)
and to confirm that conserving it truly benefits the public in some way.
Public benefits might include the preservation of open space, the protection of prime
agricultural soils, the improvement of water quality, the preservation of important habitat,
opportunities for education and/or recreation, the creation of community gardens, or the
preservation of an historically significant property. Most land trusts have a procedure for
documenting the conservation values and public benefits of a conservation project they are
working on.
Its also important to confirm that the landowner has clear title to the property. Without
good title, the deed the landowner gives for the conservation easement or conveyance of the
property in fee will have no effect, and the land trust will have invested its resources futilely.
Land trusts should always get a title opinion; some also purchase title insurance to protect their
interests. If there is a mortgage on the property, the land trust will need to get the bank holding
the mortgage to sign a document called a mortgage subordination to protect the land trusts
interest in the event of foreclosure.

Researching the history of the property is an essential element of due diligence. How was
the land used in the past? Is there any chance that hazardous substances were dumped on it? Are
there archeologically significant sites on the property, such as Native American burial grounds,
that might need special protection? Are there structures such as dams or old mines that might
require large expenditures in the future? Its vitally important that a land trust know exactly what
it is getting when it acquires a fee property or a conservation easement.

Legally sound transactions. Conveyances of fee title and conservation easements are
documented by means of a recorded deed. A deed conveying fee title must be signed by the
landowner (grantor), and a conservation easement deed must be signed by both the grantor and
a representative of the grantee, the land trust or other entity that will hold the easement. The
requirements for legally valid conservation easement deeds are dictated by state law and, if the
grantor will be taking a tax deduction, the Internal Revenue Code. Most land trusts have their
easement deeds drafted or at least reviewed by an attorney to make sure that they meet the

Baseline documentation reports. An essential element of a conservation easement

transaction is the creation of a baseline documentation report (BDR) of the condition of the
property at the time the easement was conveyed. The BDR, which is prepared by the land trust or
by the landowner, usually includes a description of the property, maps, aerial photos, and photos
of specific areas of the property that are keyed to locations on a map (usually called photo
points or waypoints).
Depending on what the easement was designed to protect, a BDR may also contain
inventories of plant or animal species, soil maps, or other studies of natural resources on the
property. If the landowner has reserved certain rights (such as the right to build new structures or
enlarge existing ones, construct roads, or harvest timber), the BDR should provide enough
information to determine whether those rights are properly exercised (i.e. allowable locations of
future building sites or roads, dimensions of existing structures, boundaries of forest
management areas). The BDR should also be dated and contain the name and qualifications of
the person(s) who prepared it.
If the landowner is taking a tax deduction for the donation of an easement, the law
requires that the BDR be prepared prior to the conveyance of deed (the closing of the
transaction) and signed by both the landowner and a representative of the land trust at or before
closing. This is advisable in any event because the BDR is the land trusts primary tool for
making sure that the terms of the easement are complied with.
By documenting the condition of a property at the time of closing, the land trust can
effectively assess any changes on the property after closing and determine whether or not they
violate the terms of the easement. If the land trust has to go to court to protect the property, the

BDR is the cornerstone of the land trusts proof that a violation did, in fact, occur.
Some land trusts record their BDRs with the register of deeds, but in most jurisdictions,
this is not necessary. Whether or not a BDR is recorded, it should be carefully protected as an
irreplaceable, original document essential to the defense of the easement.
Some land trusts prepare baseline documentation reports for their fee properties as well
as their easements. These are not necessary for tax or enforcement purposes, but they provide a
useful inventory of natural resources and other characteristics of the propertyan excellent
foundation for the creation of a property management plan.

Tax benefits of conservation donations. Landowners who donate land or conservation

easements to a land trust are entitled, under federal law, to deduct the value of those
contributions from their income, effectively lowering their income taxes. The donation of land in
fee to a charitable organization is fully deductible, just like other noncash donations such as
household items, artwork, or building supplies. Donors can deduct up to 50% of their adjusted
gross income in the first year, and carry over any unused deduction for five additional years.
The rules for donations of conservation easements are somewhat more complicated. The
easement has to comply with 170 of the Internal Revenue Code and 16 pages of US Treasury
regulations. The most important requirements: the easement must serve one or more
conservation purposes outlined in the law, it must be perpetual, and it must be donated to an
organization whose primary purpose is protecting land or to a public agency.
The four categories of conservation purposes are: 1) recreation by or education of the
general public; 2) protection of a natural environmental system or habitat; 3) preservation of
open space that will yield a significant public benefit and is either for the scenic enjoyment of the
general public or pursuant to a clearly delineated governmental policy; and 4) historic
Conservation easement deductions are also limited to a certain percentage of the donors
adjusted gross income and can be carried over to future tax years. (Congress has changed the
percentage and the length of the carryover period during the past few years and may soon do so
Deductions are also available for a partial gift of land or an easement, i.e. when the land
trust purchases it for less than fair market value. A transaction of this kind is called a bargain
sale. The seller can deduct the difference between the sale price of the land parcel or easement
and its appraised fair market value.
The donor has to substantiate the value of a gift of land or an easement by means of an
appraisal, and here, too, the rules are somewhat complicated. Its the donorsnot the land
trustsresponsibility to obtain the appraisal. But the land trust must sign IRS Form 8283 in
order for the donor to claim the deduction, and it should do so only after examining the donors

appraisal and making sure that the Form 8283 is properly filled out. Your land trust should have
someone on its board or staff who understands how to review landowner appraisals and Forms
8283 and confirm that they meet certain basic requirements of the tax code before signing the
In addition to the federal tax deduction, there are, in some states, tax deductions and/or
tax credits available to donors of conservation easements. In a few states, tax credits are
transferable; that is, the donor can sell them to another taxpayer. This is especially beneficial to
donors whose incomes are not high enough to get a significant deduction.


It takes a lot of effort to acquire a fee property or easement, but its after the closing that
the real work begins. The land trust now has to manage a property it owns, or monitor and
enforce an easement.
Managing fee lands. Effective management of land trust property begins with the
development of a management plan. The plan should describe the property, its conservation
values, and the land trusts goals in owning it. For example, will it be actively managed for
wildlife habitat? Used as a community garden? Available to the public for hiking and/or crosscountry skiing? Or will it be left alone, as forever wild?
What does the land trust need to know in order to protect those features it considers most
important? Should the plan include an inventory of plants and animals? Historical information?
What will the land trust need to do, over time, to manage the property to meet its goals in
acquiring it? Maintain trails, a parking lot, and signage? Eradicate invasive plants? Clean up old
dumps or litter? And how much will all of these activities cost? Management planning will
consider these questionsand more.
Monitoring fee lands for problems and threats. Its a rare land trust that doesnt
experience problems on its fee lands. A neighbor decides to extend his lawn onto the land trusts
property. ATVs carve up the trails volunteers spent a summer constructing even though youve
posted signs declaring No motorized vehicles. Water chestnut begins to choke a pond. A
squatter takes up residence. A neighbors logger misreads a survey map.
Regular inspections of the property alert a land trust so that it can act before little
problems become big ones. Even forever wild properties should be monitored at least annually
and the findings recorded on a monitoring form stored with other important property records.
Monitoring is usually conducted by volunteers, staff, or a combination.
Easement monitoring and enforcement. A land trust holding a conservation easement
has an obligation to monitor the restricted property to make sure that the terms of the easement
are being complied with. Easements should be monitored at least once a year and the monitors
observations compared with the original condition of the property as described in the BDR.

If the easement has been violateda building constructed where none is allowed, or the
removal of vegetation that was supposed to be untouched, for examplethe land trust must act
to enforce the easement. Small violations like dumping brush are usually remedied after the land
trust brings them to the landowners attention, but more egregious ones may require extensive
remediation and/or legal action. Many land trusts have detailed policies and procedures for
responding to violations and resolving them.
Funding stewardship needs over the long term. Even if a land trust uses volunteers to
monitor its fee lands and/or easements, it can incur significant expenses for stewardship and
legal defense. It is considered best practice to maintain substantial financial reserves for these
The Land Trust Alliance recommends that a land trust holding easements maintain a
defense fund of at least $50,000 for its first 15 easements, add at least $1,500 to the defense fund
for each subsequent easement, and also maintain a stewardship fund containing at least $3,500
for each easement. For fee lands, the Alliance recommends that a land trust have a reserve fund
that will at least cover emergency needs and legal defense expenses and that it be able to raise
enough each year through investments, fundraising, or other reliable sources of revenue to cover
annual management expenses.
Many land trusts insure themselves against catastrophic legal expenses through the
TerraFirma conservation defense insurance program developed by the Land Trust Alliance. But
they should still maintain healthy stewardship and defense reserves.
Asking landowners for stewardship contributions. Most land trusts ask a landowner who
conveys a conservation easement to at least help out with stewardship and defense funding. This
sometimes surprises new board members. But consider this: as a land trust, you are pledging the
resources of your organization to protect the landowners property in perpetuity. For the
landowner who loves her land, this is a service of incalculable value, one that simply isnt
available from anyone else at any price. Doesnt it make sense that the landowner should pay
some of the costs of that service if she has the means to do so? Some landowners cant, of
course, in which case, your land trust will have to obtain the needed funds from other sources.
When landowners give fee property to a land trust, they are somewhat less likely to make
a stewardship contribution, but many dobecause they love their land and want to make sure
that it will be protected forever. Whenever a land trust receives a stewardship contribution, it
should take care to observe donor intent. If the landowner clearly intends the contribution for
stewardship, it should be classified as a temporarily restricted or permanently restricted
contribution and not used for any other purpose.
Dealing with change: amending conservation easements. Landand peoplechange
over time and sometimes it is advisable to amend a conservation easement to adapt to these
changes. For example, a landowner may want to locate a building permitted by an easement in a
location different from the one prescribed by the easement. Or she may want to add acreage to

the easement. Or install a free-standing solar panel. These changes can be accommodated
through legally amending the easement, but the land trust should proceed cautiously.
Easement amendments should be consistent with the land trusts mission and the original
intent of the easement and have no net negative impact on conservation values. They cannot
confer impermissible private benefit or private inurement. That is, the landowner cannot enhance
the overall value of his property through an amendment without compensating for the
enhancement in some way, such as agreeing to add more land to the easement or remove a
previously-allowed building site.
Many land trusts have policies and procedures that guide them through the amendment
process and make sure that all amendments are legally and ethically executed.


It can be challenging for a land trust to engage the public in land conservation, particularly when
it primarily holds easements on privately-owned land. The message, we save land for future
generations will resonate with some folks, but youre likely to appeal to many more when you
show how your work is preserving the character of your community, protecting rivers, lakes, and
streams, maintaining wildlife habitat, keeping family farms in production, getting kids interested
in the outdoors, and/or providing opportunities for recreational activities like hiking, crosscountry skiing, and kayaking. Even if your easement-protected lands arent open to the public,
landowners may be willing to let you hold a friend-and-fund-raising event at which members of
your community can see first-hand what you are preserving and why.
Some land trusts partner with wildlife rehabilitators, holding animal demonstrations and
releasing rehabilitated critters on their protected properties. Others sponsor nature walks,
paddling expeditions, gardening workshops, en plein air painting competitions, tour de farm
bicycle tours, community celebrationsthe opportunities are endless. These events get people
out on the land and show them the great value of what you are doing. They bring more and more
people into the land conservation community by inspiring hope, wonder and a love for the
natural world.


The Land Trust Alliance and Land Trust Accreditation. The Land Trust Alliance is a
national organization whose membership includes land trusts across the United States.
Headquartered in Washington, DC, the Alliance also has regional programs serving the
Northeast/Mid-Atlantic, Southeast, Midwest, and West. It holds an annual national Land Trust
Rally, regional land trust conferences, and offers a wealth of information and training resources
on its website ( and its Learning Center ( It also
produces webinars and many print materials used by land trusts.

Membership in the Land Trust Alliance is open to any land trust that adopts Land Trust
Standards and Practices (see below) and pays annual dues. Board members can also join as
individuals, and many do because of the numerous benefits the Alliance provides, not only to its
members, but to the land trust community as a whole.
Land Trust Standards and Practices. In 1989, representatives of the land trust community
joined with the Land Trust Alliance to develop ethical and technical guidelines for land trusts
and help them better develop the policies, procedures, and operating principles needed to protect
lands in perpetuity. Revised several times since then, Standards and Practices has become a
manual of practice for many land trusts in the United States. For more information, visit the Land
Trust Alliance Learning Center (
Land Trust Accreditation. In 2006, the Land Trust Alliance created the Land Trust
Accreditation Commission, an independent program that accredits land trusts on the basis of
their compliance with the 26 (out of 88) practices of Land Trust Standards and Practices thought
to be most essential to excellence, trust, and permanence in land conservation. At this writing,
almost 300 land trusts have earned accreditation and many more are planning to do so in the next
few years.
Accreditation is an arduous process, requiring much documentation and many hours of
work, but most land trusts that have gone through it believe that it made them stronger and more
effective. The Land Trust Alliance has developed on-line courses and textbooks specifically
geared to land trusts seeking accreditation; these can be found on the Learning Center. For more
information about the accreditation process, see
For further learning. This short guide was written to give readers an introduction to the
work of nonprofit land trusts. It is not intended as a comprehensive manual; nor is it intended to
covey legal or tax advice.
By now you may be thinking, Operating a land trust is a pretty complicated job! Indeed
it is, but keep in mind that thousands of people like you have taken on this rewarding work and
made lasting contributions to their communities and future generations.
As you grow in your role as a board member and land conservationist, you will want to
take advantage of the wealth of learning opportunities available to you through the Land Trust
Alliance, many of which you can access online. There are also independent associations of land
trusts in many states; these offer publications, training conferences, and opportunities to network
with other organizations. Local community foundations, United Ways, and nonprofit
associations also offer webinars, workshops, and guides that will help you not just in your role as
a land trust board member but in your work with other nonprofits.
Your journey has just begunand it is bound to be an exciting and satisfying one. Thank
you for volunteering for the great cause of land protection and helping to build better
communities and a healthier, more sustainable planet for everyone.