August 30, 2021 Christopher

From the Land Protection Toolkit: Conservation Restrictions 101

By Christopher Densmore

If you enjoy hiking in the Berkshires, you’ve probably noticed at some point that the Berkshire Natural Resources Council (BNRC), our regional land trust, owns over 11,000 acres of publicly open land in the county. With over 60 miles of maintained trails across many different sites, there are opportunities to hike, birdwatch, picnic, or even hunt and fish. You might wander the river bends at Housatonic Flats in Great Barrington, or you could hike the Hoosac Range Trail in North Adams to the views from Sunset Rock or Spruce Hill. You might picnic and survey the Stockbridge Bowl from Olivia’s Overlook, or swim from the dock at Steadman Pond in Monterey. These are just a few of the lands that BNRC’s Stewardship and Trails teams—with help from generous donor support and an abundance of volunteers—have conserved over the years for common recreational enjoyment and ecological health.

Beyond those reserves though, if you understand the finer details of Berkshire land conservation—or perhaps have researched conserving your own land—you might also note that BNRC protects another 12,000 acres in privately-held conservation lands. Nearly all of those lands are owned by individuals or families. So how does a land trust end up conserving the properties of other landowners? The answer is one of the fundamental tools of land protection in Massachusetts and around the country for several decades: the Conservation Restriction!

Protecting Private Land for Public Benefit

Conservation Restrictions (CRs) are a type of legal document: a voluntary and binding agreement to prevent land from being developed for residential or commercial use. These contracts are an agreement between the owner of the land and a qualified conservation organization, which from then on holds an interest in the land, recorded with the Commonwealth’s registry of deeds. So a CR conserves land forever, even if the ownership of the land changes. Also known as conservation easements in most other states, CRs (or CEs) have grown in use with the general land trust and conservation movements in recent decades. So how does the process of a CR work?

This conservation journey begins when a landowner decides they want to protect their land. They might reach out to a conservation organization for guidance and resources, or sometimes the organization itself might begin the process by inquiring about a particular parcel. Some landowners might want to gift or sell their land to a conservation organization, but if they want to continue to own the land while still conserving it, a CR may be the best path forward.

After some communication between the conservation organization—let’s say a land trust like BNRC—and the landowner, they visit the property together to assess how conserving the land serves public values such as:

  • preserving a watershed and water quality,
  • securing public access to scenic resources, though public access is not a requirement of CRs
  • reducing air pollution,
  • protecting important farms and farmland from development
  • providing habitat or migration corridors for fish and wildlife,
  • protecting scenic vistas,
  • sequestering and storing carbon for climate change mitigation,
  • or allowing sustainable agriculture or forestry, among other values.

The land trust and owner describe the values specific to the property in question, which are recorded in the agreement. They also document the baseline land conditions relevant to those values. This record allows the land trust to make sure the values will endure if there are any changes in the land.

Setting the Terms

The land trust staff will also discuss, with the landowner, their goals for conserving the land. The language of the CR can reflect different priorities. Some restrictions preserve a primitive or wild landscape with no development, agriculture or forestry. Others conserve a working landscape with some logging or a particular focus on agriculture. Sometimes different conservation organizations will specialize in working with particular types of CRs. In New England, the Northeast Wilderness Trust focuses on wild landscapes, whereas the New England Forestry Foundation specializes in working landscapes. BNRC does a combination of both!

Mining, dumping, and motorized recreation are all restricted. Sometimes, a building lot might be kept for a future generation. If the landowner lives on the land, their dwelling and surrounding land (lawn, driveways, utilities, etc.) would be excluded from the restriction. Ultimately, there are varied options for the landowners, but the CR prevents certain “restricted uses” and protects certain “reserved rights” in varying proportions.

Once the CR is finalized, the land trust assumes responsibility for stewarding the land in perpetuity—meaning they are in continual relationship with the landowners. Good CR stewardship requires annual assessments of the site conditions to ensure that the conservation values are being protected. At BNRC, these assessments are a considerable part of our stewardship department’s work. CRs are part of our investment in the future of conservation and require continued engagement and collaboration.

So, ultimately, CRs are a helpful and game-changing tool for landowners and land trusts to protect land together in a legally-binding way without transferring ownership. With this legal structure, they allow private landowners to support the public benefits of conserving land. According to the Land Trust Alliance, a national land trust advocacy organization, conservationists have used these easements nationwide to protect a total acreage that adds up to larger than the size of Massachusetts. CRs allow local residents to conserve land that adds up at larger scales! At BNRC, we’re glad to have CRs in our conservation toolkit to protect ecological and social wellness in the Berkshires. If you or anyone you know owns land and might want to conserve it, take note and spread the word!

 

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