Overlay CRs to Add Protection to Land Trust Properties

Blankets and Belts and Suspenders: Using protective overlays to ensure permanent conservation of land trust properties

 by Mark H. Robinson, Exec. Dir.
The Compact of Cape Cod Conservation Trusts, Inc.
January, 2006

 Overview

• A Land Trust property is not preserved simply by the fact of it being owned by a Land Trust.
• Most Land Trusts are in the business of simply promoting conservation in their community.
• No Land Trust has a specific organizational duty to keep its landholdings in permanent conservation status.
•  All Land Trusts have the power to “sell and exchange any real or personal property for such consideration as the board deems advisable.”

Conversion Threats to Land Trust Properties

               Internal                                                External

• Rogue board
• Fundraising needs
• Management headaches
• Swap for “better” land

• Donor’s heirs
• Lawsuit
• Eminent Domain

Issues to Consider about Conversion

Political

• Public relations, community perception

Legal

• AG Public Charities Division
• IRS Form 8282
• IRS charitable deduction Rules
  Rev. Rule. 85-99  (1985)
  “… the amount of the taxpayer donor's charitable contribution deduction is the fair market value of the property at the time of the contribution determined in the light of the restriction placed by the donor on the use of the property.”

Moral

• Duty to Donors (past and future)
• Duty to Members
• Duty to Public

Solutions

Pre-acquisition

• Donor gives CR to one land trust and fee simple to another land trust.

Post-acquisition

• Donor gives fee simple to land trust and land trust later grants CR to another land trust.
• Donor gives fee simple to land trust, then land trust later creates charitable trust with another land trust.