CONSERVATION
EASEMENT
DATE: (INSERT
DATE)
DONOR/OWNER: (INSERT DONOR’S NAME, MARITAL
STATUS AND ADDRESS)
DONEE/CONSERVANCY: Raisin Valley Land Trust
1042 Sutton Road, Suite 3
Adrian, Michigan 49221
For
Purposes of this Conservation Easement, the Donor, who is the current owner,
and all subsequent owners of the subject Property, will be referred to as the
“Owner” throughout this Conservation Easement.
The Donee will be referred to as the “Conservancy” throughout this
Conservation Easement.
PROPERTY: (INSERT
COMPLETE LEGAL DESCRIPTION)
CONVEYANCE: The Owner
conveys and warrants to the Conservancy a perpetual Conservation Easement over
the Property. The scope of this
Conservation Easement is set forth in this agreement. This conveyance is a gift from the Donor to the Conservancy. Accordingly, the conveyance is exempt from
Transfer Tax pursuant to MCL 207.505(a) and 207.526(a). (Delete exemption language in the case of
a purchase of the conservation easement).
THE OWNER AND THE CONSERVANCY
AGREE TO THE FOLLOWING:
1.
PURPOSES OF THIS
CONSERVATION EASEMENT AND COMMITMENTS OF THE DONOR/OWNER AND THE CONSERVANCY.
A.
This Conservation
Easement assures that the Property will be perpetually preserved in its
predominately natural, scenic, historic, agricultural, forested, and open space
(DELETE THOSE THAT DO NOT APPLY) condition. The Purposes of this Conservation Easement are to protect the
Property’s natural resource and watershed values; to maintain and enhance
biodiversity; to retain quality habitat for native plants and animals, and to
maintain and enhance the natural features of the Property. Any uses of the Property that may impair or
interfere with the Conservation Values are expressly prohibited.
B.
The Donor is the Owner
of the Property and is committed to preserving the Property’s Conservation
Values (listed in Section 2, subsections A through G). The Owner agrees to confine use of the
Property to activities consistent with the Purposes of this Easement and the
preservation of the Conservation Values.
C.
As a qualified recipient
of this Conservation Easement, the Conservancy is committed to preserving the
Conservation Values of the Property and upholding the terms of this
Conservation Easement. The Conservancy
protects natural habitats of fish, wildlife, plants, and the ecosystems that
support them. The Conservancy also
preserves open spaces, including farms and forests, where such preservation is
for the scenic enjoyment of the general public or pursuant to clearly
delineated governmental conservation policies and where it will yield a
significant public benefit.
2.
CONSERVATION
VALUES. The Property possesses natural,
scenic, historic, open space, scientific, biological, and ecological values (DELETE
THOSE THAT DO NOT APPLY) of prominent importance to the Owner, the
Conservancy, and the public. The
Easement refers to these values as the “Conservation Values.” The Conservation Values include the following: (NOTE TO DRAFTER: It is critically important to include all of
the Conservation Values that are specific to your Property. Include the following values that pertain;
add additional specific values; include local policy statements, goals, and
laws; delete those Conservation Values that do not apply; delete any
legislation that does not apply. The
headings are meant to stimulate ideas for listing Conservation Values and may
be deleted).
A.
Open Space and Scenic.
1)
A scenic landscape and
natural character that would be impaired by modification of the Property.
2)
A scenic panorama visible
to the public from publicly accessible sites that would be adversely affected
by modifications of the natural habitat.
3)
Relief from urban
closeness.
4)
Prominent visibility to
the public from (INSERT), and, which will enhance tourism if preserved
in its natural state.
5)
Biological integrity of
other land in the vicinity has been modified by intense urbanization, and the
trend is expected to continue.
6)
There is a reasonable
possibility that the Conservancy may acquire other valuable property rights on
nearby or adjacent properties to expand the Conservation Values preserved by
this Conservation Easement.
B.
Public Policy.
1)
The State of Michigan
has recognized the importance of protecting our natural resources as delineated
in the 1963 Michigan Constitution, Article IV, Section 52, “The conservation and development of the
natural resources of the state are hereby declared to be of paramount public
concern in the interest of the health, safety, and general welfare of the
people. The legislature shall provide
for the protection of the air, water, and other natural resources of the state
from pollution, impairment, and destruction.”
2)
The Property is
preserved pursuant to a clearly delineated federal, state, or local
conservation policy and yields a significant public benefit. The following legislation, regulations, and
policy statements establish relevant public policy: (For a more extensive
list of relevant laws, see the Collection of Conservation, Preservation, and
Environmental Laws and Summaries compiled by the Little Traverse
Conservancy in April 2000 and provided to each land conservancy in Michigan.)
a)
Conservation and
Historic Preservation Easement, Sub part 11 of Part 21 of the Michigan Natural
Resources and Environmental Protection Act - MCL §§ 324.2140 et seq.;
b)
Biological Diversity
Conservation, Part 355 of the Michigan Natural Resources and Environmental
Protection Act – MCL §§ 324.35501 et seq; (Legislative Findings §
324.35502);
c)
Sand Dune Protection and
Management, Part 353 of the Michigan Natural Resources and Environmental
Protection Act, MCL §§ 324.35301 et seq.; (Legislative Findings MCL
§ 324.35302);
d)
Wetland Protection, Part
303 of the Michigan Natural Resources and Environmental Act - MCL §§ 324.30301 et
seq.; (Legislative Findings MCL § 324.30302);
e)
Water Pollution Control
Act of 1972, 33 USC §§ 1251 - 1387 (§1251 Goals & Policy; § 1344 Wetlands
permitting, aka “Section 404” Clean Water Act.);
f)
Coastal Zone Management
Act, 16 USC §§ 1451 et seq.; (§§ 1451, 1452 Congressional Findings and
Policy.);
g)
Shorelands Protection
and Management, Part 323 of the Michigan Natural Resources and Environmental
Protection Act - MCL §§ 324.32301 et seq.;
h)
Inland Lakes and
Streams, Part 301 of the Michigan Natural Resources and Environmental
Protection Act - MCL §§ 324.30101 et seq.;
i)
Great Lakes Submerged
Lands, Part 325 of the Michigan Natural Resources and Environmental Protection
Act - MCL §§ 324.32501 et seq.;
j)
Farmland and Open Space
Preservation, Part 361 of the Michigan Natural Resources and Environmental
Protection Act - MCL §§ 324.36101 et seq.;
k)
Soil Conservation,
Erosion, and Sedimentation Control, Parts 91 & 93 of the Michigan Natural
Resources and Environmental Protection Act – MCL §§ 324.9101 et seq; 324.9301
et seq; (Legislative Policy § 324.9302);
l)
The (INSERT)
governmental agency has endorsed the proposed scenic view of the Property under
a landscape inventory, pursuant to a review process.
m)
The (INSERT)
office has recognized the importance of the Property as an ecological and
scenic resource, by designating this and other land as (INSERT).
n)
The Township / County of
(INSERT) has designated this area as (INSERT) in its
Comprehensive Plan dated (INSERT).
o)
(Insert local policy
statements that apply).
C.
Wildlife Values.
1)
The Property is home to
many species of wildlife, including: (INSERT).
2)
The Property provides
vital corridor wetlands and upland wildlife habitats which serve as a
connection for wildlife movement and create a natural “greenway” (INSERT
AREA).
3)
The Property is
noteworthy for the (INSERT).
D.
Ecological/Habitat.
1)
The Property contains
significant natural habitat in which fish, wildlife, plants, or the ecosystems
that support them, thrive in a natural state.
2)
Wetlands, as described
in Wetland Protection, Part 303 of the Michigan Natural Resources and
Environmental Code MCL 324.30301 et seq., identified as important natural
resources for the people of the State of Michigan, are present on the Property.
3)
Habitat for rare,
endangered, or threatened species of animal, fish, plants, or fungi, including:
(INSERT SPECIES). (INSERT if threatened or endangered and if in the
State of Michigan or federal) are supported on the Property.
4)
The Property contains
natural areas which represent high quality examples of terrestrial or aquatic
communities (INSERT).
5)
The Property contains
sustainable habitat for biodiverse vegetation, birds, fish, and terrestrial
animals.
6)
A diversity of plant and
animal life are found on the Property in an unusually broad range of habitats
for a property of its size.
7)
The Property is
characteristic of (INSERT). Its
dominant vegetation is (INSERT) interspersed with (INSERT other
habitats, streams, important natural features). These plant communities are in a relatively natural and
undisturbed condition and support the full range of wildlife species found in
these habitat types.
8)
The Property contains
natural wetland areas that provide habitat for aquatic invertebrates, reptiles,
amphibians, and aquatic and/or emergent vegetation.
9)
Valued native forest
land exists on the Property, which includes diverse native species, trees of
many age classes and structural diversity, including a multi-story canopy,
standing dead trees and downed logs.
E.
Watershed Protection.
1)
The Property provides
important natural land within the watershed of (INSERT). Protection of the Property in its natural
and open space condition helps to ensure the quality and quantity of water
resources for the (INSERT) area.
2)
The Property includes
the (INSERT) feet of frontage on the (INSERT)(river, stream, lake).
3)
The Property has a
significant amount of undeveloped frontage on the banks/shore of (INSERT),
which is a State designated Natural River (designated as a Wilderness River,
Wild and Scenic River, or Country-Scenic River) under the Natural Rivers
Section (Part 305) of the Michigan’s Natural Resources Environmental Protection
Act, MCL §§ 324.30501-30515 et seq.,
(OR) a State designated “Blue Ribbon Trout Stream” considered by
the Department of Natural Resources to be one of the “Top Ten” trout streams in
Michigan.
4)
Sections of the property
are situated on hillsides with slopes greater than 20% that are adjacent to or
in close proximity to (INSERT BODY OF WATER OR STREAM) and the vegetated
slopes would be highly susceptible to erosion damage and accelerated stormwater
runoff that could adversely affect water quality if the trees or other
vegetation were removed.
F.
Adjacent to Protected
Lands.
1)
The Property lies in
close proximity to the following conserved properties that similarly preserve
the existing natural habitat: (INSERT).
2)
This Easement protects a
natural area which contributes to the ecological viability of a local, state,
or national park, nature preserve, wildlife refuge, wilderness area, or similar
conservation area.
3)
Preservation of the
Property enables the Owner to integrate the Conservation values with other
neighboring lands.
G.
Farmland.
1)
The Property consists
entirely of “prime farmland” and “farmland of local importance” as classified
by the U.S. Department of Agriculture and the Natural Resources Conservation
Service.
2)
The Property has a long
history of productive farming and contains significant areas with soil
classifications designated as (INSERT).
3)
The Property is located
within (INSERT) Township, a community with an agriculture-based economy
in an area presently experiencing rapid development, including the subdivision
of prime farmland.
3.
BASELINE
DOCUMENTATION. Specific Conservation
Values of the Property have been documented in a natural resource inventory
signed by the Owner and the Conservancy.
This “Baseline Documentation Report” consists of maps, a depiction of
all existing human-made modifications, prominent vegetation, identification of
flora and fauna, land use history, distinct natural features, and
photographs. The parties acknowledge
that this natural resources inventory, the Baseline Documentation Report, is an
accurate representation of the Property at the time of this donation.
4.
PROHIBITED ACTIONS. Any activity on, or use of, the Property
which is inconsistent with the Purposes of this Conservation Easement or which
is detrimental to the Conservation Values is expressly prohibited. By way of example, but not by way of
limitation, the following activities and uses are explicitly prohibited:
A.
Division. Any division or subdivision of the Property,
without the express written approval of the Conservancy, is prohibited.
B.
Commercial
Activities. Any commercial activity on
the Property is prohibited, except as associated with permitted activities as
specified in Section 5 below.
C.
Industrial
Activities. Any industrial activity on
the Property is prohibited.
D.
Construction. The placement or construction of any
human-made modification such as, but not limited to, structures, buildings,
fences, roads, and parking lots is prohibited.
E.
Cutting Vegetation. Any cutting of trees or vegetation,
including pruning or trimming, is prohibited, except for the cutting or removal
of trees or vegetation that pose a threat to human life or property.
F.
Land Surface
Alteration. Any mining or alteration
of the surface of the land is prohibited, including any substance that must be
quarried or removed by methods that will consume or deplete the surface estate,
including, but not limited to, the removal of topsoil, sand, gravel, rock, and
peat. In addition, exploring for,
developing, and extracting oil, gas, hydrocarbons, or petroleum products are
all prohibited activities.
G.
Dumping. Waste and unsightly or offensive material
is not allowed and may not be accumulated on the Property.
H.
Water Courses. Natural water courses, lakes, wetlands, or
other bodies of water may not be altered.
I.
Off-Road Recreational
Vehicles. Motorized off-road vehicles
such as, but not limited to, snowmobiles, dune buggies, all-terrain vehicles,
and motorcycles may not be operated off of designated roads on the Property.
J.
Signs and
Billboards. Billboards are
prohibited. Signs are prohibited,
except the following signs may be displayed to state:
1)
The name and address of
the property or the Owner’s name.
2)
The area is protected by
a conservation easement.
3)
Prohibition of any
unauthorized entry or use.
4)
An advertisement for the
sale or rent of the Property.
5.
PERMITTED USES. The Owner retains all ownership rights
that are not expressly restricted by this Conservation Easement. In particular, the following rights are
reserved:
A.
Right to Convey. The Owner retains the right to sell,
mortgage, bequeath, or donate the Property.
Any conveyance will remain subject to the terms of the Conservation
Easement and the subsequent Owner will be bound by all obligations in this
agreement.
B.
(Optional) Right to Maintain and Replace Existing
Structures. The Owner retains the
right to maintain, renovate, and replace the existing structure(s) as noted in
the Baseline Documentation Report in substantially the same location and
size. Any expansion or replacement may
not substantially alter the character or function of the structure. Prior to beginning renovation or replacement
of the existing structures, the Owner will provide a written plan to the
Conservancy for the Conservancy’s review and approval. Such approval shall not be unreasonably
withheld.
C.
(Optional) Right to Add Designated Structures or
Uses. The Owner retains the right to
add the following structures, modifications, or uses on the following legally
described portion of the Property (Insert legal description of building
envelope). Prior to beginning
construction, the Owner will provide a written plan to the Conservancy for the
Conservancy’s review and approval. Such
approval shall not be unreasonably withheld.
1)
_________
2)
_________
3)
_________
6.
RIGHTS OF THE
CONSERVANCY. The Owner confers the
following rights upon the Conservancy to perpetually maintain the Conservation
Values of the Property:
A.
Right to Enter. The Conservancy has the right to enter the
Property at reasonable times to monitor the Conservation Easement
Property. Furthermore, the Conservancy
has the right to enter the Property at reasonable times to enforce compliance
with, or otherwise exercise its rights under, this Conservation Easement. The Conservancy may not, however,
unreasonably interfere with the Owner’s use and quiet enjoyment of the
Property. The Conservancy has no right to
permit others to enter the Property.
The general public is not granted access to the Property under this
Conservation Easement.
B.
Right to Preserve. The Conservancy has the right to prevent
any activity on or use of the Property that is inconsistent with the Purposes
of this Conservation Easement or detrimental to the Conservation Values of the
Property.
C.
Right to Require
Restoration. The Conservancy has the
right to require the Owner to restore the areas or features of the Property
that are damaged by any activity inconsistent with this Conservation Easement.
D.
Signs. The Conservancy has the right to place
signs on the Property that identify the land as protected by this Conservation
Easement. The number and location of
any signs are subject to the Owner’s approval.
7.
CONSERVANCY’S
REMEDIES. This section addresses
cumulative remedies of the Conservancy and limitations on these remedies.
A.
Delay in
Enforcement. A delay in enforcement
shall not be construed as a waiver of the Conservancy’s right to eventually
enforce the terms of this Conservation Easement.
B.
Acts Beyond Owner’s
Control. The Conservancy may not bring
an action against the Owner for modifications to the Property resulting from
causes beyond the Owner’s control, including, but not limited to, unauthorized
actions by third parties, natural disasters such as unintentional fires,
floods, storms, natural earth movement, or even an Owner’s well-intentioned
action in response to an emergency resulting in changes to the Property. The Owner has no responsibility under this Conservation
Easement for such unintended modifications.
C.
Notice and Demand. If the Conservancy determines that the
Owner is in violation of this Conservation Easement, or that a violation is
threatened, the Conservancy shall provide written notice to the Owner. The written notice will identify the
violation and request corrective action to cure the violation and, where the
Property has been injured, to restore the Property.
However, if at any time the Conservancy determines, at
its sole discretion, that the violation constitutes immediate and irreparable
harm, no written notice is required.
The Conservancy may then immediately pursue its remedies to prevent or
limit harm to the Conservation Values of the Property.
If the Conservancy determines
that this Conservation Easement is, or is expected to be, violated, and the
Conservancy’s good-faith and reasonable efforts to notify the Owner are
unsuccessful, the Conservancy may pursue its lawful remedies to mitigate or
prevent harm to the Conservation Values without prior notice and without awaiting
the Owner’s opportunity to cure. The
Owner agrees to reimburse all reasonable costs associated with this effort.
D.
Failure to Act. If, within 28 days after written notice,
the Owner does not implement corrective measures requested by the Conservancy,
the Conservancy may bring an action in law or in equity to enforce the terms of
the Conservation Easement. In the case
of immediate or irreparable harm, or if an Owner is unable to be notified, the
Conservancy may invoke these same remedies without notification and/or awaiting
the expiration of the 28-day period.
The Conservancy is entitled to
enjoin the violation through temporary or permanent injunctive relief and to
seek specific performance, declaratory relief, restitution, reimbursement of expenses,
and/or an order compelling the Owner to restore the Property. If the court determines that the Owner has
failed to comply with this Conservation Easement, the Owner shall also
reimburse the Conservancy for all reasonable litigation costs and reasonable
attorney’s fees, and all costs of corrective action or Property restoration
incurred by the Conservancy.
E.
Unreasonable
Litigation. If the Conservancy
initiates litigation against the Owner to enforce this Conservation Easement,
and if the court determines that the litigation was initiated without
reasonable cause or in bad faith, then the court may require the Conservancy to
reimburse the Owner’s reasonable costs and reasonable attorney’s fees in
defending the action.
F.
Actual or Threatened
Non-Compliance. The Conservancy’s
rights under this Section apply equally in the event of either actual or
threatened violations of the terms of this Easement. The Owner agrees that the Conservancy’s claim for money damages
for any violation of the terms of this Easement is inadequate. The Conservancy shall also be entitled to
affirmative and prohibitive injunctive relief and specific performance, both
prohibitive and mandatory. The
Conservancy’s claim for injunctive relief or specific performance for a violation
of this Conservation Easement shall not require proof of actual damages to the
Conservation Values.
G.
Cumulative
Remedies. The preceding remedies of
the Conservancy are cumulative. Any, or
all, of the remedies may be invoked by the Conservancy if there is an actual or
threatened violation of this Conservation Easement.
8.
NOTIFICATION
PROVISION. The Conservancy is
entitled to 60 days written notice whenever its approval is required under this
Conservation Easement. If the
Conservancy fails to respond within 60 days after it receives the written
request, then its approval shall be deemed given. This implied approval shall not extend to any activity contrary
to this Conservation Easement or impairing a Conservation Value. The Conservancy’s approval shall continue
for three years. If the approved
activity is not completed within three years after the approval date, then the
Owner must re-submit the written application to the Conservancy.
9.
CONSERVATION EASEMENT
REQUIREMENTS UNDER MICHIGAN LAW AND UNITED STATES TREASURY REGULATIONS.
A.
This Conservation
Easement is created pursuant to the Conservation and Historic Preservation
Easement, Sub part 11 of Part 21 of the Michigan Natural Resources and
Environmental Protection Act (NREPA) - MCL §§ 324.2140 et seq.
B.
This Conservation
Easement is established for conservation purposes pursuant to the Internal
Revenue Code, as amended at Title 26, U.S.C.A., Section 170(h)(1)-(6) and
Sections 2031(c), 2055, and 2522, and under Treasury Regulations at Title 26
C.F.R. § 1.170A-14 et seq, as amended.
C.
The Conservancy is
qualified to hold conservation easements pursuant to the statutes in
subsections A and B above. The
Conservancy is a publicly funded, non-profit 501(c)(3) organization.
10. OWNERSHIP COSTS AND LIABILITIES. In accepting this Conservation Easement,
the Conservancy shall have no liability or other obligation for costs,
liabilities, taxes, or insurance of any kind related to the Property. The Conservancy’s rights do not include the
right, in absence of a judicial decree, to enter the Property for the purpose
of becoming an operator of the Property within the meaning of the Comprehensive
Environmental Response, Compensation, and Liability Act. The Conservancy, its members, trustees or
directors, officers, employees, and agents have no liability arising from
injury or death to any person or physical damage to any property on the
Property. The Owner agrees to defend
the Conservancy against such claims arising during the term of the Owner’s
ownership of the Property.
11. HAZARDOUS MATERIALS.
(Suggested, but optional language)
The Owner warrants that Owner has no knowledge of a release of hazardous
substances or hazardous wastes on the Property. The Owner agrees to protect and defend the Conservancy against any
claims of hazardous materials contamination on the Property.
12. CESSATION OF EXISTENCE. If the Conservancy shall cease to exist, or if it fails to be a
“qualified organization” for purposes of Internal Revenue Code Section
170(h)(3), or if the Conservancy is no longer authorized to acquire and hold
conservation easements, then this Conservation Easement shall become vested in
another entity. The new entity shall be
a “qualified organization” for purposes of Internal Revenue Code Section
170(h)(3). The Conservancy’s rights and
responsibilities shall be assigned to any entity having similar conservation
purposes to which such right may be awarded under the cy pres doctrine.
13. TERMINATION.
This Conservation Easement may be extinguished only by an unexpected
change in condition rendering it impossible to fulfill the Conservation
Easement’s purposes, or by exercise of eminent domain.
A.
Unexpected Change in
Conditions. If subsequent
circumstances render the Purposes of this Conservation Easement impossible to
fulfill, then this Conservation Easement may be partially or entirely
terminated only by judicial proceedings.
The Conservancy will then be entitled to compensation in accordance with
the provisions of IRC Treasury Regulations Section 1.170A-14(g)(6)(ii).
B.
Eminent Domain. If the Property is taken, in whole or in
part, by power of eminent domain, then the Conservancy will be entitled to
compensation by the method as is set forth in IRC Treasury Regulations Section
1.170A-14(g)(6)(ii).
14. LIBERAL CONSTRUCTION. This Conservation Easement shall be liberally construed in favor
of maintaining the Conservation Values of the Property and in accordance with
the Conservation and Historic Preservation Easement, Sub part 11 of Part 21 of
the Michigan Natural Resources and Environmental Code MCL 324.2140 et seq.
15. NOTICES. For
purposes of this agreement, notices may be provided to either party by personal
delivery or by mailing a written notice to the party (at the last known address
of a party) by First Class mail.
16. SEVERABILITY.
If any portion of this Conservation Easement is determined to be
invalid, the remaining provisions will remain in force.
17. SUCCESSORS.
This Conservation Easement is binding upon, and inures to the benefit
of, the Owner’s and the Conservancy’s successors in interest. All subsequent owners of the Property are
bound to all provisions of this Conservation Easement to the same extent as the
Owner.
18. TERMINATION OF RIGHTS AND OBLIGATIONS. A party’s future rights and obligations
under this Conservation Easement terminate upon transfer of that party’s
interest in the Property. Liability for
acts or omissions occurring prior to transfer will survive the transfer.
19. MICHIGAN LAW.
This Conservation Easement will be construed in accordance with Michigan
Law.
20. ENTIRE AGREEMENT.
This Conservation Easement sets forth the entire agreement of the
parties. This Conservation Easement is
intended to supersede all prior discussions or understandings.
TWO WITNESSES: OWNER:
* (Print/type names under signatures)
* *
* *
STATE
OF MICHIGAN )
)
COUNTY OF )
Acknowledged before me on
this of , 2004, by (Insert Owner’s names) , (Insert marital status) .
County, Michigan
My commission expires:
TWO WITNESSES: CONSERVANCY:
(* Print/type names under signatures)
* *
* *
STATE OF MICHIGAN )
)
COUNTY OF )
Acknowledged before me on
this of , 2004, by (Insert Executive Director or signer’s name) , known to me
to be the President of the Raisin
Valley Land Trust .
County, Michigan
My commission expires:
AFTER
RECORDING SEND TO: SEND TAX BILL TO: PREPARED BY:
Insert
correct name and address Owner Insert name and
address