The NFA has been the beneficiary of some wonderful donations of property and conservation easements from philanthropic individuals and families and
from contractors, who at their option, are required to provide for open space as part of a development. Actively managing and monitoring the open
space property in past was fairly limited, and primarily reactive, to when problems arose. What has changed over recent years is the Internal Revenue
Service (IRS) is now increasing its expectations of not-for-profit public charities, such as the NFA and other land trusts, to proactively manage and
monitor properties it owns. This dramatically increases the cost and time necessary to ensure these requirements are fulfilled over the life that the NFA
will own a property – which is forever.
The NFA is not alone in dealing with these changes and has the benefit of membership in the Land Trust Alliance (a nationally recognized not-for-profit)
which has developed best practices and training for the benefit of the land trust community. One such best practice is to adopt a land-acquisition-
criterion that requires a careful consideration of each potential property or conservation easement donation and an evaluation of any potential donor
restrictions that may or may not be imposed before a decision is made to accept such donation. The NFA does not want to give anyone the impression
that we are being ungrateful if we decide not to accept a donation. The impression we attempt to convey by being selective is one of fiscal
responsibility. Since the NFA has limited resources and is not supported by taxpayers, it has to carefully evaluate the long-term fiscal commitment that
comes with ownership against the preservation values presented. A comprehensive and consistently applied Land-Acquisition-Criterion merely guides
this process, but ultimately approval is required by the NFA’s the Board of Directors.
The NFA’s Land-Acquisition-Criterion first starts with an evaluation of whether or not the preservation of a potential donation is consistent with the NFA’s
goals and purpose. A property would likely meet our goals and purpose if:
> the property is in relatively undisturbed natural, scenic or historic condition, or is in active agricultural use,
> the property directly abuts an existing protected property,
> the property is of sufficient size that its conservation resources are likely to remain intact, even if adjacent properties are developed,
or sufficient neighboring property is already protected and,
> protection of this property aids in sound land use planning, promotes land conservation, and encourages careful stewardship of land
and water resources.
After meeting this first phase, next we evaluate the potential donations public benefit. To qualify for further consideration a property should meet at
least three of the following criteria:
>Contains endangered, threatened, or rare species or natural communities,
>Contains important or outstanding natural wildlife habitat, ecosystems or natural features,
>Contains, or has the potential to contain, natural features of educational or scientific value,
>Is in active agricultural use,
>Contains significant wetlands, flood plains, waterways, riparian corridors, aquifer recharge areas, watershed or other lands necessary
for protection of drinking water supply, water resources or wetland habitat,
>Provides a buffer for agricultural lands, wetlands, wildlife habitats, or other sensitive areas,
>Provides a buffer for or is close or contiguous to an existing conservation area, park, preserve or other protected land,
>Protects scenic views from public roadways, waterways or recreation areas,
>Contains unique or outstanding physiographic characteristics,
>Provides a significant contribution to the furtherance of town open space and /or planning policies,
>Contains outstanding historic resources that contribute significantly to community character,
>Affords outstanding opportunities for passive recreation, such as hiking.
Lastly, we evaluated feasibility. Factors used to evaluated feasibility are primarily based on the absence of certain conditions, most of which relate to
added cost and liability of future ownership. The existence of one or more of these conditions, individually or in the aggregate, could overcome the
positive attributes noted in the first two phases. These conditions are as follows:
> Property is small and there is little likelihood of property being developed, or adjacent properties being protected,
> Adjacent properties are being, or are likely to be developed in a manner that would significantly diminish the conservation values of
the property in questions,
> The property would be unusually difficult and/or prohibitively expensive to manage and monitor,
> The property is in arrears in taxes or expected property taxes will be significant before the property becomes tax exempt or,
> There are title, environmental or survey issues that cannot be resolved.
One of the major factors related to feasibility is the overall future cost of ownership which can, in some cases, be significant. Because most land trust
and conservation organizations do not have large endowment funds to allocate to future donations, most now require a conveyance fee paid by the
donor to cover the closing costs and to provide a source of future income to offset future costs. Albeit difficult to approach a potential donor about the
real need for the land trust to make such a request, it is done with the knowledge that most donors actually get a direct-cash benefit from their donations
in the form of charitable income-tax deductions. The donor should consult with their tax preparer to ascertain their ability to make use of such a
donation for tax deduction purposes and the direct-cash benefits, if any, that can be realized from such a donation.
The donor will also realize future savings from local property tax obligations.
The land trust community understands that the donor(s) will get real cash tax savings from their donations, while incurring real costs associated with
future ownership, therefore, asking for cash contributions or a binding pledge agreement for future contributions at the closing is only prudent practice.
Most donors understand these concepts and it really comes down to effective and up-front communication, to establish a mutual understanding.
There are certainly many instances where a donor does not have the current taxable income to realize all of the benefits of a donation and many land
trusts may have a policy of waiving these conveyance fee donations if a property meets many of the other Land-Acquisition-Criterion and the land trust
has the financial resources to assume the future expected costs of ownership. The donor(s) may also realize other benefits when it comes to long-term
estate planning. Such conveyance fees can most often also be considered additional charitable deductions.
Notwithstanding the fiscal benefits the donor may or may not realize, the NFA and the community eternally appreciates the benefits that come with
satisfaction of seeing undeveloped land preserved forever.
Historically, the NFA did not have a policy to make such requests for these types of conveyance fee contributions; however, it now realizes the fiscal
importance of long-term planning for the future to address the increasing cost of ownership. The NFA does this with some reservation but does so with
a greater appreciation of the new IRS requirements to which it is being held accountable. Now, more than ever, greater diligence is necessary to
consider that current actions and decisions could adversely affect NFA’s long-term fiscal health.
The NFA has regretfully declined to accept certain donations offered after evaluating the substantial long-term costs and extraneous management
commitments such donations posed where adequate conveyance fees could not be agreed to or, after careful consideration, did not sufficiently meet
certain other Land-Acquisition-Criterion. The Land-Acquisition-Criterion has also provided the NFA the ability, with a degree of confidence, that if a
similar donation was presented to the NFA board in the future, a consistent conclusion would be reached.
Changing times require changes in practices. The NFA hopes this does not hinder the continued expansion of owned and protected properties, but
knows its creating a stronger organization. In the next newsletter we will discuss the concept of conservation easement donations and the options they
present as viable and real conservation options. Feel free to contact the NFA with any other questions or observations you may have related to this
article or other matters you would like to have us discuss in future articles
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