Vol. 75, No. 3, March
2002
Conservation Easements: Important tools to preserve
land
A conservation easement preserves open spaces and
other environmentally significant resources while providing income,
property, and estate tax savings to the landowner.
by Johanna J. London & Richard J.
Langer
Wisconsin, with its beautiful fields, forests, lakes, and streams,
has a long history of land conservation. As Wisconsin's population
expands, many private landowners are searching for methods to protect
their land from development. A conservation easement is an important
tool because it preserves open spaces and other environmentally
significant resources while also providing income, property, and estate
tax savings to the landowner.
This article describes the general steps required to create a
conservation easement, and it explains the income, property, and estate
tax benefits that can result from donating a conservation easement.
Conservation Easements
A conservation easement restricts some or all of the development
rights associated with land. A landowner donates those development
rights to a governmental agency or a tax-exempt organization classified
as a publicly supported charity under section 501(c)(3) of the
InternalRevenue Code (IRC).1 A conservation
easement is recorded to reflect the recipient organization's ownership
of those development rights.
A conservation easement is appealing to a landowner because:
- it is voluntary (the landowner elects to grant the easement);
- it is flexible (each easement can be tailored to the specific needs
and wishes of the landowner and the recipient organization);
- it is efficient (the public receives only that which is necessary to
achieve its desired conservation purpose - the development
rights)2; and
- if the easement meets certain IRC requirements, it offers
substantial income, property, and estate tax savings to the
landowner.
In addition, a conservation easement is more economical for
government agencies and nonprofit organizations than purchasing fee
title because the cost of maintaining the underlying land, and the
benefits of its continued use, remain with the landowner.3
The environmental protection laws enacted during the past 40 years
have encouraged the widespread use of conservation easements. These
easements typically are granted to charitable organizations known as
"land trusts." Land trusts are grassroots charitable organizations
organized to conserve land by influencing federal, state, or local
regulations that affect land, or by managing land that is important for
its natural, recreational, historical, scenic, or productive
value.4 According to a recent study
conducted by the Land Trust Alliance, land trust organizations
nationwide own conservation easements that protect more than 2.6 million
acres.5 In Wisconsin, there are more than 40
local land trusts that protect more than 17,000 acres.6
|
 Johanna J. London, U.W. 2000, CPA, is an associate of
Michael Best & Friedrich LLP, Madison, practicing in all aspects of
tax and corporate law. She formerly served as a law clerk to John R.
Evans, chief legal counsel for the Wisconsin Department of Revenue
– Office of Legal Services. She is a member of the ABA Tax Section
and its subcommittee on Court Practices and Procedures and the Wisconsin
Institute of Certified Public Accountants. |
|
|
 Richard J. Langer, U.W. 1974, is a partner in Michael
Best & Friedrich LLP, where he practices in estate planning, estate
administration, trusts, and marital property. He is a Fellow in the
American College of Trust and Estate Counsel, and a member of the
Madison Estate Council and the American, Wisconsin, and Dane County bar
associations. He is a contributing author and coauthor of several books,
including the State Bar CLE Books Eckhardt's Workbook for Wisconsin
Estate Planners and The Marital Property Classification Handbook. He is
listed in The Best Lawyers in America and Who's Who in American Law.
|
|
The modern conservation easement evolved from the common law of
easements, real covenants, and equitable servitudes.
7 Under common law, the enforcement of a
conservation
easement was problematic because the easement was not assignable and
would not run with the land.
8 To facilitate
a uniform authority for conservation easements, and to overcome many of
the problems with the common law, 16 states and the District of Columbia
adopted the Uniform Conservation Easement Act (UCEA).
9 In 1981 Wisconsin became the first state to adopt
the UCEA.
10 The UCEA sets forth a
comprehensive approach to the use of conservation easements. First, the
UCEA provides a broad definition of a conservation easement and
eliminates many ofthe common law barriers to perpetual easements.
11 Second, it enlarges the definition of an
easement "holder" to include both governmental bodies and charitable
organizations whose purpose is conservation.
12 Third, the UCEA expands the class of entities
that can enforce a conservation easement to include both the holder and
certain third-party organizations eligible to be holders.
13 Finally, in response to concerns from
conservation organizations about notice to successor landowners, the
UCEA provides that a conservation easement is not effective until the
holder records an acceptance of the easement.
14 Once an acceptance is recorded, the easement is
perpetual in duration, absent an express provision to the contrary in
the easement itself.
There are many situations in which the grant of a conservation
easement is an effective conservation tool. Examples of such situations
include: 1) privately owned property that is environmentally unique or
stressed as a result of residential sprawl; 2) property that is part of
a community's "smart growth," restoration, or comprehensive land-use
plan; and 3) a real estate development in which development intensity is
minimized in order to maximize land value. The following is a case study
that will be used throughout this article to illustrate the requirements
of an effective conservation easement and the benefits that result from
such an easement.
Case Study
Vivian Landowner owns Valley View Farm (Valley View), a 640-acre farm
in Wisconsin. Valley view has rolling hills, rock outcroppings, and open
vistas. Development activity is strong in the neighborhood, as several
nearby farms recently were subdivided into home sites. Vivian and her
deceased husband had purchased Valley View 35 years ago for $50,000.
When Vivian's husband died 15 years ago, Valley View was worth $100,000,
but it is now worth $2,000,000. Valley View is zoned AG-1. Vivian leases
approximately 100 acres to a local farmer. Officials from the Town of
Beehive, in which Valley View is located, have approached Vivian to
discuss modifications to Beehive's five-year land-use plan. The
modifications include rezoning Valley View and adjoining properties to
allow for residential and business development.
Vivian and her family love the woods, the hills, and the calm of
Valley View. They want to preserve Valley View undeveloped for their
current use and enjoyment and for their descendants. Vivian is active in
the conservation community and would like to donate a conservation
easement on Valley View to her local land trust (Valley
Preservation).
Although a conservation easement is a lengthy document drafted to
prevent potentially ambiguous situations, the following is a simple
example of the easement given by Vivian Landowner to Valley
Preservation:
"I hereby grant to Valley Preservation, and Valley Preservation
hereby accepts, a conservation easement over Valley View Farm for the
purpose of protecting the natural habitat and preserving open spaces. I
agree that Valley Preservation shall have the right and obligation to
enforce this easement in perpetuity, as follows: I reserve the right to
continue living on the farm and to come and go as I please. I reserve
the right to lease and sell the farm, to make gifts of the farm during
my lifetime, and to distribute the farm at my death to anyone I choose
(subject, in all cases, to the terms and conditions of this easement). I
agree that the general public will not be permitted onto the farm, but
that they will be permitted to enjoy the scenic vistas offered by the
farm from all of the adjoining roadways. I agree that the farm cannot at
any time hereafter be subdivided, developed, or used for commercial
recreation activities (... except that I reserve the right to carve out
three five-acre parcels as future home sites)."
The steps in donating a conservation easement consist of: 1) choosing
an entity to hold the easement and establishing a relationship with that
entity; 2) compiling an inventory of the property; 3) negotiating the
restrictions on the property; and 4) drafting and recording the easement
document.
Choosing the Entity. After the landowner has decided
to donate a conservation easement, the first step is to determine
whether the recipient is an appropriate entity to hold the easement.
Under the UCEA, two types of entities are qualified to hold an easement:
governmental entities; and charitable organizations whose purpose is
conservation.15 Again, most of these
charitable organizations are land trusts.
Like other types of land use restrictions, a conservation easement
may be susceptible to challenge by a successor landowner. Therefore,
when choosing an entity, the landowner must consider the entity's
ability to monitor and enforce the easement. Furthermore, the landowner
may be required to make an initial donation to the entity to help pay
for future monitoring and enforcement costs related to the easement as a
condition of the entity's acceptance of the easement.
In the case study, Vivian determines that Valley Preservation has
sufficient assets and staff (both paid and volunteer) to monitor and
enforce the easement effectively. Valley Preservation requires Vivian to
make a cash donation to its Easement Enforcement Fund (a restricted fund
that limits Valley Preservation to using the fund resources exclusively
for easement enforcement activities) in an amount equal to 1.0 percent
of the easement's fair market value.
Compiling an Inventory of the Property. The second
step in donating a conservation easement is compiling an inventory of
the property, often called a "baseline inventory."16 To establish a baseline inventory, a title
search is performed and a specific description of the property is
completed, including a legal description and a list of the unique flora
and fauna located on the property.17
A title search determines the property's current and previous owners
and reveals any mortgage holders, liens, judgments, tax claims, or
pending legal suits related to the property, and whether any mineral
rights have been sold.18 If it appears that
the current or previous owners may have left hazardous substances on the
property, an environmental audit should be performed.
A specific description of the resources that the easement will
protect should be prepared. This establishes a reference point to
determine if violations of the easement restrictions have occurred. In
addition, the property should be surveyed if an accurate survey has not
been completed within the last 30 years.19
Drafting and Recording the Easement. The landowner
must decide which uses of the property to grant and which to retain. In
general, the landowner retains ownership of the land and may continue to
use the property for any purpose not inconsistent with the easement.
Some examples of rights that may be retained include timber rights,
hunting and fishing rights, farming and ranching rights, and limited
development rights. The easement's restrictions and purpose should be
drafted carefully to prevent problems of interpretation with successor
landowners.
At a minimum, the conservation easement should contain these
provisions:
- the purpose and the duration of the conservation easement;
- the rights conveyed to the easement holder;
- specific restrictions on and permissible uses of the land;
- identification of the party responsible for real estate taxes;
- circumstances under which the easement may be amended;
- address to which legal notices should be sent;
- provisions regarding easement enforceability; and
- obligations of successor landowners.20
After the conservation easement is drafted, the landowner signs the
easement and the land trust accepts it. The easement then must be
recorded to be effective.21
Obtaining a Qualified Appraisal. To enjoy the tax
benefits of a conservation easement, the landowner must obtain a
"qualified appraisal," which includes a description of the property, the
method of valuation used to determine the property value, and
information about the appraiser's qualifications.22 The appraisal must be completed by the due date
for the federal income tax return for the year in which the gift was
made.
The Treasury Regulations provide that the value of a conservation
easement is equal to the sale price of comparable easements.23 As a practical matter, such comparable data
usually is not available. Thus, the Treasury Regulations permit an
alternative test, known as the "before and after test." Under this test,
the value of the conservation easement is equal to the difference
between the fair market value of the property it encumbers before the
granting of the easement and the fair market value of the property after
the easement.24
In the case study, the value of Valley View without any easement is
$2,000,000. If a qualified appraiser were to determine that the value of
Valley View with the easement is $800,000, then the value of the
easement (and the amount of the charitable contribution for tax
purposes) is $1,200,000.
If a landowner is considering a conservation easement over only a
portion of the land, the Treasury Regulations require that the value of
the easement be reduced if it increases the value of the other property
not subject to the easement.25 Furthermore,
the landowner's income tax basis in the land will be reduced
proportionately to the value of the conservation easement.26
Income Tax Benefits
The IRC provides that the contribution of a conservation easement
will be deductible for federal income tax purposes to the extent of the
value of the contribution, as gauged by the "before and after
test."27 To qualify for this tax deduction,
conservation easements must satisfy the following three
requirements:
1) Qualified Real Property Interest. The contribution must
consist of a "qualified real property interest." A conservation easement
that is granted in perpetuity is a "qualified real property
interest."28
2) Qualified Organization. The conservation easement must be
given to a "qualified organization."29 The
IRC defines "qualified organization" to include governmental units and
publicly supported charitable organizations that are described in I.R.C.
§ 501(c)(3).30 Again, these charitable
organizations typically take the form of "land trusts." For charitable
organizations, the Treasury Regulations impose the additional
eligibility requirements that: 1) the organization be committed to
protecting the conservation purposes of the donation; and 2) it have the
resources to enforce the easement.31 The
charitable organization, however, is not required to set aside funds to
enforce a particular conservation easement.32
3) Exclusively for Conservation Purposes. The conservation
easement must be given "exclusively for conservation purposes."33 The IRC and Treasury Regulations specify four
types of qualifying "conservation purposes," which are: 1) to provide
public recreation or education; 2) to protect a significant natural
habitat; 3) to preserve open spaces; and 4) to preserve historically
important lands or to protect certified historic structures.34 The conservation purpose is influenced by the
amount of access to the underlying land that the public will have.
An easement that preserves land for the general public's outdoor
recreation or education will satisfy the conservation purpose
requirement.35 Examples of such easements
include those that preserve a water area for the use of the public for
boating or fishing or that preserve a nature or hiking trail for the use
of the public. Because this conservation purpose requires that the
general public have "substantial and regular" access to the land,
landowners often prefer that their easement qualify under one or more of
the other conservation purposes.36
An easement that protects a relatively natural habitat of fish,
wildlife, or plants also will satisfy the conservation purpose
requirement.37 The fact that human activity
has altered the habitat to some extent will not thwart the conservation
purpose, provided the fish, wildlife, or plants continue to exist in a
"relatively natural state."38 Furthermore,
placing a limit on the public's access to the land will not disqualify
the easement for the income tax deduction.39 However, the protected habitat should be
"significant."40 Examples of "significant"
habitats include a habitat for endangered species, a natural area that
represents high-quality examples of a terrestrial or aquatic community,
and a natural area that contributes to the ecological viability of a
state park, nature preserve, or similar conservation area.41
The preservation of open space is another valid conservation
purpose.42 An open space easement will
qualify if it is either: 1) for the general public's "scenic enjoyment";
or 2) given pursuant to a clearly delineated federal, state, or local
governmental conservation policy.43 Scenic
enjoyment is gauged on a case-by-case basis, and the Treasury
Regulations list eight factors to consider, including the openness of
the land, relief from urban closeness, and the degree of contrast and
variety provided by the visual scene.44 The
Treasury Regulations also provide that visual, rather than physical,
access to the property by the general public is sufficient to satisfy
the scenic enjoyment requirement (although the public benefit from the
donation may be insufficient to qualify for a deduction if only a small
portion of the property is visible to the public).45 Furthermore, an open space easement must yield a
"significant public benefit."46 Again, this
requirement is satisfied on a case-by-case basis, and the Treasury
Regulations list 11 factors to consider, including the uniqueness of the
property to the area, the intensity of land development in the vicinity,
and the consistency of the proposed open space use with public programs
for conservation in the area.47
The final purpose of a conservation easement is to preserve a
"historically important land area" or a "certified historic
structure."48 The Treasury Regulations
define a "historically important land area" as an archaeological site or
Civil War battlefield, any land area within a registered historic
district, or any land area adjacent to a property listed in the National
Register of Historic Places where the features of the land contribute to
the historical integrity of the property.49
The Treasury Regulations define a "certified historic structure" as a
building, structure, or land area listed in the National Register or
located in a registered historic district and certified as having
historical significance.50 In either case,
some visual public access to the property is required. Where the
historic land area or certified historic structure is not visible from a
public way, the easement must give the general public the opportunity on
a regular basis to view the features of the property that are preserved
by the easement.51 The Treasury Regulations
list the factors for determining the type and amount of public access
required for a historic preservation easement, including the property's
historic significance, the nature of the features that are the subject
of the easement, and the accessibility of the site to the public.52
In addition to satisfying the conservation purposes test, the IRC
requires that the easement must be given "exclusively" for such
purposes.53 To be "exclusive," the easement
must be donated to the qualified organization "in perpetuity."54 A contribution that advances one of the four
conservation purposes described above, but permits destruction of other
significant conservation interests, would not be deductible.55 Finally, if the land is encumbered with a
mortgage, the mortgagee must subordinate its rights so that the
qualified organization can enforce the conservation purposes.56
In the case study, Vivian Landowner's conservation easement should
qualify for an income tax deduction because it meets all three
requirements under the IRC: 1) It is a conservation easement in
perpetuity that 2) is given to Valley Preservation, a qualified
organization, exclusively 3) for the conservation purposes of protecting
the natural habitat and preserving open spaces. To the extent Vivian has
retained rights to develop three five-acre future home sites, the
retention is not so large as to jeopardize the easement's conservation
purposes.
As stated above, the value of the easement on Valley View for income
tax purposes is $1,200,000 based on the "before and after test." Vivian
Landowner, however, most likely will not be able to claim the entire
charitable contribution on her income tax return because such a
deduction is limited by the IRC to 30 percent of her adjusted gross
income, with any excess charitable deduction carried forward for five
years.57 For example, if Vivian Landowner's
adjusted gross income is $150,000, the maximum charitable deduction she
can claim for the easement in the taxable year of the gift, and the five
succeeding years, is $45,000 per year ($150,000 x 30 percent). This 30
percent limitation obviously will result in leaving unused most of the
charitable deduction. To avoid this problem, Vivian could give the
conservation easement over only a portion of the land, thereby
generating a lower income tax charitable deduction. Six years
thereafter, she could give a second conservation easement over another
portion of the land, and so forth, until all of Valley View is
protected. If Vivian dies before all of the land is protected, the final
easements could be granted in her will or revocable trust.
Finally, Vivian's income tax basis in Valley View will be reduced by
the easement donation. Thus, if the basis of Valley View to Vivian
Landowner before the easement is $100,000, then the basis to her after
the easement is $40,000 ($100,000 x ($800,000/$2,000,000)).
Property Tax Benefits
The grant of a conservation easement may provide a landowner with
important property tax benefits. In general, the assessment of land for
property tax purposes reflects the "highest and best use" of that land.
The highest and best use is the most profitable, likely, and legal use
of that property.58 Because conservation
easements often restrict the property's permissible uses, the
restrictions are likely to alter the highest and best use and
correspondingly diminish the value of the property.59 For example, if a conservation easement
requiring that the property remain in its natural state were placed on
vacant land with a highest and best use as a residential subdivision,
the land's fair market value would no longer reflect its potential use
as a residential subdivision. Instead, the fair market value of the
property would reflect its restricted use as undeveloped property.
Wisconsin law requires assessors to consider the effect of any
conservation easement created under the UCEA on the property
value.60 Local assessors, however, may be
reluctant to acknowledge the downward effect of an easement when
assessing a particular piece of property because of a feared negative
effect on local revenues.61 In reality,
conservation
easements have a minimal effect on local revenues because undeveloped
land should require fewer municipal resources.62 In addition, land subject to a conservation
easement most likely will have a positive effect on the property values
of adjacent property because areas with restricted development and
extensive open space are generally the most desirable places to
live.63
In the case study, Valley View will likely experience a diminution in
assessed value as a result of the grant of a conservation easement.
Although Valley View is currently zoned AG-1, local officials have
indicated that the Town of Beehive would like to include the development
of Valley View as part of its five-year plan. Therefore, absent a
conservation easement, Valley View is likely to be developed as
residential and/or business property. However, with the conservation
easement, Valley View will be preserved in its natural state, and its
property tax value should be reduced correspondingly.
Estate Tax Benefits
In addition to income tax and property tax benefits, conservation
easements provide two substantial estate tax benefits. First, the
property is included in a decedent's estate at its reduced value (that
is, its post-easement value). Second, I.R.C. § 2031(c) provides an
additional benefit by excluding a portion of the land value (but not
improvements) from the federal estate tax. This exclusion is equal to
the lesser of the "applicable percentage" or $500,000 (in 2002 and
thereafter). The "applicable percentage" is defined by a complex formula
as follows: 40 percent, reduced (but not below zero) by two percentage
points for each percentage point (or fraction thereof) by which the
value of the easement is less than 30 percent of the value of the land
(determined without regard to the value of the easement), and further
reduced by any "retained development right."64 This formula is designed to limit or deny the
benefits of the § 2031(c) exclusion to "small" easements,
namely those easements valued at less than 30 percent of the total
property value.65
In the case study, if Vivian Landowner dies when the total value of
Valley View (excluding improvements) is $2,000,000, and if the value of
the easement is $1,200,000, the value of Valley View on Vivian's estate
tax return is $800,000. In addition, Vivian's estate gets a further
exclusion under IRC § 2031(c) in the amount of $320,000 (40 percent
x $800,000). In total, the conservation easement will result in Valley
View Farm being taxed in Vivian's estate at $480,000 ($2,000,000 total
value - $1,200,000 value of easement - $320,000 value of § 2031(c)
exclusion). This will produce an enormous estate tax savings in her
estate (based on the total value of her other assets) and will avoid the
forced sale of Valley View to pay estate taxes.
To qualify under I.R.C. § 2031(c), several additional
requirements must be met. First, the conservation easement must be a
"qualified conservation easement" under I.R.C. § 170(h) relating to
the income tax deduction (although easements for historic land or
certified historic structures are not eligible).66 Second, the property subject to the easement
must have been owned by the decedent or a "member of the decedent's
family" (defined at I.R.C. § 2032A(e)(2)) at all times during
the three-year period ending on the date of the decedent's death.67 Finally, if the property is subject to a
mortgage, an amount of land value equal to the mortgage will not be
eligible for the exclusion.68
The portion of the property excluded under I.R.C. § 2031(c) is
not eligible for a basis adjustment at death, but instead retains the
decedent's basis.69 In the case study, the
amount excluded under I.R.C. § 2031(c) was $320,000. Given that
Vivian's basis in Valley View after the easement was $40,000, the amount
of basis allocable to the § 2031(c) exclusion is $16,000
(($320,000/$800,000) x $40,000). The taxable portion of Valley View will
receive a new basis of $480,000 (its value on the estate tax return).
Thus, the total adjusted basis of Valley View after Vivian's death will
be $496,000 ($480,000 + $16,000).
The decedent's personal representative must affirmatively make an
election on the estate tax return to qualify for I.R.C. § 2031(c).
This election is required because, under certain circumstances, it may
be disadvantageous to claim the exclusion (for example, if the estate is
not otherwise subject to estate tax).
Significantly, the IRC provides that a conservation easement may be
granted after a decedent's death as part of post-mortem tax
planning.70 In such an event, the property
would be taxed at its reduced value, and the § 2031(c) exclusion
would be available. The estate, however, could not also claim an income
tax charitable deduction.71 Thus, greater
tax benefits can be achieved by granting conservation easements during
life rather than after death. In addition, in Wisconsin, a post-mortem
grant of a conservation easement by the estate's personal representative
(or trustee of a revocable trust) almost certainly would require a
petition to the court and the consent of all beneficiaries.72
Amending or Terminating a Conservation Easement
Although the IRC requires that a conservation easement be granted in
perpetuity, there are certain circumstances under which the amendment or
the termination of an easement is permitted. First, an amendment should
either strengthen the protective terms of the easement or be neutral and
must "never result in net degradation of the conservation values the
easement [was] designed to protect."73
Reasons for amending a conservation easement include to clarify its
terms, recognize a boundary adjustment, change the site of permitted
activities, effect a change in local zoning regulations, and increase
easement restrictions.74 Depending on the
specific changes, the amendment may affect the value of the conservation
easement and result in an additional income tax deduction for the
landowner.75 An amendment must be recorded
to be valid.
A conservation easement can be terminated only through judicial
proceeding.76 Under the IRC, circumstances
that might justify termination involve a change in conditions
surrounding the property that makes the conservation purpose of the
easement impossible or impracticable to achieve.77 Circumstances in which an easement can be
terminated include: a condemnation proceeding, provided the landowner
and the easement holder are compensated adequately;78 a state law that automatically extinguishes
restrictions or claims to real property after a specified number of
years;79 and the action or inaction of the
holder. Any proceeds received by the holder as a result of the
termination must be used in a manner that is consistent with the
conservation purposes of the original grant.80 A conservation easement should not be terminated
simply because the landowner wishes to sell the property for its
unrestricted value. If an easement is terminated for this reason, the
landowner may lose the original charitable deduction, and the holder may
jeopardize its tax-exempt status.81
Conclusion
Conservation easements are an important tool for preserving
environmentally unique areas, open spaces, and historical structures,
because they are voluntary, flexible, and cost effective. A property
owner can use a conservation easement to protect land permanently from
development by establishing restrictions that limit the ability to
develop the land and permit only those uses that are consistent with the
goals of the landowner and the purposes of the easement. A properly
drafted and executed easement entitles a landowner to substantial
income, property, and estate tax benefits, thereby creating an
additional incentive to promote
conservation.
Endnotes
1 I.R.C. §
170(h)(3).
2 James Boyd,
Kathryn Caballero & R. David Simpson, The Law and Economics of
Habitat Conservation: Lessons From an Analysis of Easement
Acquisitions, 19 Stan. Envtl. L.J. 209, 212 (2000).
3
Id.
4 Wis. Dep't
Nat. Resources, Protecting Your Land: A Guide for Wisconsin Private
Landowners, at 13 (Publ. No. ER05892 Jan. 1993).
5 Katherine Q.
Seelye, More Families Adopting Lasting Limits to Preserve Land,
N.Y. Times at B1 (Sept. 12, 2001).
6 For more
information, see Gathering Waters Conservancy,
<www.gatheringwaters.org> or Land Trust Alliance,
<www.lta.org>.
7 John L.
Hollingshead, Conservation Easements: A Flexible Tool for Land
Preservation, 3 Envtl. Law 319, 324 (1997).
8
Id.
9 Uniform
Conservation Easement Act, 12 U.L.A. 170 (1996).
10 The UCEA is
codified at Wis. Stat. § 700.40.
11
Hollingshead, supra note 7, at 335.
12
Id. at 336.
13
Id.
14 Id.
15 Wis. Stat.
§ 700.40(1)(b).
16 Maureen
Rudolph & Adrian Gosch, A Practitioner's Guide to Drafting
Conservation Easements and the Tax Implications, 4 Great Plains
Nat. Resources J. 143, 149 (2000).
17 Id.
18 Id. at 150-52.
19 Id.
20
Id. at 155-58.
21 Wis. Stat.
§ 700.40(2)(b).
22 Treas. Reg.
§ 1.170A-13(c)(3)(ii).
23 Treas. Reg.
§ 1.170A-14(h)(3)(i).
24 Treas. Reg.
§ 1.170A-14(h)(3)(ii).
25 Treas. Reg.
§ 1.170A-14(h)(3).
26 Treas. Reg.
§ 1.170A-14(h)(3)(iii).
27 I.R.C.
§ 170(f)(3)(B)(iii), (h); Treas. Reg. §
1.170A-14(h)(3)(iii).
28 I.R.C.
§ 170(h)(2)(C); Treas. Reg. § 1.170A-14(b).
29 I.R.C.
§ 170(h)(3); Treas. Reg. § 1.170A-14(c).
30
Id.
31 Treas. Reg.
§ 1.170A-14(c)(1).
32
Id.
33 I.R.C.
§ 170(h)(1)(C).
34 I.R.C.
§ 170(h)(4).
35 I.R.C.
§ 170(h)(4)(A)(i).
36 Treas. Reg.
§ 1.170A-14(d)(2)(ii).
37 I.R.C.
§ 170(h)(4)(A)(ii); Treas. Reg. § 1.170A-14(d)(3).
38 Treas. Reg.
§ 1.170A-14(d)(3)(i).
39 Treas. Reg.
§ 1.170A-14(d)(3)(iii).
40 Treas. Reg.
§ 1.170A-14(d)(3)(ii).
41
Id.
42 I.R.C.
§ 170(h)(4)(A)(iii).
43 Treas. Reg.
§ 1.170A-14(d)(4).
44 Treas. Reg.
§ 1.170A-14(d)(4)(ii)(A).
45 Treas. Reg.
§ 1.170A-14(d)(4)(ii)(B).
46 Treas. Reg.
§ 1.170A-14(d)(4)(iv)(A).
47
Id.
48 Treas. Reg.
§ 1.170A-14(d)(5).
49 Treas. Reg.
§ 1.170A-14(d)(5)(ii).
50 Treas. Reg.
§ 1.170A-14(d)(5)(iii).
51 Treas. Reg.
§ 1.170A-14(d)(5)(iv)(A).
52 Treas. Reg.
§ 1.170A-14(d)(5)(iv)(B).
53 I.R.C.
§ 170(h)(1)(C).
54 Treas. Reg.
§ 1.170A-14(g)(1).
55
Id.
56 Treas. Reg.
§ 1.170A-14(g)(2).
57 I.R.C.
§ 170(b)(1)(B).
58
Dictionary of Real Estate Appraisal (2d ed.).
59 Daniel C.
Stockford, Property Tax Assessment of Conservation Easements,
17 B.C. Envtl. Aff. L. Rev. 823, 825-26 (1990).
60 Wis. Stat.
§ 70.32(1g).
61 Stockford,
supra note 59, at 849.
62
Id. at 846.
63
Id. at 847.
64 I.R.C.
§ 2031(c)(2), (c)(5).
65 I.R.C.
§ 2031(c)(2).
66 I.R.C.
§ 2031(c)(8)(A)(iii).
67 I.R.C.
§ 2031(c)(8)(ii).
68 I.R.C.
§ 2031(c)(4).
69 I.R.C.
§ 1014(a)(4).
70 I.R.C.
§ 2031(c)(9).
71
Id.
72 Wis. Stat.
§§ 857.03(1), 701.19(2).
73 Janet Diehl
& Thomas S. Barrett, The Conservation Easement Handbook, at
121-25 (1988).
74
Id.
75
Id.
76 Treas. Reg.
§ 1.170A-14(g)(6)(i).
77
Id.
78 Diehl &
Barrett, supra note 73, at 131.
79
Id. at 132.
80 Treas. Reg.
§ 1.170A-14(g)(6)(i).
81 Diehl &
Barrett, supra note 73, at 133.
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