The listening sessions regarding the future of the Model Grant of Conservation Easement and Commentary provided excellent and thoughtful ideas for how the model might be improved for its 7th edition. PALTA greatly appreciates the many people, in and outside of Pennsylvania, who took the time to provide constructive feedback, either as part of the listening sessions or in separate communications.
PALTA doesn’t want anyone to miss the opportunity to provide their thoughts, so, if you haven’t but still wish to make suggestions, please email (firstname.lastname@example.org) or call (717-230-8560) between now and August 5, 2015. After that, PALTA, using the feedback it has received, will prepare a draft of the 7th edition.
Here are the highlights of what PALTA has heard from users so far:
Items raised by several users:
- Land trusts and landowners have to shuffle back and forth between Article III Improvements and Article IV Activities in order to understand what exactly is allowed in each protection area; they find this awkward and sometimes confusing. One proposed fix was to reorganize the restrictions for Highest Protection Area, Standard Protection Area and Minimal Protection Area into separate articles, with the restrictions on improvements and activities grouped together within each article. In other words, Article III would address Improvements and Activities in the HPA; Article IV—Improvements and Activities in the SPA; and Article V—Improvements and Activities in the MPA. This would involve a shuffling of existing content rather than any change in content. PALTA staff observed in the listening sessions that users may not be comfortable with such a structural change. However, when polled, participants were nearly unanimous in supporting the proposal. This item by far received the most attention from users during the listening sessions.
Items raised by a few users:
§5.05 Reimbursement: Provide more alternative and optional language to address what costs owners have to cover. Some felt that the default language of §5.05 is too open-ended and relies too heavily on the land trust acting reasonably. Others felt that the present language works just fine.
§6.04 Modification or Termination: The compensatory damages and restitution clauses cover many situations well but some situations less so. It would be good to either further refine the language or provide alternatives in the commentary.
Items raised by a single user:
- §1.03: Shorten some of the descriptive material in the Conservation Objectives to make them more universally applicable. Users can then go to the commentary to see suggestions of what types of details might be added to address particular projects.
- Article V: Consider grouping all covenants burdening the holder (responsibility to enforce, transfer allowed only to qualified organizations, etc.) in Article V, which also addresses the rights of holder.
- Either to the model or as an option in the commentary: add the defined term “Adventure Facilities” meaning “open-air structures for outdoor adventure uses, such as ladders, walls, zip lines and ropes courses” and make them a permitted improvement in the SPA along with a relaxation on the height limitation.
- Add to the commentary a Conservation Objective for dark skies and associated restrictions.
- Revisit whether riparian buffer protections provided by the model are sufficiently robust.
- Find some way to provide land trusts more flexibility to address changes in technology and practices that were not contemplated when the easements are granted but without causing new easement stewardship problems.
- Address questions regarding surveying, GPS and marking boundaries of protection areas in the commentary.
- Use the commentary to educate users on the disadvantages of being too prohibitive with the restrictive covenants particularly in regard to subsurface shale gas development.
- Address in the commentary the matter of whether affirmative obligations mandating agricultural use are appropriate for an easement and, if so, how might they be written.
- Explain in the commentary why the model refers to permitted uses rather than reserved uses.
Due to the large base of committed users of the 6th edition, PALTA will proceed carefully in balancing interests in possible improvements with the advantages of sticking with what is already working reasonably well.
The Pennsylvania Land Trust Association published the 6th edition of the Model Grant of Conservation Easement and Commentary in 2011. PALTA plans to complete and publish the 7th edition in 2016. PALTA hopes that, after the 2016 edition, another edition won’t be desirable or necessary until 2021 or later. So now is the time to comment! Among the questions for you to consider:
- What customizations has your organization made to the model that PALTA should consider making to the model or noting in the commentary?
- Are there model provisions that you would like to see better explained in the commentary or for which you would like to see alternative language?
- Have you had to address a specific water, recreational, cultural or other resource protection issue that others may have to deal with in the future and that the commentary should address?
- Have you encountered any problems in use of the model that might be addressed in the 7th edition?
- What other changes or additions should be considered for the next edition of the model and commentary?