Dear Friends,  

Even the best of intentions and the greatest ideas can go astray if not fully thought out. Same goes for Conservation Easements. That’s the important conservation tool we’ve been writing about in depth in our last two newsletters - part one and part two.

Conservation easements are created through a legal agreement between a landowner and a land trust or government agency that restricts development and certain uses of the land. The easements are used to preserve natural resources, wildlife habitats, agricultural lands, scenic views, and much more.  

But conservation easements have to be done correctly, with airtight language, thoughtfulness about how they’re structured, who will monitor them, who will enforce them, and how they’ll hold up under scrutiny in the future. The intent is to NOT allow the conservation easements to be undone.   

Florida has plenty of experience with conservation easements but there have been some hard lessons the state had to learn.  For example, if you don’t make the easements permanent, they won’t last forever.  If you’re not crystal clear about the approved uses within the easement and those that are prohibited, then someone can swoop in and mess with the original intention.  And if you don’t specify who, if anyone, can amend the easement, then anything can happen in the future. It just takes a majority of a governing body to destroy something that was valued and supported by the public.    

In this issue, we share a cautionary tale and lessons learned. We don’t want this to happen here in Martin County. 

Conservation Easements - Part 3

A History of Conservation Success 

Florida has had great success with its conservation and preservation efforts over the past 50+ years. Here’s a brief timeline of highlights: 

• 1968: Established a $20 million bond program to acquire outdoor recreation lands. 

• 1972: Allocated an additional $40 million for an outdoor recreation bond and established a $200 million Environmentally Endangered Lands program 

• 1979: Established the Conservation and Recreation Lands program 

• 1981: Developed Save our Coast and Save Our Rivers programs 

• 1990: Established the Florida Preservation 2000 program 

• 1994: Established the Green Swamp Land Authority 

• 2000: Started the Florida Forever program 

• 2001: Started the Rural and Family Lands Protection program 

• 2021: Funded the Florida Wildlife Corridor 

Most of these programs are still working and working well. They’ve enabled Florida to be a leader in protecting its land and natural resources.  

So What Can Go Wrong? 

Palm Beach County’s Ag Reserve. People point to the Agricultural Reserve (Ag Reserve) in Palm Beach County as an example of what went wrong with conservation easements. 

In 1999, a whopping 70 percent of Palm Beach County voters said they wanted agricultural and sensitive lands preserved – specifically, the 200,000 acres that stretch for miles in areas west of the Turnpike. They authorized the County to spend $100 million in bonds to acquire the Ag Reserve. Suburban-type development would be limited. Any projects would have to preserve more land than they consumed. That was the understanding.  

By 2021, developers were pushing for changes and landowners in the reserve were willing to go along to get better prices for their land. People living nearby pushed for more amenities to be available. Now there’s a hospital on the land, and over a thousand more homes than were originally authorized.   

As recently as last year, a controversial project was denied at the eleventh hour, where Palm Beach County was considering changing its long-standing policy of requiring that land swaps occur only within the Agricultural Reserve.  If commissioners had approved it, it would have been the first time a land swap outside of the Ag Reserve would have been permitted. Indian Trails Grove is about 20 miles north of the Ag Reserve. Another policy change would have allowed development to occur west of State Road 7. 

More about that controversial project can be found here. 

What does this prove? The Ag Reserve was never structured as a Conservation Easement.  The Ag Reserve is a Zoning Overlay. While Conservation Easements are legally binding, enforceable agreements that create permanency, a Zoning Overlay is a local government land-use regulation that can be altered by that same government     

Split Oak Forest. Here’s another example of what can go wrong: A government agency unwinding their conservation easement agreement to make way for a toll road. The Florida Fish and Wildlife Conservation Commission authorized the release of 60 acres of Split Oak Forest conservation lands in Osceola County, in exchange for putting 25 times that acreage into conservation.  While that may sound like a good deal, it sets a bad precedent.  Check out the Florida Today article  here. 

But as John Maehl, Martin County’s Environmental Resource Administrator, explained to us, this conservation easement was part of an environmental resource permit. In cases involving easements imposed by a regulatory entity, they can be released when the original environmental resource permit is amended, either because the project never happened, or the permittee got approval to provide an alternative mitigation to the original impact.  So this is not an example of a true conservation easement because the conservation lands were never properly designated to remain that way in perpetuity. 

Unfortunately things can go wrong or have outcomes no one wanted or expected. But they don’t have to. 

So Let’s Do Them Right! 

I attended a presentation earlier this summer where real estate and land use experts provided valuable information on how to do conservation easements correctly.

Here’s my summary of the five key rules: 

1. Structure the agreement properly. Make sure the conservation agreement specifies the uses allowed and the ones prohibited on the property. Everyone needs to understand in clear and simple language who will be allowed to do what on the property. And make it clear that the agreement is enforceable IN PERPETUITY. 

2. Construct a Baseline Documentation Report so everyone knows what the existing uses are on the property, what structures are there, and where natural and disturbed areas are. Make this a permanent component of the property file and use it for monitoring and enforcement in the future. 

3. Include a Best Management Practices (BMP) clause to strike a balance between resource protection and uses like agriculture and natural resources. Each easement that’s structured correctly requires the landowner to implement a BMP program on the property and coordinate agriculture activities with the Florida Department of Agriculture and Consumer Services.  

4. Set up a monitoring program. In Florida, we’ve had success with assigning that responsibility to the Florida Natural Areas Inventory under the Institute of Science and Public Affairs at Florida State University.  

5. Actually MONITOR IT! 

If we do Conservation Easements correctly, we’ve got a win for everyone, from landowners, ranchers and farmers to environmentalists, wildlife, and the land itself. So, let’s do more of them and do them right!