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Conservation Restrictions in Massachusetts

Information about conservation restrictions in Massachusetts.

A property owner's rights include a broad range of activities such as occupying and using the property, controlling access and excluding trespassers, or subdividing and developing the property with structures and roads. The rights encompass selling, leasing, mortgaging, or donating portions of the property to other landowners. An owner can also transfer particular legal rights out of her bundle without relinquishing any physical portion of the property. For example a landowner can grant affirmative easements - rights to cross or access her land - to a holder in perpetuity.

The holder and his successors can hold an affirmative easement forever, whether or not any of them dealt directly with the original landowner who granted the easement. Most of us have such affirmative easements carved out of the ownership of our homes for electric and telephone lines, water and sewer pipes, gas lines, or possibly a neighbor's driveway. It is a major advantage to the utility company or other holder that an affirmative easement remains permanently valid through changes in the ownership, sales of the holder's assets, and transfers of the surrounding lands.

Traditional law was less favorable toward negative easements, which were sometimes referred to as restrictive covenants or equitable servitudes. These were restrictions that a landowner placed on some of her own development rights, to be enforced by a holder. Traditionally, a landowner could sell a negative easement to preserve an adjacent property's light and air or scenic vista from construction on the landowner's land. But such a conservation easement might not be enforceable if the holder did not own adjacent land that was directly benefited or was not the same person who bought the easement from the original landowner. And it might not be enforceable if a court determined that the neighborhood had changed enough so the public interest now favored development. Furthermore, Massachusetts law limited the life of a conservation easement to 30 years unless the holder re-recorded it in the registry of deeds then, and every 20 years after. This recording requirement created the possibility every two or three decades for the conservation easement to be destroyed if no currently active holder re-recorded the easement. See M.G.L. c. 184, s. 27-30.

In recent years all states have recognized the social value of conservation easements to preserve open lands for future generations in areas subject to development. A landowner may cash in that value by selling a negative easement to a conservation organization. Or, she may donate the development rights to obtain personal satisfaction or tax benefits from federal, state, and local authorities. To encourage landowners to create such conservation value, the states have allowed them to create negative easements that are perpetual and enforceable.

The Massachusetts legislature enacted such a law in 1969, creating a framework for negative easements to protect conservation lands, historic properties, watersheds, agricultural lands, and affordable housing facilities. The Commonwealth took a unique approach by requiring that such easements receive both city and state approval in order to remain permanently in force. In the state's lexicon, a conservation easement that has received this full approval is called a conservation restriction (CR). M.G.L. c. 184, s. 31-33.

To create a CR, the landowner must negotiate a deed that defines the specific conservation values to be preserved on the property and the use restrictions that will preserve them. Generally, to obtain the required approvals, a CR would prohibit building or any other major alteration on the parcel. Different clauses of the deed may restrict the landowner from activities such as building structures and roads, cutting trees and vegetation, excavating the land, or depositing rubbish. Passive recreational uses generally would be permitted. Public access varies, but may be required if the landowner wants to obtain tax benefits. Specific clauses of the CR deed may list the landowner's allowed uses, define access, note the holder's enforcement rights, or meet other requirements of the tax laws.

The draft deed must be worked out with the agency or conservation organization that will hold the restriction. A CR can have multiple holders to ensure future monitoring. The draft CR must be approved by the mayor and pass a vote of the city council. Finally, the CR must be reviewed by the Massachusetts Secretary of Environmental Affairs to determine whether it promotes the public interest. The Secretary must determine whether the CR has genuine conservation value for significant resources and provides adequate protection for these resources. If the Secretary approves, the CR is recorded as a permanent restriction in the title record of the land. While other kinds of conservation easements can still be used in Massachusetts, they do not permanently protect a parcel from development. Today, a conservation restriction provides the strongest available protection of the land.

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