Conservation Restrictions in Massachusetts
Conservation restrictions are one of the most common ways a property owner can protect environmentally sensitive land and green space in Massachusetts.
When a person owns property, he or she has a variety of rights in the property. These include things like the right to occupy the property, to exclude trespassers and others from using the property, to develop the property, to lease the property, borrow money against it in the form of a mortgage, or even donate it. Some of these legal rights can be transferred without giving up ownership over the property. For example, a land owner can give a utility company an easement for a pole or can give a town the right to run sewer pipes underground. Similarly, a land owner can grant a conservation restriction to ensure that land is preserved from development. When a conservation restriction is properly implemented, it creates indefinite, enforceable restrictions to preserve the property.
In 1969, the Massachusetts Legislature enacted M.G.L. c. 184, s. 31-33 which created a framework to protect conservation lands, historic properties, watersheds, agricultural lands, and affordable housing facilities by allowing restrictions in the form of a perpetual negative easement for conservation purposes. 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.
To create a conservation restriction, 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 conservation restriction would prohibit building or any other major alteration on the parcel. Different clauses of the deed may restrict the landowner from other 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 to the property may be required if the landowner wants to obtain certain tax benefits. Specific clauses of the conservation restriction deed may list the landowner's allowed uses, define access, outline enforcement rights, or meet other requirements of the tax laws.
In order to be enforceable, an agency or conservation organization must agree to hold the conservation restriction, meaning it will take responsibility for monitoring the property and ensuring it is not used in a way that is prohibited by the restriction. A conservation restriction may have multiple holders to ensure future monitoring.
To implement the restriction, a draft deed must be worked out with the agency or conservation organization that will serve as the holder. The draft deed with restrictions must then be approved by the municipality. In Waltham, the draft deed must be approved by the mayor and pass a vote of the city council. Finally, the conservation restriction must be reviewed by the Massachusetts Secretary of Environmental Affairs to determine whether it promotes the public interest. The Secretary must determine whether the conservation restriction has genuine conservation value for significant resources and provides adequate protection for these resources. If the Secretary approves, the conservation restriction is recorded as a permanent restriction in the title record of the land which puts the public on notice that it is permanently restricted.
Today, a conservation restriction provides the strongest available mechanism to permanently protect a parcel from development in Massachusetts. For more information about conservation restrictions, check out the resources below.