The Michigan Model
Conservation easement below was a joint project of the Little Traverse
Conservancy, Grand Traverse Regional Land Conservancy and Leelanau Conservancy.
A number of attorneys and staffers from each organization participated.
"Translation" into plain English was handled primarily by John Rohe, an attorney
on the board of the Little Traverse Conservancy. For a text-only Model Easement
for printing, click here.
CONSERVATION EASEMENT
DATE:
DONOR: _________________________
, (husband and wife) _________________________ _________________________ LAND
TRUST: Raisin Valley Land Trust P.O. Box 419 Manchester, MI 48158
PROPERTY: In ( ) Township,
Washtenaw County, Michigan: (full legal description) CONVEYANCE: The Donor
conveys and warrants to the Land Trust a perpetual Conservation Easement over
(the Property). The scope of this Conservation Easement is set forth in this
agreement. This conveyance is a gift from the Donor to the Land Trust.
CONSERVATION VALUES: The Property
possesses (natural, scenic, open space, scientific, biological and ecological)
values of prominent importance to the Donor, the Land Trust and the public.
These values are referred to as the "Conservation Values" in this Conservation
Easement.
PURPOSE OF THIS CONSERVATION
EASEMENT:
a. The Donor is fee simple
title owner of the Property, and is committed to preserving the Conservation
Values of the Property. This Conservation Easement assures that the Property
will be perpetually preserved in its predominantly (natural, scenic, historic,
agricultural, forested, open space) condition. Specifically, this Conservation
Easement will serve to protect the (wetlands, woodlands and open spaces)
identified in the Baseline Documentation Report. Any use of the Property which
may impair or interfere with the Conservation Values, unless expressly
permitted in this Conservation Easement, is expressly prohibited. The Donor
agrees to confine use of the Property to activities consistent with the
purposes of this easement and preservation of the Conservation Values.
b. The Raisin Valley Land Trust
is a Michigan nonprofit organization, incorporated under the Michigan
Nonprofit Corporation Act of 1982 (MCL 450.2101 et seq.) on August 10, 1989.
The Land Trust is qualified under Internal Revenue Code Sections 501(c)(3) and
170(h)(3) as a tax-exempt entity and pursues activities described in the
Michigan Conservation and Historic Preservation Easement Act of 1980 (MCL
399.251 et seq). The Land Trust was established to protect natural habitats of
fish, wildlife, plants or similar ecosystems. The Land Trust was also
established to preserve open spaces, including farms and forests, where such
preservation is for the scenic enjoyment of the general public or pursuant to
clearly delineated governmental conservation policies and will yield a
significant public benefit.
c. The Property has the
following specific Conservation Values: * significant natural habitat in which
fish, wildlife, plants or a similar ecosystem thrive in a natural state. *
habitat for rare, threatened or endangered species of animal, fish or plants.
* natural areas which represent high quality examples of terrestrial or
aquatic communities. * a natural area which contributes to the ecological
viability of a local, state or national park, nature preserve, wildlife
refuge, wilderness area or other similar conservation area. * It is preserved
pursuant to a clearly delineated federal, state or local conservation policy
and yields a significant public benefit. The following legislation establishes
relevant public policies: the Water Pollution Control Act of 1972, 33 USC 404
et seq; the Coastal Zone Management Act, 16 USC §1451 et seq; the Michigan
Shorelands Protection and Management Act of 1970, MCL 324.32301 et seq; the
Goemaere-Anderson Wetland Protection Act of 1979, MCL 324.30301 et seq; the
Inland Lakes and Streams Act, MCL 324.30101 et seq; the Great Lakes Submerged
Lands Act, MCL 324.32501 et seq; the Michigan Farmland and Open Space
Preservation Act of 1974, MCL 324.36101 et seq; the Conservation and Historic
Preservation Easement Act, MCL 324.2140 et seq; and the Michigan Biological
Diversity Conservation Act of 1992, MCL 299.231 et seq.; the Natural Rivers
Act, MCL 324.30501 et seq.; and Washtenaw County Land Use Policies for land
use management.) * a scenic landscape and natural character which would be
impaired by a modification of the Property. * a scenic panorama visible to the
public from publicly accessible sites which would be adversely affected by
modifications of the natural habitat. * relief from urban closeness. *
harmonious variety of shapes and textures for the scenic enjoyment of the
public. * the __________________ (governmental agency) has endorsed the
proposed scenic view of the Property under a landscape inventory, pursuant to
a review process. * valued wetlands, as described in the Goemaere-Anderson
Wetland Protection Act of 1979 (MCL 281.701 et seq.). * sustainable habitat
for biodiverse vegetation, birds, fish and terrestrial animals. * a diversity
of plant and animal life in an unusually broad range of habitats for property
of its size. * a natural habitat for the endangered or threatened
_____________________. * proximity to the following conserved properties which
similarly preserve the existing natural habitat: * preservation of the
Property enables the Donor to integrate the Conservation Values with other
neighboring lands. * the ____________________ (office) has recognized the
importance of the Property as an ecological and scenic resource, by
designating this and other land as a _____________________. * prominent
visibility to the public from _________________________, and if preserved in
its natural state it will enhance tourism. * biological integrity of other
land in the vicinity has been modified by intense urbanization, and the trend
is expected to continue. * there is a reasonable possibility that the Land
Trust may acquire other valuable property rights in the other nearby
properties to expand the Conservation Values preserved by this Conservation
Easement. * (access to the general public or historically important land or
certified historical structures could be added here)
d. Specific Conservation Values
of the Property have been documented in a natural resource inventory signed by
the Donor and the Land Trust. This "Baseline Documentation Report" consists of
(maps, a depiction of all existing man-made modifications, prominent
vegetation, identification of flora and fauna, land use history, distinct
natural features and photographs). The parties acknowledge that this Baseline
Documentation is an accurate representation of the Property at the time of
this donation.
THE PARTIES AGREE TO THE
FOLLOWING TERMS OF THIS CONSERVATION EASEMENT:
1.
PROHIBITED ACTIONS. Any activity on or use of the Property inconsistent
with the purposes of this Conservation Easement or detrimental to the
Conservation Values is expressly prohibited. By way of example, the following
activities and uses are explicitly prohibited:
a.
Division. Any division or subdivision of the Property is prohibited.
b.
Commercial Activities. Commercial or industrial activity is prohibited.
c.
Construction. The placement or construction of any man-made modification such
as buildings, structures, fences, roads and parking lots is prohibited, except
as expressly permitted in this Conservation Easement.
d.
Cutting Vegetation. Any cutting of trees or vegetation is prohibited.
e. Land
Surface Alteration. Any mining or alteration of the land surface is
prohibited.
f.
Dumping. Waste and unsightly or offensive materials are not allowed and may
not be accumulated on the Property.
g. Water
Courses. Natural water courses, lake shores, wetlands or other water bodies
may not be altered.
h.
Off-Road Vehicles. Motorized off-road vehicles such as snowmobiles, dune
buggies, all-terrain vehicles and motorcycles may not be operated on the
Property. Bicycles may not be operated on the Property.
i.
Billboards. Billboards and signs are prohibited. A sign may, however, be
displayed to state: - the name and address of the Property. - the owner's
name. - the area protected by this Conservation Easement. - prohibition of any
unauthorized entry or use. - an advertisement for the sale or rent of the
Property.
2.
RIGHTS OF THE LAND TRUST. The Donor confers the following rights upon the
Land Trust to perpetually maintain the Conservation Values of the Property:
a. Right
to Enter. The Land Trust has the right to enter the Property at reasonable
times to monitor or to enforce compliance with this Conservation Easement. The
Land Trust may not, however, unreasonably interfere with the Donor's use and
quiet enjoyment of the Property. The Land Trust has no right to permit others
to enter the Property. The general public is not granted access to the
Property under this Conservation Easement.
b. Right
to Preserve. The Land Trust has the right to prevent any activity on or use of
the Property that is inconsistent with the terms or purposes of this
Conservation Easement.
c. Right
to Require Restoration. The Land Trust has the right to require restoration of
the areas or features of the Property which are damaged by activity
inconsistent with this Conservation Easement.
d. Signs.
The Land Trust has the right to place signs on the Property which identify the
land as being protected by this Conservation Easement. The number and location
of any signs are subject to the Donor's approval.
e. Right
to Engage in Ecological Restoration. The Land Trust has the right to engage in
activities that restore the biological and ecological integrity of the
Property. Possible activities include planting native vegetation and use of
controlled fire to reduce the presence of undesirable vegetation.
3.
PERMITTED USES. The Donor retains all ownership rights which are not
expressly restricted by this Conservation Easement. In particular, the following
rights are reserved:
a. Right
to Convey. The Donor retains the right to sell, mortgage, bequeath or donate
the Property. Any conveyance will remain subject to the terms and conditions
of this Conservation Easement and the subsequent interest holder will be bound
by terms and conditions of this Conservation Easement.
b. Right
to Maintain and Replace Existing Structures. The Donor retains the right to
maintain, renovate and replace the existing structure(s) as noted in the
Baseline Documentation Report in substantially the same location and size. Any
expansion or replacement may not substantially alter the character or function
of the structure.
c. Right
to Add Designated Structures or Uses. The Donor retains the right to add the
following structures, modifications or uses to the Property without notifying
the Land Trust. *___________ *___________
4.
LAND TRUST REMEDIES. This section addresses cumulative remedies of the
Land Trust and limitations on these remedies.
a. Delay
in Enforcement. A delay in enforcement shall not be construed as a waiver of
the Land Trust's right to enforce the terms of this Conservation Easement.
b. Acts
Beyond the Donor's Control. The Land Trust may not bring an action against the
Donor for modifications to the Property resulting from causes beyond the
Donor's control. Examples are: unintentional fires, storms, natural earth
movement, trespassers or even a Donor's well-intentioned actions in response
to an emergency resulting in changes to the Property. The Donor has no
responsibility under this Conservation Easement for such unintended
modifications. The Land Trust, may, however, bring an action against another
party for modifications that impair the Conservation Values identified in this
Conservation Easement.
c. Notice
and Demand. If the Land Trust determines that the Donor is in violation of
this Conservation Easement, or that a violation is threatened, the Land Trust
may provide written notice to the Donor unless the violation constitutes
immediate and irreparable harm. The written notice will identify the violation
and request corrective action to cure the violation or to restore the
Property.
d.
Failure to Act. If, for a 28-day period after the date of the written notice,
the Donor continues violating this Conservation Easement, or if the Donor does
not abate the violation and implement corrective measures requested by the
Land Trust, the Land Trust may bring an action in law or in equity to enforce
the terms of the Conservation Easement. The Land Trust is also entitled to
enjoin the violation through injunctive relief, seek specific performance,
declaratory relief, restitution, reimbursement of expenses or an order
compelling restoration of the Property. If the court determines that the Donor
has failed to comply with this Conservation Easement, then the Donor also
agrees to reimburse all reasonable costs and attorney fees incurred by the
Land Trust compelling such compliance.
e.
Unreasonable Litigation. If the Land Trust initiates litigation against the
Donor to enforce this Conservation Easement, and if the court determines that
the litigation was without reasonable cause or in bad faith, then the court
may require the Land Trust to reimburse the Donor's reasonable costs and
attorney fees in defending the action.
f.
Donor's Absence. If the Land Trust determines that this Conservation Easement
is, or is expected to be, violated, the Land Trust will make good-faith
efforts to notify the Donor. If, through reasonable efforts, the Donor cannot
be notified, and if the Land Trust determines that circumstances justify
prompt action to mitigate or prevent impairment of the Conservation Values,
then the Land Trust may pursue its lawful remedies without prior notice and
without awaiting the Donor's opportunity to cure. The Donor agrees to
reimburse all costs associated with this effort.
g. Actual
or Threatened Non-Compliance. Donor acknowledges that actual or threatened
events of non-compliance under this Conservation Easement constitute immediate
and irreparable harm. The Land Trust is entitled to invoke the equitable
jurisdiction of the court to enforce this Conservation Easement.
h.
Cumulative Remedies. The preceding remedies of the Land Trust are cumulative.
Any, or all, of the remedies may be invoked by the Land Trust if there is an
actual or threatened violation of this Conservation Easement.
5.
OWNERSHIP COSTS AND LIABILITIES. In accepting this Conservation Easement,
the Land Trust shall have no liability or other obligation for costs,
liabilities, taxes or insurance of any kind related to the Property. The Land
Trust and its trustees, officers, employees, agents and members have no
liability arising from injury or death to any person or from physical damage to
any property on the Property or otherwise. The Donor agrees to defend the Land
Trust against such claims and to indemnify the Land Trust against all costs and
liabilities relating to such claims during the tenure of the Donor's ownership
of the Property. The Donor is responsible for posting the Property's boundaries
and for discouraging any form of trespass that may occur.
6.
CESSATION OF EXISTENCE. If the Land Trust shall cease to exist or if it
fails to be a "qualified organization" for the purposes of Internal Revenue Code
Section 170(h)(3), or if the Land Trust is no longer authorized to acquire and
hold conservation easements, then this Conservation Easement shall become vested
in another entity. This entity shall be a "qualified organization" for the
purposes in Internal Revenue Code Section 170(h)(3). The Land Trust's rights and
responsibilities shall be assigned to the following named entities in the
following sequence: (1) _________________________ (2) _________________________
(3) Any other entity having similar conservation purposes to which such rights
may be awarded under the cy pres doctrine.
7.
TERMINATION. This Conservation Easement may be extinguished only by an
unexpected change in condition which causes it to be impossible to fulfill the
Conservation Easement's purposes, or by exercise of eminent domain.
a.
Unexpected Change in Conditions. If subsequent circumstances render the
purposes of this Conservation Easement impossible to fulfill, then this
Conservation Easement may be partially or entirely terminated only by judicial
proceedings. The Land Trust will then be entitled to compensation in
accordance with applicable laws and in proportion to the Land Trust's interest
in the property at the effective date of this Conservation Easement.
b.
Eminent Domain. If the Property is taken, in whole or in part, by power of
eminent domain, then the Land Trust will be entitled to compensation in
accordance with applicable laws and in proportion to the Land Trust's interest
in the property at the effective date of this Conservation Easement.
8.
LIBERAL CONSTRUCTION. This Conservation Easement shall be liberally
construed in favor of maintaining the Conservation Values of the Property and in
accordance with the Michigan Conservation and Historic Preservation Easement Act
(MCL 399.251 et seq).
9.
NOTICES. For purposes of this agreement, notices may be provided to
either party, by personal delivery or by mailing a written notice to that party
at the address shown at the top of this agreement, or at the last known address
of a party, by First Class mail. Service will be complete upon depositing the
properly addressed notice with the U.S. Postal Service with sufficient postage.
10.
SEVERABILITY. If any portion of this Conservation Easement is determined
to be invalid, the remaining provisions will remain in force.
11.
SUCCESSORS. This Conservation Easement is binding upon, and inures to the
benefit of, the Donor's and the Land Trust's successors in interest. All
subsequent owners of the property are bound to all provisions of this
Conservation Easement to the same extent as the current property owner.
12.
TERMINATION OF RIGHTS AND OBLIGATIONS. A party's future rights and
obligations under this Conservation Easement terminate upon transfer of that
party's interest in the Property. Liability for acts or omissions occurring
prior to transfer will survive the transfer.
13.
MICHIGAN LAW. This Conservation Easement will be construed in accordance
with Michigan Law.
14.
ENTIRE AGREEMENT. This Conservation Easement, together with the Baseline
Documentation Report, sets forth the entire agreement of the parties and
supersedes all prior discussions and understandings.
WITNESSES:
DONOR: (*print/type names under
signatures) __________________________ ___________________________ * *
__________________________ ___________________________ * * STATE OF MICHIGAN ) )
COUNTY OF WASHTENAW )
Acknowledged before me by
______________________________________ on ______________________, 19__, by
________________________ Notary Public, Washtenaw County, Michigan. My
commission expires: ________________________
WITNESSES: RAISIN VALLEY LAND
TRUST (*print/type names under signatures) a Michigan non-profit corporation
__________________________ ___________________________ * By: Its:
__________________________ * STATE OF MICHIGAN ) ) COUNTY OF WASHTENAW )
Acknowledged before me on
______________________, 19__, by _______________________, known to me to be the
__________________ of the RAISIN VALLEY LAND TRUST, a Michigan non-profit
corporation. ________________________ Notary Public, Washtenaw County, Michigan.
My commission expires: ________________________
PREPARED BY, AND WHEN RECORDED
RETURN TO: _________________, _____________________________, P.O. Box 419,
Manchester, MI 48158
