Drafting Conservation Easements for Agriculture

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Presentation transcript:

Drafting Conservation Easements for Agriculture Jerry Cosgrove Attorney and Co-author of Your Land is Your Legacy, A Guide to Planning the Future of Your Farm 4/9/2019

Legal Framework Environmental Conservation Law Article 49, Title 3 General Municipal Law 247 Internal Revenue Code 170(h)

Basic Structure and Function Negative covenant Usually no requirement for agricultural use Flexibility for agricultural use No public access required Development “rights” not transferable

Key Drafting Issues Purpose Clause Agricultural Structures Farmworker Housing Other Rural Enterprises Farming Operations Renewable Energy Affordability Affirmative Farming Covenant

Drafting Issues Cont. Residential Building Subdivision Mining Extinguishment/Termination Resource Protection Areas

IRC Requirements Perpetual duration “Qualified” organization Exclusively for Conservation Purposes: Recreation/Education Natural Habitat Open Space(including farmland) Historical Importance

IRS “Two Prong” Test for Open Space Must further a clearly delineated government conservation policy and yield a significant public benefit Or provide scenic enjoyment for the general public and yield a significant public benefit

Purchase of Development Rights Benefits – can strengthen farm business and help transfer the farm operation Disadvantage – limited funding and potentially complex transaction process

Planning with PDR / CE’S Issues – Land Planning Business Planning Financial Planning Estate/Succession Planning

Tax Implications/Opportunities with PDR Capital Gain Allocation of Basis 1031 Like-kind exchange Bargain sales

Donation of Conservation Easements Tax benefits – Income (170(h), Gift (2522(d), Estate (2055(f), 2031(c)) Valuation – “before and after” appraisal “Qualified” Appraisal required (form 8283)

Funding Sources New York State – EPF Federal – ACEP / ALE Private matching funds – Nonprofits Neighboring landowners Bargain sale