Purdue University is an Equal Opportunity/Equal Access institution.

Private Conservation Contracts (PCC’s)

Role in Providing Green Infrastructure

Purdue University is an Equal Opportunity/Equal Access institution.

Purdue University is an Equal Opportunity/Equal Access institution.

“Easement” is a Misnomer

• Easement adopted to avoid using the correct legal term– Negative Servitude

• Restraint on owner of real property to make designated uses of the property

– Easement • Generally refers to a positive servitude, a right

of one party to use the property of another

Purdue University is an Equal Opportunity/Equal Access institution.

Relationship of PCC’s to Land Use Planning

• PCC programs usually started and conducted independent of comp plans and zoning

• Provision of green infrastructure requires partnering of GO’s and NGO’s

• PCC’s are only one tool in toolkit

Purdue University is an Equal Opportunity/Equal Access institution.

Statutory Authority

• Uniform Conservation Easement Act (IC 32-23-5)– UCEA developed in response to private

contracts that courts were asked to enforce• Overcomes common law rule against

perpetuities

Purdue University is an Equal Opportunity/Equal Access institution.

• Private contract between an owner of real property, and

• Any unit of government empowered to hold real property

• Charitable corporation, association, or trust having as at least one of its purposes, the following

Purdue University is an Equal Opportunity/Equal Access institution.

• Retaining or protecting natural, scenic, or open space values of real property;

• Assuring availability of the real property for agricultural, forest, recreational, or open space use;

• Protecting natural resources;

• Maintaining or enhancing air or water quality; or

• Preserving the historical, architectural, archeological, or cultural aspects of real property.

Purdue University is an Equal Opportunity/Equal Access institution.

Role of PCC’s is Increasing• Retain agricultural activities and thereby

agricultural land uses• Protect ecologically important tracts of land• Aesthetic benefits

– Historical districts– Scenic vistas

• Provide public access and connectivity

Purdue University is an Equal Opportunity/Equal Access institution.

A Private Contract

• Misunderstandings result from requirements for federal income tax benefits– Granting of qualifying rights in perpetuity needed

for donor to get income tax deduction– Perpetual grant not required for contract to be

enforceable • Public access not required

Purdue University is an Equal Opportunity/Equal Access institution.

PCC’s Can Be Changed• Lands subject to PCC’s are subject to eminent

domain– Eminent domain could be used to create CE’s, but not

recommended– Has been used as a requirement for receipt of building

permit in jurisdictions with strong “environmental zoning”• Parties to a CE contract can by mutual agreement

change the terms• Courts can change the terms when the contract

– No longer provides a public benefit,– No longer treats parties equitably

Purdue University is an Equal Opportunity/Equal Access institution.

Enforcement

• Contract may allow enforcement by a 3rd party

• Significant costs incurred to assure compliance by land owner– Best to develop a working relationship

between PPC holder and landowner

Purdue University is an Equal Opportunity/Equal Access institution.

Landowners Motivation

• Sincere desire to help community and/or environment– Working with conservation groups provides

access to motivated landowners• Rule from the grave

– Maintain current use of property• Reduce income and/or estate tax

Purdue University is an Equal Opportunity/Equal Access institution.

Uses In Indiana• Natural Resources Conservation Service (US

Department of Agriculture) – Riparian buffer– Wetlands– Farm and Ranch Lands Protection Program

• Funds not available for required match• http://www.nrcs.usda.gov/programs/frpp/• http://www.in.nrcs.usda.gov/programs/FRPP/pdf%20files

/FRPP%20page%202.pdf

Purdue University is an Equal Opportunity/Equal Access institution.

Uses In Indiana

• Forest Legacy Program (USDA Forest Service)– http://

www.fs.fed.us/spf/coop/programs/loa/flp.shtml

– IDNR, Division of Forestry• http://www.in.gov/dnr/forestry/

Purdue University is an Equal Opportunity/Equal Access institution.

Uses In Indiana• Land Trusts

– Focused on ecological benefits– Land Trust Alliance

• www.lta.org   – Indiana Land Protection Alliance

• www.indianalandtrusts.org • Resource Conservation and Development

Districts– Farmland retention