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Every easement-holding land trust should have a policy to help guide responsible consideration of potential amendments to grants of conservation easement. WeConservePA produced the one-page Model Policy for Conservation Easement Amendment, together with these expansive “Guidelines for Conservation Easement Amendments, Waivers, and Letters of Interpretation,” to assist land trusts in establishing or updating such a policy and, most importantly, acting responsibly and productively in their easement decision-making. These guidelines are intended to provide the user with in-depth but succinct practical guidance, whether or not the guidelines are adopted in whole or part by a land trust board of directors.
Every easement-holding land trust should have a policy to help guide responsible consideration of potential amendments to grants of conservation easement. WeConservePA produced the one-page Model Policy for Conservation Easement Amendment, together with these expansive “Guidelines for Conservation Easement Amendments, Waivers, and Letters of Interpretation,” to assist land trusts in establishing or updating such a policy and, most importantly, acting responsibly and productively in their easement decision-making. These guidelines are intended to provide the user with in-depth but succinct practical guidance, whether or not the guidelines are adopted in whole or part by a land trust board of directors.
The guidelines are drafted to conform with Pennsylvania and federal law as well as Land Trust Standards and Practices[1] and the requirements of the Land Trust Accreditation Commission.
The guidelines are also consistent with the analysis and findings contained in the WeConservePA guides:
Each of these guides as well as the model amendment policy are available free of charge at the WeConservePA.org Library thanks to WeConservePA’s supporters.
As part of the development process, drafts of the guidance were broadly disseminated for public review. Members of WeConservePA’s policy council were among those who took part in the review. The guidelines, first published in 2014 as a “model and guide,” were modestly updated in 2017 to address changes to Land Trust Standards and Practices and the latest WeConservePA research. They were updated in 2022 to address a change in Pennsylvania law pertaining to condemnation. In 2024, they were reframed to serve as guidelines to accompany a separate, brief amendment policy to be adopted by a board.
Conservation easements are intended to last—to ensure protection of important resources, no matter people’s whims—through the decades and centuries. However, the world changes and so do understandings of how best to meet conservation objectives. An easement-holding land trust must be prepared to address these changes in order to ensure that its conservation work is effective while assuring its supporters and the public that it is a reliable agent of conservation. To this end, a land trust must judiciously consider potential conservation easement amendments and take actions that are conservation-driven, ethical, and legally sound.
In considering amendments, a land trust is guided foremost by the principle of conservation first. This principle frames the land trust’s decision-making with two overarching questions:
The principles and procedures contained within are guidelines to assist land trusts in its operations.
Amendment memorandum. A document prepared by a land trust that describes the land trust’s research, analysis, and decisions regarding amendment proposals so that an objective outside party at a later date can see that the land trust followed its policy or judiciously deviated from it, exercising reasonable judgment in its decision-making.
Conservation objectives. The purposes served by the conservation easement.
Owners. The owners of the land subject to the conservation easement and potential amendment.
Staff. A land trust’s staff or board members and volunteers serving in a staff capacity and authorized to act in the capacities described in these guidelines.
A land trust may follow the following process and procedures guidelines to guide its review and decision-making regarding a potential amendment.
The owners or the land trust may initiate an amendment request. In either case, staff should seek to first discuss the potential change informally with the owners.[1]
In addition to the practices set forth in the land trust’s Conflict of Interest Policy, the land trust may take additional steps to place a firewall between its deliberations and decision-making and any person having a conflict of interest regarding a potential amendment transaction. The land trust should document these measures in its amendment memorandum if the request moves beyond the informal discussion phase.
If significant value is seen in the land trust proposing an amendment, staff should apply Section II’s inquiries to the proposal and gather additional information as needed to shape a proposal potentially acceptable to the land trust’s board and owners. If, after informal discussions, the owners express willingness to amend the easement, staff should work with owners to develop a set of terms consistent with the land trust’s aims and acceptable to owners for making particular changes to the grant of conservation easement.
Staff will then present these tentative terms to the board for its consideration (skipping steps D and E immediately below). (If the circumstances are appropriate, staff may but are not obligated to ask the owners to share expenses.)
If the owners aren’t dissuaded from pursuing an amendment after informal discussion, staff should ask the owners to submit the following:
Staff should apply Section II’s inquiries to the request and gather additional information as needed to either determine if: (1) the request cannot be satisfied in whole or part by the land trust or (2) there is potential for an amendment that the land trust’s board might find acceptable. Review may include obtaining legal opinions, appraisals, and other documentation necessary for the land trust to make a responsible decision.
Staff in its discretion may consider and discuss with owners a variety of measures beyond the owners’ request in order to shape an amendment proposal that might be acceptable to the board. Examples include the suggestion of additional restrictions to offset potential impermissible private gain or the upgrading of the granting document to the land trust’s current standard form.
In closing the review process, staff should determine that advancing an amendment proposal to the board either:
OR
In the latter case, the land trust’s legal counsel should determine whether the potential amendment would best be carried out by a separate amendment document or via an amended and restated grant of conservation easement. All other considerations being equal, the land trust prefers amended and restated grants.
In either case, staff should provide board members with an amendment memorandum regarding the request.
In their deliberations of a proposal, board members must review the documentation provided by staff and may reapply Section II’s inquiries.
The board may approve the proposal as presented, reject it, or modify it for consideration by the owners. The board may also delay a decision pending the receipt of additional information.
The board may authorize the execution and recording of an amendment document with contingencies such as:
The board may also apply other contingencies standard for real estate transactions such as confirmation of clean title.
The land trust’s legal counsel will either prepare or review the documents prior to execution and recording.
Documents must be signed by an authorized signatory of the land trust and promptly recorded in the county property records.
Staff should report the recording of the amendment to the board.
The land trust must report the amendment as required by the Internal Revenue Service with annual tax reporting.
For proposals modified or rejected by the board, the board or staff should determine the process for further consideration, if any, on a case-by-case basis.
The land trust should update or supplement the amendment memorandum to reflect any relevant findings of the board and file it with its permanent records so that, at a later date, an objective outside party can see that the land trust followed its policy or judiciously deviated from it, exercising reasonable judgment in its decision-making.
A land trust should make inquiries in each of the areas described in this section for each amendment requested.
Staff should make these inquiries and document the findings in an amendment memorandum. If the matter proceeds to the board review stage, board members may derive different conclusions from the inquiries than staff or identify the need for more expansive inquiries.
Some inquiries may result in immediate disqualification of the request from further consideration. Some may lead to the need for additional inquiries and research. Some may deliver answers that staff will need to consider in shaping a request into a proposal suitable for the board’s consideration and judicious decision-making.
This section includes recommended positions regarding many of the inquiries presented.
Would an amendment advance conservation in the public interest as well as the land trust’s mission and goals? What other measures might the land trust propose as part of a potential amendment package to maximize conservation results?
The land trust should consider whether an amendment would advance conservation in the public interest as well as the land trust’s mission and goals. What impact would the change have on the protection and enhancement of natural and scenic resources?
An amendment that would fail to advance conservation in the public interest as well as the land trust’s mission and goals should generally be rejected.
If an amendment request is or could be made viable, the land trust may explore with the owners potential other changes to the granting document’s restrictive covenants and management terms to aid in achievement of the conservation objectives as well as placement of additional land under easement, supplemental stewardship funding arrangements, and other measures to advance conservation in the public interest consistent with the land trust’s mission.
Would an amendment be consistent with or aid in the achievement of the easement’s conservation objectives?
Would the amendment fully upgrade the grant of easement to reflect best conservation practices or modify its restrictive covenants or management terms so as to better ensure that the conservation objectives are achieved in perpetuity? Would the amendment enhance the land trust’s ability to block land uses inconsistent with the conservation objectives or eliminate potential vulnerabilities in this ability?
If the answer to all the questions is no, the land trust should reject the amendment except in the most extraordinary of circumstances.[3]
The more an amendment would serve to aid the achievement of the conservation objectives, the more likely the land trust should find the amendment acceptable.
What would be the immediate and short-term impacts of an amendment to the resources protected by the easement?
If an amendment would advance conservation objectives, it ultimately will benefit the resources protected by the easement. However, some benefits are immediate while others take time to manifest, which generally adds a degree of uncertainty.
The land trust should be more likely to support an amendment that positively impacts protected resources sooner rather than later.
Is there a co-holder of the easement? Does the easement document identify beneficiaries with rights to approve an amendment?
The land trust should review the grant of conservation easement to determine whether co-holders or beneficiaries have rights to approve an amendment to the easement and the nature of the rights if any. The land trust staff will judge based on the particular circumstances the best timing to approach and consult with the holders of these rights.
Are neighboring parcels subject to the same conservation easement? Do the owners of these parcels have any rights to approve an amendment?
The land trust should investigate whether the owners of neighboring eased properties have rights to approve an amendment to the easement and the nature of the rights, if any. The land trust staff must judge based on the particular circumstances the best timing to approach and consult with the holders of these rights.
Even if owners of neighboring eased properties have no such approval rights, the land trust should consider whether the amendment is consistent with prior, anticipated, or conceivable the land trust decisions affecting those properties.
Should the Office of Attorney General be consulted and, if so, where does it stand?
The land trust may, in its discretion, consult with the Office of Attorney General prior to making a decision that would result in a change to the detriment of the conservation objectives.
The land trust may, in its discretion, condition approval of such an amendment upon receipt of a written communication from the Office of the Attorney General evidencing a lack of objection.
Is private inurement a possibility with the requested amendment and, if so, how may the risk of such a finding be essentially eliminated?
Staff should not consider and board should not authorize an amendment if the risk of a finding of private inurement is not negligible.
Is impermissible private benefit a possibility with the requested amendment and, if so, how may the risk of such a finding be minimized?
The land trust must find that the risk of an amendment resulting in impermissible private benefit is small before the land trust board will authorize an amendment.
Would the amendment enhance or undermine the public’s confidence in the land trust or conservation easements? What are the community ramifications of granting or denying an amendment? How could land trust communications create positive outcomes?
Would the granting or denial of an amendment request inhibit or promote future granting of conservation easements? How could land trust communications create positive outcomes?
Would the granting or denial of an amendment request create a perception among other owners of land eased with the land trust that they may be able to obtain an amendment that the land trust would view as inappropriate? How could the land trust minimize such perception?[4]
If the easement was donated, how would the original donors feel about the potential amendment?
The land trust may approach the original donors of an easement to determine their feelings regarding a potential amendment. The land trust may give weight to these feelings but is not bound by them.
Would a denial of an amendment request cause the owners undue hardship for which neither they, nor their predecessors in land ownership, bear any responsibility?
Undue hardship cannot be a central concern to the land trust given the multiplicity of concerns it must address in any amendment proposal. However, such concern should be viewed as a supporting factor in the land trust’s analysis of the appropriateness of any amendment.
Are there others with whom it would be wise to discuss the potential amendment?
Would a waiver or letter of interpretation better address the problem at hand?
Staff should consider the potential applicability of these tools to the issue before asking owners to formalize a request for amendment.
Is the owners’ title to the eased property satisfactory?
The land trust must confirm satisfactory title prior to closing on an amendment transaction. If any mortgages, leases, or other instruments were recorded subsequent to the original grant, the land trust should consult with legal counsel on whether such instruments should be subordinated to the amendment.
Will the baseline document need to be supplemented with a current conditions report?
If an amendment is to occur, the land trust may require an update of the baseline documentation to ensure that the conservation values protected by the amended conservation easement are documented sufficiently to allow effective monitoring of compliance with and enforcement of the terms of the amended easement.
Is there an unresolved violation of the easement?
The land trust should not amend an easement until all violations are resolved or unless a purpose of the amendment is to resolve the violations.
Will owners seek a federal tax deduction in association with the amendment?
If so, the land trust should address the processing of IRS Form 8283 as it would original grants of easement.
Does the amendment conform with Land Trust Standards and Practices?
Practice H.2. of Standard 11 of Land Trust Standards and Practices (2017) requires land trusts to “[e]valuate all conservation easement amendment proposals with due diligence sufficient to satisfy the Amendment Principles.” Those principles are that an amendment should:
The Land Trust should apply these principles to each amendment.
The land trust may recognize that, in rare circumstances, principles 5, 6, or 7 may conflict with board members’ obligation to act in the best interest of the land trust in light of its mission in accordance with Pennsylvania law. Regardless, the board and its constituent members will take into account the principles, together with—as demanded of them under the law—the entirety of the facts and circumstances in their analyses, deliberations, and decision-making.
Regarding principle 6, the grant of easement is a land trust’s principal[6] record of documented intent of grantors. The land trust also should inspect its records of restricted gifts to ensure that the amendment does not conflict with the purpose of a restricted gift.
The land trust should generally require minimal documentation regarding the inquiries of Section II for amendments that sit firmly in the Administrative category.[7]
The board may authorize an amendment of a conservation easement to correct errors and oversights made at the time the conservation easements were executed and recorded as well as to bring clarification to minor ambiguities contained in the easement document. Such amendments include correction of legal descriptions, addition of standard language that was unintentionally omitted, and clarification of the meaning of a phrase.
To the extent applicable and feasible, amendments of this type should be supported by written statements, affidavits, or agreements between the land trust and the conservation easement grantor, or other written evidence, that the amendment will implement the parties' original intentions when the land trust first acquired the conservation easement from the grantor.
If such written evidence is not available, amendments should be supported by documentation that effort was made to obtain such evidence.
Particular to the resolution of ambiguity in the absence of written evidence, the amendment should be supported by an opinion from the land trust’s legal counsel that the proposed clarification is a reasonable interpretation and resolution of the ambiguity.
Pursuant to prior agreement set forth in the terms in the grant of conservation easement that identifies the need to amend the easement in specific ways in response to specific events, the board may authorize the amendment of a conservation easement.
The board may authorize the amendment of a conservation easement to address changes in circumstances stemming from agreements that pre-date the recording of the grant of conservation easement and that are superior to it.
The land trust should include in the amendment memorandum an explanation of the prior agreement’s superior claim and how the proposed amendment is the optimal resolution of the claim.
The original terms of a grant of conservation easement may prove impossible to meet due to regulatory, engineering, or other constraints unforeseen by the land trust at the time of the grant. If it is reasonably clear that the land trust would have agreed to alternative terms with substantially equivalent outcomes vis-à-vis the conservation objectives if this impossibility had been known at the time of the grant, the board may authorize an amendment to reflect such alternative terms.
Amendments of this type should be supported by analysis confirming that the land trust would have agreed to alternative terms with substantially equivalent outcomes vis-à-vis the conservation objectives if the impossibility of the original terms had been known at the time of the grant. Analysis should also confirm that the proposed amendment is consistent with these alternative terms.
The board may authorize an amendment that provides purely conservation gain, meaning there is no detriment to the conservation objectives or loss, even temporary, to the protected resources. As with the Administrative category, the land trust generally requires minimal documentation regarding the inquiries of Section II for Pure Conservation Gain amendments. For this category, the key factor that the board must consider is whether the gain is sufficiently substantial to justify the expenditure of organizational energy in effecting the amendment.
The land trust revises and updates the restrictive covenants and management terms contained in its grant of conservation easement template to reflect new understandings of the law, conservation science, and how best to manage conservation easements and achieve conservation objectives. Just as it seeks to have its newest easements take advantage of improved knowledge and practices, the land trust should recognize the benefit of upgrading older easement documents to take advantage of the same. The greatest conservation gains may be obtained by updating a granting document more than a decade or two old, but it is possible to have substantial gains with even more recent documents. The board may authorize an amendment to make the granting document consistent with the land trust’s present-day easement template.
The board generally disfavors piecemeal upgrades of granting documents, recognizing that if an amendment is to be considered, the opportunity to bring the document up to the highest drafting standard—thus maximizing the organization’s effectiveness and efficiency in supporting the conservation objectives—should not be wasted.
The board may authorize an amendment to eliminate reserved rights that will enhance achievement of conservation objectives. Examples include eliminating or reducing the size of Minimal Protection Areas or reducing the amount of impervious coverage permitted.
The board may authorize an amendment to extend the conservation easement over additional land.[10]
The board may authorize an amendment to add one or more conservation objectives. For example, an older easement may state objectives of protecting the scenic quality of the landscape and preserving wildlife habitat but make no reference to water quality. The easement could be amended to expand the conservation objectives to include the protection of water resources.
Adding a conservation objective usually will necessitate changes to the restrictive covenants to block uses inconsistent with the new objective. The land trust should carefully review the existing and proposed new covenants to ensure that they are consistent in advancing the expanded set of objectives.
A proposed new conservation objective could conflict with existing objectives. Although unlikely, the land trust should analyze the proposal to ensure that this is not the case. (If it is, then the amendment is not a pure conservation gain upgrade and bears greater scrutiny.)
The board may authorize an amendment that has the net effect of aiding in the achievement of the conservation objectives, enhancing the resources targeted for protection in the long term but potentially causing detriment to some element of the resources as well. Such an amendment involves changing one or more restrictive covenants or management terms in the easement document but no changes to the conservation objectives.
This category of amendment requires greater scrutiny and documentation by the land trust than an amendment involving pure conservation gain.
In these cases, the board must consider whether the net gain is sufficiently substantial to justify (1) the expenditure of organizational energy in effecting the amendment and (2) potential or actual harm to a protected resource.
The preceding types of easement amendments do not fundamentally alter the land trust’s property right—its ability to block land uses inconsistent with the conservation objectives within the conservation area. The following types of changes are far more substantial, requiring the highest level of scrutiny, documentation, and deliberation by the land trust.
The board may authorize an amendment to refine a conservation objective consistent with an improved understanding of the science and practice of conservation.
The board should not authorize the elimination of a conservation objective.[11]
The board should not authorize changes in the restrictive covenants or management terms of the easement grant that would have a net adverse effect on the achievement of the conservation objectives, except in the most extraordinary of circumstances.
The board should not authorize a change in the boundaries of a conservation easement that would remove land from the easement except in unusual and particular circumstances: [12]
Section 208 of Pennsylvania’s Eminent Domain Code provides that, subject to exceptions (including condemnation by Commonwealth agencies), a condemnation cannot commence on land subject to a conservation easement unless a court first determines there is no reasonable and prudent alternative to the utilization of the land subject to the conservation easement.[13]
If a court finds there is no reasonable or prudent alternative, or if the condemnation falls under one of the exceptions, the conservation easement does not provide any power to block the use of eminent domain authority in regard to either the eased property or the conservation easement itself.
If a conservation easement is subject to a real and substantial threat of condemnation, the board should act to achieve an outcome that maximizes conservation in the public benefit consistent with the land trust’s mission. Such outcome may include an amendment or a whole or partial extinguishment of the easement.
The board should act under guidance of legal counsel and document the real and substantial threat under which it is taking action.
The land trust, without any obligation to do so, may agree to waive strict compliance with the terms of grant of conservation easement for a specific period of time with respect to a specific set of circumstances if the land trust is satisfied that the accommodation will have no material effect on the conservation objectives. Such a waiver is a rare occurrence and must be in writing by a person authorized by the board to take such action. Staff should inform the board in writing of any waivers granted.
The waiver does not amend the terms of the grant; rather, it is the land trust exercising its discretion to refrain from exercising one or more of its rights and remedies in response to a potential violation of the easement’s covenants because it is satisfied that the impact on the protected resources will be negligible.
Examples of circumstances in which the land trust may consider a waiver are:
Waivers play a highly specific role as outlined above. They are not an appropriate substitute for amendments. At the time of a granting of a waiver, the land trust should place in its file a record of its decision to do so that confirms that:
While an amendment may be an appropriate response to clarify an ambiguity in the terms of the grant of conservation easement, it is sometimes satisfactory for the land trust to issue a letter of interpretation in response to a query by owners regarding whether a particular activity is allowed or the meaning of a particular phrase.
Such a letter of interpretation should be reviewed by the land trust’s legal counsel (unless the board specifically waives this requirement for the particular instance) and signed by a person authorized by the board to take such action.
A copy of the letter should be filed in the organizational records.
[1] Casual conversation may help the organization and owners alike understand the goals, needs, and limitations of each. At this early stage, the land trust may want to provide owners with key points from the organization’s amendment policy. In some cases, staff may recognize that an action other than amendment may better address the situation and informally discuss this with the owners.
[2] In interpreting and implementing sections A, B, and C of this section, users are encouraged to review the guide “Legal Considerations in Amending Grants of Conservation Easement.”
[3] A land trust might sometime face an amendment proposal that might be detrimental to the conservation objectives of a particular easement yet, in the bigger picture, would substantially advance conservation in the public interest and the land trust’s mission and goals. Such situations are unique in their specifics and require the highest scrutiny, deepest analysis, and lengthiest deliberations by the land trust.
[4] An amendment may be sensible within the confines of the particular easement but be damaging to conservation if extended to lands and easements not sharing the same circumstances.
[5] Neighbors and others, although they may have no legal rights, may have perspectives and concerns that it might be productive to hear.
[6] The grant of easement is the best indicator of the final meeting of the minds of the parties. Evidence of earlier intentions may be useful to resolve conflicts, ambiguities, or mistakes in the final document.
[7] Amendments of these types are generally recognized as noncontroversial, presenting minimal risk to the organization legally or in the realm of public relations.
[8] Examples of such amendments include:
[9] Examples of circumstances that may lead to such amendments include:
[10] Such an amendment is generally preferable to establishing a new easement over the additional property because it is usually simpler to administer one easement and it enables stronger limits on subdivision.
[11] In an extraordinary circumstance, a land trust could choose to deviate from its policy and guidelines by eliminating a conservation objective. The compelling reasons for such an extreme action would need to be exceptionally well documented and appropriate measures would need to be taken to ensure well-informed judgment.
[12] Practice H.3. of Standard 11 of Standards and Practices states that: “If an amendment is used to adjust conservation easement boundaries… and results in a de minimis extinguishment, document how the land trust’s actions address the terms of J.1. below.” Practice J.1. in turn reads: “In the rare case that it is necessary to extinguish a conservation easement, in whole or in part,
[13] See the WeConservePA guide “Eminent Domain and Conserved Land in Pennsylvania” for more information.
[14] A waiver or a letter of interpretation may be a more appropriate tool than an amendment to address a particular circumstance. Conversely, without proper controls, a waiver or letter may be inappropriately applied to a situation that truly requires an amendment. Thus, these guidelines address waivers and letters of interpretation as well as amendments.
[1] Practice H.1. of Standard 11 of Land Trust Standards and Practices (Land Trust Alliance, 2017) requires land trusts to “[a]dopt and follow a written policy or procedure addressing conservation easement amendments that is consistent with the Land Trust Alliance Amendment Principles.”
