Drafting Conservation Easements for Agriculture

Over the past 50 years, agriculture and the rural landscape have changed dramatically. Numerous farms and ranches have gone out of business while others have expanded, consolidated, diversified or changed enterprises entirely in order to survive. At the same time that agriculture was undergoing this rapid change, the last quarter of the 20 th century witnessed a new threat to agriculture - unchecked suburban and other non farm development in and around our urban centers. According to the National Resources Inventory (NRI) data from the United States Department of Agriculture, during the 1990™s, the U.S. lost over 1 million acres of farmland each year, much of it the prime and unique soils best suited to agricultural production. In response, many states and local governments, primarily in the northeast and west coast, developed farmland protection programs utilizing deed restrictions much like conservation easements. In fact, the concept of purchase of development rights (PDR) was pioneered in Suffolk County on Long Island in the mid-1970™s and pre-dated most conservation easement statutes around the country including New York State. Several Northeastern states soon followed and a growing number of states and local municipalities are establishing purchase programs. More recently, some states, like New Jersey and Pennsylvania, have significantly increased the amount of funding for their programs, and the Federal Farm and Ranchland Protection program received an enormous increase in funding in the 2002 Farm Bill to over $100 million per year. As a result, many of the agricultural easements currently used are found in state, county or township purchase of agricultural easement (PACE) or PDR programs.
This article will examine the fundamental premises underlying agricultural easements and will discuss key drafting issues that reflect those premises and objectives. Some of the key drafting issues will include the easement purpose, construction of agricultural buildings and structures, construction of residential and farm worker dwellings, agricultural practices, subdivision and rural enterprises.
This article appeared in the April 2004 issue of American Agricultural Law Update, Volume 21, #5, 246.NIKE

Downloadable Documents: 
Judy Anderson and Jerry Cosgrove
Saratoga Springs, NY: American Farmland Trust
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Publication Date: 
May 27, 2004
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