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Conservation Commission

When Considering a Gift of Conservation Property

  1. Introduction
    There are a number of issues that someone considering a gift of land to the Amherst Conservation Commission must address. Each step in the process of deciding what to give, preparing the gift, and executing a gift of property are examined here.

    The Amherst Conservation Commission will help anyone accomplish the work described here. However, the Amherst Conservation Commission can not give specific financial, tax, or legal recommendations. If you plan to give real estate to the Conservation Commission, you must consult your own attorney and financial consultant for recommendations specific to your own situation. Also, as tax laws continuously evolve and change, you will need to check that rulings mentioned here are still valid at the time you wish to make your gift. You must also be sure that they are applicable to you.

  2. Why do you wish to give this property away?
    The first question that you must seriously consider is why you wish to give this property away. There are many possible reasons, for example:

    • You have a large farm that your children want to continue farming. As you begin to plan for the future settlement of your estate, you find that the payment of estate taxes will force the sale of much of the property. Although the sale of the property would generate a lot of money, it would make future farming impossible.
    • You own a large swamp (we call it a wetland now) for which you can find no good use. In order to get some financial benefit from it, you consider giving it to the conservation com mission for future tax benefits.
    • You have a large piece of woodland that has been owned by your family for a number of generations. You want to preserve the woodland as you have always remembered it.
    There are, of course, many other possible reasons for wanting to give some of your property for preservation. There is probably a different reason for each owner and each piece of property. Before you go any further, be sure you know why you wish to make your gift. The decisions that you need to make will depend on the reasons you have for giving your property to the Amherst Conservation Commission.
  3. What property do you wish to give away?
    There are two issues to consider as you determine exactly what you wish to give. First, the Amherst Conservation Commission, and some other groups, are usually only interested in undeveloped property. If you own buildings or developed property, it may be necessary to subdivide the property so that only the undeveloped portion is given to the Amherst Conservation Commission.
    Secondly, you may wish to give away just the development rights to your property. Much of the economic value of a large piece of property is contained in its development rights. A farm owner may wish to give just the development rights away, and to keep the physical property to be farmed. If you want greater assurance that your gift remains undeveloped, and to maximize your tax benefits, you might consider giving the development rights to one group, while giving the physical property to a second group.
  4. To whom do you wish to give the property?
    There are a number of groups that manage and protect property that has been entrusted to them for their care. Besides the Amherst Conservation Commission, the following conservation groups own and maintain property in Amherst:
  5. What do you need to do?
    The following tasks will need to be done for any property gift.

    1. Acceptability Evaluation
      Before the Amherst Conservation Commission and the town of Amherst accepts any gift of property, that property must be evaluated as acceptable and desirable by both the Conservation Commission and the Selectmen. Features that make a piece of property acceptable, include the following:

      • There must be reasonable access to the property.
      • There should be few or no signs of development (buildings, roads, bridges, etc.) on the property. Trails, logging roads, or rustic bridges are usually no source of concern, however.
      • The property should not contain an attractive nuisance. For example, there might be little interest in accepting a small bit of property containing a steep sided quarry filled with water that an owner wished to give away to reduce their own liability.
      • The property must not be contaminated with toxic wastes, old dumps, etc.. At least a Phase I environmental assessment will need to be completed. If potential problems are identified, a more detailed assessment will need to be done.
      • There are many features that make property desirable for conservation. These are described in more detail in some of the documents and web sites listed above. The priorities of the Amherst Conservation Commission include the following features:
        • Large size.
        • Common border with existing conservation land.
        • Wildlife, including fish, birds, mammals, reptiles and their habitat (perhaps for endangered species).
        • Scenic views.
        • Historic sites.
        • Contains or has access to important water supplies (wetlands, lakes, or streams).
        • Other features may also be important.
      These features are only guidelines. They are subject to change, as the conservation needs of the town change. For example, some conservation groups will only accept property that contains some significant feature or features that they wish to conserve.
    2. The Survey
      A survey is not required when property is given to the Amherst Conservation Commission. You may, however, want or need one. A survey may be needed if you are not sure of the exact size of the property, if a subdivision is necessary, or if you want to use the gift to reduce your income taxes.

    3. The Appraisal
      If you plan to use the gift as a tax deduction, an appraisal is necessary. The federal tax rules on such gifts are very strict, so you need to find an appraiser who has experience with these sorts of appraisals. The law currently states that the date of the appraisal must be within 60 days of the transfer or closing, in order to assure that the appraised value is the correct value of the property at the time of the transfer. The IRS also requires that only that which is actually given away be appraised. This means that if a clause is put in the deed to restrict the use, of the property, the appraisal must apply to the property with the restrictions in effect. The property should not be appraised as valued before the gift, without the restrictions.

    4. The Deed
      A deed will be written for the property that you are giving to the Amherst Conservation Com mission. This is usually a simple task handled by lawyers. It can become more complicated, however, if you wish to separate development rights from the physical property, or if you wish to restrict the use of the property in some specific way.
      If you want to assure that the property that you give to the Amherst Conservation Commission is used (or not used) in specific ways, there are a number of options:
      • First, discuss you desires with the Amherst Conservation Commission.
      • Then, write down what you what the Amherst Conservation Commission to do with you property after they receive it in a letter to be sent to the commission. This letter is not legally binding on the Conservation Commission or the town of Amherst, but the commission will make every effort to follow the wishes of the original owner of the property. If you do not mind if your property were to be used for a new school, a ball field, or a playground, if that were needed in the future, put that in your letter, as well.
      • Finally, if you wish to make legally binding restrictions on the use of the property, you will need to have your lawyer help you add specific clauses to the deed to restrict its use.

    5. The Closing
      The closing is the simplest task. It can only be done when all of the above tasks are completed, with the possible exception of the appraisal, which may be done following the closing. At the closing the deed is signed by the person giving the gift. The deed is then filed at the registry of deeds in Nashua.

  6. How long will it take?
    As you can see, there are many task that must be completed before your property is finally given to the Amherst Conservation Commission. You will need to work with a number of town commissions, employees, and volunteers. The time to complete the gift will also depend on the availability of surveyors, appraisers, and others with whom you will need to deal. If time is important to you, make that clear to the conservation commission and others you must work with. You should also plan for the delays that are inevitable in projects of this size. For most gifts, it will talk about a year to complete the work. If your gift is relatively small and simple, it may take less time; if it is more complex, it will probably take more time.

  7. What other information is available?
    Any who is considering giving some of their property to a group for its preservation, should read the booklet Preserving Family Lands: A Landowner's Introduction to Tax Issues and Other Considerations, by Stephen J. Small. It is available at the Amherst Library, or you can get your own copy by writing to Preserving Family Lands, P.O. Box 2242, Boston, Mass. 02107, or ordering from his web site.

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