The next step is to negotiate the separation of the bundle of rights so that the landowner can continue to enjoy the property and the County can protect the property for the term of the easement. This is easily the most complicated part of the process and the reason why these are so different from fee simple deals. Because of the bond covenants, ACF is limited to acquiring perpetual easements. At a minimum, the development rights are acquired by the grantee either in whole or part. Additional rights range from mining, timber, hunting, motorized access, recreation, educational and scientific use, and public access.
For example, the Water Management Districts' primary mission is to protect water resources. The loss of open space and its percolation, flow reduction and filtering functions affects water quality. Therefore the Districts usually seek to acquire the development rights only, meaning that the grantor and all future owners cannot ever develop the property. They may retain the right to hunt, timber and exclude the public from the land, unless the District also acquired those rights.
Acquiring just the development rights may not be enough. You can imagine a property covered in native forest over which the County purchased an easement containing just the development rights. The purpose of the easement was to protect the forest values. Soon thereafter, the landowner cuts down the forest and converts the property to pasture. While legal under the easement, we have not protected the conservation values. We should have purchased the timber rights and the mining rights in addition to the development rights.
Occasionally, the landowner wishes to reserve the right to subdivide the parent tract into separate tracts for their children. Depending on the number of children, the size of the parent and the size of the resulting tracts, this may be acceptable to the County. It will also depend on what uses the children want to put their lots into. Splitting a 20-acre tract into four 5-acre tracts, each with the right for a 3,500-square foot house to be built on it may not protect the conservation values. However that same 20-acre tract with the right for four 1-acre tracts, with a 16-acre common conservation area might be acceptable even with the four houses built on the 1-acre lots.
The usual conservation easement does not grant the public the right to access the property. It is still private land, and the owner may be liable for accidents on the property, not to mention the loss of their privacy and exclusive use of the resources. The Lochloosa Wildlife Management Area conservation easements that the St. Johns River Water Management District acquired from a large timber company were possible so long as no one lived on the property, and the public hunting and recreation does not interfere with the timber operations. Most owners of properties with onsite residences, or with private hunt or recreational clubs will not grant public access. Access is required for County staff to monitor the property and conduct resource management as necessary.
Once the easement has been negotiated, the County and the landowner go over the baseline documentation to ensure it represents the property in its current condition and documents the resources that are the subject of the easement. From these two documents, a management plan is developed. This document details how each of the conservation values will be managed and who will be responsible. Depending on the easement, the land management responsibilities will fall to the landowner, the County or some combination of the two. In my opinion, it is essential that the conservation easement is not executed until the management plan and baseline documentation are agreed upon. It is only with the development of the management plan that any affirmative obligations - activities that the owner is now responsible for - are detailed. It is possible for a landowner to decide that one or some these are to onerous and seek to renegotiate the easement. It is my preference that the landowner have this option. I'd rather have an amicable split than a hostage landowner and start this partnership off on an adversarial footing. Amending the easement once approved by the parties and recorded is to be avoided at all costs, especially once the purchase is consummated. It opens up the easement to amendments that would allow inconsistent uses and violate the Bond Covenants.