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Legal Research Digest 60 national Cooperative highway researCh program August 2013 TRANSPORTATION RESEARCH BOARD OF THE NATIONAL ACADEMIES legal aspects of conservation easements: a primer for transportation agencies This report was prepared under NCHRP Project 20-6, âLegal Problems Arising Out of Highway Programs,â for which the Transportation Research Board is the agency coordinating the research. The report was prepared by Tyson Smith, Esq., AICP, White & Smith, LLC; Tara D. Allden, Esq.; and Ross Appel,* Esq. James B. McDaniel, TRB Counsel for Legal Research Projects, was the principal investigator and content editor. the problem and its solution State highway departments and transportation agen- cies have a continuing need to keep abreast of operat- ing practices and legal elements of specific problems in highway law. This report continues NCHRPâs practice of keeping departments up-to-date on laws that will affect their operations. applications Conservation easements can generally be defined as deed restrictions placed on land to protect its associated resources. These easements range from ecological to historic to scenic. Transportation agencies can also be faced with situations where they engage in beautification or historic preservation efforts and need to know how to protect their public investment with appropriate ease- ment language. State and federal transportation agencies are faced with situations where they are encouraged or required to acquire conservation easements to mitigate adverse environmental effects arising from construction of transportation improvements. Conservation easements have become an increasingly popular and useful mechanism to transfer and protect interests in real property. This digest, written as a Primer, provides an introduction and general overview of key conservation easement topics, from their origin in com- mon law to key concepts in creation and termination. Legal and transactional personnel at transportation agencies are most likely to need an understanding of conservation easements 1) when they create them to sat- isfy a legal requirement or policy during their acquisi- tion effort (e.g., environmental mitigation and scenic beautification), and 2) when they encounter them in right-of-way planning and acquisition. These two situa- tions provide the organization for this digest. Finally, this digest provides assistance to legal practi- tioners in drafting documents for the acquisition and maintenance of conservation easements. Broad concepts are presented here in order to provide a strong legal basis from which the transportation agency professional may gain an understanding of the need for certain provisions within conservation easements. Many significant re- sources exist that will provide more in-depth coverage of each topic. The reader is encouraged to consult the refer- ences listed when greater coverage of a specific topic would be helpful. This digest should be helpful to attorneys, transporta- tion administrators, planners, real estate officials, engi- neers, real property owners, and others who are interested in this subject. * formerly with White & Smith, LLC.
