In summer 2005, WeConservePA published the first edition of the Model Grant of Conservation Easement and Declaration of Covenants. Pat Pregmon and Andy Loza mark the occasion with reflections on the monumental document’s origin and foundational principles.
Pat Pregmon, Pregmon Law Offices: I was thrilled when Andy Loza asked me if I was interested in working on a new model conservation easement. I appreciate this chance now to thank you for the opportunity to participate in that project and share my thoughts on its 20th anniversary.
Opportunities
A fresh start. In the twenty or so years preceding the Model Grant, conservation practitioners (including me) stitched together easement documents from a variety of sources—federal tax regulations, zoning ordinances, homeowner association documents, and available handbooks and forms. Andy insisted—and he was so right—that we had to make a fresh start, discarding all the forms developed so far, including mine.
Incorporate conservation science. By the early 2000’s, the evolving science of conservation created the opportunity to reimagine the conservation easement as a means to protect natural resources and to incorporate science-based standards to attain those objectives.
Challenges
Simplicity vs. complexity. We wanted a document that ordinary people could understand and comply with its standards. The problem was that it was impossible to write a single, straightforward set of standards when some areas needed more protection than others. Lists of exceptions, carve-outs, and conditions to modify the general rules cut against our goals of simplicity, readability, and enforceability. After days of struggle and a mountain of crushed paper, the solution became clear: write different sets of rules for different areas of the property, based on the level of protection needed for a specific area. The map showing the protection areas incorporated into the document was the key to achieving both uniformity and flexibility with a minimum of tailoring.
Internet document; free access. I’m a lawyer—an advocate—so I’m used to drafting documents to the advantage of my client. I want to control changes made to such documents. Thus, it was initially hard for me to accept that the Model Grant and commentary would be freely accessible online to both land trusts and owners, who must be treated equally without advantage to either side. Anyone was free to change the downloaded document. Drafting under those conditions began as a challenge but, before long, became an opportunity. Eventually, it became a great success, reducing the time and expense needed for negotiations and revisions. Thanks to Andy for insisting on those conditions.
Successes
Commentary. The commentary grew out of the need for a few explanatory notes in the earliest drafts. Later, it developed into a separate document providing guidance to tailor the model to specific circumstances. The exponential growth of the commentary and its widespread use is a testament to the value of such guidance to the conservation community.
User input. The community of users of the model document has been the foundation for its success over the past twenty years. Changes to the model and commentary prompted by user suggestions have been most helpful and, personally, I can’t thank you enough.
***
Andy Loza, Executive Director at WeConservePA: Early in my tenure with WeConservePA, I discovered that the easement instrument that I used in my previous position was deficient in comparison to some documents I was seeing in my new role.
This got me thinking about all the missed opportunities for more effective conservation by land trusts that were unwittingly working with inferior documents. And though people often celebrated the uniqueness of every easement document, I was struck by the sheer wastefulness of the chaotic state of conservation practice: different document structures, different words, different meanings for the same words and phrases…all made it difficult or impossible to transfer drafting lessons learned by one land trust to projects of others. Attempts to graft the best solutions from one document to another resulted in disjointed Frankenstein docu-monsters prone to errors and vulnerable to grave interpretation and enforcement challenges.
This led to a pitch to DCNR: support WeConservePA in creating an exemplary conservation easement model—not tied to any particular land trust—and then support use of this document with training and technical assistance. The aim would be to both create a highly effective easement instrument AND establish a critical mass of conservation practitioners supporting each other in working from the same base document. Thankfully, DCNR leaders supported the concept.
A key step was identifying a skilled attorney to serve as the principal drafter. The review of a frighteningly large number of diverse easement documents for clarity and utility led me to Pat Pregmon of Pregmon Law Offices. She agreed to take on the task. She was surprised—and perhaps chagrined—when I told her it was necessary to build the model from scratch rather than starting with Pregmon Law Offices’ standard document. Thus began the work of revisiting long-standing assumptions, challenging whether old forms had kept up with modern conservation practice, and considering the comments of scores of conservation practitioners. This vital input from those creating and stewarding easements was gathered through numerous organized and informal peer discussions of needs, ideas, recommendations, and criticism. (As a result of this initial process and the many subsequent model review and update rounds, we can proudly say that no easement document in the nation has undergone greater public scrutiny and testing than ours.)
Pat produced a mountain of drafts, both for our internal consideration and for public review. Every single comment provided by outside reviewers received thoughtful consideration and a personally delivered response. While not every request was met or suggestion included, the reviewer always received a full explanation of our reasoning and opportunity to respond.
Fifteen months of collaboration and development resulted in a first edition that uses plain English, clearly laid-out rules, carefully vetted innovations, and a flexible structure designed to be customizable while minimizing the potential for drafting errors.
Two decades later, the model has seen tremendous success in its widespread adoption and efficient, effective delivery of durable conservation results. Today, with all but one PA-based, easement-holding land trust using the model, conservation professionals and volunteers can seek and gain practical assistance from a large community of peer users, share lessons learned, and engage in ongoing efforts to improve on the model and its commentary. The model has also been adapted by individual land trusts (and at least two state land trust associations) from Alaska to Arkansas, thus advancing conservation nationwide.
A crucial element in the model’s success, its commentary—which explains every provision and provides a great number of optional and alternative provisions—has grown 2.8 times from its first edition of 24,062 words to 67,432 words today.
Midwifing and raising the model and commentary are among my proudest professional accomplishments. Establishing a partnership with Pat Pregmon and subsequently working with her on updates to the model and the creation of scores of other models and technical guides to advance the practice of conservation has been profoundly rewarding for me. It is gratifying to witness the innumerable professionals and volunteers who use the model and the many other resources at the WeConservePA Library on an ongoing basis to conserve land across our state and nation.
