I am happy to announce that the peer reviewed journal Land Use Policy just published my essay on cultural heritage conservation easements. In this piece, I examine the three categories of conservation easements that focus on protecting culture instead of protecting open space or environmental values: (1) historic preservation easements, (2) archaeological conservation easements, and (3) cultural conservation easements.
For those of you not familiar with these categories, let me give a little background. Historic preservation easements have been around a long time and are usually covered not only by state conservation easement acts, but sometimes by specific laws protecting and promoting historical buildings. Many of these are facade easements, protecting the exterior of buildings, but other include protection of the interior or extend into the area surrounding the buildings. These are closely tied to general efforts at historic preservation and accompanied by tax incentives. I am somewhat critical of these because at times their valuation seems questionably high, yielding significant tax benefits for wealthy landowners who may not have had any intention of modifying the historical architectural features of their home.
Archaeological Conservation Easements are few in number although often expressly permitted in state conservation easement statutes. They differ from other conservation easements because they generally contemplate the holder of the easement actually disturbing the land (or facilitating land disturbance by archaeologists). While the may protect important archaeological sites they do so specifically with the intention of exploration and exploitation, which makes them a pretty different creature.
Cultural conservation easements (as distinguished from cultural heritage conservation easements) protect cultural sites that do not necessarily have specific architectural or archaeologic features. These are most often associated with Native American Indian tribes and many are located in the West. Again, these conservation differ from the more traditional model because they often contemplate direct use of the site by the holders or others for religious or cultural purposes.
I am intrigued by these conservation easements for many reasons, but one I discuss in this essay is the idea of using a perpetual restriction in the context of cultural features. While protection of these spaces may serve as a vital tool in ensure that such places are not heedlessly demolished or converted to incompatible uses, the static nature of conservation easements seems odd in the context of culture — something that grows and evolves. Are we creating museums on our landscape when we use perpetual tools that preserve today's uses and features.
The article is available for free for the next 50 days via this link and an earlier version of the article is available on my ssrn site when the free link expires. I welcome your thoughts.
December 11, 2015