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I spent more than 20 years in the Washington metropolitan area providing legal counsel to builders and developers of residential communities and their lenders. Then I saw the light and switched from practicing law to working in the nonprofit world for the Trust for Public Land, a national land-conservation organization. Today, with much assistance, I help make land-conservation transactions happen. What I’ve learned in the process is that many people don’t understand the workings of land-conservation transactions. Of course, most purchase and sale real-estate transactions have the same elements: buyers and sellers, contracts of sale, deeds, surveys, title examinations and insurance, and feasibility-study issues. Land-conservation transactions (acquisitions, not easements) include many of those elements as well, but there are also a number of differences. The main differences are that these transactions are not profit-driven and the land is bought for the public good or for public use. In addition, local, state, or federal tax dollars are typically used to purchase the land, and that purchase price is based on “fair market value” appraisal, not on a buyer’s business model and profit projections. Also, while private land deals often have contingencies based on the land use and planning process, land-conservation transactions have no such contingencies. Finally, these transactions usually start with a push from either concerned citizens or government conservation programs, rather than the brokerage community. THE GOOD EARTH This is how a land-conservation transaction works: A potential buyer, whether it’s a government agency or a nonprofit conservation organization and has identified a property for potential purpose, looks at several factors: a property’s value as a natural resource; its proximity to other properties already in conservation and if those two properties are compatible; whether the local population needs parks, playgrounds, or other recreational facilities and whether this property would fit those needs; whether there’s a local public and political sentiment in favor of conservation; compatibility of the property to federal, state, county, or municipal conservation programs; and whether there is a sound stewardship program for the property so that it can be maintained and conserved in perpetuity. A good example of land that is worthy of strong consideration for conservation is any property within or affecting the Chesapeake Bay watershed, whether that land abuts the Chesapeake Bay, the Potomac River, or a tributary to the Susquehanna River. Who buys the land for a land-conservation transaction? Typically, the conservation-contract purchaser is either a government agency, such as the U.S. Department of the Interior or the Maryland Department of Natural Resources, or a conservation nonprofit such as the Trust for Public Land, where I work. Many times, government agencies with active, progressive land-conservation programs have land-acquisition specialists. They will work with program directors to identify property that fits their priorities and then try to buy that property by negotiating an agreement with the property owner. But in many instances, the government agency can’t facilitate an acquisition on its own. Often, the agency’s land-acquisition staff is overburdened — or doesn’t exist at all. Sometimes, a landowner will not talk to a government agency because of prior disputes about tax assessments or land use. Other times, especially in more rural communities, there might be a general mistrust of someone knocking on a landowner’s door and asking about buying his property. In addition, even when an agency does have staff, it may not have the ability to follow through with any kind of stewardship program or the money to buy or develop the property. Finally, some agencies have a conservation plan but do not have the capability to find property worthy of conservation. In these instances, and in situations where local land trusts and individual citizens or citizen groups have identified conservation property but are unable to facilitate such transactions, organizations like the Trust for Public Land are the contract purchasers of the property. We will then undertake all of the due diligence required by the transaction. Before settlement, the Trust for Public Land will assign its rights to the government agency or ask a seller to deed the property directly to the agency at closing. A RIVER RUNS THROUGH IT Here’s a good example of how a land-conservation transaction actually works. Recently, the Prince George’s County division of the Maryland National Capital Park and Planning Commission bought a 318-acre property along the Patuxent River in Prince George’s County, Md. The city of Bowie had purchased the property for nonrecreational municipal use, and after holding it for a few years, the city decided to sell it to a residential developer. During the study period, the developer decided that the property didn’t fit its business model, and it terminated its contract. Upon learning that the property would go back onto the market, the commission decided it wanted to purchase the property for watershed protection and to make it part of a public-use greenway system that the commission had been developing along the Patuxent River. The commission asked the Trust for Public Land to facilitate the transaction. Knowing that there would be other developers bidding for the property, we made a very attractive and competitive offer for the property based on a fair market value “highest and best use” appraisal, which was accepted by the seller. Once the property was under contract, the next step was the planning and implementation of the due-diligence process. The Trust for Public Land obtained a second appraisal, title work, a Phase 1 environmental report, and a survey. At the same time, we had to make sure that the local political delegation to the state legislature supported the project. In addition, the Trust for Public Land completed the assignment of the purchase contract to the commission. All of the due-diligence materials were vetted with and accepted by the Maryland Planning Commission, which was also working to get funding approval for the purchase. Because the purchase was to be funded by a portion of Maryland’s Program Open Space, the Maryland Board of Public Works had to approve the purchase. With the help of the Trust for Public Land, the commission and the land-acquisition section of the Maryland Department of General Services submitted the plan to purchase the property to the public-works board. That group reviewed the project materials and then approved the purchase at a public hearing at Maryland’s State House in Annapolis. The final step was settlement at a title company of the commission’s choice. Finally, the planning commission could begin the development of the property for public use, river access, and conservation. Although this example of a land-conservation transaction provides a good, basic overview, each transaction is as unique as the land itself. And, as in all land deals, many things can happen before the deal is completed that can threaten its success. Due-diligence issues arise, appraisals are challenged, the political climate can change, and the deadlines for and requirements of funding applications may vary significantly. At the end of the day, most land-conservation transactions are successful because the people in the process are smart, hardworking, and dedicated to the causes of protecting our precious natural resources and creating parks for people to enjoy.
Richard Ross is senior project manager in the Chesapeake and Central Appalachians Field Office of the Trust for Public Land.

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