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Conservation Easements On Property Containing Fewer Than 40 Acres

Tax Exemption for Property Less Than 40 Acres Used for Conservation Purposes
(Approved by the Acquisition and Restoration Council in December 2009)
The 2009 Florida Legislature, in its implementing legislation for Constitutional Amendment Four, amended Chapter 196, F.S., to provide ad valorem taxation exemptions for lands used for conservation purposes.  Section 196.26(2), F.S. stated that land dedicated in perpetuity for conservation and used exclusively for that purpose was exempt from ad valorem taxation. The Legislature defined “dedicated in perpetuity” as land encumbered by an irrevocable, perpetual conservation easement.  For property containing 40 or more acres, landowners could coordinate directly with their county property appraiser to obtain the necessary exemption.
Section 196.26(4), F.S., specifically addressed property containing fewer than 40 acres.  This section stated that land comprising less than 40 contiguous acres did not qualify for the exemption unless the Acquisition and Restoration Council (ARC) determined that placing a conservation easement on the property (1) met a clearly delineated state conservation policy and (2) yielded a significant public benefit.

(1) State Conservation Policy

The Division of State Lands (DSL) interprets the intent language in the Florida Forever Act (Chapter 259, F.S.) as summarizing a clearly delineated state conservation policy. ARC will use both the Florida Forever measures from Section 259.105(4), F.S., and those specifically stated in HB 7157 as representing the relevant criteria to be weighed in determining the fulfillment of that policy. Therefore, to meet the test that a conservation easement under 40 acres in size fulfills a clearly delineated state conservation policy, the property must meet at least one of the following requirements:
(a) Contains a natural sinkhole or spring;
(b) Contains a unique geological feature;
(c) Located within a significant strategic habitat conservation area;
(d) Provides nursery habitat for marine and estuarine species;
(e) Provides for protection or restoration of fragile coastal areas;
(f) Provides habitat for endangered or threatened species;
(g) Provides habitat for imperiled species;
(h) Contributes to a significant landscape, landscape linkage or conservation corridor;
(i) Contains an underrepresented native ecosystem;
(j) Protects natural floodplain functions;
(k) Protects surface waters of the state;
(l) Protects fragile coastal resources;
(m) Protects functional wetlands;
(n) Provides groundwater recharge critical to springs, sinks, aquifers or other natural systems;
(o) Provides retention of natural open space within densely built-up or urban areas; or
(p) Other state conservation policy existing in Florida Statutes or Florida Administrative Code.

(2) Significant Public Benefit

After determining that the property meets a clearly delineated state conservation policy, ARC must then decide whether the property yields a significant public benefit.  ARC must give particular consideration to land that:
(a)  Contains a natural sinkhole or spring serving a water recharge or production function;
(b)  Contains a unique geological feature;
(c)  Provides habitat for endangered or threatened species;
(d)  Provides nursery habitat for marine and estuarine species;
(e)  Provides protection or restoration of vulnerable coastal areas;
(f)   Preserves natural shoreline habitat; or
(g)  Provides retention of natural opens space in otherwise densely built-up areas.
 
Required Documentation:
Prior to ARC review, a landowner must obtain the following items:
1. A complete ARC easement application
2. An executed and recorded conservation easement for the property in question.
3. A Baseline Document that describes the proposed property, including natural values to be protected and any structures or improvements to the property.
4. A Management Plan for the property.
5. A nonprofit designated to monitor the easement’s provisions.
Please contact ARC Staff Director at 850-245-2555 for additional information and to obtain these documents.
ARC Easement Application
Management Plan Guide
 
Easement Enforcement:
Normally the easement grantee, or holder of the conservation easement, is responsible for enforcing the provisions of an easement.  In the case of easements on properties less than 40 acres, DSL interprets this provision to refer to nonprofit entities whose purpose is the conservation of land and who either hold conservation easements or plan to do so in the future.  Section 196.26(9), F.S. states that ARC, through DSL, shall maintain a list of nonprofit entities that are qualified to enforce conservation easement provisions.  DSL is required to maintain this list, and the landowners may contact the organization seeking an organization to which they could donate an easement to take advantage of the property tax exemption.
To qualify for inclusion on this list, a nonprofit must be:
1. Organized within the meaning of Section 501(c)(3) of the Internal Revenue Code for the purposes of protecting natural, scenic, or open space values of real property or protecting natural resources; and
2. In good standing with the IRS, the state in which it is organized, and the state of Florida.
 
To qualify for inclusion on the list, nonprofits must submit a copy of the following to DSL:
1. Most recent IRS Form 990;
2. Corporate documentation (articles of incorporation, bylaws);
3. A certificate of good standing from the Florida Secretary of State, and
4. A certificate of good standing from the state of organization if not Florida.
 
To remain on the list, nonprofits must, on an annual basis, submit the following:
1. Most recent IRS Form 990;
2. A resolution from their governing body that their corporate documentation is unchanged or, if it has changed, an amended corporate documentation;
3. A current certificate of good standing from the Florida Secretary of State, and
4. A current certificate of good standing from its state of organization.
 
It is important to note that inclusion on the list does not create any obligation for a nonprofit to agree to accept a donation of a conservation easement and does not create any obligation by ARC to find that an easement held by a nonprofit fulfills a clearly delineated state conservation policy and yields a significant public benefit.
Donation of a conservation easement to an entity on the list does not assure that the donation will qualify as a charitable donation under the Internal Revenue Code or assure that the donation will qualify for an ad valorem tax exemption or reduction. Interested parties are urged to consult with their tax advisors about those issues. Please contact ARC Staff Director at 850-245-2555 for additional information.
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Last Modified:
May 16, 2019 - 4:40pm

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