As stated previously the legislation to utilize rollback taxes to purchase agricultural conservation easements is a wonderful idea, but the glitch is the termination clause within the legislation. The IRS has filed a claim that a couple in Maryland who granted a bargain sale agricultural conservation easement and then claimed a tax deduction on the value they donated is not valid because the legislation that created the Maryland program allows for termination of agricultural conservation easements. There is not a challenge to the claim of value but rather that the easement is not perpetual. Here is the clause in question that is in the Maryland conservation easement. “This easement shall be in perpetuity, or for so long as profitable farming is feasible on the Grantor’s land.”

Utah Open Lands was granted its first agricultural easement in 1997. This land wasn't just good dirt to grow things on, it was prime farmland soil capable of some of the best crop production. When the landowner who donated the conservation easement passed away the estate received the estate tax benefits because the conservation easement met the requirements under federal law 170(h) for conservation easements which requires that the duration of the conservation easement be in perpetuity. The land wasn't farmed for several years but the scenic and wildlife values of the property were defended by Utah Open Lands when the organization was sued by a third party trying to break the conservation easement. We prevailed and the conservation easement remained intact.

Utah Open Lands defended the protection of that land first and foremost because of the intention of the landowner to see it protected, but also because of its agricultural value even though it wasn't always being farmed. That farm will now be used in part for Salt Lake County's Urban Farming program. Had that agricultural conservation easement contained a clause of termination similar to the one in question or available under this proposed Utah legislation, it might not be available today for our long term sustainability and food security.