Conservation Purposes. There are four different conservation purposes specified in the IRC.
 

The donation of a qualified real property interest to preserve land areas for the outdoor recreation of the general public or for the education of the general public, such as, for the preservation of a water area for the use of the public for boating or fishing, or a nature or hiking trail for the use of the public. The easement must be for the substantial and regular use of the general public. 

 

The donation of a qualified real property interest to protect a significant relatively natural habitat in which a fish, wildlife, or plant community, or similar ecosystem normally lives. The fact that the habitat or environment has been altered to some extent by human activity will not result in a deduction being denied under this section if the fish, wildlife, or plants continue to exist there in a relatively natural state. For example, the preservation of a lake formed by a man-made dam or a salt pond formed by a man-made dike would meet the conservation purposes test if the lake or pond were a nature feeding area for a wildlife community that included rare, endangered, or threatened native species.

Significant habitats and ecosystems include, but are not limited to, habitats for rare, endangered, or threatened species of animal, fish, or plants; natural areas that represent high quality examples of a terrestrial community or aquatic community, such as islands that are undeveloped or not intensely developed where the coastal ecosystem is relatively intact; and natural areas which are included in, or which contribute to, the ecological viability of a local, state, or national park, nature preserve, wildlife refuge, wilderness area, or other similar conservation area.

 

The donation of a qualified real property interest to preserve open space (including farmland and forest land) will meet the conservation purposes test if such preservation is: 

(A) Pursuant to a clearly delineated Federal, state, or local governmental conservation policy and will yield a significant public benefit, or

This requirement is intended to protect the types of property identified by representatives of the general public as worthy of preservation or conservation. A general declaration of conservation goals by a single official or legislative body is not sufficient. However, a governmental conservation policy need not be a certification program that identifies particular lots or small parcels of individually owned property. This requirement will be met by donations that further a specific, identified conservation project, such as the preservation of land within a state or local landmark district that is locally recognized as being significant to that district; the preservation of a wild or scenic river, the preservation of farmland pursuant to a state program for flood prevention and control; or the protection of the scenic, ecological, or historic character of land that is contiguous to, or an integral part of, the surroundings of existing recreation or conservation sites.

Acceptance of an easement by an agency of the Federal Government or by an agency of a state or local government tends to establish the requisite clearly delineated governmental policy, although such acceptance, without more, is not sufficient.

The conservation purpose must also have a significant public benefit. The factors considered in determining the benefit are:  

     (1) The uniqueness of the property to the area;

     (2) The intensity of land development in the vicinity of the property (both existing development and foreseeable trends of development);

     (3) The consistency of the proposed open space use with public programs for conservation in the region, including programs for outdoor recreation, irrigation or water supply protection, water quality maintenance or enhancement, flood prevention and control, erosion control, shoreline protection, and protection of land areas included in, or related to, a government approved master plan or land management area;

     (4) The consistency of the proposed open space use with existing private conservation programs in the area, as evidenced by other land, protected by easement or fee ownership in close proximity to the property;

     (5) The likelihood that development of the property would lead to or contribute to degradation of the scenic, natural, or historic character of the area;

     (6) The opportunity for the general public to use the property or to appreciate its scenic values;

     (7) The importance of the property in preserving a local or regional landscape or resource that attracts tourism or commerce to the area;

     (8) The likelihood that the donee will acquire equally desirable and valuable substitute property or property rights;

     (9) The cost to the donee of enforcing the terms of the conservation restriction;

     (10) The population density in the area of the property; and

     (11) The consistency of the proposed open space use with a legislatively mandated program identifying particular parcels of land for future protection.

Although the requirements of “clearly delineated governmental policy” and “significant public benefit” must be met independently, for purposes of this section the two requirements may also be related. The more specific the governmental policy with respect to the particular site to be protected, the more likely the governmental decision, by itself, will tend to establish the significant public benefit associated with the donation.

 

(B) For the scenic enjoyment of the general public and will yield a significant public benefit.

Scenic enjoyment for the general public is determined as whether development of the property would impair the panoramic view of a public place or transportation way. Visual access to the property (not physical) is sufficient, so long as a good portion is visible to the public. Scenic enjoyment will be evaluated by considering all pertinent facts, including: 

     (1) The compatibility of the land use with other land in the vicinity;

     (2) The degree of contrast and variety provided by the visual scene;

     (3) The openness of the land (which would be a more significant factor in an urban or densely populated setting or in a heavily wooded area);

     (4) Relief from urban closeness;

     (5) The harmonious variety of shapes and textures;

     (6) The degree to which the land use maintains the scale and character of the urban landscape to preserve open space, visual enjoyment, and sunlight for the surrounding area;

     (7) The consistency of the proposed scenic view with a methodical state scenic identification program, such as a state landscape inventory; and

     (8) The consistency of the proposed scenic view with a regional or local landscape inventory made pursuant to a sufficiently rigorous review process, especially if the donation is endorsed by an appropriate state or local governmental agency.

Since the degrees of scenic enjoyment offered by a variety of open space easements are subjective and not as easily delineated as are increasingly specific levels of governmental policy, the significant public benefit of preserving a scenic view must be independently established in all cases.

 

When restrictions to preserve a building or land area within a registered historic district permit future development on the site, a deduction will be allowed under this section only if the terms of the restrictions require that such development conform with appropriate local, state, or Federal standards for construction or rehabilitation within the district. 

Historically important land area. Is an independently significant land area including any related historic resources that meets the National Register Criteria for Evaluation; any land area within a registered historic district including any buildings on the land area that can reasonably be considered as contributing to the significance of the district; and any land area (including related historic resources) adjacent to a property listed individually in the National Register of Historic Places (but not within a registered historic district) in a case where the physical or environmental features of the land area contribute to the historic or cultural integrity of the property.

Certified historic structure.  Any building, structure or land area which is listed in the National Register, or located in a registered historic district and determined by the Secretary of the Treasury as being of historic significance to the district.

Some visual public access to the donated property is required. In the case of an historically important land area, the entire property need not be visible to the public for a donation to qualify under this section. However, the public benefit from the donation may be insufficient to qualify for a deduction if only a small portion of the property is so visible. Where the historic land area or certified historic structure which is the subject of the donation is not visible from a public way, the terms of the easement must be such that the general public is given the opportunity on a regular basis to view the characteristics and features of the property which are preserved by the easement to the extent consistent with the nature and condition of the property.