Conservation easements offer a unique way to preserve land in perpetuity while at the same time providing tax benefits to the landowner. Prior to the 1970s' Congressional enactment of the tax provision in question, one could not obtain a federal income tax deduction for a donation to a nonprofit organization of less than one's entire interest in real property. Internal Revenue Code section 170(h) modified that outcome by allowing a federal income tax deduction for a donation of a qualified conservation easement, and in its wake, a highly specialized movement was born. A landowner can now donate a partial interest in her land, e.g., the development rights, the timber or mining rights, or even the water rights, to a qualified organization, and receive an income tax deduction in return. Some of these easements require public access, namely when the sole qualifying "conservation purpose" of the easement is public education or recreation. In the case of these easements, questions arise whether providing public access will trigger the provisions of the Americans with Disabilities Act, and if so, who is responsible for its implementation, donor landowner or donee nonprofit organization.
The Americans with Disabilities Act ("ADA" or "Act") provides that public entities as well as places of public accommodation must offer access to persons with disabilities. This requirement for places of public accommodation normally is invoked in the construction of new buildings or such extensive reconstruction as to allow for the inclusion of such access in the process. The Act specifically sets out twelve categories of public accommodations, and provides descriptive examples of each category, including places of recreation. Land open to the public by virtue of the terms of the conservation easement arguably falls within such category. Further, the ADA provides extensive requirements for outdoor recreation areas, which because of their very nature, present special challenges in attempting to make them accessible to those with disabilities. This Note explores both the requirements of the Internal Revenue Code governing conservation easements as well as the guidelines for ADA compliance, and offers guidance to those in the conservation easement movement in reconciling the respective statutory mandates.
Ellen Aubrey Fred,
Outdoor Accessibility Requirements of the Americans with Disabilities Act: Must Holders of Conservation Easments Provide ADA Access?,
54 Hastings L.J. 243
Available at: https://repository.uchastings.edu/hastings_law_journal/vol54/iss1/4