Mary Kelseys father was the sole owner of 100 acres of prime riverine land in Geauga County east of Cleveland. As she relates in the following personal account, her father had no provision in his will for the land, and his estate planning was a decade out of date. No one in the family had given much thought to the future of the land, although they regularly received solicitations from developers interested in the property.

In all this, they were like many families who are fortunate enough to own land. But a few years ago Marys father developed a dementing illness. While family members were consumed with caring for him, they also struggled with questions about the landquestions about values and dreams, memories and emotional ties, and the sometimes conflicting desires of husband, wife, and children.

It would have been easy for them to let a real estate developer take these agonizing questions out of their hands. But, fortunately, the family started early enough to plan for the future. They overcame the difficulties of estate planning and succeeded in protecting their land with a conservation easement. The easement will permanently preserve the land in its natural state, while allowing the family to continue using the property. In return for the donation of the easement, the family received significant tax advantages.

It is extremely important that families like the Kelseys be able to make such a choice. The future of large swaths of countryside in Northeast Ohio rests with relatively few families who own significant blocks of land. Many of these owners are aging (about one third of the land in the U.S. is owned by people with an average age of 59). In the coming years, tens of thousands of acres of land will change hands in the region.

Some landowners, including many farmers, have little equity other than the appreciated value of their land. Without greatly expanded farmland preservation programs, these owners will be under great pressure to sell out to development. Other retirement-aged landowners, however, have sufficient capital that the sale of their land is not critical to their financial well-being. A tremendous opportunity exists to preserve this land. To do this, the owners must plan ahead while they are still able to do so. And they must overcome obstacles:

• Health problems that preoccupy landowners and their adult children, especially if they take on added responsibility caring for their parents.
• Technical changes in the way business is conducted, which can make the legal and financial aspects of organizing a land preservation project seem even more complex and formidable to an elderly landowner.
• Relatively recent land conservation vehicles, such as conservation easements, which are not familiar to many legal professionals. An older landowner may have a long-standing relationship with trusted legal counsel who is not experienced with the conservation options now available.

It can take from six months to several years to design and implement a conservation easement. Considering the real and perceived difficulties of such an undertaking, its not hard to see why even a conservation-minded landowner may end up selling a tract of land to a developer, especially when no one in the family has time or energy to pursue other options. Thus, the sooner the easement process is begun, the greater the opportunity for conservation. Months can make a difference, especially when a landowners health is in question.

One lesson from this case: Many more families in Northeast Ohio would consider preserving their land if more support and advice were available. Indeed, one of the best conservation investments the region could make would be in a team of knowledgeable attorneys, financial planners, appraisers, and surveyors who could help landowners understand their options and lead them through the complexities of the deal.

A family land story

By Mary Kelsey

My family has owned Blue Heron Farm since my fathers mother bought it in 1930. The farm consists of 100 mostly wooded acres straddling headwaters of the Cuyahoga River in Geauga county. In 1921 a dam had been built to create a winding, tongue-shaped lake where water lilies grow in summer. In and around it are beaver homes, turtles, slow-moving carp, wide-mouth bass, many species of damsel- and dragonflies, aquatic birds including great blue heron and various ducks, birds of prey and songbirds, bats, kingfishers, wild turkey, fox, deer and countless other creatures.

When my father was a boy he could see from the dam clear south across pasture, but now almost three-quarters of a century later most of that has grown up into the beech-maple forest typical of the area. My grandmother planted some white pines, now frequent victims of windstorms, and built several houses on the ridge above the dam. Below it the river curves through a sandstone ravine where hemlocks cling to the cooler, moister walls. The sandstone has broken off in some places into huge boulders and even a cave with a chimney, which delighted and challenged us as children.

When she grew old my grandmother no longer wanted to keep up the country place. She couldnt find a buyer, so she gave it to her four sons. None except my father was particularly interested in using or maintaining it, so he bought out his brothers shares. He built a summer home, and family friends built a cabin off in the woods further up the lake, with footbridges over two ravines for access. Both houses had docks for tying up canoes. Eventually my parents moved from the suburbs out to the farm, and built a large garage with an apartment above.

Land dreams

By 1994 the cycle of stewardship was about to repeat. My parents had lived on the land for 25 years and loved it, but my father was thinking about retirement. He pictured himself selling the place and joining friends who had moved to a coastal island in Georgia. My mother didnt like the idea, though she could see that the possible infirmities of age might make living at Blue Heron Farm more burden than pleasure. Its very isolation could become a trap, and upkeep on a large house and acreage were already more than she wanted. But the idea of seeing the land developed, which might well happen if it were sold, horrified her. Thus began an ongoing struggle to figure out what to do.

During this time I had arrived back in Ohio after an absence of some decades. I moved into the garage apartment and planted my first garden the following year. We stored winter vegetables in a makeshift cold cellar and joined the buying program of a local organic farm. My life was an experiment in rural (though not simple) living. Much of my time went into growing, getting, storing and preparing food: I thought that's how I ought to begin if I aimed for a more sustainable life style. In the process, I began to connect more intimately with the land.

A local land trust

One night soon after I had first arrived at the farm, my father asked me to accompany him to a meeting of the local Headwaters Landtrust. He had been asked to join a new project for river conservationthe Upper Cuyahoga Streambanking Partnership. Dad got me interested, and soon I was attending the committee meetings at which he had a hard time staying awake.

This project generated much of the activity about our land that followed over the next years, and I later chuckled at the double subterfuge in which Dad and I indulged. He wanted me to get involved with land so that I would stay there, whereas I wanted to be involved as his representative to the Streambanks project so he would conserve the land.

For two years we struggled with the issues of conservation. As Dads memory became patchy and his judgment less reliable, my mother and I took over the role of planning and managing assets of all kinds, including land. I later thought that in some way he could not articulate, my father intuitively foresaw something and brought me on to the Streambanks committee as the beginning of getting me involved in planning, even as he resisted giving up his own role as captain. But on the night I first attended that meeting none of us had any idea of the challenges to come.

The Streambanking program is a project of the Ohio NatureWorks Program, funded by voters and administered by the Ohio Department of Natural Resources. Funds were available to public-private partnerships for protecting streamside habitat. In the Cuyahoga River headwaters of Geauga and Portage counties, this partnership consists of the Headwaters Landtrust, Portage Land Association for Conservation and Education, and the Geauga and Portage County Soil and Water Conservation Districts. The group also includes citizens and representatives from the Geauga Park District and ODNR Division of Natural Areas and Preserves. The objective is to enhance and protect the riparian buffer zonethe area where river and land meetwhere erosion can seriously diminish water quality, and where maintaining a wooded stream corridor can contribute greatly to the health of the river.

The Streambanks Initiative, as we came to call it, concentrated its efforts on acquiring conservation easements through direct reimbursement to landowners or by donation. We solicited landowners along the river by mail, and in person. At first it was quite an effort to get anyone to sign up, but as committee members and representatives of the soil and water districts actively campaigned among landowners, applications began to come in. After two years, the committee had more applications than it could fund, and it had protected over 250 acres of riverfront. In addition, the committee prepared a Riparian Area Protection Plan to map out continuing conservation along the river.

Conservation easement

After Id sat through the early process of some of these first easements, I began to feel it was opportune for my family to sign up, too. In all our talk about the future, my mother and I made it clear to my father we didnt want to sell the land. But if it did turn out that way, at least we wanted to be sure no one would ever take the land out of its natural statethough natural had certainly changed over the years as forest had been cut for pasture and then allowed to grow again, and stream had been made into lake.

Our land clearly had potential for development dollars. But my mother and I thought the greater wealth to be wildlife, both plant and animal. Ultimately, however, we had no control over the disposition of the place. The land and its fate belonged to my father, who had spent his professional life managing investments. It was consistent with his experience to view land in an investment context; as such, it could be sold. But unlike stocks or bonds, which represent industry and capital, land in its natural state does not represent labor or the combined talents and capital of a given group at a given time. Land cannot be made again. It is finite. It cannot expand or engender more land.

From Stephen Smalls book, Preserving Family Lands, I outlined several possibilities for Blue Heron Farm:

• Sell the land now and pay capital gains tax.
• Leave the land to the children.
• Keep it and protect it with a conservation easement.
• Protect it with an easement and sell later.

To find out more about easements, my mother and I consulted Molly Offitt, who then worked at Holden Arboretum as an expert in areas of land conservation and estate planning. She stressed the complexity of our situation and warned us that making an easement would be time-consuming and not easy.

In early 1996 we brought up the idea of a conservation easement with Dad. He liked it. I was elated and thought we had passed a milestone. Dad said he didn't want people building over his bones. He remembered that when he was young it had been important to know where a person was from, and roots were still important to him. Although he wanted to sell the place and retire to Georgia, he seemed genuinely interested in Blue Heron Farm remaining as it was. My mother, a long-time environmentalist who had close connections with the Cleveland Museum of Natural History and the Holden Arboretum, wanted wildlife corridors and conservation.

Naturalists from Geauga Parks and the Museum of Natural History had visited and walked the land. We knew that others, too, considered the farm a valuable resource. So when we were looking into conservation measures, I asked the Geauga Parks director to come over for a walk. I knew my father respected him, and I thought he might help convince Dad to do an easement. But he held out.

There followed a period of back and forth about the land and easements. The discussion was fraught with my parents differences of opinion about retirement plans. They disagreed on just about every aspect of the situation. Dad wavered back and forth about the easement, and seemed never willing to commit to it.

Lawyers and aging landowners

In the summer of 1996 we celebrated Dads 75th birthday. That fall we took him to the city for exhaustive tests to discover more about his fogginess and forgetfulness. He was diagnosed with Alzheimers disease. He spent fewer hours at his desk, and began to get interested in things he never seemed to notice before. He would pick up the binoculars and watch birds from the big windows overlooking the lake. He noticed deer and seemed interested in many aspects of the natural world.

The pace at which things unfolded seemed overwhelming. My mother became increasingly worried whenever Dad was gone for any length of time. She argued with him about mail and incoming checks that she thought he misplaced. Things got confused easily, and it seemed to me that everything took twice as long as it ought to.

All these changes moved estate planning to a higher priority. By now I understood that easements and other conservation tools needed to be part of a whole package of retirement and estate planning. I knew very little about all this. I couldnt even answer my fathers question whether sale of an easement would generate capital gains tax. Through contacts with conservation groups and even with the Alzheimers Association I looked for legal help. The first local attorney I called disapproved of easements and was vague about Dads tax question. I realized then why some of the Streambanks easements seemed to come to a halt when enthusiastic landowners consulted their attorneys. The second lawyer with whom I spoke came highly recommended to families dealing with planning issues around Alzheimers. But her letterhead bore the name of a prominent local real estate developer, which hardly seemed propitious for what I now realized was a new way of doing things for the Geauga county legal profession. Finally, I found an attorney in Cleveland.

In spring of 1997 my mother and I drove into Cleveland to meet with him. Mom had misgivings about this estate planning stuff. It seemed only to add to the anxiety she was feeling in general. I thought Dad might be more interested in money than in land, because money meant security to him. I pondered the idea that he might trade his land for securities my mother held in her name. She laughed at thisit seemed absurd, since they had always conducted financial matters jointly. I didn't pursue it.

Soon after, when my older sister was visiting, we held a family meeting. We decided it was time to move ahead on estate planning, if thats what it would take to deal with land. My father wanted to consult his own attorney, though. He wanted to see the entire estate plan in overview before he would make a decision about the land. The rest of us wanted to see conservation measures initiated soon.

Several weeks later I drove my parents to the office of Dads attorney in downtown Cleveland. He was a principal in a prominent firm and chatted with us briefly. Emphasizing the importance of assets in old age and not knowing of Dads diagnosis, he mentioned a friend who had Alzheimers. In the old days they just gave them a wing of the house and the servants dealt with it, he said.

His younger associate was equally outspoken. He thought I was there to steal my parents estate. He knew nothing of conservation easements. What he did tell us about estate planning seemed counter to the first attorneys advice. Finally, after two hours of discussing land and money, my father said to my mother, Why don't I trade the farm for some of your stocks, then you can do what you want with the land?

They looked at each other with amusement and amazement. I could hardly believe this was happening 50 floors above Lake Erie, that I was there to witness it, and that the idea didnt come from me. The attorney looked confused and suspicious, but the three of us knew we had really and truly achieved a milestonewithout legal help and by simply hashing the issues over. We left and went out to dinner to celebrate. In the car, Dad announced he wanted to give Moms lawyer a try. His business judgment and acumen remained as sound as ever.

So the three of us met again with my mothers lawyer, whom Dad liked. It was a great relief to be working together, all of us with confidence we had chosen the right person to help us. He was knowledgeable about conservation easements. He joked that we were encumbering our land, but he helped us plan for what we wanted. We began with updating wills and durable powers of attorney, both general and for health care. To facilitate the stock-for-land transfer, we brought in a friend of my parents whom they trusted to handle finances. It was another milestone that Dad finally was willing to give up managing his own investments. By late summer of 1997 the stock-for-land transfer was completed and my mother now owned Blue Heron Farm. The way was clear to go ahead with a conservation easement.

Marking the land

We contacted Al Bonnis at the Streambanks Initiative again and applied for the easement. In August the committee met (without me) and offered to buy part of our proposed easement, with the rest to be a donation from my mother. The next step was to sign an option agreement, which obligates the landowner to reimburse Streambanks for appraisal, survey and other expenses if the landowner decides not to go through with the easement.

Then Al came over, and he and I walked the land and drafted easement lines. I made maps of the proposed easement and sent them to my sisters for comment. One sister suggested leaving open the possibility of another cabin in the woods, beyond the ravine past the present cabin. So we adjusted the line there. Another sister wondered about the site across the lake where a cottage once had stood, but we convinced her that building there now would require removing too many trees. As a tradeoff we left more land out of the easement near the current structures, where existing infrastructure would make future building much more feasible. I also designated a 2- to 3-acre parcel near the gas well as a possible building site should anyone ever need to raise cash by selling off part of the land.

The familys conservation efforts had piqued my interest in needs throughout the county to preserve open land. In April 1998, I attended a conference put on by several groups including Headwaters, Chagrin River Land Conservancy, and PLACE. For two days we listened to Stephen Small, the tax attorney and national expert who wrote Preserving Family Lands. He also met with individuals interested in putting conservation easements on their land. He agreed to look over our documents before the easement was finalized.

It took some months to complete the easement survey. The surveyor was very busya bottleneck in the process for which I was prepared, having seen it with other Streambanks easements. Finally he got to it in spring of 1998. But his draft map showed much less easement than we had intended, so he and I went back and walked it again. In the process he suggested we might want to know more about what could actually be built in our designated building envelope, before we drew the final easement lines. This made sense to me; although I had read about the idea, I really had no expertise to delineate where a building envelope should go. Short of hiring a landscape architect (who might or might not know either), I felt somewhat unsure of this part of the process.

Al Bonnis referred me to a soil scientist, who came out one afternoon in June. We walked through the designated building area. I was fascinated to learn how much there was to know about soil and what you can deduce from looking at slopes, vegetation, and clumps of earth from a hand-held augur. The soil scientist concluded there was good drainage for two but probably not three structures in the designated site, so I left it as we had drawn it.

The next hurdle was one I set myself: to consult with Stephen Small about whether we should even have areas for building at all. I felt some diffidence about making these decisions for perpetuity, literally the language in the easement. Though it was late in the process, I wanted some handholding, and turned to Small to ratify the plan.

More hoops

Meanwhile I got a note from Al about the title search, which was a required legal part of recording the easement. The search had come up with a few problems in tracing land transfers from my grandmother to her sons and from there to my father alone. A minor discrepancy on one of the papers omitted the usual Jr. after Dads name. The title company wanted the original deed so they could re-register it with a proper signature. I protested that by that date Kelsey Sr. was no longer on this earth, making the Jr. irrelevant.

I was vexed at one more hoop to jump through, and I complained to Al about how long it was taking to do this easement. I didnt understand how an earlier title could be questioned if later titles bore the Guaranteed stamp, but I went through the lock box at the bank to look for the original. It wasnt there. The only other place I might find it would be in four tall file cabinets in Dads office crammed with papers of all sortsa daunting delay. I called the title company, who finally agreed to disregard the signature anomaly. Now the only remaining hurdles were to confirm the easement lines with the surveyor, do an updated reappraisal of the easement, and sign the completed papers.

As it turned out, during these delays our other estate planning was moving forward. We brought in a new tax advisor who recommended that instead of selling part of the easement my mother could offset other capital gains by donating the entire thing, which she did. Another sister, an attorney experienced with conservation easements in other parts of the country, went over the easement language and rewrote it to be simpler and more readable. She brought up several legal points that no one had noticed before, and in the process provided Streambanks with a tighter model for future easements.

Also during this time my parents decided to move to a community in upstate New York. They packed up their things and left in November 1998. In early December, three years after we began the process, the conservation easement was signed. My journal entry from a visit to my parents records a day full of numerous tasks helping them to get situated, with a note that the conservation easement was signed at the bank. I wrote that I had anticipated this great moment for years now, but it turned out to be just a knot on a long string of errands that day.

Land and family

The challenges facing our family became increasingly complex. Issues of aging, health and well-being developed with a drama and force that reached our roots and required emotional and personal resources we didnt even know we had. At times, adjusting to the situation and trying to see our way through new difficulties took all our energy and then some.

Executing the conservation easement on Blue Heron Farm took persistence over several years, a burning soul (me) who wouldnt give up, and resources of time and money to plan appropriately. Not every family or every piece of land has these available. But the statistics of land ownership in the United States at this millennium give meaning to our relatively small story. If we had waited any longer to begin planning for the future of Blue Heron Farm, it seems very likely the land would have been sold and not preserved, for the simple reason that concern for health issues would have taken over our attention and available energy.

As it turned out, our easement allowed us to keep the land. We can continue to use it and even log it selectively under restrictions designed to protect the stream bank and water quality. Most of the farm can never be developed, however. The easement permanently retires the development rights and assigns the perpetual responsibility of enforcing this to the soil and water district. In return for donating these valuable development rights, our family obtained tax advantages based on the reduced market value of the land.

A conservation easement is not the only way to preserve family land. The amount of land, situations and desires of family members, and family resources all determine which vehicle is most appropriate for preservation. Where a conservation easement becomes very useful is where family assets, including the dollar value of the land, would force a sale in order to pay estate taxes. In our case, the tail wagged the dog to some extent, because in order to protect the land we had to deal with the whole of estate planning. In the process, outdated wills as well as outdated assets were better managed for my parents financial security and for their childrens and grandchildrens best interests.

Postscript

Six years after we began the easement process my parents moved back to their old home with caregivers around the clock. My fathers diagnosis was changed to a rapidly progressing dementia with Parkinsonian symptoms. Life is certainly difficult for them, but not without its bright moments. I witnessed the day he was first brought from the hospital in his wheelchair onto the porch of the house he built, where the lake stretches out ahead. His smile lasted for hours.

Its still good to listen to occasional frogs, watch morning mists move over the water, and savor the day on the land. It will be here after us, to give rest and inspiration to others. That is one thing that gives me hope.

Mary Kelsey is a local artist and occasional contributor to the EcoCity Cleveland Journal. She created the art for this story, and painted our Bioregional Map Poster.

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EcoCity Cleveland
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Cuyahoga Bioregion
(216) 961-5020
www.ecocitycleveland.org
Copyright 2002-2003

Drawing by Mary Kelsey

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