Conservation Easements

State of Texas

NATURAL RESOURCES CODE

TITLE 8. ACQUISITION OF RESOURCES

CHAPTER 183. CONSERVATION EASEMENTS

Sec. 183.001. DEFINITIONS. In this chapter:

(1) "Conservation easement" means a nonpossessory interest of a holder in real property that imposes limitations or affirmative obligations designed to:

(A) retain or protect natural, scenic, or open-space values of real property or assure its availability for agricultural, forest, recreational, or open-space use;

(B) protect natural resources;

(C) maintain or enhance air or water quality; or

(D) preserve the historical, architectural, archeological, or cultural aspects of real property.

(2) "Holder" means:

(A) a governmental body empowered to hold an interest in real property under the laws of this state or the United States; or

(B) a charitable corporation, charitable association, or charitable trust created or empowered to:

(i) retain or protect the natural, scenic, or open-space values of real property;

(ii) assure the availability of real property for agricultural, forest, recreational, or open-space use;

(iii) protect natural resources;

(iv) maintain or enhance air or water quality; or

(v) preserve the historical, architectural, archeological, or cultural aspects of real property.

(3) "Third-party right of enforcement" means a right provided in a conservation easement to enforce any of its terms granted to a governmental body, charitable corporation, charitable association, or charitable trust that is eligible to be a holder but is not a holder.

(4) "Servient estate" means the real property burdened by the conservation easement.

Added by Acts 1983, 68th Leg., p. 2438, ch. 434, Sec. 1, eff. Sept. 1, 1983.

Sec. 183.002. CREATION, CONVEYANCES, ACCEPTANCES, AND DURATION.

(a) Except as otherwise provided in this chapter, a conservation easement may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements.

(b) A right or duty in favor of or against a holder and a right in favor of a person having a third-party right of enforcement does not arise under a conservation easement before its acceptance by the holder and the recordation of the acceptance.

(c) Except as provided by Section 183.003(b) of this code, a conservation easement is unlimited in duration unless the instrument creating it makes some other provision.

(d) An interest that exists in real property at the time a conservation easement is created is not impaired unless the owner of the interest is a party to the conservation easement or consents to it.

(e) A conservation easement must be created in writing, acknowledged and recorded in the deed records of the county in which the servient estate is located, and must include a legal description of the real property which constitutes the servient estate.

(f) If land that has been subject to a conservation easement is no longer subject to such easement, an additional tax is imposed on the land equal to the difference, if any, between the taxes imposed on the land for each of the five years preceding the year in which the easement terminates and the taxes that would have been imposed had the land not been subject to a conservation easement in each of those years, plus interest at an annual rate of seven percent calculated from the dates on which the differences would have become due.

Added by Acts 1983, 68th Leg., p. 2438, ch. 434, Sec. 1, eff. Sept. 1, 1983.

Sec. 183.003. JUDICIAL ACTIONS.

(a) An action affecting a conservation easement may be brought by:

(1) an owner of an interest in the real property burdened by the easement;

(2) a holder of the easement;

(3) a person having a third-party right of enforcement; or

(4) a person authorized by some other law.

(b) This chapter does not affect the power of a court to modify or terminate a conservation easement in accordance with the principles of law and equity.

Added by Acts 1983, 68th Leg., p. 2438, ch. 434, Sec. 1, eff. Sept. 1, 1983.

Sec. 183.004. VALIDITY. A conservation easement is valid even though:

(1) it is not appurtenant to an interest in real property;

(2) it can be or has been assigned to another holder;

(3) it is not of a character that has been recognized traditionally at common law;

(4) it imposes a negative burden;

(5) it imposes affirmative obligations on the owner of an interest in the burdened property or on the holder;

(6) the benefit does not touch or concern real property; or

(7) there is no privity of estate or of contract.

Added by Acts 1983, 68th Leg., p. 2438, ch. 434, Sec. 1, eff. Sept. 1, 1983.

Sec. 183.005. APPLICABILITY.

(a) This chapter applies to any interest created on or after September 1, 1983, that complies with this chapter, whether designated as a conservation easement or as a covenant, equitable servitude, restriction, easement, or otherwise.

(b) This chapter applies to any interest created before September 1, 1983, if it would have been enforceable had it been created on or after September 1, 1983, unless retroactive application contravenes the constitution or laws of this state or the United States.

(c) This chapter does not invalidate any interest, whether designated as a conservation or preservation easement or as a covenant, equitable servitude, restriction, easement, or otherwise, that is enforceable under other law of this state.

Added by Acts 1983, 68th Leg., p. 2438, ch. 434, Sec. 1, eff. Sept. 1, 1983.

Further reading on conservation easements, including the 2005 addition of SUBCHAPTER B: TEXAS FARM AND RANCH LANDS CONSERVATION PROGRAM.

Reading:

Transfer of Development Rights Programs:

Using the Markets for Compensation and Preservation

City of Dallas

Platting Ordinance

SEC. 51A-8.511. CONSERVATION EASEMENT.

(created prior to Article X conservation easement inclusion.)

(a) The owner of the property to be platted may provide an easement on all or part of the property to conserve trees and other natural features, subject to acceptance by the city, to the city or jointly to the city and a nonprofit association dedicated to the conservation of land. Before the city may consider accepting the easement, or consider approving the acceptance of an easement with a nonprofit association as the joint grantee of a conservation easement, the owner shall provide the building official with a list of the protected trees by name (both common and scientific) and caliper or an estimate thereof calculated and documented in a manner approved by the city arborist, written consent by any lienholder of the property to subordination of the lienholder's interest to the conservation easement area, and a preservation strategy for the easement. The grantee of a conservation easement, if not the city, should be an eligible grantee such that the grantor will have the option of receiving a property tax benefit on the assessed value of the conservation easement area. The conservation easement area should be accessible to the public for walking, upon trails if the area exceeds 30 acres, unless this activity poses a risk to endangered species.

(b) The easement must be approved by the building official and approved as to form by the city attorney.

(c) The owner may offer a conservation easement to the city through the city arborist, or to a nonprofit association approved by the city (a list of such associations may be obtained from the city arborist). (Ord. Nos. 22053; 23384; 24843)


Article X Urban Forest Conservation Ordinance - amended June 27, 2018

Section 51A-10.135, Alternative Methods of Compliance


(f) Conservation easement. Tree mitigation requirements may be reduced by granting a conservation easement to the city in accordance with this subsection.

(1) The conservation easement area must contain protected trees with a combined diameter equal to or exceeding the classified diameter inches for which replacement tree credit is being requested.

(2) The conservation easement area must be a minimum of 20 percent of the size of the development impact area on the tree removal property and must be:

(A) configured primarily for urban forest conservation and preservation by protecting natural topography, waterways, forest vegetation, and wildlife habitation; and

(B) a suitable size, dimension, topography, and general character for its intended purpose.

(3) No portion of the conservation easement may be narrower than 50 feet in width.

(4) A conservation easement must have frontage on an improved public street or have public access through private property to a public street.

(5) The city manager is authorized to accept and approve on behalf of the city a conservation easement to conserve trees and other natural features, upon:

(A) approval as to form by the city attorney;

(B) submission by the applicant of a metes and bounds property description prepared by a licensed surveyor; and

(C) a determination by the building official that the easement area is suitable for conservation purposes, based on:

(i) the submission of baseline documents prepared by a qualified professional describing the property's physical and biological conditions, the general age of any tree stands, locations of easements and construction, and the conservation values protected by the easement;

(ii) the likelihood that the proposed conservation easement area would preserve vegetation on a parcel otherwise attractive for development;

(iii) the overall health and condition of the trees on the conservation easement property, and the extent of invasive and exotic plants on the property and a strategy to manage the population;

(iv) the suitability of the area as a wildlife habitat;

(v) other unique features worthy of preservation, e.g. water channels, rock formations, topography, or rare herbaceous or woody plant species; and

(vi) the preservation of undeveloped areas located in a flood plain on a building site before and after construction, except as authorized by the director for engineering infrastructure.

(6) The conservation easement may be structured to be monitored and managed by a nonprofit association dedicated to the conservation of land, with the city as a joint grantee having the right, but not the duty, to monitor the management of the conservation area.

(7) The city manager may not accept a sole or joint conservation easement on behalf of the city, unless and until the owner provides the building official with:

(A) a tree survey as set forth in Section 51A-10.132, or an estimate of the caliper and type of protected trees documented in a manner determined to be reasonably accurate by the building official, or a forest stand delineation verified and approved by the building official; and

(B) a preservation strategy for the conservation easement area.

(8) No person may place playground equipment or park amenities in a conservation easement area unless the building official has made a written determination that the amenities indicated on a site plan are unlikely to be detrimental to the conservation easement area.

(9) Conservation easement areas must be located wholly within the Dallas city limit.

Additional Information

Conservation Easements: A Guide For Texas Landowners (TP&W)

Conservation Donation Rules - Land Trust Alliance

Texas Land Trust Council

Tax Implications of Conservation Easements (Nature Conservancy)

A person should always consult legal counsel and/or a land trust when discussing the benefits and responsibilities of conservation easements. The considerations for a state-recognized conservation easement may not be applicable to the City of Dallas conservation easement by zoning ordinance. It's important to seek proper consultation to know your rights. This Dallas Trees site is for general information only.

Texas Natural Resources Code - Chapter 183 Conservation Easements (onecle)

Texas Agricultural Land Trust: What is a conservation easement?

Texas Land Trust Council Region Map

Dallas Area Conservation Easements

By Land Trust - State of Texas Natural Resources Code

By City Ordinance through plat and/or deed restriction- City of Dallas Article X

  • Mountain Ridge Estates Conservation Easement (2005) - 2.92 acres - The Villages of Mountain Creek (1 Cliff Ridge Drive)
  • Murdeaux Conservation Easement (2004) - 16.17 acres - Pleasant Wood/PGC (7100 Glayglen Drive)
  • JNR Development Conservation Easement (2008) - 3.833 acres - JNR Development, LP (3720 W Illinois Ave.)
  • Glendale Park Congregation Conservation Easement (2009) - 1.193 acres - Glendale Park Congregation (9015 Sedgmoor)
  • CMC South Oak, LP Conservation Easement, A (3.4044 acres) and B (0.9679 acres) - CMC South Oak, LP (13557 Shortleaf Drive)
  • Ash Creek/Casa Linda Forest Addition Conservation Easement - 1.359 acres - UDF Ash Creek, LP (8605 Ferguson Road)
  • Arcadia Park Conservation Easement - 3.896 acres - City of Dallas (1300 Justin Avenue)
  • Forest View Conservation Easement #1 - 6.0299 acres - Mountain Creek Community Church (7110 Forest View Court)
  • Forest View Conservation Easement #2 - 3.8704 acres - Mountain Creek Community Church (8600 Clark Road)
  • Capella Park Conservation Easement - 40.074 acres - Clay Academy Inc. (6900 W. Kiest Blvd)
  • Timbercreek Dowdy Ferry Conservation Easement - 22.10 acres - Timbercreek Dowdy Ferry, LP (Teagarden Road near Muleshoe)

Related Ordinance

SEC. 51A-8.510. COMMUNITY UNIT DEVELOPMENT (C.U.D.)

(creates open areas that can protect trees near new homes.)

To encourage reasonable flexibility of design and arrangement in the development of residential communities in residential zoning districts, the following provisions are made for the approval of community unit developments ("CUD's"):

(a) A CUD must be submitted for approval to the commission as a subdivision.

(b) A CUD must comply with the maximum lot coverage or density requirements for the district in which it is located. For purposes of calculating maximum lot coverage in a CUD, the calculation is made using either the actual size of the lot or the minimum lot area specified for the zoning district in which the lot is located, whichever is greater.

(c) The minimum lot area of any lot within the CUD may be reduced by an amount not to exceed 25 percent of the minimum lot area for the zoning district in which the CUD is located. Any reduction in minimum lot area must be compensated proportionally on a square foot for square foot basis by the establishment of permanent community open space to serve the property being platted. If five percent or more of the community open space is unimproved and in a flood plain (as defined in Article V), the minimum lot area may be reduced by up to 30 percent.

(d) Front yard, side yard, and rear yard requirements may be uniformly reduced on all lots and must establish a uniform pattern within the boundaries of the property being platted. The reduction in front yard, side yard, and rear yard must not exceed the total percentage reduction of lot area within the boundaries of the property being platted.

(e) The CUD must not be used to increase the number of lots which could normally be accommodated by the size of the site.

(f) The CUD provisions are not applicable to property located in a planned development district.

(g) Open space provided in a CUD must be approved as appropriate for its intended purpose by the director of planning and development. The open space area must be within 1320 feet, measured radially, of any residential lot that is reduced in size in accordance with Subsection (c) of this section.

(1) Unimproved open space:

(A) may extend into floodway easements or floodway management areas;

(B) must be indicated on the plat with a prohibition of structures and parking areas; and

(C) must have a minimum of 10,000 square feet.

(2) Improved open space:

(A) must not extend into floodway easements or floodway management areas unless the proposed improvements are in compliance with Division 51A-5.100 of this chapter; and

(B) must be developed in accordance with a site plan approved by the city council after recommendation by the commission. The site plan must include the location and dimensions of all improvements and structures planned for the open space.

(h) A maintenance agreement for the open space area must be provided in a community unit development. The agreement must be approved as to form by the city attorney and executed by the owner(s) or homeowners association. (Ord. Nos. 20092; 22053; 22150; 23384)