Land Development and Conservation: Why Not Both?

January 1, 2000

Landowners often feel squeezed between their desire to enjoy, preserve and protect special attributes of their land and economic pressure to maximize development of their land. Such pressures on individuals may arise from property taxes, generational changes, or a general desire to generate income. It is increasingly common as well for commercial developers of land to feel that a uniformly high level of development may not be the optimum use for their land. One portion of a piece of land may be suited for home or commercial development, while another portion of that same piece of land may be better suited to keep in wetlands or as a scenic buffer or feature. Traditionally, our legal system has served to discourage such mixed use. In addition to property taxes and inheritance taxes, zoning and planning laws have proven to be clumsy tools which are often perceived as forcing inappropriately consistent development upon land owners who then feel that they “have no choice”.

Most landowners recognize that mechanisms exist which can help resolve this dilemma:

  • Trust and estate planning for individuals, and creative use of limited liability companies, partnerships, and corporations, can alleviate some of the pressure;
  • New Hampshire’s “current use” tax program also has substantially reduced the property tax pressure on owners of undeveloped parcels exceeding 10 acres;
  • Conservation easements to organizations such as the Society for the Protection of New Hampshire Forests, the Nature Conservancy, or local land trusts can provide both tax advantages and provide assurance that land will be managed properly forever; and
  • the use of zoning “overlay” districts can help recognize the special characteristics of land over distinct segments of a town.

Increasingly, landowners are finding that carefully chosen combinations of these and other legal tools can help them overcome the traditional difficulties in providing for mixed use in a single piece of land. A developer may find that land running from a street to a body of water may best be developed with homes or commercial buildings along the street, with a conservation zone along the water, thereby enhancing the attractiveness and value of the developed part, while making the development as a whole more politically palatable. In many other cases, all parties may benefit from combining a use of land which is more intensive than usual with a conservation easement on the remainder. Landowners occasionally find that actually changing the rules – such as obtaining special ordinance amendments – can be a productive means of fostering such mixed use. In the right circumstances, towns may support changes which allow intelligently sited clusters of development in combination with natural areas protected for the benefit of the whole community.

Long-time landowners generally want to protect their land to pass on to future generations. Developers will be wise to recognize that much of the attraction for businesses and individuals relocating to or expanding in New Hampshire comes from proximity to unspoiled nature. In both circumstances, the landowner will be greatly helped by generating a plan in concert with a team of the right land use, tax and estate planning or business lawyers; engineers; town and/or state officials; and conservation organizations. A shifting political and tax environment will create new challenges for New Hampshire landowners over the next few years, but with every challenge arises a new opportunity.