Securing Land Through Partial Takings – For Land Trusts in Ontario

A partial taking is a land acquisition method where only a portion of a property is secured rather than the entire property. When pursuing a partial taking for conservation purposes, land trusts can achieve this through either a fee simple purchase or donation scenario.

Usually the ‘severed’ conservation land contains environmentally sensitive lands intended for conservation by the land trust while the ‘retained’ land is kept by the landowner. The retained land typically includes the residence or other buildings and infrastructure. This is a win-win situation for a land trust as most avoid acquiring buildings as part of their portfolio due to the added cost and liability. Further, if the conservation land is purchased, the market value of the severed portion is often lower per acre than the retained portion which typically holds the development value. The severed portion typically has limited development potential in the case of a wetland or environmentally significant land designation.

A partial taking may be an attractive option for a landowner as it offers the following benefits:

  • Conservation land is severed while the higher-valued residential property is retained by the landowner.
  • A permanent nature preserve is established around the residential property that will be professionally stewarded and protected by a conservation organization.
  • Reduced property acreage with an abutting nature preserve is more attractive to future buyers.
  • Liability associated with owning and maintaining conservation land or floodplain is removed or reduced.

To execute a partial taking, a land trust must either apply for a land severance through the local municipality or work in partnership with a conservation authority.  Conservation authorities are eligible to ‘by-pass’ the severance process through their exemption in Section 50 (3)(e) of the Planning Act which reads as follows:

“Subdivision control

No person shall convey land by way of a deed or transfer, or grant, assign or exercise a power of appointment with respect to land, or mortgage or charge land, or enter into an agreement of sale and purchase of land or enter into any agreement that has the effect of granting the use of or right in land directly or by entitlement to renewal for a period of twenty¬-one years or more unless, the land or any use of or right therein is being acquired for the purposes of flood control, erosion control, bank stabilization, shoreline management works or the preservation of environmentally sensitive lands under a project approved by the Minister of Natural Resources under section 24 of the Conservation Authorities Act and in respect of which an officer of the conservation authority acquiring the land or any use of or right therein has made a declaration that it is being acquired for any of such purposes, which shall be conclusive evidence that it is being acquired for such purpose;”

In the context of the article, the process has two steps:

1.         The Conservation Authority obtains a Conservation Authorities Act Section 24 approval by the Minister of Natural Resources for a land acquisition program to preserve environmentally sensitive lands.

2.         The declaration by an officer of the Conservation Authority takes place at the Land Registry Office at registration of the partial taking and generally would take the following form.

A partial taking is technically referred to as a direct conveyance by conservation authorities. In this case, a portion of the property would be conveyed from the landowner directly to the conservation authority without requiring approval from the Land Division Committee or Committee of Adjustment. The land trust would then take on the role of conservation land steward with the conservation authority holding title.

Working with a conservation authority can be a mutually beneficial arrangement for completing an acquisition project and could also be the impetus to building a lasting partnership. Each conservation authority operates independently; therefore a land trust would need to find out if land securement is in fact a priority of the conservation authority they wish to partner with.  Once a common goal is identified, partnership roles and expectations need to be negotiated and defined.

In addition to conservation authorities, some municipalities are also willing to partner with land trusts on common conservation goals. Initiate preliminary discussions with a municipal planner before your land trust applies for a partial taking. Discuss your land trust’s mission and explain how the created parcel may benefit the municipality’s planning goals through enhanced protection and green space stewardship.

Many municipalities have never dealt with a severance application from a land trust to protect conservation land ‘in-perpetuity’. Municipal official plans are usually written with 20-30 year projections and the term ‘in-perpetuity’ is not commonly used to describe land conservation. Land trusts are still not widely understood. Partnership opportunities between land trusts, municipalities and conservation authorities may take some time to foster but are worthwhile investments when the outcome is more protected land. Once a relationship has been developed and a successful partial-taking established, future conservation partnership opportunities can be approached with greater confidence.

By Robert Orland, Author of the upcoming book: The Book on Land Securement

About the Author: Robert has more than 24 years of experience in land and water conservation. He began his conservation career with the Lake Simcoe Region Conservation Authority and worked in a variety of positions and departments before specializing in land securement with the Nature Conservancy of Canada beginning in 1999. He facilitated the protection of more than 25 environmentally significant nature preserves throughout Ontario by negotiating land donations and purchases with landowners. In 2003, he founded Orland Conservation to provide a range of environmental services for the public and private sector. A skilled strategist and accomplished entrepreneur, Robert is committed to making a sound contribution to the conservation and sustainability movement in Canada and abroad.

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