Conservation Easement appraisals were supposed to consider the “highest and best use” of the land. The highest and best use of our land was clearly a development.
We apparently were on the “wrong side” by the sheer bad luck of having had our first appraisals done by Julie O’Gorman, who had simply had the bad luck of being targeted by Kevin Shea, Mark Weston, and Erin Toll for no reason we have ever been able to discern.
Between seeing JW in August 2008 and the end of 2008, not much happened. I hauled stacks of boxes of paperwork and CDs with more documents to the IRS center at Inverness in the Denver area to deliver into Boetz’s hands. In order to stay sane and keep track of all the documents, I had to make inventories of the contents and then make lists of the inventories! You simply cannot believe how much data there was. It was a distressing time.
We contacted JW a couple of times with questions, but it was a quiet time of waiting. Desperate for money, I started a new job in Denver that was completely unsuitable for my experience, personality, and skill set. But, with Stan building our house full time, money was flowing out way too fast. It was extremely stressful to be working in Denver and making a mad dash home to Walsenburg every weekend (a three hour drive), but I felt the weight of the world on my shoulders, and extremely anxious about our finances.
The “So-Called” IRS Appraiser
In early 2009, Boetz finally made an appointment with Stan to show Boetz and the IRS appraiser the land. Remember, up until now, no one from the state or the IRS except for Boetz had ever talked to us. So, we were quite happy that Stan actually had a chance to meet with the appraiser (Tim Walters) and walk the land with him before Walters did the appraisal.
Stan spent almost 30 hours researching and preparing for the meeting with Boetz and Walters, and he provided Walters with detailed historical notes on the development, projections of future profits, etc. And, of course, Stan and I were corresponding with JW at MLF about all of this.
We were enormously frustrated that we had spent all this time waiting for the IRS, and our land was tied up in limbo because of the IRS’s slowness: we could neither sell it, nor develop it, nor do more conservation easements. It seemed terribly unfair, but all we could do was wait.
Highest and Best Use
At this point, I realize that I may not have made some things clear about the appraisals for conservation easements, so let me pause and do so. When the statutes were written about donating land into a conservation easement, the IRS and State recognized that an individual was giving up the land forever. This means that the valuation should take into account not just the current value and the current owner or the current use, but also the fact that if you put your land into a conservation easement, your heirs have also lost the ability to sell it at its full price or develop it. It means that even if it doesn’t have a lot of value now, things could change in the future. For more information about the real estate principle of highest and best use, click here.
For example, say you have a dinky home on a corner lot in Denver that may not be very valuable right now, but could conceivably be a desirable lot for a high-rise building. This notion of peering into the future for “the highest and best use” was therefore included in the instructions for how conservation easement appraisals were to be done, which means they were to consider the “highest and best use” of the land. Just because you don’t have a high-rise on your piece of property right now, if your property is strategically located, and other criteria are met (see graphic), it is conceivable that there could be, should be, or might be one there in the future because that is the highest and best use of that piece of land. Therefore, if you donated your land to a conservation easement, you wouldn’t just be giving up the value of the land right now, but you’re also giving up what you might sell it to a developer for in the future.
This idea of “highest and best use” of the land is extremely important in our case, because we were clearly heading down the path of development, with approval and blessing from the County, with subdivision plans, approved filings, and residential zoning. We were not in the grasslands of eastern Colorado that may not ever be developed. We were right on I-25 with an extremely desirable residential subdivision (please refer back to Blog #7, in which I describe why it was such a fantastic piece of property and the specifics of our development plan). So, the highest and best use was clearly a subdivision.
We finally got our day with the “so-called” IRS appraiser. I say “so-called” because these IRS appraisals were actually being done by local appraisers (not IRS appraisers) and by this time appraisesrs in Colorado were living in abject terror under Erin Toll’s reign and were eager to show themselves aligned with the “right side.” We apparently were on the “wrong side” by the sheer bad luck of having had our first appraisals done by Julie O’Gorman, who had simply had the bad luck of being targeted by Kevin Shea, Mark Weston, and Erin Toll.
Stan spent hours with Walters, pointed out the fact that the utilities were present, handed him detailed notes, and off Walters went. And then we had to wait, and wait, and wait. © Sharon Cairns Mann