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HomeMy WebLinkAbout10-01-2007 Assignment of Conservation Easement of Winter Springs Golf CourseBROWN, GARGANESE, WEISS & UAGRESTA, P.A. A waxy at Law Debra S. Babb-Nutcher° Offices in Orlando Kissimmee, Cocoa, Tara L. Barrett Joseph E. Blitch Ft. Lauderdale & Tampa Vivian P. Cocotas Usher L. Brown' Scott J. Dornstein Suzanne D'Agresta° Mitchell B. Haller Anthony A. Garganese° Katherine W. Latorre J.W. Taylor Terri E. Oster Jeffrey S. Weiss Amy J. Pitsch 'Board Certified Civil Trial Lawyer 'Board Certified City, County & Local Government Law 'Board Certified Appellate Practice October 1, 2007 The Honorable Mayor John F. Bush and Members of the City Commission c/o City Clerk 1126 East State Road 434 Winter Springs, Florida 32708-6912 Erin J. O'Leary' Catherine D. Reischmann° William E. Reischmann, Jr. Of Counsel Re: Assignment of Conservation Easement of Winter Springs Golf Course Dear Mayor Bush and Members of the City Commission: This correspondence is in response to your request on September 24, 2007 for an opinion as to whether the City has the right to assign an interest in the Winter Springs Golf Course conservation easement to a third party. In accordance with section 704.06, Florida Statutes, said easement was granted to the City by Big Cypress Associates, Ltd. on December 26, 1984 and is recorded at Book 1604, Page 131 in the Official Public Records of Seminole County, Florida ("Easement"). EXECUTIVE SUMMARY The express terms of the Easement and section 704.06, Florida Statutes grant the City the right to assign an interest in the Easement to a third party. However, the third party must be a government agency, a charitable organization, or a trust, and be an eligible donee under the Internal Revenue Code. In addition, the third party must agree to fulfill the conservation purpose of the Easement. LEGAL ANALYSIS Under Florida law, conservation easements may be granted and acquired pursuant to section 704.06, Florida Statutes. In 1984, the Easement was granted to the City 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net • Email: firm@orlandolaw.net October 1, 2007 Page 2 pursuant to the authority set forth under this section. Section 704.06(2), Florida Statutes, provides that conservation "easements may be acquired in the same manner as other interests in property are acquired . . . and shall not be unassignable to other governmental bodies or agencies, charitable organizations, or trusts authorized to acquire such easements, for lack of benefit to a dominant estate." (emphasis added). In addition, the following entities may hold a conservation easement: Any governmental body or agency, or by a charitable corporation or trust whose purposes include protecting natural, scenic, or open space values of real property, assuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving sites or properties of historical, architectural, archaeological, or cultural significance. § 704.06(3), Fla. Stat. (2007). Therefore, Florida law expressly prohibits making a conservation easement unassignable. In other words, a conservation easement may be assigned. If assigned, however, Florida law requires that a conservation easement be held by a government body or agency or charitable organization or trust organized for conservation purposes. Accordingly, because the Easement was granted to the City under section 704.06, Florida Statutes, the City may assign the Easement to qualified third parties. In addition, the express terms of the Easement are consistent with the aforementioned statute and also recognize the City's statutory right to assign the Easement. On page 4 of the Easement, the Easement provides: TO HAVE AND TO HOLD the said Conservation Easement and Restrictions unto the said Grantee, its successors and assigns forever, subject to the condition that the Grantee and its successors and assigns may not transfer said Conservation Easement and Restriction, with or without consideration unless: (1) the Grantee as a condition of the transfer requires that the conservation purposes continue to be carried out and (2) the transferee is an eligible donee as that term is defined in the Internal Revenue Code and regulation issued thereunder. (emphasis added). Therefore, the Easement grants the City the right to assign the conservation easement to a third party, so long as the assignee is an "eligible donee" under the Internal k October 1, 2007 Page 3 Revenue Code' and the assignee agrees to carry out the conservation purposes of the Easement. If the City Commission desires to assign an interest in the Easement, the details of the assignment will need to be structures to comply the conditions set forth in section 704.06, Florida Statutes, and in the Easement. I look forward to discussing this matter at a Commission meeting in the near future. Siqcy, Anthony A. Garganese City Attorney AAG:jaw cc: City Manager ' In general, an "eligible donee" under the Internal Revenue Code appears to be either: (1) a governmental entity with the purpose of retaining the conservation easement for public purposes, or (2) a corporation, trust, or community chest, fund or foundation operated religious, charitable, scientific, literary, or education purposes, or (3) a non-profit corporation organized under section 501(c)(3), which is a private foundation or organization which receives more than 1/3 of its support from charitable contributions including grants, gifts and membership fees. See Internal Revenue Code, Section 170 (h)(3) (defining "qualified organization" for charitable donation purposes). ri x BROWN, GARGANESE, WEISS & UAGRESTA, P.A. A ttorniey at Law Debra S. Babb-Nutcher° Offices in Orlando Kissimmee, Cocoa, Tara L. Barrett Joseph E. Blitch Ft. Lauderdale & Tampa Vivian P. Cocotas Usher L. Brown' Scott J. Dornstein Suzanne D'Agresta° Mitchell B. Haller Anthony A. Garganese° Katherine W. Latorre J.W. Taylor Terri E. Oster Jeffrey S. Weiss Amy J. Pitsch Board Certified Civil Trial Lawyer 'Board Certified City, County & Local Government Law Board Certified Appellate Practice October 1, 2007 The Honorable Mayor John F. Bush and Members of the City Commission c/o City Clerk 1126 East State Road 434 Winter Springs, Florida 32708-6912 Erin J. O'Leary' Catherine D. Reischmann° William E. Reischmann, Jr. Of Counsel Re: Assignment of Conservation Easement of Winter Springs Golf Course Dear Mayor Bush and Members of the City Commission: This correspondence is in response to your request on September 24, 2007 for an opinion as to whether the City has the right to assign an interest in the Winter Springs Golf Course conservation easement to a third party. In accordance with section 704.06, Florida Statutes, said easement was granted to the City by Big Cypress Associates, Ltd. on December 26, 1984 and is recorded at Book 1604, Page 131 in the Official Public Records of Seminole County, Florida ("Easement"). EXECUTIVE SUMMARY The express terms of the Easement and section 704.06, Florida Statutes grant the City the right to assign an interest in the Easement to a third party. However, the third party must be a government agency, a charitable organization, or a trust, and be an eligible donee under the Internal Revenue Code. In addition, the third party must agree to fulfill the conservation purpose of the Easement. LEGAL ANALYSIS Under Florida law, conservation easements may be granted and acquired pursuant to section 704.06, Florida Statutes. In 1984, the Easement was granted to the City 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net • Email: firm@orlandolaw.net M October 1, 2007 Page 2 pursuant to the authority set forth under this section. Section 704.06(2), Florida Statutes, provides that conservation "easements may be acquired in the same manner as other interests in property are acquired . . . and shall not be unassignable to other governmental bodies or agencies, charitable organizations, or trusts authorized to acquire such easements, for lack of benefit to a dominant estate." (emphasis added). In addition, the following entities may hold a conservation easement: Any governmental body or agency, or by a charitable corporation or trust whose purposes include protecting natural, scenic, or open space values of real property, assuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving sites or properties of historical, architectural, archaeological, or cultural significance. § 704.06(3), Fla. Stat. (2007). Therefore, Florida law expressly prohibits making a conservation easement unassignable. In other words, a conservation easement may be assigned. If assigned, however, Florida law requires that a conservation easement be held by a government body or agency or charitable organization or trust organized for conservation purposes. Accordingly, because the Easement was granted to the City under section 704.06, Florida Statutes, the City may assign the Easement to qualified third parties. In addition, the express terms of the Easement are consistent with the aforementioned statute and also recognize the City's statutory right to assign the Easement. On page 4 of the Easement, the Easement provides: TO HAVE AND TO HOLD the said Conservation Easement and Restrictions unto the said Grantee, its successors and assigns forever, subject to the condition that the Grantee and its successors and assigns may not transfer said Conservation Easement and Restriction, with or without consideration unless: (1) the Grantee as a condition of the transfer requires that the conservation purposes continue to be carried out and (2) the transferee is an eligible donee as that term is defined in the Internal Revenue Code and regulation issued thereunder. (emphasis added). Therefore, the Easement grants the City the right to assign the conservation easement to a third party, so long as the assignee is an "eligible donee" under the Internal October 1, 2007 Page 3 Revenue Code' and the assignee agrees to carry out the conservation purposes of the Easement. If the City Commission desires to assign an interest in the Easement, the details of the assignment will need to be structures to comply the conditions set forth in section 704.06, Florida Statutes, and in the Easement. I look forward to discussing this matter at a Commission meeting in the near future. Sinc y, Anthony A. Garganese City Attorney AAG:jaw cc: City Manager ' In general, an "eligible donee" under the Internal Revenue Code appears to be either: (1) a governmental entity with the purpose of retaining the conservation easement for public purposes, or (2) a corporation, trust, or community chest, fund or foundation operated religious, charitable, scientific, literary, or education purposes, or (3) a non-profit corporation organized under section 501(c)(3), which is a private foundation or organization which receives more than 1/3 of its support from charitable contributions including grants, gifts and membership fees. See Internal Revenue Code, Section 170 (h)(3) (defining "qualified organization" for charitable donation purposes). BRAWN, Debra S. Babb-Nutcher° Joseph E. Blitch Usher L. Brow (° Suzanne D' g,estaestaGafganeSe° Anthony J W . Taylor Jeffrey S. Weiss GARGANESE, A tt at Law County & Local Government Law •Board Certified Civil Trial LawYe . Board Certified City,ellate Practice 'Board Certified App do KeCocoa, ��mOffices inOranale&a FtLaude October 1, 2007 The Honorable Mayor John F. Bush and Members of the City Commission c/o City Clerk 1126 East State Road 434 6912 XXIEISS & YAGRE'STA' P•A• Tara L. Barrett Vivian P. cocotas Scott J. Dornstein Mitchell B. Haller Katherine W • Latorre Terri E. Oster Amy J- Pitsch Erin J. O'Leary ° Catherine D. Reischmann William E. Reischmann, Jr - of Counsel Winter Springs, Florida 32708- Re: Assignment of Conservation Easement of Winter Springs Golf Course h and Members of the City Commission: Dear Mayor Busrequest on September 24, 200n for an onse to your This correspondence is in resp has thiright to assign an interest in the Winter ction 4 Springs Florida opinion as to olf whether thSemten to a th rd party. In accordance with course conservation ea granted to the City by Big Cypress Associates, Ltd. d on Co e 131 in the Official Public Records Statutes, said easement was gran December 26, 1984 and is recorded atBook 1604, Page Dec Florida ("Easement"). of Seminole County, EXECUTIVE SUMMARY rant th' However, the third pa the Easement and section 704.06, Florida Statutes g The express terms of cement to a third party be an eligj� City the right to assign an interest in the Ea or amust agree to fulfill must be a govern men agency, a charitable organization,the third party trust, an donee under the Internal Revenue semeat e. In addition, conservation purpose of the E LEGAL ANALYSIS easements may be granted and acquired 1 Under Florida law, conservation in 1984, the Easement was granted Florida Statutes. to section 704.06, _0)(2 •Cocoa (866) 425-9566 • Ft. Lauderdale1. RobinsonaS Street, Suite 660 • P.O. Box 2873 •Orlando, Florida 32802-2873 225 East 25 9596 •Kissimmee (321) 402 orlandolaw.net Orlando (407) 425 9566 Fax (407) Website: www•orlandolaw.net •Email: firm@ r ,yf I[ to assign the conservation L,,c assignee is an "eligible donee" under the Internal i Z onil-I rers ea °rgani ati , fo charitable P fees. See able x BROWN, GARGANESE, WEISS & UAGRESTA, P.A. A ttame)s at Law Debra S. Babb-Nutcher° Offices in Orlanc{oT Kissimmee, Cocoa, Tara L. Barrett Joseph E. Blitch Ft. Lalf elroiale & Tampa Vivian P. Cocotas Usher L. Brown' Scott J. Dornstein Suzanne D'Agresta° Mitchell B. Haller Anthony A. Garganese° Katherine W. Latorre J.W. Taylor Terri E. Oster Jeffrey S. Weiss Amy J. Pitsch Board Certified Civil Trial Lawyer 'Board Certified City, County 8 Local Government Law Board Certified Appellate Practice October 1, 2007 The Honorable Mayor John F. Bush and Members of the City Commission c/o City Clerk 1126 East State Road 434 Winter Springs, Florida 32708-6912 Erin J. O'Leary' Catherine D. Reischmann° William E. Reischmann, Jr. Of Counsel Re: Assignment of Conservation Easement of Winter Springs Golf Course Dear Mayor Bush and Members of the City Commission: This correspondence is in response to your request on September 24, 2007 for an opinion as to whether the City has the right to assign an interest in the Winter Springs Golf Course conservation easement to a third party. In accordance with section 704.06, Florida Statutes, said easement was granted to the City by Big Cypress Associates, Ltd. on December 26, 1984 and is recorded at Book 1604, Page 131 in the Official Public Records of Seminole County, Florida ("Easement"). EXECUTIVE SUMMARY The express terms of the Easement and section 704.06, Florida Statutes grant the City the right to assign an interest in the Easement to a third party. However, the third party must be a government agency, a charitable organization, or a trust, and be an eligible donee under the Internal Revenue Code. In addition, the third party must agree to fulfill the conservation purpose of the Easement. LEGAL ANALYSIS Under Florida law, conservation easements may be granted and acquired pursuant to section 704.06, Florida Statutes. In 1984, the Easement was granted to the City 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: www.oriandolaw.net - Email: firm@orlandolaw.net October 1, 2007 Page 2 pursuant to the authority set forth under this section. Section 704.06(2), Florida Statutes, provides that conservation "easements may be acquired in the same manner as other interests in property are acquired . . . and shall not be unassignable to other governmental bodies or agencies, charitable organizations, or trusts authorized to acquire such easements, for lack of benefit to a dominant estate." (emphasis added). In addition, the following entities may hold a conservation easement: Any governmental body or agency, or by a charitable corporation or trust whose purposes include protecting natural, scenic, or open space values of real property, assuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving sites or properties of historical, architectural, archaeological, or cultural significance. § 704.06(3), Fla. Stat. (2007). Therefore, Florida law expressly prohibits making a conservation easement unassignable. In other words, a conservation easement may be assigned. If assigned, however, Florida law requires that a conservation easement be held by a government body or agency or charitable organization or trust organized for conservation purposes. Accordingly, because the Easement was granted to the City under section 704.06, Florida Statutes, the City may assign the Easement to qualified third parties. In addition, the express terms of the Easement are consistent with the aforementioned statute and also recognize the City's statutory right to assign the Easement. On page 4 of the Easement, the Easement provides: TO HAVE AND TO HOLD the said Conservation Easement and Restrictions unto the said Grantee, its successors and assigns forever, subject to the condition that the Grantee and its successors and assigns may not transfer said Conservation Easement and Restriction, with or without consideration unless: (1) the Grantee as a condition of the transfer requires that the conservation purposes continue to be carried out and (2) the transferee is an eligible donee as that term is defined in the Internal Revenue Code and regulation issued thereunder. (emphasis added). Therefore, the Easement grants the City the right to assign the conservation easement to a third party, so long as the assignee is an "eligible donee" under the Internal ni6 October 1, 2007 Page 3 Revenue Code' and the assignee agrees to carry out the conservation purposes of the Easement. If the City Commission desires to assign an interest in the Easement, the details of the assignment will need to be structures to comply the conditions set forth in section 704.06, Florida Statutes, and in the Easement. I look forward to discussing this matter at a Commission meeting in the near future. Sin yy, Anthony A. Garganese City Attorney AAG:jaw cc: City Manager ' In general, an "eligible donee" under the Internal Revenue Code appears to be either: (1) a governmental entity with the purpose of retaining the conservation easement for public purposes, or (2) a corporation, trust, or community chest, fund or foundation operated religious, charitable, scientific, literary, or education purposes, or (3) a non-profit corporation organized under section 501(c)(3), which is a private foundation or organization which receives more than 1/3 of its support from charitable contributions including grants, gifts and membership fees. See Internal Revenue Code, Section 170 (h)(3) (defining "qualified organization" for charitable donation purposes). r BROWN, GARGANESE, WEISS & D'AGRESTA, P.A. A ttorne)s at Law Debra S. Babb-Nutcher° Offices in Orlandot Kissimmee, Cocoa, Tara L. Barrett Joseph E. Blitch Ft. Lauderdale &Tampa Vivian P. Cocotas Scott J. Dornstein Usher L. Brown' Suzanne D'Agresta° Mitchell B. Haller Anthony A. Garganese° Katherine W. Latorre J.W. Taylor Terri E. Oster Jeffrey S. Weiss Amy J. Pitsch Board Certified Civil Trial Lawyer 'Board Certified City, County & Local Government Law 'Board Certified Appellate Practice October 1, 2007 The Honorable Mayor John F. Bush and Members of the City Commission c/o City Clerk 1126 East State Road 434 Winter Springs, Florida 32708-6912 Erin J. O'Leary' Catherine D. Reischmann° William E. Reischmann, Jr. Of Counsel Re: Assignment of Conservation Easement of Winter Springs Golf Course Dear Mayor Bush and Members of the City Commission: This correspondence is in response to your request on September 24, 2007 for an opinion as to whether the City has the right to assign an interest in the Winter Springs Golf Course conservation easement to a third party. In accordance with section 704.06, Florida Statutes, said easement was granted to the City by Big Cypress Associates, Ltd. on December 26, 1984 and is recorded at Book 1604, Page 131 in the Official Public Records of Seminole County, Florida ("Easement"). EXECUTIVE SUMMARY The express terms of the Easement and section 704.06, Florida Statutes grant the City the right to assign an interest in the Easement to a third party. However, the third party must be a government agency, a charitable organization, or a trust, and be an eligible donee under the Internal Revenue Code. In addition, the third party must agree to fulfill the conservation purpose of the Easement. LEGAL ANALYSIS Under Florida law, conservation easements may be granted and acquired pursuant to section 704.06, Florida Statutes. In 1984, the Easement was granted to the City 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net • Email: firm@orlandolaw.net I October 1, 2007 Page 2 pursuant to the authority set forth under this section. Section 704.06(2), Florida Statutes, provides that conservation "easements may be acquired in the same manner as other interests in property are acquired . . . and shall not be unassignable to other governmental bodies or agencies, charitable organizations, or trusts authorized to acquire such easements, for lack of benefit to a dominant estate." (emphasis added). In addition, the following entities may hold a conservation easement: Any governmental body or agency, or by a charitable corporation or trust whose purposes include protecting natural, scenic, or open space values of real property, assuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving sites or properties of historical, architectural, archaeological, or cultural significance. § 704.06(3), Fla. Stat. (2007). Therefore, Florida law expressly prohibits making a conservation easement unassignable. In other words, a conservation easement may be assigned. If assigned, however, Florida law requires that a conservation easement be held by a government body or agency or charitable organization or trust organized for conservation purposes. Accordingly, because the Easement was granted to the City under section 704.06, Florida Statutes, the City may assign the Easement to qualified third parties. In addition, the express terms of the Easement are consistent with the aforementioned statute and also recognize the City's statutory right to assign the Easement. On page 4 of the Easement, the Easement provides: TO HAVE AND TO HOLD the said Conservation Easement and Restrictions unto the said Grantee, its successors and assigns forever, subject to the condition that the Grantee and its successors and assigns may not transfer said Conservation Easement and Restriction, with or without consideration unless: (1) the Grantee as a condition of the transfer requires that the conservation purposes continue to be carried out and (2) the transferee is an eligible donee as that term is defined in the Internal Revenue Code and regulation issued thereunder. (emphasis added). Therefore, the Easement grants the City the right to assign the conservation easement to a third party, so long as the assignee is an "eligible donee" under the Internal October 1, 2007 Page 3 Revenue Code' and the assignee agrees to carry out the conservation purposes of the Easement. If the City Commission desires to assign an interest in the Easement, the details of the assignment will need to be structures to comply the conditions set forth in section 704.06, Florida Statutes, and in the Easement. I look forward to discussing this matter at a Commission meeting in the near future. Sinc y, Anthony A. Garganese City Attorney AAG:jaw cc: City Manager ' In general, an "eligible donee" under the Internal Revenue Code appears to be either: (1) a governmental entity with the purpose of retaining the conservation easement for public purposes, or (2) a corporation, trust, or community chest, fund or foundation operated religious, charitable, scientific, literary, or education purposes, or (3) a non-profit corporation organized under section 501(c)(3), which is a private foundation or organization which receives more than 1/3 of its support from charitable contributions including grants, gifts and membership fees. See Internal Revenue Code, Section 170 (h)(3) (defining "qualified organization" for charitable donation purposes). BROWN, GARGANESE, WEISS & UAGRESTA, P.A. A ttarnejas at Law Debra S. Babb-Nutcher° Offices in Orlando Kissimmee, Cocoa, Tara L. Barrett Joseph E. Blitch Ft. Lauderdale & Tampa Vivian P. Cocotas Usher L. Brown' Scott J. Dornstein Suzanne D'Agresta° Mitchell B. Haller Anthony A. Garganese° Katherine W. Latorre J.W. Taylor Terri E. Oster Jeffrey S. Weiss Amy J. Pitsch 'Board Certified Civil Trial Lawyer 'Board Certified City, County & Local Government Law 'Board Certified Appellate Practice October 1, 2007 The Honorable Mayor John F. Bush and Members of the City Commission c/o City Clerk 1126 East State Road 434 Winter Springs, Florida 32708-6912 Erin J. O'Leary' Catherine D. Reischmann° William E. Reischmann, Jr. Of Counsel Re: Assignment of Conservation Easement of Winter Springs Golf Course Dear Mayor Bush and Members of the City Commission: This correspondence is in response to your request on September 24, 2007 for an opinion as to whether the City has the right to assign an interest in the Winter Springs Golf Course conservation easement to a third party. In accordance with section 704.06, Florida Statutes, said easement was granted to the City by Big Cypress Associates, Ltd. on December 26, 1984 and is recorded at Book 1604, Page 131 in the Official Public Records of Seminole County, Florida ("Easement"). EXECUTIVE SUMMARY The express terms of the Easement and section 704.06, Florida Statutes grant the City the right to assign an interest in the Easement to a third party. However, the third party must be a government agency, a charitable organization, or a trust, and be an eligible donee under the Internal Revenue Code. In addition, the third party must agree to fulfill the conservation purpose of the Easement. LEGAL ANALYSIS Under Florida law, conservation easements may be granted and acquired pursuant to section 704.06, Florida Statutes. In 1984, the Easement was granted to the City 225 East Robinson Street, Suite 660 • P.O. Box 2873 • Orlando, Florida 32802-2873 Orlando (407) 425-9566 Fax (407) 425-9596 • Kissimmee (321) 402-0144 • Cocoa (866) 425-9566 • Ft. Lauderdale (954) 670-1979 Website: www.orlandolaw.net • Email: firm@orlandolaw.net t October 1, 2007 Page 2 pursuant to the authority set forth under this section. Section 704.06(2), Florida Statutes, provides that conservation "easements may be acquired in the same manner as other interests in property are acquired . . . and shall not be unassignable to other governmental bodies or agencies, charitable organizations, or trusts authorized to acquire such easements, for lack of benefit to a dominant estate." (emphasis added). In addition, the following entities may hold a conservation easement: Any governmental body or agency, or by a charitable corporation or trust whose purposes include protecting natural, scenic, or open space values of real property, assuring its availability for agricultural, forest, recreational, or open space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving sites or properties of historical, architectural, archaeological, or cultural significance. § 704.06(3), Fla. Stat. (2007). Therefore, Florida law expressly prohibits making a conservation easement unassignable. In other words, a conservation easement may be assigned. If assigned, however, Florida law requires that a conservation easement be held by a government body or agency or charitable organization or trust organized for conservation purposes. Accordingly, because the Easement was granted to the City under section 704.06, Florida Statutes, the City may assign the Easement to qualified third parties. In addition, the express terms of the Easement are consistent with the aforementioned statute and also recognize the City's statutory right to assign the Easement. On page 4 of the Easement, the Easement provides: TO HAVE AND TO HOLD the said Conservation Easement and Restrictions unto the said Grantee, its successors and assigns forever, subject to the condition that the Grantee and its successors and assigns may not transfer said Conservation Easement and Restriction, with or without consideration unless: (1) the Grantee as a condition of the transfer requires that the conservation purposes continue to be carried out and (2) the transferee is an eligible donee as that term is defined in the Internal Revenue Code and regulation issued thereunder. (emphasis added). Therefore, the Easement grants the City the right to assign the conservation easement to a third party, so long as the assignee is an "eligible donee" under the Internal October 1, 2007 Page 3 Revenue Code' and the assignee agrees to carry out the conservation purposes of the Easement. If the City Commission desires to assign an interest in the Easement, the details of the assignment will need to be structures to comply the conditions set forth in section 704.06, Florida Statutes, and in the Easement. I look forward to discussing this matter at a Commission meeting in the near future. Sinc y, Anthony A. Garganese City Attorney AAG:jaw cc: City Manager ' In general, an "eligible donee" under the Internal Revenue Code appears to be either: (1) a governmental entity with the purpose of retaining the conservation easement for public purposes, or (2) a corporation, trust, or community chest, fund or foundation operated religious, charitable, scientific, literary, or education purposes, or (3) a non-profit corporation organized under section 501(c)(3), which is a private foundation or organization which receives more than 1/3 of its support from charitable contributions including grants, gifts and membership fees. See Internal Revenue Code, Section 170 (h)(3) (defining "qualified organization" for charitable donation purposes).