497 

 

Tackling the Tenure Problem: 
Promoting Land Access for New Farmers 

as Part of a Climate Change Solution 

Carrie A. Scrufari, Esq.* 

I.  Introduction ................................................................................ 498 
II.  Legal Innovation as Part of the Land Access Solution: 

LLCs, Leases, and Conservation Easements ............................. 504 
A.  Using LLCs in a Farm Succession Plan to Allow Land 

Access for Beginning Farmers .............................................. 505 
B.  Using Conservation Easements to Reduce Cost Barriers ..... 508 
C.  Innovative Leases that Promote Stable, Equitable Land 

Tenure ................................................................................... 512 
III.  Models for Success: Case Studies Demonstrating 

Innovation in Action ................................................................. 514 
A.  Windswept Farmstead Cooperative, LLC: A Farm 

Succession Story Using an LLC ............................................ 514 
B.  Caretaker Farm: A Successful Farm Transition with a 

Conservation Easement and a Ground Lease ...................... 518 
C.  Temple Wilton Community Farm: A Collaborative 

Farming Case Study Featuring a Conservation Easement, 
an LLC, and a Rolling Ground Lease .................................. 527 

 
* Carrie A. Scrufari, Esq. is an Assistant Professor at Vermont Law School and a Senior 
Fellow in the Center for Agriculture and Food Systems.  She earned her J.D. from the 
University of Maryland in 2011, is a member of the New York Bar, and clerked at the New 
York State Appellate Division Fourth Judicial Department and at the New York Court of 
Appeals before earning her LL.M. degree in Food and Agricultural Law and Policy from 
Vermont Law School.  The research for this Article was made possible through grant funding 
from the United States Department of Agriculture National Agricultural Library for the 
Center for Agriculture and Food Systems’ Farmland Access Project.  She thanks Professor 
Laurie Ristino for the opportunity to engage in this research and owes a debt of gratitude to 
all the farmers and service providers who spent countless valuable hours explaining the 
intricate details of their operations and who inspire and feed us all.   



 

498 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

 
D.  Wingate Farm: A Multigenerational Farm Transfer Made 

Possible with a Conservation Easement and the First 
OPAV Ever to Exist in New Hampshire ............................... 532 

E.  Pine Island Community Farm: A Collaborative Leasing 
Endeavor with Future Conservation Potential ..................... 538 

IV.  Conclusion ................................................................................ 542 
 
 

Don’t undertake a project unless it is 
manifestly important and nearly impossible. 

— Edwin Land 
 

Access to land is one of the biggest challenges facing agricultural producers, 
particularly beginning farmers. 

— Mary Bohman, USDA Economic Research Service Administrator 
 

I.  INTRODUCTION 

Academics, environmentalists, scientists, and pop culturists have 
claimed for nearly two decades that humans have entered a new 
epoch in the Earth’s history, due in part to the scale at which we 
have altered the face of the planet through agriculture.1  The 
human footprint on the global environment has become so deep 
that some scientists have urged the redesignation of our moment in 
geological time.2  Paleoclimatologists have coined the term 
“Anthropocene” to signify the start of this new epoch.3  The role of 
humans in causing climate change is a hallmark of the 
Anthropocene. 

Climate change is the result of an increased amount of chemicals 
in the Earth’s atmosphere; this chemical buildup blocks infrared 
radiation (generated from the Sun) from reflecting off the Earth’s 
surface back into space.4  As a result, heat that no longer reflects 

 
1.  See Will Steffen et al., The Anthropocene: Are Humans Now Overwhelming the Great Forces of 

Nature?, 36 AMBIO 614, 614–21 (2007); see also Elizabeth Kolbert, Enter the Anthropocene—Age 
of Man, NAT’L GEOGRAPHIC, Mar. 2011, at 61.   

2.  James Ming Chen, Anthropocene Agricultural Law, 3 TEX. A&M L. REV. 745, 755 (2016). 
3.  Kolbert, supra note 1.   
4.  See Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to 

Liberate the Future, 94 CORNELL L. REV. 1153, 1161 (2009).  



 

2017] Tackling the Tenure Problem 499 

back into space remains trapped in the Earth’s atmosphere, 
creating a rise in temperature akin to how a greenhouse operates.  
Thus, scientists have dubbed these heat-trapping chemicals 
greenhouse gases (“GHGs”).5 

Climate change is “unequivocal, as is now evident from 
observations of increases in global average air and ocean 
temperatures, widespread melting of snow and ice and rising global 
average sea level.”6  Accordingly, to the extent that a “climate 
change debate” still exists in parts of the world, the discourse has 
largely shifted beyond whether climate change exists to how we 
should combat the threat.7 

One course of action involves examining our modern industrial 
agricultural practices, as they contribute to climate change in 
staggering ways.  The main GHG contributors to climate change 
are carbon dioxide (CO2), methane (CH4), and nitrous oxide 
(N2O).8  Twenty-five percent of GHGs produced in industrialized 
nations result from agriculture.9  Livestock production alone is 
responsible for eighteen percent of GHG emissions—the 
equivalent of 7.1 billion tons of carbon dioxide.10  Even more 
significant, livestock generates sixty-five percent of human-related 
nitrous oxide and thirty-five percent of methane, which have 296 
times and 23 times the global warming potential of carbon 
dioxide, respectively.11  In addition, some estimates predict that 
changes in land use to raise more livestock (i.e., clearing forests to 
provide pasture for animals) result in global emissions of carbon 

 
5.  Id. 
6.  INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: SYNTHESIS 

REPORT, at 30 (2007). 
7.  Jody Freeman & Andrew Guzman, Climate Change and U.S. Interests, 109 COLUM. L. REV. 

1531, 1531 (2009). 
8.  See Causes of Climate Change, U.S. ENVTL. PROTECTION AGENCY, https://www.epa.gov/ 

climate-change-science/causes-climate-change [https://perma.cc/BJG5-SRHJ] (last visited 
Apr. 4, 2017). 

9.  See Jason J. Czarnezki, Food, Law & the Environment: Informational and Structural Changes 
for a Sustainable Food System, 31 UTAH ENVTL. L. REV. 263, 263 (2011) (citing Elisabeth 
Rosenthal, To Cut Global Warming, Swedes Study Their Plates, N.Y. TIMES, Oct. 23, 2009, at A6).  

10.  HENNING STEINFIELD ET AL., FOOD & AGRIC. ORG. OF THE U.N., LIVESTOCK’S LONG 

SHADOW: ENVIRONMENTAL ISSUES AND OPTIONS, at xxi (2006).  
11.  Id. at 82. 



 

500 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

dioxide to the tune of 2.4 billon tons per year.12  What we eat 
impacts the amount of GHGs we emit.13 

With population projections reaching 9.7 billion by 2050,14 
determining how to feed the world in the face of climate change 
has led scholars and researchers to dub it a “super wicked 
problem.”15  While agriculture is a main contributor to climate 
change, it can also be part of the solution if we can capitalize on 
agriculture’s mitigation potential.16  For example, agriculture can 
assist with removing carbon dioxide from the atmosphere via 
carbon sinks—a process called soil carbon sequestration.17  
Through photosynthesis, plants assimilate carbon and return some 
of it to the atmosphere through respiration, but the remaining 
carbon resides in plant tissue and returns to the soil when the 
plants die.  Experts have recognized that building the capacity of 
soils to continue storing carbon (through the use of cover 
cropping, crop rotation, and other organic practices) can be an 
important ally in battling climate change.18  Soil sequestration 
could substantially relieve our atmospheric impact, with some 
estimates predicting that soils have the capacity to mitigate climate 
change by matching anthropogenic emissions at an equal rate for 

 
12.  Id. at 90. 
13.  Roni A. Neff et al., Yesterday’s Dinner, Tomorrow’s Weather, Today’s News?  US Newspaper 

Coverage of Food System Contributions to Climate Change, 12 PUB. HEALTH NUTRITION 1006 
(2009). 

14.  See World Population Projected to Reach 9.7 Billion by 2050, U.N. DEP’T ECON. & SOC. AFF. 
(July 29, 2015), http://www.un.org/en/development/desa/news/population/2015- 
report.html [https://perma.cc/T5MQ-KR2X]. 

15.  Lazarus, supra note 4, at 1158–59 (citing Horst W. J. Rittel & Melvin. M. Webber, 
Dilemmas in a General Theory of Planning, 4 POL’Y SCI. 155, 160–69 (1973) (coining the phrase 
“wicked problems” to describe the particularly difficult-to-solve social policy problems)). 

16.  See The Mitigation of Climate Change in Agriculture (MICCA) Global Program, WEADAPT 
(Dec. 14, 2012), https://www.weadapt.org/knowledge-base/synergies-between-adaptation-
and-mitigation/mitigation-of-climate-change-in-agriculture-micca [https://perma.cc/Y8XZ-
RRYC]. 

17.  See generally FRANCESCA FELICANI ROBLES, FOOD & AGRIC. ORG. OF THE U.N., CLIMATE 

CHANGE AND FORESTRY LEGISLATION IN SUPPORT OF REDD+ (2015).  
18.  See U.N. CONFERENCE ON TRADE & DEV., WAKE UP BEFORE IT IS TOO LATE: MAKING 

AGRICULTURE TRULY SUSTAINABLE NOW FOR FOOD SECURITY IN A CHANGING CLIMATE (2013); 
see also Press Release, U.S. Dep’t Agric., Agriculture Secretary Tom Vilsack and Senior White 
House Advisor Brian Deese Announce Partnerships (Apr. 23, 2015), https://www.usda.gov/ 
wps/portal/usda/usdahome?contentidonly=true&contentid=2015/04/0109.xml 
[https://perma.cc/C9N9-QLDR].  



 

2017] Tackling the Tenure Problem 501 

the next forty years.19  Such predictions demonstrate that a key 
solution to climate change could include investing in and 
promoting local, small scale, organic, diversified farming 
operations that can employ climate change mitigation techniques.20 

Healthy, functioning ecosystems mitigate climate change with the 
vegetation they support, which absorbs carbon dioxide and sulfur 
dioxide and releases oxygen, thereby regulating GHGs.21  The 
benefits of employing farm management techniques that replicate 
natural systems include 

 
improving the watershed by increasing and improving wetlands, water 
quality, flood control, and ground water recharge; greenhouse gas 
reduction and climate change impact control; soil and erosion 
control; delivery of nutrients to and from riparian vegetation; 
pollination; food provision; and they may involve expansive umbrella 
habitats to augment biodiversity.22 

 
On the other hand, large-scale conventional agriculture that relies 
on monocultures and synthetic inputs causes soil degradation and 
thereby contributes to climate change, as degraded soils have less 
ability to absorb carbon.23 

Scholars have recognized the problems embedded in the current 
modern industrial agricultural complex as advocates strive to 
promote a different system.  Some argue for abandoning the 
conventional system of agriculture in favor of a “civic agriculture”—
a system that “embodies a commitment to developing and 
strengthening an economically, environmentally, and socially 
sustainable system of agriculture and food production that relies on 

 
19.  DANIEL KANE, NAT’L SUSTAINABLE AGRIC. COAL., CARBON SEQUESTRATION POTENTIAL 

ON AGRICULTURAL LANDS: A REVIEW OF CURRENT SCIENCE AND AVAILABLE PRACTICES 22 
(2015). 

20.  Indeed, prominent climate organizations regard sustainable agriculture initiatives, 
including those focused on land tenure, as a key aspect of addressing climate change.  See, 
e.g., Adaptation Committee, U.N. FRAMEWORK CONVENTION ON CLIMATE CHANGE, 
 http://unfccc.int/adaptation/groups_committees/adaptation_committee/items/6944.php 
[https://perma.cc/9MZJ-4BFP]. 

21.  See Keith H. Hirokawa & Charles Gottlieb, Sustainable Habitat Restoration: Fish, Farms, 
and Ecosystem Services, 23 FORDHAM ENVTL. L. REV. 1, 35–36 (2012).  

22.  Id. at 16. 
23.  See Shelley Welton, Michela Biasutti, & Michael B. Gerrard, Legal & Scientific Integrity 

in Advancing a “Land Degradation Neutral World,” 40 COLUM. J. ENVTL. L. 39, 50  (2015). 



 

502 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

local resources and serves local markets and consumers.”24  While 
civic agriculture holds great promise for combatting climate 
change and building a healthier, more resilient food system, there 
are several barriers to employing such a solution.  The most “widely 
acknowledged barrier to entry” new farmers face is access to land.25  
If small scale, sustainable farming operations are one goal from the 
menu of possible climate change mitigation strategies, then the 
challenge of land access and the quest for achieving stable land 
tenure must be squarely addressed.26 

A confluence of different factors has created the current barriers 
to land access, making it difficult for farmers—especially new 
farmers—to engage in the types of practices that would mitigate 
climate change.  The landscape of American agriculture has 
changed drastically in the last fifty years.  The number of farms has 
been steadily shrinking, dropping from six million farms in 1935 to 
approximately two million farms in 2012.27  Two centuries ago, the 
majority of Americans farmed and produced most of the food they 
ate.28  Today, less than two percent of Americans farm.29  In 
addition, the number of new farms has been steadily decreasing for 
the last three decades.30  Furthermore, sixty percent of farm 
operators own their land and are fifty-eight years old on average, 
but do not have a succession plan for their farms upon their 

 
24.  THOMAS A. LYSON, CIVIC AGRICULTURE: RECONNECTING FARM, FOOD, AND 

COMMUNITY 63 (2004). 
25.  Mary C. Ahearn, Theme Overview: Addressing the Challenges of Entry into Farming, 

CHOICES, 4th Quarter 2016.  
26.  See JULIA FREEDGOOD & JENNIFER DEMPSEY, AM. FARMLAND TRUST, CULTIVATING THE 

NEXT GENERATION: RESOURCES AND POLICIES TO HELP BEGINNING FARMERS SUCCEED IN 

AGRICULTURE 11 (2014).  
27.  Roberto A. Ferdman, The Decline of the Small American Family Farm in One Chart, 

WONKBLOG (Sept. 16, 2014), https://www.washingtonpost.com/news/wonk/wp/2014/09/ 
16/the-decline-of-the-small-american-family-farm-in-one-chart [https://perma.cc/ACS4- 
RVK5]. 

28.  Stanley Lebergott, Labor Force and Employment, 1800–1960, in OUTPUT, EMPLOYMENT, 
AND PRODUCTIVITY IN THE UNITED STATES AFTER 1800, at 117, 118 (Dorothy S. Brady ed., 
1966). 

29.  Fast Facts About Agriculture, FARM BUREAU, http://www.fb.org/newsroom/fastfacts 
[https://perma.cc/2NCG-W9ZS] (last visited Apr. 3, 2017). 

30.  Ahearn, supra note 25 (citing NAT’L AGRIC. STATISTICS SERV., U.S. DEP’T OF AGRIC., 
AC-12-A-51, 2012 CENSUS OF AGRICULTURE: UNITED STATES SUMMARY AND STATE DATA 
(2014)).  A new or beginning farm is one whose principal operator has been operating the 
same farm for ten years or less.  According to the U.S. Department of Agriculture’s 2012 
Census of Agriculture, less than twenty-two percent of all farms are new farms.  



 

2017] Tackling the Tenure Problem 503 

retirement.31  When these aging operators try to sell their land to 
retire, they are met with a market of new farmers who cannot 
afford to buy due to the cost-prohibitive environment of rising 
prices for prime agricultural real estate.32  The average cost of 
farmland in the United States is $3020 per acre.33  Because 
purchasing land at such prices is often not an option, most new 
farmers choose to lease the land they farm.  Nearly forty percent of 
farmers in the United States lease the land they work.34 

For those who advocate on behalf of both farmers and the 
environment, several legal issues emerge from this picture.  First, 
advocates must learn how to promote land access while preserving 
farmland as part of supporting a diversified and secure local food 
system in the face of climate change.35  A second related issue that 
arises from this scenario involves farmland succession.  For many 
farmers near the age of retirement, their land value may be their 
primary asset and, therefore, critical to funding their retirement.  
The need for retiring farmers to seek maximum value for their 
land confounds the ability of new farmers with limited capital to 
acquire property.  Finally, given that most new farmers are unable 
to purchase land, advocates must determine how to create 
affordable and stable access to land for those who rent it.  
Therefore, the primary challenges that advocates face today in 
transitioning our food system toward a civic agriculture as part of a 
climate change solution is determining how to use the law to (1) 
promote land access and preserve farmland, (2) facilitate 
succession, and (3) ensure equitable and stable land tenure 
arrangements for new and retiring farmers. 

Tenure essentially means “to hold.”36  Land tenure is a culture’s 
“perceived institutional arrangement of rules, principles, 
procedures, and practices, whereby a society or community defines 
control over, access to, management of, exploitation of, and use of 

 
31.  2014 Tenure, Ownership, and Transition of Agricultural Land (TOTAL), U.S. DEP’T OF 

AGRIC., https://www.agcensus.usda.gov/Publications/2012/Online_Resources/TOTAL/  
index.php [https://perma.cc/JCN9-N93Z] (last updated Sept. 8, 2015). 

32.  FREEDGOOD & DEMPSEY, supra note 26, at 11.  
33.  See NAT’L AGRIC. STATISTICS SERV., U.S. DEP’T OF AGRIC., LAND VALUES—2015 

SUMMARY, at 4 (2015).  
34.  2014 Tenure, Ownership, and Transition of Agricultural Land (TOTAL), supra note 31.  
35.  Solving this problem is crucial, as local and diversified operations help protect the 

food supply against extreme weather events associated with climate change.  
36.  HENRI DEKKER, IN PURSUIT OF LAND TENURE SECURITY, at 1 (2006).  



 

504 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

means of existence and production.”37  One of the most pressing 
legal and governance challenges in responding to the threats of 
climate change involves increasing opportunities for land access 
and stable tenure so that farmers can engage in small scale, 
sustainable agriculture.  Innovative combinations of various legal 
instruments and practices have potential to address the challenges 
of feeding a growing population locally and globally.  Models in 
New England can be scalable and replicable across diverse sectors 
for more sustainable development nationwide and globally. 

This Article explores the different legal tools that can be used to 
create innovative land tenure arrangements that mitigate the 
effects of climate change, examining such arrangements through 
the use of case studies.  This Article seeks to disseminate 
information that allowed for five different successful land access 
arrangements in the hopes that other farmers who find themselves 
similarly situated might be able to replicate portions of these 
arrangements to become part of the climate change solution, 
rather than contributing to the problem.  Part II of this Article 
discusses the legal tools—limited liability companies (“LLCs”), 
leases, and conservation easements—that farmers and their 
advocates are using in innovative ways to preserve farmland, 
facilitate succession, and achieve equitable and stable tenure so 
that civic agriculture can play a prominent role as a partial solution 
to climate change.  Part III examines these legal innovations in 
depth through the lens of five separate case studies.  The Article 
concludes that such legal innovations are an instrumental part of 
responding to the challenges posed by climate change and should 
be replicated where possible to contribute to the welfare of robust 
and resilient local food systems. 

II.  LEGAL INNOVATION AS PART OF THE LAND ACCESS SOLUTION: 
LLCS, LEASES, AND CONSERVATION EASEMENTS 

The legal tools discussed in this Part are innovatively combined 
to create opportunities for new farmers to access farmland to 
sustainably grow food.  These combinations create a synergistic 
effect, resulting in land access for new farmers, a secure exit for 
retiring farmers, and sustainable stewardship of the land for future 
generations in the face of climate change.  LLCs are examined first 
 

37.  Id.  



 

2017] Tackling the Tenure Problem 505 

as a mechanism for facilitating farm succession, followed by an 
analysis of how conservation easements can be used to create 
affordable access to farmland.  This Part concludes with a 
discussion of how long-term lease arrangements, such as ground 
leases, can allow for stable and equitable land tenure for new 
farmers as an alternative to fee simple ownership. 

A.  Using LLCs in a Farm Succession Plan to Allow Land Access for 
Beginning Farmers 

A limited liability company is a business structure that is a 
separate legal entity created under state law, comprised of people 
who own and control the business.38  The LLC has its origin in 
partnership law, but encompasses some advantages from corporate 
law as well.39  In a corporation, equity owners are referred to as 
shareholders, but in an LLC, the equity owners are often called 
“members.”40  Members own “interests” in the LLC, in contrast to 
shareholders who own shares in a corporation.41 

An LLC is so named because it advantageously limits the liability 
of its members.42  A member’s liability is often limited to 
investments the member made into the company and does not 
usually extend to the member’s personal property.43  Another 
advantage of creating an LLC is the tax treatment LLCs are 
afforded.  LLCs are eligible to receive “pass through” taxation.44  
Thus, the business does not pay income tax and there is no need to 
file a corporate tax return.  Rather, LLC members report and pay 
tax on their business profits through their personal tax returns. 

 
38.  Ann K. Wooster, Construction and Application of Limited Liability Company Acts—Issues 

Relating to Formation of Limited Liability Company and Addition or Disassociation of Members 
Thereto, 43 A.L.R. 6TH 611 (West 2009); see also 51 AM. JUR. 2D LIMITED LIABILITY COMPANIES § 
2 (West 2017). 

39.  Wooster, supra note 38. 
40.  Precise terminology often varies by state.  See, e.g., N.Y. LTD. LIAB. CO. LAW § 

402(c)(1) (McKinney 2016) (discussing LLC owners as members and the interests owned).   
41.  Id.  
42.  See FAITH GILBERT, COOPERATIVE FARMING—FRAMEWORKS FOR FARMING TOGETHER 

26.  
43.  For example, if an LLC member owns a car personally—meaning not associated with 

the LLC business—and the LLC defaults on a loan, the bank usually cannot take possession 
of the car because the car is personal property and not property of the business.  Liability for 
the loan would be limited to the property in the LLC.   

44.  See GILBERT, supra note 42, at 26. 



 

506 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

As a means of promoting access to land and facilitating 
succession, creating an LLC can assist in transferring farmland 
from one retiring generation to the next without requiring new 
farmers with limited capital to take out a loan or mortgage.45  For 
example, suppose that a retiring farming couple creates an LLC 
and transfers the farmhouse, barns, hoop houses, equipment, and 
land to the LLC.  For purposes of this example, assume the retiring 
farmers structure the LLC to have one hundred interests (although 
they could realistically choose any number of interests they wish).  
The retiring couple finds a new farming couple interested in 
purchasing the farm, but the new farmers do not have substantial 
start-up capital.  To begin the ownership transition, the retiring 
farmers—as senior farmers—each own forty-five interests.  
Collectively, they own ninety interests, or ninety percent of the 
LLC, which typically means they receive ninety percent of the 
farm’s profit.  The new farmers—as junior farmers—each purchase 
five interests of the LLC with their start-up capital.  Collectively, the 
junior farmers own ten percent of the LLC, which means they will 
receive ten percent of the farm’s profit.  As the junior farmers work 
the land, grow their business, and begin making larger profits, they 
purchase additional shares of the LLC and thereby earn increasing 
percentages of the farm’s profit until eventually they purchase all 
the interests and own the entire business.46 

Junior farmers can increase the number of interests they own in a 
variety of ways.47  One option is to structure the LLC so that the 
junior farmers pay rent to the LLC to use the property, with the 
rent constituting payment toward the purchase of LLC interests.  In 
this way, the LLC effectively functions as a lease-to-own 
arrangement where rent payments count toward the purchase price 
of the farm, allowing the junior farmers to build equity with each 
passing year.  Within the operating agreement—the document that 
outlines the rules by which the members of the LLC will abide—the 
parties can agree that the junior farmers will be expected to 
purchase a set number of interests each year.  Alternatively, the 
parties may state in their operating agreement that the junior 
farmers will receive interests in exchange for working the land—an 

 
45.  This makes an LLC an attractive option for new farmers who are unable to secure a 

bank loan for their farming operation or who would like to avoid carrying a heavy debt load. 
46.  See GILBERT, supra note 42, at 37.  
47.  Id. at 26.  



 

2017] Tackling the Tenure Problem 507 

arrangement sometimes called “sweat equity”—rather than by 
making monetary payments to the LLC.  The parties to this type of 
arrangement would determine ahead of time how many interests a 
certain amount of farm labor is worth.  In either arrangement, an 
appraiser should assist in assigning value to the LLC and 
determining the amount of each share. 

In order to create an LLC under state law, any person (or group 
of persons) can form an LLC for any lawful purpose by filing a 
certificate of organization with the appropriate office (often the 
secretary of the state) and paying a filing fee.48  The parties then 
need to determine whether the LLC will be a member-managed 
LLC (where the members determine the day-to-day operations of 
the business) or whether the LLC will be manager-managed (where 
there is a designated manager who is the person responsible for 
running the day-to-day operations of the business).49  The members 
of the LLC also draft the operating agreement, which should 
include provisions regarding profits, voting rights, meetings, 
procedures for transferring ownership, and rules/procedures for 
approving special matters.50  Because LLCs are largely governed by 
their operating agreements (which are drafted by the members) 
and state statutes do not contain many rules for how LLCs should 
be managed, LLCs are flexible business structures that allow the 
members wide discretion in how to arrange the different classes of 
membership and manage the business.51 

Although there are many advantages to forming an LLC and 
using this legal entity as a method of farm succession (such as 
limiting personal liability, pass-through taxation, and flexibility in 
governance), both senior and junior farmers should carefully 
consider whether forming an LLC is right for their situations.52  For 
senior farmers, LLCs are attractive because LLCs allow them to 
issue interests of the business and transfer them in a measured, 
incremental way so they can relinquish ownership of the land 
gradually.53  Additionally, senior farmers who desire their land be 

 
48.  See 51 AM. JUR. 2D LIMITED LIABILITY COMPANIES § 4 (West 2017). 
49.  See Wooster, supra note 38. 
50.  See UNIFORM LIMITED LIABILITY COMPANY ACT § 105 (UNIF. LAW COMM’N 2013). 
51.  See GILBERT, supra note 42, at 15. 
52.  See ANNETTE M. HIGBY ET AL., A LEGAL GUIDE TO THE BUSINESS OF FARMING IN 

VERMONT 11–14 (2006). 
53.  For example, the junior farmers might be required to collectively purchase ten shares 

a year for ten years until the ownership transfer is complete.  



 

508 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

used in certain ways or expect that new farmers will employ certain 
conservation and environmental stewardship practices may create 
rules in the operating agreement that other incoming members 
must follow (such as requiring the use of certain climate change 
mitigation strategies like cover cropping, crop rotation, and buffer 
zones to prevent soil erosion and water pollution). 

New farmers who are contemplating entering into an LLC 
arrangement to take over an existing farm should know that it 
allows them to begin gaining equity, as opposed to simply leasing 
land from the retiring farmers.  If the new farmers ultimately 
decide not to purchase the farm, they can sell the interests they 
have acquired.  However, the acquired interests could be 
burdensome if the senior farmers do not wish to buy them back, as 
another new farmer must then be found to purchase the interests 
and agree to the terms of the operating agreement.  New farmers 
should also be aware that they will be subject to the LLC’s 
operating agreement and therefore must abide by whatever 
conservation measures the senior farmers set forth in the 
agreement.  However, senior farmers should understand that once 
they sell the business and are no longer members of the LLC, the 
remaining LLC members (the junior farmers and any new farmers 
the junior farmers allow to join) can redraft the terms of the 
operating agreement; any conservation measures or environmental 
practices could be subject to change based on the desires of the 
new LLC members.  Thus, while an LLC can be a useful farm 
succession tool and a means of providing land access for new 
farmers, it alone cannot guarantee the permanent use of 
conservation measures. 

B.  Using Conservation Easements to Reduce Cost Barriers 

If farmers wish to transfer their land via an LLC but are also 
concerned with permanently protecting land from development 
and ensuring that certain conservation, agroecological, or 
mitigation practices be used, then conserving their land with an 
easement provides that assurance.  A conservation easement is “a 
voluntary legal agreement between a landowner and a land trust or 
government agency that permanently limits uses of the land in 



 

2017] Tackling the Tenure Problem 509 

order to protect its conservation values.”54  The landowner will sell 
or donate the conservation easement while still retaining the right 
to own, sell, and devise the land to any heirs.  Essentially, the 
landowner sells to the land trust (or other entity) the right to 
develop the land55 because the conservation easement is often 
worded in such a way that it prohibits subdivision or development 
of the property.56  Some states allow for landowners to sell 
affirmative agricultural easements, which not only prohibit 
development on the land but also require that the land be kept in 
agricultural use, meaning it must be farmed.57  Thus, depending on 
the drafted terms, an easement can, among other things, 
permanently protect farms from future development, promote the 
agricultural uses of the farms, safeguard prime agricultural soils, 
preserve the quality and quantity of groundwater on the farm, and 
support biological diversity. 

Conservation easements can be written to contain myriad 
conditions to mitigate the effects of climate change.  For example, 
they can be drafted to require the use of certain agricultural 
practices (e.g., organic or agroecological practices, use of 
regenerative soil conservation measures, or maintenance of 
wetlands, surrounding forests, or other buffer zones) while also 
prohibiting other practices (such as the use of synthetic chemicals 
typical in conventional agricultural operations).58  Conservation 
easements could also mandate the use of specific climate change 
mitigation measures, such as cover cropping to build organic 
 

54.  Questions?, LAND TRUST ALL., http://www.landtrustalliance.org/what-you-can-
do/conserve-your-land/questions [https://perma.cc/QC6D-7P4E] (last visited Mar. 26, 
2017); see also Jesse J. Richardson, Jr., Beyond Fairness: What Really Works to Protect Farmland, 12 

DRAKE J. AGRIC. L. 163, 168 (2007).  
55.  See 34A AM. JUR. 2D FEDERAL TAXATION ¶ 143,900 (West 2017); see also I.R.C. § 

2031(c)(5)(D) (2012). 
56.  A conservation easement may cover all or part of the land and can encompass 

wetlands, land used for wildlife habitat such as woodlands, as well as the land that is farmed 
or pastured.   

57.  See, e.g., ME. STAT. tit. 33, § 467 (2016); MD. CODE ANN., REAL PROP. § 2-118 (West 
2016).  See generally Jane Ellen Hamilton, Beyond Agricultural Conservation Easements: Ensuring 
the Future of Agricultural Production, LAND TRUST ALL., Summer 2013, http://www.landtrust 
alliance.org/news/beyond-agricultural-conservation-easements-ensuring-future-agricultural-
production [https://perma.cc/QLY5-CAAN] (last visited Apr. 26, 2017); Kendra Johnson, 
Conserving Farmland . . . But for Whom? (Mar. 2008) (master’s thesis, University of 
California, Davis), http://www.thegreenhorns.net/wp-content/files_mf/1364840037kj  
mastersthesismar08.pdf [https://perma.cc/35EA-N5S4]. 

58.  See Mary Jane Angelo et al., Small, Slow, and Local: Essays on Building a More Sustainable 
and Local Food System, 12 VT. J. ENVTL. L. 353, 398–99 (2011). 



 

510 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

matter in the soil, crop rotation to maintain soil health and fertility, 
and the use of buffer zones to prevent nutrient runoff and soil 
erosion during times of heavy rain.59 

Aside and apart from its environmental benefits, a conservation 
easement can also be a means to promote access to land because 
selling a conservation easement can dramatically reduce the 
purchase price of a farm for new farmers while still providing a 
means of generating income to fund the senior farmers’ 
retirement.60  For example, assume that a retiring couple’s equity is 
tied to their farmland, which has a real estate market value of 
$400,000.  A new farm couple wants to buy the farm but cannot 
afford such a high purchase price.  The retiring farmers can sell a 
conservation easement to a land trust for $250,000, which 
represents what the development rights to the property are worth.  
Because the farm can no longer be used for development due to 
the conservation easement, the market price of the farm drops to 
its agricultural value, which is $150,000—an amount that the new 
farmers can afford.  Thus, in this scenario, the retiring farmers 
receive the full value of their property (the land trust pays them 
$250,000 for the conservation easement and the new farm couple 
pays them $150,000 for the agricultural value of the farm) while the 
beginning farmers gain access to land at an affordable price that 
would otherwise be unavailable but for the placement of a 
conservation easement on the property. 

For landowners, there are several advantages to selling a 
conservation easement.  First, the sale can help generate income 
that can be used to partially fund retirement.  Second, the 
conservation easement ensures that the land will be permanently 
protected against development.  Unlike the operating agreement 
in an LLC, which is only binding on current owners, a conservation 
easement is binding on all current and future owners of the 
property.  If the retiring farmers want to ensure the use of 
additional climate change mitigation practices, they can include 
those practices in the conservation easement, which then become 
binding on all future owners of the farm.  Finally, when landowners 
 

59.  For more information regarding the types of conservation easement programs the 
federal government administers, see generally MARGARET KROME & GEORGE REISTAD, 
BUILDING SUSTAINABLE FARMS, RANCHES, AND COMMUNITIES: A GUIDE TO FEDERAL PROGRAMS 

FOR SUSTAINABLE AGRICULTURE, FORESTRY, ENTREPRENEURSHIP, CONSERVATION, FOOD 

SYSTEMS, AND COMMUNITY DEVELOPMENT (2016).  
60.  See Hamilton, supra note 57. 



 

2017] Tackling the Tenure Problem 511 

are willing to sell the development rights to their land, they may 
become eligible to receive income, property, and estate tax 
deductions.61 

While the conservation easement is an important legal tool for 
creating land access, some experts believe that “the most important 
mechanism in these arrangements is that the holder of the 
easement is given a purchase option at the agriculturally-restricted 
market value.”62  Known in Vermont and New Hampshire as an 
Option to Purchase at Agricultural Value (“OPAV”), this 
mechanism requires a landowner who decides to sell to first offer 
the option to purchase the land to the easement/OPAV holder, 
such as the land trust.  The owner of the OPAV has a right of first 
refusal to buy the property at its agricultural value, rather than its 
development value.  Often, a land trust will hold the OPAV, 
exercise the option, and then sell the land to a new farmer at an 
affordable rate.63  An OPAV operates to maintain the affordability 
of farmland by limiting a farm’s resale price to that of its 
agricultural value.64 

Massachusetts was the first state to begin using OPAVs in 1979.65  
The state-administered Agricultural Preservation Restriction 
Program oversees the sale of OPAVs in the state.66  Under this 
program, the state will offer to pay a landowner the difference 
between the “fair market value” of the property and the 
“agricultural value” of the property in order to prevent developers 
from purchasing prime agricultural land.67  An OPAV is triggered 
when land is offered for sale to anyone other than a family 
member.  If a prospective non-familial buyer can demonstrate that 
he or she intends to keep the land in agricultural use, the OPAV-
holder may waive the option to purchase the land.  The Vermont 
Land Trust began purchasing OPAVs and incorporating them into 

 
61.  See Richardson, supra note 54, at 168.   
62.  Angelo et al., supra note 58, at 399.  
63.  See id. 
64.  See KENDRA JOHNSON ET AL., CAL. FARMLINK, CONSERVATION AND AFFORDABILITY OF 

WORKING LANDS: NINE CASE STUDIES OF LAND TRUSTS WORKING WITH NEXT-GENERATION 

FARMERS 19.  
65.  See JoAnne L. Dunec, Conservation Easements, NAT. RESOURCES & ENV’T, Fall 2009, at 

60.  
66. Agricultural Preservation Restriction Program (APR), MASS. OFF. ENERGY & ENVTL. AFF., 

http://www.mass.gov/eea/agencies/agr/land-use/agricultural-preservation-restriction-
program-apr.html [https://perma.cc/HT5T-MZND] (last visited Apr. 3, 2017). 

67.  Id. 



 

512 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

conservation easements in 2003.68  In Vermont, an OPAV is 
triggered when land is offered for sale to anyone other than a 
family member or qualified farmer (defined as a person who 
currently earns at least half of his or her income from farming, or 
who has farming experience and plans to operate the property as a 
farm).69  In New Hampshire, the first and only OPAV in existence 
was used in a conservation easement to help transfer Wingate Farm 
in 2015 to the next generation of farmers.70  Because OPAVs are so 
new in New Hampshire, there is not yet a statewide program or 
land trust that oversees the use and sale of this tool throughout the 
state. 

OPAVs are significant as mechanisms for promoting climate-
friendly agriculture in that they provide an additional layer of 
protection against farmland falling into the hands of developers.  
Moreover, when the owner of the easement and the OPAV is a land 
trust, the land trust can exercise its option to purchase the land 
and then vet potential buyers to ensure the land is sold to a farmer 
with a demonstrable commitment to sustainable, climate-friendly 
agriculture.  When that new farmer wishes to retire and transfer 
ownership of the land, the land trust can again exercise its option 
to purchase under the terms of the OPAV to ensure the land 
remains in the hands of farmers committed to employing climate 
mitigation practices in their operations. 

C.  Innovative Leases that Promote Stable, Equitable Land Tenure 

For those farmers who still cannot afford to purchase land even if 
an LLC is used as a transition mechanism and/or if a conservation 
easement is placed on the property to decrease the purchase price, 
leasing land is often the only available option.  A farm lease is a 
legally enforceable contract between a landowner and a farmer in 
which the landowner grants the farmer the right to use the 
designated property during a set time period in exchange for 

 
68.  See Dunec, supra note 65; see also Katie Hannon Michel, Landless: Legal & Policy Tools 

for Transferring Vermont Farmland to the Next Generation of Stewards and Food Producers, 39 VT. L. 
REV. 461, 481–82 (2014); Vermont Farmland Conservation Program, VT. HOUSING & 

CONSERVATION BOARD, http://www.vhcb.org/farmland-conservation.html  
[https://perma.cc/HK5Z-XV7W] (last visited Apr. 3, 2017). 

69.  See The Affordability Option: Keeping Farms Affordable for Farmers, VT. LAND TRUST, 
http://www.vlt.org/opav [https://perma.cc/27Z7-JCE7] (last visited Apr. 4, 2017). 

70.  See infra Section III.D.  

http://www.vlt.org/opav


 

2017] Tackling the Tenure Problem 513 

rent.71  Leasing is not an inherently innovative way to access 
farmland and is rarely as secure as a long-term arrangement such as 
outright ownership.72  From the farmer’s perspective, a leasing 
situation is not as secure as full ownership because the year-to-year 
short-term leases that are typical in many agricultural leasing 
arrangements run the risk of not being renewed at the end of the 
season.  Without assurances of longer-term access to the land, little 
incentive exists for farmers to implement vegetative buffer zones, 
incur the expense of cover cropping, or cultivate organic matter in 
the soil if there is no guarantee of remaining on the land for the 
next growing season. 

However, there are certain kinds of lease arrangements that 
provide unique and valuable benefits to farmers and the land, 
including the opportunity for new farmers to build equity in the 
leased farm or the incentive to implement environmental 
conservation measures in a farm management plan by creating 
long-term, stable tenure situations.73 

A “ground lease” is an innovative way for new farmers to access 
land because it affords them the opportunity to build equity in a 
secure leasing arrangement.74  Ground leases may benefit farmers 
who have enough capital to buy a farmhouse but not enough to 
buy the surrounding farmland.  In a ground lease, the incoming  
farmer purchases and owns all of the buildings and structures on a 
property but pays rent for the farmland on a long-term basis.75  
Typically, the farmer would also own any improvements he or she 
makes to the house, barn, or other structures on the land.76  The 
main benefit of a ground lease arrangement is that the farmer 
holds and builds equity in the buildings or structures and owns any 
improvements he or she makes to the buildings or structures, 
despite the fact that he or she could not otherwise own the 
farmland.  Many ground leases allow for long-term, stable tenure 

 
71.  See Alex M. Johnson, Jr., Correctly Interpreting Long-Term Leases Pursuant to Modern 

Contract Law: Toward a Theory of Relational Leases, 74 VA. L. REV. 751, 753 (1988).  
72.  See Edward Cox, A Lease-Based Approach to Sustainable Farming, Part I: Farm Tenancy 

Trends and the Outlook for Sustainability on Rented Land, 15 DRAKE J. AGRIC. L. 369, 373–74 
(2010).  

73.  Id. at 391–92; see also Angelo et al., supra note 58, at 393. 
74.  For an excellent example of a model ground lease, see EQUITY TRUST, PRESERVING 

FARMS FOR FARMERS 31–63, and see also related commentary in id. at 65–78. 
75.  GILBERT, supra note 42, at 39. 
76.  2 REAL ESTATE LEASING PRACTICE MANUAL ch. 57, Summary (West 2017). 



 

514 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

situations that provide security approximating fee simple 
ownership.77  For example, a ground lease could run for a lease 
term of ninety-nine years and contain a provision that the lease is 
both inheritable upon the lessee’s death and/or assignable to a 
new tenant if the lessee choses to relocate.78  Ground leases may 
also contain a rolling provision, whereby the lease states that a new 
ninety-nine-year lease term automatically begins upon the 
expiration of the first ninety-nine-year lease term.  Moreover, land 
trusts or other conservation-minded organizations are often the 
lessors executing a ground lease and therefore hold title to the 
underlying land.  Thus, a farmer who purchases a farmhouse and 
barn on land rented from a land trust would not worry about a 
landlord breaking the lease to sell to a developer proposing a 
lucrative deal, because such a sale would violate the land trust’s 
mission and purpose. 

III.  MODELS FOR SUCCESS: CASE STUDIES DEMONSTRATING 
INNOVATION IN ACTION 

Although LLCs, conservation easements, and ground leases are 
each individually helpful means of accessing land, their true value 
is in their collaborative strength.  When employed together, these 
tools can allow for access to farmland for the purposes of creating a 
civic agriculture that can mitigate, rather than exacerbate, the 
effects of climate change.  The following case studies describe how 
such an effect is achieved. 

A.  Windswept Farmstead Cooperative, LLC: A Farm Succession 
Story Using an LLC79 

To do this kind of arrangement, everyone has to be willing to give up 
something to get something. 

— Eric Rector 

 
77.  See, e.g., 2 LA. PRAC. REAL EST. § 18:33 (2d ed. West 2016). 
78.  Angelo et al., supra note 58, at 399.   
79.  This Section relies on March 2015 telephone interviews with Eric Rector of 

Windswept Farmstead Cooperative, LLC, on file with the author.  See also GROWING A 

FARMSTEAD COOPERATIVE, https://farmsteadcooperative.org [https://perma.cc/ZL3X- 
ET5D] (last visited Apr. 4, 2017). 



 

2017] Tackling the Tenure Problem 515 

1.  Introduction 

Eric and Alison Rector moved to Monroe, Maine on a 120-acre 
piece of farmland in 1990.  Since that time, they have used the land 
as homesteaders to grow much of their own food while engaging in 
a variety of other enterprises.  After the Rectors turned fifty in 
2010, they began thinking about retirement and devising an exit 
strategy while still maintaining their lifestyles as homesteaders.  
Although the Rectors never farmed the land for a profit, they grew 
much of their own food using sustainable methods without the use 
of synthetic pesticides and fertilizers, and they wanted to see the 
land remain agriculturally and economically viable for future 
generations. 

The Rectors wanted to stay on the land in a limited capacity while 
backing away from the various parts of the farm that were more 
physically intensive.  To that end, they wanted to take on a less 
intensive role in maintaining their gardens, orchards, and livestock.  
They also wanted to build a smaller house on the hill on their 
property and vacate the farmhouse.  They began wondering if 
there was an opportunity to allow a younger couple to take on bits 
of the farm work that they no longer wanted to engage in—and, if 
so, how they could create an equitable arrangement for the new 
farmers. 

Eric realized that growing a strong farming business requires 
expending significant time and energy maintaining and improving 
the soil.  As Eric puts it, “[y]ou are constantly working today for 
tomorrow and the next day and ten years from now.”  Eric did not 
want to simply lease the land to new farmers because he wanted to 
transfer the farm in a way that allowed for new farmers to begin 
building equity—something a typical lease arrangement usually 
does not contemplate.  Eric and Alison also wanted to provide an 
opportunity for new farmers to access land for a farm business 
without needing a mortgage. 

2.  Meeting the Right Match 

The Rectors posted a listing for their farm on Maine Farmland 
Trust’s FarmLink matching site.80  They received ten different 
responses to their posting, including one from James Gagne and 

 
80.  See ME. FARMLINK, http://www.mainefarmlink.org [https://perma.cc/YY7Y-X9A2] 

(last visited Apr. 4, 2017). 



 

516 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

Noami Brautigam.  For each farm couple they met, Eric and Alison 
hosted a lunch or dinner at the farm, gave a farm tour, and 
discussed what each person desired in a future arrangement.  Eric 
said James and Noami most closely matched what they were looking 
for.  Noami had ten years of farming experience already and a 
business plan, and James enjoyed farming as well, although he 
worked full-time as a program manager for a veterans housing 
services organization. 

Eric created a limited liability company for the farm as a 
transition tool that would set forth the terms of the parties’ 
understanding in an operating agreement and in a separate 
purchase and sale agreement (“PSA”).  During a two-year 
transitional leasing period, the LLC essentially operates as a 
landlord, with Noami and James paying rent for the farmhouse and 
access to the land and equipment owned by the LLC.  Rent is set at 
the cost of maintaining the assets being rented. 

3.  The LLC Arrangement 

Eric wanted to create an LLC that would own all of the farmland 
(including the orchards) and also own all of the infrastructure on 
the eighteen-acre property (the farmhouse and barn).  He notes 
that there are many different ways to structure such an 
arrangement; the key idea is that all parties agree to whichever 
method is ultimately chosen.  In Eric’s case, he enlisted an 
independent appraiser to obtain a fixed price for the entire LLC 
property.  This would be the price of all the interests to be 
transferred over time, so long as the parties adhered to the 
scheduled buyout timeline.  Eric structured the LLC so that it 
would contain 23,000 interests.  Eric and Alison each individually 
owned fifty percent of the units (115,000 units each).  Noami and 
James owned zero units to start. 

At the end of a two-year leasing period, Noami and James became 
shareholders of the LLC as part owners and began buying Eric’s 
and Alison’s shares.  At this point, Noami and James write two 
checks each moth: one to Eric and Alison to buy shares, and the 
other to the LLC to pay for leasing the parts of the LLC 
(farmhouse, barn, field, equipment) that they use.  As Noami and 
James gain LLC units via purchase or work hours, Eric and Alison 
decrease their ownership percentage.  Thus, Eric and Alison can 
slowly release control over the land while still living on the farm 



 

2017] Tackling the Tenure Problem 517 

(they have since built their new house on the hill) and while 
receiving help maintaining the property and structures. 

During the two-year trial leasing period, either party can back out 
of the deal (with three months’ notice) and the money paid into 
the LLC at that point would simply be considered rent.  At the end 
of the two years, and for additional years thereafter, the money or 
sweat equity Noami and James have paid into the LLC then counts 
toward a purchase of LLC units (and therefore the ultimate 
purchase price of the LLC). 

The two-year engagement period ended in March 2017, and Eric 
describes the parties’ experience as “so far so good.”  The separate 
PSA provides that at the end of the two-year leasing period, the 
next phase of the farm transfer will occur during which the junior 
farmers purchase interests of the LLC over a twenty-year period 
until full ownership is transitioned to the junior farmers.  The PSA 
contains an early buyout provision in case the junior farmers wish 
to purchase the LLC faster and have the capital to do so.  If at any 
point James and Noami no longer wish to farm, they can sell the 
shares they have accumulated back to the Rectors or to new 
farmers, provided those new farmers agree to abide by the terms of 
the LLC, which requires—among other things—the use of 
sustainable farming methods. 

4.  Why an LLC? 

Eric chose an LLC as a farm succession tool because he wanted to 
issue and transfer units of ownership in a measured way according 
to a schedule provided in the operating agreement so that the new 
farmers had the option to build equity and would be more likely to 
see a return on their investment of time, energy, and money than 
in a typical leasing arrangement.  Eric appreciated that an LLC 
allowed him to transfer the farm bit by bit while allowing him a 
measure of control and oversight regarding how the land was used.  
On the other hand, Eric admits that the arrangement is not 
perfect.  He recognizes that he and Alison will not see the full value 
of their investment in the land for twenty years.  Eric further 
recognizes that while an LLC offers the potential for equity for the 
junior farmers, they are required “to deal with” the senior farmers 
and the terms provided in the operating agreement.  Thus, Eric 
comments, “to do this kind of arrangement, everyone has to be 
willing to give up something to get something.”  Senior farmers 



 

518 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

must be willing to give up a fast return on their investment in the 
land while junior farmers must be willing to give up a certain 
amount of control over how they use the LLC’s land.  However, for 
senior farmers who wish to transition slowly and junior farmers who 
lack access to land and a mortgage, the arrangement has the 
potential to accommodate the needs and desires of all parties. 

Eric also admits that this type of arrangement could cause the 
parties to “run into unanticipated stickiness,” which is why “good 
will and good nature is important.”  Eric also cautions that it is 
“important to be honest about mistakes and how things came up 
and were settled.”  Eric further cautions that this arrangement 
“isn’t necessarily great for land that is used [as funding] for 
retirement—but it might be if you start twenty years prior to when 
you want to retire.” 

Eric also appreciates the amount of flexibility an LLC allows.  
The parties could arrange to have the new farmers buy any amount 
of interests in the LLC each month to maintain the terms of the 
PSA.  Once the land is appraised and the price of the land is 
determined, new farmers can buy interests at set prices—and the 
PSA could contain a clause allowing for the land to be revalued 
every five years and the prices adjusted accordingly.  According to 
Eric, “all kinds of choices can be made” in terms of how and when 
the farm transition occurs. 

Although not the case here, Eric appreciates that an LLC 
arrangement could also be used to create opportunities for 
multiple farmers to use a piece of land and maintain a multi-owner 
situation.  If any of the LLC-member-farmers decide they need to 
move and sell their assets, they would have LLC units to either sell 
back to the landowners or to another farmer who could become a 
new member of the LLC. 

B.  Caretaker Farm: A Successful Farm Transition with a 
Conservation Easement and a Ground Lease81 

We are living our dream.  Dreams are a lot of work! 
— Don Zasada82 

 
81.  Except where otherwise noted, this Section relies on telephone interviews in May and 

June 2015 with Bridget Spann of Caretaker Farm, on file with the author.  
82.  See About Us, CARETAKER FARM, http://www.caretakerfarm.org/about.html  

[https://perma.cc/XN8D-BUGN] (last visited Mar. 30, 2017). 



 

2017] Tackling the Tenure Problem 519 

1.  Introduction 

Don Zasada and Bridget Spann met in Chile while volunteering 
as community organizers in a rural village.  After their volunteer 
commitments concluded, the couple moved to Boston.  Don served 
as the Director of Agriculture for The Food Project, where he 
worked on a twenty-acre farm parcel in Lincoln, Massachusetts (just 
outside of Boston) that aims to engage young people in sustainable 
agriculture.83  The food raised on the farm is sold through 
community supported agriculture (“CSA”)84 programs and farmers’ 
markets and is also donated to various hunger relief organizations.  
Don loved the work, but he was living as a commuter farmer and 
there was no opportunity to live and farm onsite.  Meanwhile, 
Bridget worked as a domestic violence advocate at Massachusetts 
General Hospital.  When their daughter was born in September 
2003, Don had been working at The Food Project for over five years 
and they began discussing moving away from the city and finding a 
long-term farming situation.  Don gave The Food Project a one 
year notice that he was leaving so that the organization could plan 
for his replacement and so that he and Bridget could search for 
land in an open way. 

Throughout the 2003 winter and the 2004 spring, the couple 
searched for property in Maine.  In late 2004, they saw an 
advertisement in The Natural Farmer,85 a quarterly newspaper 
publication of the Northeast Organic Farming Association, an 

 
83.  See What We Do, THE FOOD PROJECT, http://thefoodproject.org/what-we-do  

[https://perma.cc/XN8H-YHMQ] (last visited Mar. 30, 2017). 
84.  Community supported agriculture is “a farm philosophy and marketing strategy with 

surging popularity across the United States.”  A. Bryan Endres & Rachel Armstrong, 
Community Supported Agriculture and Community Labor: Constructing a New Model to Unite 
Volunteers and Employers, 43 SW. L. REV. 371, 371 (2014).  The U.S. Department of Agriculture 
defines a CSA as “a community of individuals who pledge support to a farm operation so that 
the farmland becomes, either legally or spiritually, the community’s farm, with the growers 
and consumers providing mutual support and sharing the risks and benefits of food 
production.”  Community Supported Agriculture, U.S. DEP’T OF AGRIC. NAT’L AGRIC. LIBR., 
https://www.nal.usda.gov/afsic/community-supported-agriculture [https://perma.cc/E8XP-
5Z69] (last visited Mar. 30, 2017).  CSA members usually pledge monetary support in 
advance of the growing season in order to cover the anticipated costs of seeds, labor, and 
other inputs.  Essentially, a CSA pledge allows members to pay for a share of the harvest in 
advance of the growing season, thereby remedying many farmers’ cash flow challenges—
since farming requires a significant expenditure of funds up front without seeing any return 
on the investment for several months.  

85.  NATURAL FARMER, http://thenaturalfarmer.org [https://perma.cc/42KY-RU3E] (last 
visited Mar. 30, 2017). 



 

520 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

umbrella organization encompassing different state chapters that 
organize conferences, workshops, and educational materials for 
gardeners, farmers, consumers, and other stewards of the land.86  
Sam and Elizabeth Smith, a farming couple in Berkshire County, 
Massachusetts, were interviewing successors to take over their farm, 
Caretaker Farm.  Don and Bridget had never thought to look for 
land in Berkshire County because they believed they “never could 
afford” the price of land there.  However, the arrangement the 
Smiths were proposing would have allowed Don and Bridget to 
have access to affordable land with healthy soils in an area with 
direct marketing opportunities.  The arrangement was 
complicated, took time to develop, and ultimately involved a 
community land trust, a conservation easement, two ground leases, 
and both couples living on the land in separate farmhouses. 

2.  Becoming Successors to a Farm in Transition 

Don was already familiar with the Smiths, having visited their 
farm some years ago when he was an apprentice in the 
Collaborative Regional Alliance for Farmer Training program.87  
Once he saw the paper advertisement, he arranged to visit the 
Smiths and interview for the successor position.  The first interview 
occurred in June 2004 and consisted of a farm visit and tour; the 
second interview later that summer involved the Smiths visiting The 
Food Project in Lincoln to see Don’s work there and to have 
another meeting with both Don and Bridget.  Don and Bridget 
then scheduled another weekend visit at Caretaker Farm for Don to 
work with the crew there for a day and for an additional 
opportunity to meet with the Smiths.  By August 2004, the Smiths 
had narrowed down their selection for a successor to three 
candidates and ultimately offered the opportunity to Don and 
Bridget.  Don and Bridget moved to the farm in December 2004, 
and Don worked for a year as an employee of the Smiths to test out 
the parties’ arrangement.  Because two farmhouses were already 
built on the property, each couple would be able to live on the 
property simultaneously; it was important to ensure that everyone 
could successfully reside in proximity to one another.  Once it was 

 
86.  See NE. ORGANIC FARMING ASS’N OF VT., http://nofavt.org [https://perma.cc/R9BD-

646Q] (last visited Mar. 30, 2017). 
87.  See COLLABORATIVE REGIONAL ALLIANCE FOR FARMER TRAINING,  

http://www.craftfarmer.org [https://perma.cc/9UXT-NPFJ] (last visited Mar. 30, 2017). 



 

2017] Tackling the Tenure Problem 521 

clear that everyone would get along, the two couples scheduled a 
meeting with First Pioneer Farm Credit (also known as Farm Credit 
East)88 and their respective attorneys to start discussing the details 
of the transition. 

The Smiths had been exploring different options for the 
succession of their farm with Equity Trust89 and the Berkshire 
Community Land Trust (“BCLT”).90  Equity Trust’s mission is “to 
promote equity in the world by changing the way people think 
about and hold property.”91  To that end, Equity Trust works to 
preserve farms for farmers, provides counseling on land tenure 
issues, strives to promote alternative forms of farm ownership, and 
aims to increase community access to local food.  Community land 
trusts (“CLTs”) such as BCLT originated as a solution to the 
problem of access to affordable housing in urban communities.92  
CLTs are often nonprofit, democratic organizations consisting of 
community members and owning land in an area to hold in trust to 
benefit the community.93  The trust sells or leases homes built on 
the land at lower, more affordable rates than the real estate market 
would typically allow.94  CLTs often place limiting terms and 
conditions on the sale and rental of homes on the land in order to 
deter developer speculation.95  BCLT is similarly premised on a 
“democratic system for managing the Commons.”96  BCLT 
promotes community ownership of land to ensure “permanent 

 
88.  See FARM CREDIT E., https://www.farmcrediteast.com [https://perma.cc/29RV-

2LUY] (last visited Apr. 3, 2017).  
89.  See EQUITY TRUST, http://equitytrust.org [https://perma.cc/7B4W-XGJX] (last 

visited Apr. 3, 2017). 
90.  See BERKSHIRE CMTY. LAND TRUST, INC., http://berkshirecommunitylandtrust.org 

[https://perma.cc/SAR9-63CG] (last visited Apr. 3, 2017). 
91.  See Our Mission and Core Values, EQUITY TRUST, http://equitytrust.org/mission 

[https://perma.cc/L35H-ZE8H] (last visited Apr. 26, 2017). 
92.  See James J. Kelly, Jr., Land Trusts that Conserve Communities, 59 DEPAUL L. REV. 69, 70 

(2009) (characterizing CLTs as “[i]nspired by the civil rights movement and community 
organizing efforts to defeat Urban Renewal” and “challeng[ing] conventional corporate and 
property notions of creating and distributing wealth”). 

93.  See id. (describing CLTs as “democratically controlled community-based nonprofits” 
that “have created and sustained resale-restricted homes, community-owned common spaces, 
or both, in cities, towns, and rural areas within and outside the United States”). 

94.  See David M. Abromowitz, An Essay on Community Land Trusts, FUTURE AFFORDABLE 

HOUSING N.Y.C. 2016 UPDATE (N.Y.C. Bar Ass’n), May 5, 2016. 
95.  See Fideicomiso de la Tierra del Cano Martin Pena v. Fortuno, 604 F.3d 7, 14 n.4 (1st 

Cir. 2010). 
96.  About, BERKSHIRE CMTY. LAND TRUST, INC., http://berkshirecommunity 

landtrust.org/about [https://perma.cc/9DMD-6YVB] (last visited Mar. 27, 2017).  

http://berkshirecommunitylandtrust.org/about
http://berkshirecommunitylandtrust.org/about
https://perma.cc/9DMD-6YVB


 

522 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

access, control, affordability and stewardship, now and for future 
generations.”97  In particular, it supports community owned 
farmland and homes as a means to reduce farmer debt and allow 
for increased food security by supporting local production.98 

A key feature of the Caretaker Farm succession deal involved the 
use of a long-term ground lease.  Both Equity Trust and BCLT offer 
model long-term leases that can be customized for individuals’ 
unique circumstances.  The two couples here decided to use Equity 
Trust’s lease because it offered a means to build equity based on 
the value of the farm, whereas the resale formula for the BCLT 
lease was based on replacement value.99  The couples also liked that 
Equity Trust provided commentary to accompany its lease, which 
explained the language in the various clauses and made the lease 
straightforward and easy to comprehend.100  Equity Trust provided 
the couples with valuable consulting advice regarding fundraising, 
and Bridget recalls that Equity Trust’s technical and legal 
consultation on how to structure the deal was essential to the 
arrangement’s success. 

3.  The Farm Succession Arrangement 

i.  A Conservation Easement 

Even before they advertised for a successor, the Smiths had 
decided to sell a conservation easement on the property as one way 
to generate funds for their retirement.  On February 12, 2003, the 
Smiths sold a conservation easement to the Commonwealth of 
Massachusetts for $252,500.  As previously mentioned, in 
Massachusetts, such a conservation easement is called an 
Agricultural Preservation Restriction (“APR”) and the state 
becomes the owner of the easement.101  Not only does an APR 
prohibit development on the conserved land, but it also places an 

 
97.  BERKSHIRE CMTY. LAND TRUST, INC., supra note 90.  
98.  See History, BERKSHIRE CMTY. LAND TRUST, INC., http://berkshirecommunity 

landtrust.org/history [https://perma.cc/WNJ5-6696] (last visited Mar. 27, 2017).  
99.  Residential Lease Agreement, BERKSHIRE CMTY. LAND TRUST, INC., §§ 5.6–5.7 

http://berkshirecommunitylandtrust.org/wp-content/uploads/2015/12/CLTSB-new-lease-
v13-genericSept2015.pdf [https://perma.cc/B8SH-KZ3R] (last visited Mar. 27, 2017).  

100.  See EQUITY TRUST, supra note 74.   
101.  See LAND CONSERVATION OPTIONS: A GUIDE FOR MASSACHUSETTS LANDOWNERS 31 

(Wesley T. Ward ed., 5th ed. 2001).  

http://berkshirecommunitylandtrust.org/history
http://berkshirecommunitylandtrust.org/history
https://perma.cc/WNJ5-6696
https://perma.cc/B8SH-KZ3R


 

2017] Tackling the Tenure Problem 523 

affirmative burden on the landowners—the land must be kept in 
active agricultural use.102 

ii.  A Community Fundraising Effort 

After the Smiths sold the APR to the state, a local committee in 
Williamstown, Massachusetts commenced a fundraising campaign 
to support Equity Trust in making the initial purchase from the 
Smiths to begin implementing the farm succession plan.  The 
community raised $200,000 to contribute toward the closing of the 
deal thanks to money raised from CSA members, the Smiths’ 
friends and family members, and funds contributed from the state’s 
Community Preservation Act103—a law that sets aside a certain 
amount of tax money each year to fund projects intended to 
preserve agricultural and recreational open spaces. 

iii.  The Closing: How a Land Trust Came to Execute Two 
Ground Leases 

On March 17, 2006, the Smiths closed on the sale of their 
property, but the deal involved many intricate pieces, all of which 
happened on the same day.  The Smiths sold their entire property 
(thirty-five acres of land, two farmhouses, buildings, and structures) 
to Equity Trust, subject to the APR, for $427,000.  Equity Trust then 
simultaneously: 

 
• executed two separate ground leases—one agricultural 

and one residential—which separated ownership of the 
land from ownership of the buildings; 

• sold the main farmhouse and other buildings to Don and 
Bridget for $177,000, subject to the agricultural ground 
lease; 

• sold the second residence back to the Smiths for $1 
(because the value of the second home was purposefully 
not factored into the original sale) subject to the 
residential ground lease, which does not have the many 
restrictions that are present in the agricultural lease; 

 
102.  If the Commonwealth of Massachusetts suspects that someone is not complying with 

the terms of the APR, it may seek to enforce the APR.  330 MASS. CODE REGS. § 22.11 (2017). 
103.  See MASS. GEN. LAWS ch. 44B, § 10 (2016).  



 

524 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

• sold the underlying land to the Williamstown Rural Lands 
Foundation (“WRLF”); and 

• transferred lessor status on both leases to WRLF.104 
 

Thus, at the end of the closing, with sixteen people around the 
table (five of whom were attorneys), the parties’ arrangement 
concluded as follows: 

 

Sam & 
Elizabeth Smith 

Senior retired farmers; owners of the second residence; lessees 
of the underlying land from WRLF per the residential ground 
lease 

Don & Bridget 
Junior farmers; owners of the main farm residence and 
buildings; lessees of the underlying land from WRLF; subject to 
the APR per the agricultural ground lease 

WRLF Owner of the underlying land; subject to the APR; lessors of 
both ground leases 

State of 
Massachusetts Owner of the APR 

Equity Trust Served as the pass through organization for the deal because it 
did not want to permanently retain ownership of the land 

 

iv.  The Nuts and Bolts of Don and Bridget’s Financing and 
Lease Arrangement 

As to Don and Bridget’s financing, they contributed $40,000 
toward the purchase price of the main farmhouse and buildings 
and then obtained funds for the remaining amount through a 
leasehold mortgage105 from a local bank.  Don and Bridget also 
took out a separate loan with First Pioneer Farm Credit in New 
York to finance their purchase of all the farm equipment. 

 
104.  See About Us, WILLIAMSTOWN RURAL LANDS FOUND., http://wrlf.org/about 

[https://perma.cc/3EK7-969P] (last visited Mar. 29, 2017).  WRLF is a land trust that has 
been dedicated to preserving open spaces for future generations since 1986 and promotes 
projects involving land conservation and affordable housing.  

105.  In real estate law, any kind of interest that can be sold or assigned to another can be 
mortgaged.  Here, the interest that Bridget and Don acquired under their lease was 
mortgaged to the bank for the duration of the lease term in order to provide financing for 
the deal.  See 28 MASS. PRAC., REAL ESTATE LAW § 9.12 (4th ed. West 2016).  



 

2017] Tackling the Tenure Problem 525 

Under Don and Bridget’s ninety-nine-year agricultural ground 
lease, they pay rent to WRLF in an amount that is calculated as the 
monthly fair rental value of the leased premises and is paid on an 
annual basis, each November 15.  This calculation recognizes that 
certain costs of ownership, including the costs of insurance and 
property taxes, are paid directly by the lessees (Don and Bridget); it 
also recognizes that use of the leased premises is restricted in ways 
that reduce the fair rental value (i.e., with limits to development 
and subdivision).  Finally, the lease recognizes that the lessees will 
be providing certain benefits to the lessor, such as preservation and 
enhancement of soil quality and protection of the environment.  
The annual ground lease fee was initially set at $680 in 2006, and is 
subject to adjustments every five years for inflation.  In addition, 
Don and Bridget pay annual taxes on the property (both on the 
land and the buildings) to the town of Williamstown and pay for 
insurance coverage that also lists WRLF as an additional insured.106 

v.  Additional Details Relevant to Future Generations 

Should the Smiths want to move and sell their house, WRLF has a 
right of first refusal to purchase the home.  Upon the Smiths’ 
deaths, the house can pass to anyone who would then be willing to 
enter into and abide by the terms of the residential ground lease 
with WRLF.107  Importantly, the land underlying the Smiths’ 
residence (just under an acre) is not subject to the APR affirmative 
farming requirement.  The only condition for buying or inheriting 
the Smiths’ house is that the new owner must adhere to the lease 
with WRLF. 

Similarly, should Don and Bridget want to move and sell their 
house, they are permitted to sell the buildings to anyone who is 
deemed a “qualified person,” which is defined in the lease as a 
“person or group of persons who have demonstrated to lessor 
WLRF to their satisfaction that they understand and accept the 
terms of the lease, and are able to and understand they will use the 

 
106.  It is important to note that many people in the surrounding areas allow farmers to 

hay their fields for free or at very low costs just to keep the land in pasture, so the typical rate 
for farmland rentals in the area was not high.  

107.  In this way, the Smiths are similar to any other property owner seeking to sell a 
home—they must find the right buyer who fits all the conditions or continue holding onto 
the property.  



 

526 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

lease in full compliance with all requirements and restrictions.”108  
In addition, Don and Bridget’s lease is inheritable to the extent 
that the person who inherits can and will farm the land.  In the 
event that the house could not pass to Don and Bridget’s children 
because they are too young (their son and daughter are currently 
nine and twelve, respectively), then the property would be sold and 
transferred to a qualified person but the value of the sale would 
belong to the children. 

In the event that Don and Bridget leave the farmhouse to 
someone who later decides not to adhere to the terms of the 
agricultural easement or the agricultural restrictions, which are 
part of the lease with WRLF, then WRLF has the option to find the 
person in default of the lease.  If WRLF finds someone in default of 
the lease, WRLF as the lessor could terminate the lease—the lessor 
may enter any part of the leased premises and repossess the entire 
leased premises, and expel the lessee.  The remedy of termination 
could also trigger a sale of the farmhouse/buildings (and then the 
lessee must surrender the possession of the improvements plus the 
leased premises).109 

The lease further provides that if Don and Bridget or eventual 
successor lessees are unable to find a buyer for the improvements 
within twelve months of the lease’s expiration, WRLF as the lessor 
must purchase the improvements for the “as Restricted Market 
Value” within thirty-six months of the lease termination date.110  
The lessor may also bring an action at law or in equity for money 
damages or equitable relief.111  Accordingly, it is the lessee’s 
obligation, and in the lessee’s interest (even if the person has been 
evicted), to find a new buyer.  If no buyer is found, then WRLF has 
an obligation to purchase the buildings (for the as-restricted price), 
but would have up to thirty-six months to pay for it (in order to 
have enough time to run a fundraising campaign).  If WRLF were 
forced to purchase the property, it would pay for its as-restricted 
agricultural value, but then, as both lessor and lessee, it would own 

 
108.  Ground Lease between Don Zasada, Bridget Spann, and Williamstown Rural Lands 

Found. (Mar. 17, 2006) (on file with author).  
109.  Id. 
110.  Id.  “Restricted Market Value” refers to the value of the land without the 

development rights. 
111.  An action in equity is one where the plaintiffs seek equitable relief such as an 

injunction or specific performance of the lease terms, as opposed to seeking monetary 
damages for alleged harm suffered.  



 

2017] Tackling the Tenure Problem 527 

a more valuable property (with ownership of both the land and the 
buildings) and could then determine a next best use for the 
property if no farmer were to be found. 

4.  The Current Farm Business 

Two years ago, Don and Bridget created an LLC and placed the 
farmhouse, the structures, and all the improvements into the LLC.  
The farm is thriving, currently supporting a 265-member CSA. 

C.  Temple Wilton Community Farm: A Collaborative Farming 
Case Study Featuring a Conservation Easement, an LLC, and a 
Rolling Ground Lease112 

There is an interest here in doing things differently—people have an interest 
in forms that are not the usual forms. 

— Anthony Graham, vegetable farmer, Temple-Wilton 

1.  Introduction 

The Temple-Wilton Community Farm (“TWCF”) in Wilton, New 
Hampshire has been operating a year-round CSA since 1986, 
making it one of the country’s oldest CSAs.113  The 200-acre farm 
supports 110 CSA member families with over 40 different kinds of 
vegetables and herbs, milk, cheese, yogurt, eggs, beef, veal, pork, 
and chicken.  The farm operates according to biodynamic 
principles114 and employs a multi-species grazing system, rotating 
sheep, cattle, and chickens across the pastures—a system that 
promotes the health of the animals, the land, and the people. 

 
112.  Except where otherwise noted, this Section relies on the following interviews: a 

telephone interview in March 2016 and an in-person interview in July 2016 with Anthony 
Graham, vegetable farmer at Temple Wilton Community Farm; a telephone interview in 
June 2016 with Carol Andrews, President of the Educational Community Farm and Vice 
President of the Yggdrasil Land Foundation; a telephone interview in September 2015 with 
Amy Manzelli, Esq., Counsel for Yggdrasil Land Foundation, and Ian McSweeney, Executive 
Director of the Russell Farm and Forest Conservation Foundation; and a telephone interview 
in May 2015 with Mr. McSweeney.  All interviews are on file with the author.  

113.  See supra note 84. 
114.  The Biodynamic Association defines biodynamics as “a holistic, ecological and 

ethical approach to farming, gardening, food and nutrition.”  Biodynamics seeks to 
incorporate the natural ecosystem of a farm area in order to promote soil health and fertility 
and minimize the use of external inputs such as fertilizers and pesticides.  See What Is 
Biodynamics, BIODYNAMIC ASS’N, https://www.biodynamics.com/what-is-biodynamics 
[https://perma.cc/742Z-WSV9] (last visited Mar. 29, 2017). 



 

528 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

2.  Getting Started 

In 1985, three farmers began discussing the idea that eventually, 
combined with the work of other farms and farmers, became what 
is now known as community supported agriculture.  Trauger Groh, 
Lincoln Geiger, and Anthony Graham wanted to collaboratively 
provide wholesome food for their local community while 
maintaining good stewardship of the land.  After several 
preliminary discussions, Trauger drafted an “aims and intentions” 
document detailing the farmers’ agreement “to make access to 
farmland available for as many people as possible through the use 
of covenants and easements that protect the land from 
development in perpetuity.”115 

TWCF defines itself as “a free association of individuals, which 
aims to provide life-giving food for the local community and to 
respect the natural environment.”  The farmers set forth 
“principles of cooperation” to govern their collaborative venture, 
which include how costs will be shared and how budgets will be 
approved.  In addition, the farmers agreed that their overarching 
motivation would be guided by agreed upon “spiritual and 
nutritional aims, rather than by our financial needs.”  The ensuing 
collaborative venture was informed by Trauger’s background and 
experience with social farming in Germany prior to moving to the 
United States.116 

3.  Unwritten and Otherwise Unstable Leasing Situations 

There are several parcels of land that comprise Temple-Wilton 
Community Farm, and each was acquired and conserved separately 
and in different ways, at different times.  Not all parts of the 
arrangement are discussed below, as the details of this thirty-year 
quest are voluminous and exceed the scope of this Article.  Insofar 
as is relevant here, the collaboration initially began on several 
different parcels of land under various short-term lease 

 
115.  See History of the Farm, TEMPLE-WILTON CMTY. FARM, http://www.twcfarm.com/ 

description [https://perma.cc/A3ED-JPPU] (last visited Mar. 29, 2017). 
116.  Social farming originated in Europe and is an innovative approach to farming that 

seeks to empower women, boost rural employment, and be inclusive of all populations—
especially the elderly, those with disabilities, or those with a criminal record.  See Hajnalka 
Petrics, Global Forum on Food Security and Nutrition Forum, FOOD & AGRIC. ORG. U.N., 
http://www.fao.org/fsnforum/activities/discussions/care-farming [https://perma.cc/H5S2-
D3R2] (last visited Mar. 29, 2017).  



 

2017] Tackling the Tenure Problem 529 

arrangements or on neighbors’ land with verbal permission.  When 
the landowners began changing their minds about permitting 
farming on their property, the group started to seek a more stable 
tenure situation. 

4.  Creating a Nonprofit 

In the late 1990s, TWCF could have simply been described as a 
group of people growing their food together.  It was difficult to 
negotiate with landowners as a group and it was difficult to own 
anything collectively, so the farmers, together with a few farm 
members, formed a New Hampshire nonprofit called the 
Educational Community Farm (“ECF”).  The board members of 
this newly formed nonprofit included farmers and CSA members.  
The creation of this entity later proved important in helping to 
purchase and lease land and to finance and hold equipment for 
the use of TWCF. 

5.  Securing Land 

By the early 2000s, TWCF’s dairy was operating at Four Corners 
Farm on Abbot Hill in Wilton under a tenuous short-term sublease 
agreement, and eventually Four Corners Farm came onto the 
market with a hefty price tag.  The ECF wanted to purchase the 
farm, but lacked sufficient funds. 

It was becoming clear that TWCF needed to secure its land base 
or the farm might not survive.  In the spring of 2001, four TWCF 
families purchased an old orchard of approximately forty acres.  
This group of CSA members formed an LLC to hold the property.  
Once enough money was raised to pay back the LLC (largely 
through a New Hampshire Land and Community Heritage 
Investment Program (“LCHIP”)117 grant) the property was 
transferred to Yggdrasil Land Foundation in the spring of 2002.  
Yggdrasil is a land trust with a stated purpose of supporting 
biodynamic, sustainable, and organic practices to ensure that 
healthy land remains available for future generations to farm.118  
The land trust achieves its mission by securing land in perpetuity 

 
117.  See LAND & CMTY. HERITAGE INV. PROGRAM, http://lchip.org  

[https://perma.cc/8C5Q-YXGX] (last visited Apr. 12, 2017). 
118.  See YGGDRASIL LAND FOUND., http://www.yggdrasillandfoundation.org  

[https://perma.cc/RWH2-7TMH] (last visited Mar. 29, 2017). 



 

530 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

for current and future generations of farmers, either by purchasing 
parcels or receiving gifts.119 

At various times, several other pieces of land came up for sale on 
Abbot Hill.  The ECF, the TWCF farmers, CSA members, and other 
partners used a variety of different mechanisms to secure a land 
base for TWCF.  A generous CSA member financed one parcel.  
The farmers themselves purchased other parcels.  Once they 
owned the properties, Anthony and his wife Glynn placed a 
conservation easement on the land.  The Town of Wilton, the State 
of New Hampshire, and the U.S. Department of Agriculture 
(“USDA”) through the Natural Resources Conservation Service 
(“NRCS”) pooled funds to purchase the conservation easement.  
Proceeds from the conservation easement then helped pay off the 
mortgages on the properties, after which the land was donated to 
Yggdrasil.  In return, Yggdrasil provided a ninety-nine-year lease to 
the ECF so that TWCF could continue to work the land and have 
stable tenure on the property. 

6.  The Rolling, Ninety-Nine-Year Ground Lease 

As described above, after Anthony and a few other farmers gifted 
their land to the Yggdrasil Land Foundation, the land trust—as the 
lessor—then drafted a single rolling, ninety-nine-year ground lease 
agreement for the use of TWCF with the ECF as the lessee.  The 
lease is a ground lease, meaning that the buildings and structures 
are not leased120—only the underlying land is leased.  The lease 
term runs for a period of ninety-nine years, commencing on 
January 1, 2004.121  In addition, the lease term is rolling, meaning it 
automatically renews itself at its expiration.  Thus, the lease runs 
for ninety-nine years, “with automatic extensions of additional 
ninety-nine year terms.”122  Given the long duration of the lease 
term, the parties agreed that they will review the lease together at 
regular five-year intervals to reassess whether the lease continues to 
meet the needs of both parties.  The lease is also assignable, 
meaning the ECF can give its rights under the lease to another 

 
119.  See Core Practices, YGGDRASIL LAND FOUND., http://www.yggdrasilland 

foundation.org/core-practices [https://perma.cc/U7QM-D3FH] (last visited Mar. 29, 2017). 
120.  The ECF owns the buildings and structures. 
121.  Ground Lease between Yggdrasil Land Found. and Educ. Cmty. Farm, E-2 (last 

amended Jan. 1, 2014) (on file with author). 
122.  Id. at E-3. 



 

2017] Tackling the Tenure Problem 531 

entity, provided that the ECF obtains prior approval to do so from 
Yggdrasil.  Finally, the lease requires the use of sustainable farming 
methods and prohibits the ECF from using any hazardous materials 
on the land, which are defined to include synthetic pesticides.123 

7.  Epilogue 

Temple Wilton Community Farm has always operated as a 
collaborative association of individuals.  In the spring of 2016, the 
farmers and members of the CSA formed a member-owned 
cooperative called the Four Corners Cooperative, Inc., doing 
business as Temple-Wilton Community Farm.  The stated purpose 
of the cooperative is as follows: 

 
The Farm is dedicated to providing biodynamically grown food for 
the local community while building and maintaining the fertility and 
life diversity necessary for a self-sustaining farm organism on the 
lands entrusted to it.  The Farm shall retain all net surplus for re-
investment in the stewardship and further development of the farm 
organism.  Individual profit from farming is not an economic aim of 
the Farm.  Our guiding principles in this effort derive from the Aims 
and Intentions originally set forth by our founding farmers.124 
 
In terms of achieving stable land tenure, Anthony does not 

believe that the solution involves gaining ownership of land in the 
traditional sense.  He believes it is better for the earth and the 
community if the land can be protected and held by a land trust so 
that there is no chance of the land eventually being sold for 
development.  The farmers and food producers of the future need 
stable access to land, and in his view, that can best be achieved with 
a community farming model and the use of conservation easements 
and land trust organizations. 

 
123.  Id. at E-5–E-6.  
124.  See Four Corners Coop., Inc., Bylaws § 1.3 (on file with author).  



 

532 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

D.  Wingate Farm: A Multigenerational Farm Transfer Made 
Possible with a Conservation Easement and the First OPAV Ever 
to Exist in New Hampshire125 

Younger farmers should learn about the history and story of the land they’re 
planning on farming. 

— Olivia Pettengill, farmer at Wingate 

1.  Introduction 

Over a century ago, James and Sallie Gillespie owned and farmed 
on a ranch in Missouri.  When the couple decided to move east in 
the early 1900s, they purchased Wingate Farm in southern New 
Hampshire, in the Connecticut River Valley.  At Wingate Farm, 
James and Sally gardened organically and raised a small herd of 
Brown Swiss dairy cattle on the fifty-four acres of land.  James also 
pursued photography, building a portrait studio in one of the 
calving barns on the property.  When James and Sally could no 
longer farm the land themselves, they leased the land to neighbors 
for growing corn and hay. 

James and Sally had two daughters—Alma and Carroll—both of 
whom eventually inherited the farm in the 1970s.  Carroll later 
married John Pettengill and the couple lived on Wingate Farm and 
had a family.  Carroll and John’s son, Peter Pettengill, returned to 
the farm in 1983 with his wife Deb and their two children—James 
(Jr.) and Olivia Pettengill.  Peter converted the photography studio 
in the calving barn into a printmaking studio.  Eventually, Peter 
passed the printmaking studio to James (Jr.) while Olivia began 
managing the farm in 2015.  The succession of this family farm 
involved many players, multiple moving parts, and five years’ worth 
of planning and meetings to orchestrate the transition. 

Olivia Pettengill grew up in a barn house her parents built across 
the street from Wingate Farm.  After college, Olivia started working 
on other farms, assisting mostly with vegetable CSA shares, but then 
expanded her experience and knowledge base to include dairy 
cows, goats, and chickens.  Olivia’s neighbors—the farmers at 
 

125.  Except where otherwise noted, this Section relies on the following interviews: a 
telephone interview in March 2016 and an in-person interview in July 2016 with Olivia 
Pettengill of Wingate Farm; a telephone interview in April 2016 with Jamie Pottern of Mount 
Grace Land Conservation Trust; and a telephone interview in March 2016 with Amy 
Manzelli, Esq. of BCM Environmental and Land Law, PLLC.  All interviews are on file with 
the author. 



 

2017] Tackling the Tenure Problem 533 

Picadilly Farm126—served as her mentors and helped her learn 
more about egg production.  Olivia now sells her eggs there.  She 
says, “You gotta have land or money and on top of that, really great 
mentor resources—people who can advise you and guide you.” 

2.  Transitioning the Farm 

Olivia returned to Wingate Farm in 2012 because she wanted to 
farm the family’s land and restore it to a working, commercial 
farm.  However, keeping the farm in the family and becoming the 
manager was not straightforward or simple.  The family had placed 
the farm on the market and believed they would need to sell it due 
to financial pressures.  Hoping for an alternative to selling the 
farm, the family approached Mount Grace Conservation Land 
Trust in Massachusetts.127  Mount Grace, in turn, referred the 
Pettengills to Land For Good (“LFG”)—a nonprofit organization in 
Keene, New Hampshire that aims to ensure the future of farming 
in New England by helping farmers gain more secure access to 
land.128  LFG recommended that the Pettengills pursue 
conservation efforts as a way to make an intrafamily generational 
farm transfer more financially feasible.  Upon LFG’s advice, the 
Pettengills began working with Mount Grace to create a farm 
transfer that was the first of its kind in New Hampshire. 

In 2013, the Pettengills began assembling the team that would 
help them with the successful intrafamilial transfer of Wingate 
Farm.  Mount Grace quickly became a key member of that team.  
Jamie Pottern, a land conservation specialist with Mount Grace, 
started a series of conversations with the Pettengill family to 
determine what the family hoped to achieve with the succession of 
Wingate Farm.  In 2013, sisters Alma and Carroll jointly owned 
Wingate Farm.  Each owned an undivided half interest in the 
farm—meaning that Alma and Carroll owned the entire property 
together and each had an equal right to enjoy and use the entire 
farm.  Carroll and her husband John still lived on Wingate Farm in 
one of the farmhouses, but Alma lived in Florida. 

 
126.  See PICADILLY FARM, http://www.picadillyfarm.com [https://perma.cc/C5K2-AKN5] 

(last visited Apr. 11, 2017). 
127.  See MOUNT GRACE LAND CONSERVATION TRUST, http://www.mountgrace.org 

[https://perma.cc/N37K-7AUF] (last visited Apr. 11, 2017).  
128.  See LAND FOR GOOD, http://landforgood.org/about [https://perma.cc/U59A-

NFEQ] (last visited Mar. 31, 2017).  

http://www.mountgrace.org/


 

534 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

After many conversations, the family agreed upon four goals.  
First, everyone wanted to make sure that Alma could be paid 
properly for her half of the property.  Second, the family wanted to 
allow Carroll and John to remain in the farmhouse for as long as 
they wished.  Third, the family wanted to protect the property from 
development.  Fourth, the family wanted to provide for the transfer 
of the two businesses on the property to the next generation.  
Specifically, the family wanted to ensure that (1) James could take 
over Peter’s print business and (2) Olivia could manage the farm 
business and restore the land to commercial agricultural 
production. 

To achieve these four farm transfer goals, the family needed help 
from a team of professionals.  Mount Grace assembled a legal and 
financial team to help the family explore different options, and it 
also spent many hours strategizing and fundraising. 

3.  The Money 

Jamie Pottern at Mount Grace became the primary grant writer 
for the federal and state programs and private foundation grants 
the family would need to make the entire transfer budget work, 
including paying for the conservation easement that would fund 
most of the transfer.  She also helped the family avail itself of the 
resources available through the USDA’s Agricultural Conservation 
Easement Program (“ACEP”).129 

In the case of the Pettengills, the USDA agreed to pay, through 
its ACEP program, fifty percent of the value of the conservation 
easement that would ensure Wingate Farm remained in 
agricultural production.  To receive the ACEP funds, the 
Pettengills were required to show that they had a match for the 
remaining fifty percent value of the easement.  To make up this 
fifty percent match, Jamie Pottern at Mount Grace worked to 
secure commitment letters from other foundations pledging 
financial support.  LCHIP pledged $30,000 to help conserve 
Wingate Farm.  Other organizations that helped to meet the match 
included the Russell Farm and Forest Conservation Foundation, 
the Tortuga Foundation, and the Bromley Charitable Trust.  The 
1772 Foundation also contributed $50,000 toward the acquisition 
costs of the easement.  Finally, the conservation commissions in 

 
129.  ACEP was formerly known as the Farm and Ranch Land Protection Program. 



 

2017] Tackling the Tenure Problem 535 

Hinsdale and Winchester, New Hampshire helped pay for the 
initial appraisal costs of the farm.  Mount Grace ultimately raised 
$200,000 to make the farm transfer possible.  The money helped 
with funding the recording fees, the cost of the title search, etc.  
Mount Grace spent another four years raising private monies to 
help cover additional costs, such as the staff time involved in 
writing the grants.  In this way, Mount Grace could prepay the 
various professionals it needed to consult, and was subsequently 
reimbursed through the funding it secured.  While Mount Grace 
worked to secure funding for the transfer, Olivia was also separately 
writing other grants to allow her to invest in the farm’s business 
and infrastructure.  The grants allowed Olivia to secure money for 
building hoop houses and other improvements on the farm. 

Reflecting on the fundraising process, Jamie Pottern of Mount 
Grace notes, “These deals—they require all hands on deck.”  The 
project required relationship building with the family and with the 
foundations that eventually provided financial support.  Jamie 
notes that the land trust’s job is often to work behind the scenes, 
navigating these relationships.  Mount Grace also explored funding 
sources at several levels—including federal, state, town, and private.  
She says the transaction involved “lots of puzzle pieces coming 
together.” 

4.  The Legal Mechanics: The Conveyance and Conservation 
Details 

In addition to securing the above financial support, Mount Grace 
enlisted Farm Credit East to assist with understanding the tax 
implications of the different transfer options the family was 
considering.  Jamie also enlisted the services of Amy Manzelli, Esq. 
at BCM Environmental and Land Law130 to help the family work 
through the legal implications of their decisions.  Jamie Pottern 
acknowledged that land trusts typically do not have tax or legal 
expertise and that it was necessary to consult the appropriate 
professionals. 

Conveying the Wingate Farm property (which included more 
than fifty acres of land, the farmhouse, and three large barns—one 
of which housed the print studio) and selling the conservation 

 
130.  See BCM ENVTL. & LAND LAW, PLLC, http://nhlandlaw.com [https://perma.cc/ 

7CW6-HUNU] (last visited Apr. 26, 2017). 



 

536 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

easement was a multi-step process.  With Amy’s legal assistance, the 
family ultimately decided that Alma and Carroll should first convey 
their undivided half interests in the property by deed to Olivia and 
James.  A conveyance to Olivia and James, as the youngest 
generation currently making the least amount of money, would 
result in the least amount of capital gains tax. 

Thus, in February 2015, Alma and Carroll both conveyed their 
undivided half interests to Olivia and James, who each received an 
undivided half interest in the property and became tenants in 
common, as Alma and Carroll had been.  As tenants in common, 
both James and Olivia simultaneously own all of the property.  
According to Amy, “Olivia and James essentially became the new 
Alma and Carroll” of the property.  At this point in time, Olivia and 
James did not pay Alma or Carroll for their interests.  Rather, all 
four parties signed a separate Purchase and Sale Agreement 
(“PSA”), which provided that Alma and Carroll were to be paid at 
least $175,000 for their interests no later than December 31, 2015.  
The PSA also provided that a conservation easement would be sold, 
for not less than $175,000.  The PSA further provided James and 
Olivia’s father, Peter Pettengill, with a right of first refusal. 

In August 2015, Olivia and James (as grantors and joint owners of 
Wingate Farm) sold a conservation easement to Mount Grace 
Conservation Land Trust for $200,000.  Mount Grace used the 
money it raised from ACEP, the State of New Hampshire, and 
various foundations to pay for the $200,000 conservation easement.  
After selling the conservation easement to Mount Grace, Olivia and 
James retained their ownership of the undivided half interests in 
the property.  Essentially, Olivia and James sold the development 
rights to Wingate Farm, ensuring that the land would be kept in 
agricultural production subject to certain agreed-upon 
conservation measures. 

After receiving the $200,000 in proceeds from selling the 
easement, Olivia and James compensated Alma and Carroll for 
their undivided half interests in the property.  Through the terms 
of the conservation easement, Olivia and James also granted the 
State of New Hampshire an executory interest in the easement.131  
The State of New Hampshire provided $30,000 toward the price of 

 
131.  See N.H. REV. STAT. ANN. ch. 227-M (2016). 



 

2017] Tackling the Tenure Problem 537 

the easement in exchange for the executory interest, among other 
items.132 

Regarding the terms of the conservation easement, Olivia recalls 
that the family negotiated the terms quite a bit over time.  Arriving 
at the eventual terms of the easement “was a long, arduous 
process,” but in the end, the family had an agreement that served 
everyone’s needs.  For example, the farmhouses and barns are in 
exclusionary areas—also called building envelopes—that are carved 
out and not covered by the terms of the easement.  Practically 
speaking, excluding the farmhouses and barns from the terms of 
the easement allows for Olivia to expand those structures in the 
future to accommodate the needs of a growing business.  The 
easement prohibits the building of new structures outside the 
building envelopes, but new buildings are allowed if they are 
intended to provide housing for farm workers.  Thus, Olivia says 
that the conservation easement does not stifle her ability to expand 
her operation or grow with the needs of her business. 

Wingate Farm’s conservation easement is inherently unique in 
that it contains the first Option to Purchase at Agricultural Value 
(“OPAV”) used in New Hampshire.  Should James and Olivia ever 
sell Wingate Farm, the conservation easement provides Mount 
Grace with the option to purchase the land and buildings at their 
fair market agricultural value, as defined in the conservation 
easement.  Granting an OPAV to Mount Grace ensures that the 
land will be kept in active commercial agricultural production and 
prohibits James and Olivia from later selling the property to a real 
estate developer or to someone who does not intend to use the 
land for agricultural purposes (for example, if someone wanted to 
use the property as a retirement home, rather than as a working 
farm).  As expressed in the conservation easement, the parties 
included an OPAV in the easement because they intend that the 
land will always pass to a qualified farmer at or below fair market 
agricultural value, as those terms are defined within the easement.  
Unlike other states, such as Vermont, where OPAVs have been sold 
separately from the conservation easement, here, the OPAV was 

 
132.  Olivia and James granted a third-party enforcement right to the United States of 

America, through NRCS (part of the USDA).  As a condition of receiving funding under the 
ACEP program, NRCS is permitted to ensure that no one is violating the terms of the 
conservation easement.   



 

538 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

embedded within the conservation easement itself.133  Thus, the 
OPAV and conservation easement are not two separate 
conveyances.  As Amy explains it, “they are like identical twins—
part of the same event.” 

5.  The End Result 

Through these measures the following has been achieved.  Alma 
lives in Florida and has been fully compensated for her share of the 
property.  Carroll and John are able to continue living in their 
home on the property.  James and Olivia have title to the farm, with 
each owning an undivided half interest in the land and all the 
buildings.  Olivia and her partner Susie Parke-Sutherland now 
operate Wingate Farm as an LLC.  James has commenced taking 
over the print business, but does not live on the property.  He 
currently operates Wingate Studio as an unincorporated sole 
proprietorship.  Mount Grace owns the conservation easement and 
the option to purchase the land at agricultural value should Olivia 
and James ever sell the property.  In the event that Mount Grace is 
unable to continue owning the conservation easement and OPAV, 
the State of New Hampshire will acquire both through its executory 
interest.  The USDA—specifically NRCS—has enforcement rights 
should anyone violate the terms of the conservation easement. 

E.  Pine Island Community Farm: A Collaborative Leasing 
Endeavor with Future Conservation Potential134 

Raising local meat, nurturing the fragile floodplain, and connecting people 
to the land. 

— Pine Island Community Farm135 

1.  Introduction 

Located just outside of Burlington, Vermont, the 230 acres that 
now comprise the Pine Island Community Farm originally 

 
133.  See Conservation Options: Different Ways to Conserve Your Land, VT. LAND TRUST, 

http://www.vlt.org/land-protection/conservation-options [https://perma.cc/CM5R-YS4F]  
(last visited Mar. 30, 2017).  

134.  Except where otherwise noted, this Section relies on a telephone interview in 
November 2015 with Karen Freudenberger, Project Manager with Pine Island Community 
Farm, on file with the author.  

135.  See PINE ISLAND CMTY. FARM, http://www.pineislandfarmvt.com [https://perma.cc/ 
FUA7-H9Z2] (last visited Mar. 30, 2017). 



 

2017] Tackling the Tenure Problem 539 

belonged to a farmer named Peter Fitzgerald.  When the younger 
members of the Fitzgerald family were not interested in farming 
the land, it went to auction, where Vermont Land Trust (“VLT”) 
purchased it.  The property was located just miles away from the 
Burlington and Winooski refugee resettlement communities.  
Burlington and Winooski have become home to “New 
Americans”—people who fled violence, torture, and ethnic 
cleansing in their own countries and arrived in the United States as 
refugees.  New Americans in the Burlington area come primarily 
from Vietnam, Bosnia, Bhutan, and Somalia, but others come from 
Burma, Iraq, Sudan, the Congo, Rwanda, and Burundi.  Many of 
these New Americans were farmers or herders in their own 
countries, but lost their land due to political upheaval. 

Many of the Burlington and Winooski refugees had difficulty 
obtaining fresh, locally raised meat—especially goat meat.  The 
challenges of procuring and slaughtering their own goats was 
monumental and included driving several hours to Boston and 
struggling with directions and language barriers.  In addition to 
buying fresh meat, the refugee community was also purchasing 
anywhere from 300,000–1,500,000 pounds of frozen goat meat per 
year, the majority coming from New Zealand and Australia. 

To avoid purchasing imported meat shipped halfway across the 
world, refugee families began discussing the possibility of raising 
their own goat meat to feed their families and to satisfy the demand 
for fresh, local goat meat in other refugee communities.  Refugee 
families and the service providers assisting them began envisioning 
a way to “meet the demand for locally produced and culturally 
significant foods, as well as provide a locale where people [could] 
deepen their relationships with the land, nurture cultural values 
and traditions, and broaden their community connections.”136  

2.  The Arrangement 

i.  The Manager and the Organizations 

Karen Freudenberger is the farm manager at Pine Island 
Community Farm.  She has worked in international community 
development throughout her entire career and moved to Vermont 
in 2009 after living in Madagascar.  When Karen learned of VLT’s 
 

136.  See Mission and History, PINE ISLAND CMTY. FARM, http://www.pineislandfarmvt.com/ 
mission-and-history.html [https://perma.cc/SJY4-LEAV] (last visited Mar. 30, 2017).  



 

540 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

purchase of the Fitzgerald plot, she immediately prepared a 
proposal to VLT for the land, setting forth her vision for how the 
land could be used to contribute to a robust local food system 
without degrading the environment’s fragile floodplain. 

VLT agreed with Karen’s vision and commenced a partnership 
with the Association of Africans Living in Vermont (“AALV”)—a 
social services agency dedicated to assisting refugees in the 
Burlington area—and offered the 230 acres of land to AALV under 
a no-cost, five-year lease to create a goat collaborative.  Pursuant to 
the arrangement with VLT, eighty acres of the land in the Winooski 
River floodplain is used for grazing, eight acres is used for 
vegetable production, and the remaining acres consisting of 
wetlands and vegetated buffers are preserved and protected from 
agricultural production.  The property also contains two houses.  
Pine Island Community Farm was established as the overarching 
organization and has Vermont nonprofit status.  Karen secured 
grants available to organizations working with low income 
populations in addition to a USDA community food grant to assist 
with funding the project, purchasing new farm equipment, and 
repairing the existing farm infrastructure. 

ii.  The Farmers 

Chuda Dhaurali and his wife Gita are refugees from Bhutan, 
where Chuda’s father had been a farmer.  The couple lived at a 
refugee camp in Nepal for twenty years before resettling in 
Vermont in 2009.  They began raising goats for Pine Island 
Community Farm in 2013, with 80 goats in the first season and 120 
goats in their second season.  The couple has a thriving goat herd 
and now lives in one of the two houses on the 230-acre plot with 
their two children, raising food for their family and community. 

Chuda’s friends, refugees from Rwanda—Theogène Mahoro and 
Theoneste Rwayitare—also came to the United States and began 
raising their own goat herd.  Theogène and Theoneste fled 
genocide in Rwanda in 2004 and arrived in Colchester as part of 
the Vermont Refugee Resettlement Program.  They and their four 
children moved into the second farmhouse on the Pine Island 
property in 2014 and began raising goats, chickens, and vegetables 
as a separate business but as members of the Pine Island Goat 
Collaborative. 



 

2017] Tackling the Tenure Problem 541 

Both families own and manage their own herds, thereby 
operating their businesses as individual farming enterprises.  As 
such, the families pay income taxes on their own individual 
businesses.  However, the families are members of the 
Collaborative, which allows them to share farm equipment, farm 
space, and barn space.  In 2014, the two families together raised 
over 250 goats.  The families obtain their goats—by sale or 
donation—from several different Vermont goat dairy operations 
that have no use for the baby male goats or “bucklings.” 

In addition to the two goat-raising families, Pine Island 
Community Farm also has forty-five families raising vegetables on 
eighth-acre community garden plots and three families raising 
vegetables on quarter-acre plots.  Many of the families grow for 
their own personal consumption but some have also started 
growing commercially, selling their produce to ethnic markets and 
restaurants in the Burlington and Boston areas. 

Each family signs the Pine Island Collaborative Member 
Agreement, wherein the family agrees to follow the rules of the 
organization and pay a fee back to the Collaborative consisting of 
roughly ten percent of its profits for the year.  The Member 
Agreement provides that the farmers are responsible for managing 
their individual enterprises and are expected to continue farming 
the land while VLT holds title to it.  As long as Pine Island 
Community Farm leases the land from VLT, Pine Island will grant 
farmers license to use the land.  Families using the community 
garden plots pay an annual flat fee of $85 and also agree to abide 
by the terms of the Member Agreement.  In addition, the Pine 
Island Goat Collaborative allows people who purchase a goat to 
make use of the slaughter room by paying an annual user fee. 

3.  Epilogue 

Pine Island Community Farm is currently assessing whether the 
barns and pasture can accommodate a third goat herd without 
jeopardizing the delicate ecosystem in the area.  However, even if a 
third goat herd is ecologically feasible and sustainable, local zoning 
prohibits building a third house on the property.  Thus, additional 
research is needed to see whether a third goat herd is possible, and 
if so, how housing could be arranged to accommodate a third 
farming family. 



 

542 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [Vol. 42:2 

In addition to finding a way to expand the goat operation, Pine 
Island Community Farm seeks to add seven new acres of garden 
plots and create additional opportunities for other New American 
families to raise chickens.  Eventually, Pine Island hopes that the 
goat farmers will scale up their operations and raise enough capital 
to be able to purchase the land from VLT at agricultural value.  
There is also discussion of placing an easement and an OPAV on 
the land, as the property is not currently conserved.  Employing 
such conservation measures would ensure the permanent use of 
climate change mitigation measures in the fragile floodplain and 
would decrease the purchase price of the land, creating an 
opportunity for affordable land access that provides stable tenure. 

Pine Island Community Farm is finalizing its legal arrangements, 
but intends to become a member managed LLC with nonprofit 
501(c)(3) status, consisting of producer-members (those raising 
vegetables, chickens, and goats) as well as consumer/user-members 
(those purchasing animals/vegetables, using the slaughter room, 
etc.).  Once Pine Island can demonstrate that it can cover its taxes, 
insurance, and maintenance on the property, then VLT plans to 
transfer the property free of charge to the nonprofit, which would 
then hold title to the land until such a time as when the farmers 
could purchase it. 

IV.  CONCLUSION 

The above case studies exemplify models of success for moving 
away from an industrialized farm system toward a civic agriculture.  
They demonstrate that agriculture can be part of the solution to 
climate change so long as there is access to sustainable alternatives.  
For farmers and their advocates who value local food systems and 
organic and sustainable stewardship practices, we must find ways to 
move away from the current system characterized by industrialized 
monocultures laden with chemical fertilizers, pesticides, and high 
GHG emissions and toward a more civic agriculture.  Land access is 
a vital and necessary precursor to a civic agriculture, which holds 
much potential for mitigating the effects of climate change.  
Lawyers can facilitate such an adaptation by innovatively combining 
different mechanisms to allow access to land where it would 
otherwise be unaffordable.  Clever lease contracts, strategically 
placed conservation easements, and LLC arrangements as part of a 
farm succession plan are just a few of the innovative legal 



 

2017] Tackling the Tenure Problem 543 

instruments that can help promote land access and preserve 
farmland to support vibrant local food systems without further 
degrading the environment. 

We must grow in awareness regarding available alternatives.  
Then we must accept the challenge of making those alternatives 
possible.  Finally, we must act to convert possibilities into realities 
throughout our communities.  Medical students take the well-
known Hippocratic Oath before they are permitted to practice, 
promising to first do no harm.  Similarly, before we plant, we 
should also profess to first do no harm.  Creating a civic agriculture 
in lieu of an industrialized agriculture would allow us to shift 
toward production methods that enable us to cope with—rather 
than exacerbate—climate change.  There is much action to be 
taken and the case studies described in this Article demonstrate 
that innovative alternative models of land access are available for 
replication throughout the country and across the globe.  There is 
a path forward that provides for food security and the preservation 
of the environment; now is the time to provide, to the best of our 
ability and judgment, access to that path.