Friday, February 18, 2011
Those of us who study conservation easements don't have a wealth of case law to debate and scrutinize (query whether that is a bad or good thing). So perhaps it is understandable that we get excitable when there is even a hint of litigation. According to a local newspaper, a couple in Pennsylvania has just sued a local land trust for failing to enforce a conservation easement. In this case, the landowner allegedly violated the conservation easement by clearing woodlands, building a stable, and keeping horses. The plaintiffs claim that the land trust has not adequately enforced the conservation easement.
There are several interesting issues here including two big ones:
(1) Who has standing to bring challenges regarding enforcement of a conservation easement? Here, the plaintiffs own adjoining land. Could the township intervene?
(2) what are a land trusts' enforcement obligations? Did create of the conservation easement create a charitable trust? Can they choose not to enforce a conservation easement? How much discretion do land trusts have in negotiating settlements or conservation easement amendments?
I'm sure the land trust community will be watching this one closely.
- Jessica Owley