Friday, August 9, 2013
An interesting case from Maryland this summer chimed on a debate going on in the conservation easement literature about the extent to to which charitable trust law applies to conservation easements. The authority on this, Nancy McLaughlin, asserts that conservation easements are a form of a charitable trust and therefore courts should use the cy pres doctrine when dealing with arguments to terminate or amend them. If this is all greek to you, check out some of Nancy's writing on the topic: here and here. While I am willing to accept the argument that donated conservation easements form a charitable trust, I find it harder to swallow with those created by sales, exactions, or other methods.
But back to Maryland. Under Maryland law,"interested persons" who are not a party to a charitable trust (neither trustee nor beneficiary) have standing to enforce the provisions of the trust. In Long Green Valy Ass'n v. Bellevale Farms, 68 A.3d 843 (Md. Ct. App. 2013), the court held the agricultural conservation easement at issue was not a charitable trust and non-parties could not enforce the agreement.
The dispute centers on a 199-acre organic dairy farm. Back in 1997, the owners sold an agricultural preservation easement to the Maryland Agricultural Land Preservation Foundation, a state agency. Notice that this is not a donated conservation easements and the case does not involve a land trust. In 2007, the farmers approached the agency seeking an amendment to the agreement to allow them to construct a creamery on their property. The agency approved the proposal over protestations from a community association and adjacent landowners, who then filed a Complaint seeking a declaration that the creamery would violate the conservation easement.
Setting aside the fact that the creamery doesn't actually appear to violate the easement or local land use laws, the case turned on standing.The association (and neighbor) claimed standing to enforce a charitable trust as as aggrieved or interested parties. The trial court didn't buy their argument, stating that there was no charitable trust and the court of appeals agreed. This agricultural preservation easement was the result of a state-funded farmland preservation program. Nothing in the law regarding the state program or the language of the conservation easement convinced the courts that this should be considered a charitable trust. There court did not read the agreement as having an intent to create a fiduciary relationship nor was the property associated with any charitable purpose.
The case does not foreclose the possibility of conservation easements being charitable trusts in Maryland, but demonstrates that courts will examine deed language and other evidence carefully to see whether it meets the qualifications: the assessment will occur on an easement-by-easement basis.
Tuesday, August 6, 2013
In summer, I like to put aside an hour or so each work day to read various articles and books that I have stumbled across during the busy semester but lacked time to review. Today, the top of my stacks were an article from The New American and a book by Glenn Beck. It was really just coincidence that these two hit the top of my piles today, but it has made for a surreal afternoon.
First up is an article from The New American (the publication of the John Birch Society) by Tom DeWeese, entitled Conservation Easements and the Urge to Rule. You know an article is gonna be good when the first sentence mentions the Green Mafia. DeWeese's piece argues that conservation easements are the biggest threat to small family farmers out there. I don't want to spend too much time on his article, because it is just so chock full of problems and errors that it would take too long. He conflates conservation easements and zoning law and seems to rest everything on one case study whose facts are unclear in his piece. My favorite line though is where he compares land trusts to commodity traders buying and selling conservation easements at a significant profit. That sentence on page 2 is where he really lost any credibility he might have had with me. While not an adherent of the John BIrch Society, I have been a vocal critic of the uses of conservation easements. It is always surprising to me when I see them attacked from the right. In many ways, they embody fundamental conservative ideals of promoting and protecting private property rights. Instead of saying landowners can freely enter into any contract regarding their land that they like (a clear libertarian approach), DeWeese seems to be suggesting that any limitation on property rights (even voluntary ones) should not be permitted. Without giving too much credence to DeWeese's writing on this, I am just generally befuddled by the lack of consistency in the property rights movement.
I wish I could also share an interview with Becky Norton Dunlop of the Heritage Foundation on Fox News from February 2010 where she amusingly asserts conservation easements are akin to eminent domain, but the clip no longer appears available.
After zooming through that little article, I picked up Agenda 21 by Glenn Beck. Wow is this a crazy book. Now I don't have cable tv (and would unlikely be tuning into FoxNews if I did), so I have a general understanding of who Glenn Beck is but haven't really seen much more than clips. This may explain why I had no idea what I was in for. I was looking for a book to give me the conservative take on Agenda 21 conspiracy. I gave a talk at the Western New York Land Conservancy earlier this summer, and the Conservancy chose not to advertise the talk in the Buffalo News for fear of Agenda 21 protesters. I am super a bit embarrassed to admit that I was unfamiliar with the conservative Agenda 21 battle cry. My take on Agenda 21 thus far is that it is pretty toothless. Lots of big ideas with little action. So I was pretty surprised to hear that some radical right groups appear afraid of it. Clearly they must fear what it symbolizes rather than what it actually does. Enter Glenn Beck. Someone told me that Glenn Beck wrote a book about Agenda 21 and it is a fast read. What that person failed to mention is that it is a 1984-esque sci fi novel set in a future where Agenda 21 has led to a dystopia. Wanna hear my secret? I kinda love it. It is completely ridiculous, of course, but a great beach read ... if you were willing to let people see you reading it in public.