Friday, January 27, 2017
A new conservation easement case from Maine’s highest court is a lesson in statutory interpretation.
ESTATE OF MERRILL P. ROBBINS v. CHEBEAGUE & CUMBERLAND LAND TRUST (Sup. Judicial Ct. Maine Jan. 26, 2017), 2017 WL 370891
A controversy over the development of land encumbered with a conservation easement in Maine sparked an inquiry into who has standing to challenge a conservation easement in the state. In a 3-2 opinion, the court narrowly construed the statute limiting who can enforce a conservation easement (or at least dispute its terms) in the state.
In 1997, a landowner granted a 100-acre conservation easement to a local land trust for preservation in perpetuity of the land in its natural state to protect scenic views and open space values. At some point in the intervening years, the conservation easement was transferred to a successor in interest land trust and the parcel was divided into three. The 100 acres are now held by the town, a developer, and a trust that is the successor to the original landowner. The opinion does not detail the exact spatial arrangement or acreage, but notes that the Trust has the smallest acreage. (I could not tell if the Trust land is physically adjacent to the Town property.) The Town now seeks to develop its portion of the land into a public beach, which will include relocating a bath house, repairing some roads, and building a parking lot. The Land Trust has determined that such activities are in line with the purposes of the conservation easement and approved of the Town’s proposal. The Trust is not happy though and argues that these changes are violations of the conservation easement.
For the both the majority opinion and the dissent, this case turns on the interpretation of Maine’s conservation easement enabling act. Section 478(1) of Maine’s Revised Statutes details who has the ability to bring an action affecting a conservation easement. The statute presents four categories of possible plaintiffs (or intervenors) for “an action affecting a conservation easement.” They are “An owner of an interest in real property burdened by the easement,” the holder of the conservation easement, an entity or person with a third party right of enforcement, or the Attorney General under certain conditions. The only category at issue in this case is (A): the owner of an interest in real property burdened by the easement.
The majority followed the holding and the reasoning of the lower court in concluding that this language must mean only the owner of the property encumbered by a conservation easement where the dispute arises. That is, even though one conservation easement agreement encumbered three properties here, the statute does not grant standing to the two property owners where there is no dispute about the enforcement of the conservation easement. In this reading of the statute, section 478(1)(A) would only grant standing to the Town in this dispute. The majority held the statutory language to be ambiguous and looked to the legislative history of the conservation easement act. The court reasoned that section (A) was there to give the landowner an ability to force a holder to comply with affirmative requirements. Moreover, if the state of Maine wanted to enable broad enforcement of conservation easements, it would have included language enabling private attorney general actions (citizen suits) not just suits by the Attorney General. Following this logic, if the Maine legislature wanted broader enforcement standing, it knew how to enable that and it chose narrower language.
The dissent looked at the same statutory language and found no ambiguity. The dissent would have adopted a plain reading of the statute. The land owned by the Trust is in fact land encumbered by the same conservation easement and therefore the Trust should have standing. The dissent also invoked the absurd results canon suggesting that the majority’s reading of the statute only bestows standing on the alleged violator of the conservation easement: only the proposed developer would have standing to oppose the development.
Lots of interesting stuff here, so let me leave you with some initial food for thought
- Other state statutes include the grantor of the easement as an entity with standing. Most people I have discussed this with seem to think it is just a stand-in for current landowner. If Maine had allowed grantors of conservation easements standing, then this case would have proceeded to the merits.
- The court did not dismiss the breach of contract claim for lack of standing. Perhaps the grantor can argue that the land trust is violating the terms of the conservation easement by failing to enforce the conservation easement. The tricky part is whether this would be considered “an action affecting a conservation easement.” If so, then the statutory language guiding standing would seem to get us into trouble again. The court suggested that there might be other contracts or agreements that operated alongside the conservation easement (or at least would give the Trust the opportunity to argue that there was). This of course changes the claim from a property dispute to a contract dispute, which likely affects the available remedies.
- In general, the restriction for standing in cases “affecting a conservation easement” worries me. How broadly do we read actions affecting a CE. It appears from something mentioned in the dissent, that the Trust is also bringing suit for a zoning violation – yet that is not construed as a case “affecting a conservation easement.” Maybe the trick is anytime a case will require interpretation of a conservation easement deed?
- The majority seemed concerned that if we allow adjacent landowners or neighbors to bring suit just because they are burdened by the same conservation easement, we are opening land trusts up to potentially costly litigation. Is that really a big threat? How many more people do we bring in? When are such concerns appropriate for determining the scope of standing. Cost of potential litigation is often presented as a reason for limiting standing.
- We generally think of the burden on land trusts as coming from their litigating to enforce an agreement. There has been little action or discussion on what types of actions might be available against a land trust that chooses not to enforce an agreement (I am not arguing here that this land trust has failed in its duties; I haven’t seen the CE or the proposed plan – just pointing out, as I have done elsewhere, that it is not at all clear what remedies are available for a land trust that fails in its duties).
- The Court viewed a conservation easement as solely a creature of statutory creation and not common law. Therefore, it did not look to any common law of property or contract to consider questions of standing. It narrowly construed standing to be only those specific four categories detailed in the statute. Interesting to think of the odd status of conservation easements as sometime part of the common law (apply the same rules as you do to other easement!) and sometimes something else (only CE rules apply here!)