Thursday, January 26, 2012
Owley on Exacted Conservation Easements and Enforcement Concerns
Jessica Owley (Buffalo) has posted Exacted Conservation Easements: Emerging Concerns with Enforcement, Probate & Property, Vol. 26, No. 1, p. 51, 2012. The abstract:
Enforceability of exacted conservation easements is uncertain. Legislators, activists, and academics did not contemplate the proliferation of exacted conservation easements when enacting, advocating for, and writing about state conservation easement statutes. Despite this early oversight, exaction has become one of the most common ways that conservation easements come into being. Enforceability of exacted conservation easements is a threshold question of analysis for the continued use of the tool. Assessing the validity, and thus legal enforceability, of the exacted conservation easements involves examining the state’s conservation-easement statutes and state servitude law as well as the underlying permit scheme.
This article presents a roadmap for investigating the enforceability of exacted conservation easements and makes three suggestions for improvement. First, states should address exaction in their state conservation-easement acts. Second, drafters should increase the precision and detail of the agreements, acknowledging and explaining the nature of the exaction and the underlying permitting law. Third, to clarify the elements and uses of exacted conservation easements to both agencies and citizens, government agencies that use exacted conservation easements should promulgate regulations related to their use. Such regulations should include ensuring that permit issuers retain third-party right of enforcements. This will keep the permitting agency involved even if it is not the holder of the exacted conservation easement.
Uncertainty in enforceability of exacted conservation easements calls into question their use as a method of land conservation. Furthermore, the questionable validity of exacted conservation easements indicates that the permits relying upon such exactions could be ill advised and potentially in jeopardy.
This accessible piece builds on some of the concerns outlined in her recent Vermont Law Review piece, The Enforceability of Exacted Conservation Easements.