Maryland Appellate Court Upholds Conservation Easement

After a nod to private property rights, in McClure v. Montgomery County Planning Board, _ A.3d _ 2014, Maryland’s intermediate appellate court held that the owner of a subdivision lot subject to a forest conservation easement was bound by, and the local planning board had the authority to impose sanctions for violation of the easement.

In May of 2000, Mr. McClure purchased a 5.21-acre lot in the Fairhill subdivision in Montgomery County, Maryland. The lot was subject to a forest conservation easement that the developer had granted to obtain the County’s approval of the subdivision. The easement was recorded in the County's land records in March 1998.

After purchasing the lot, the court noted that Mr. McClure

did what many Marylanders do with land and constructed a house. He also built a deck, mowed his lawn, and even grazed horses. Seeking to fully embrace an agrarian lifestyle, in May 2005, he sought to build a barn and a fence and received permits to that effect.

Mr. McClure also then proceeded to violate the conservation easement. In 2012, the local planning board found Mr. McClure liable for a civil penalty of just over $100,000 and mandated that he take certain corrective actions, including the planting of trees, the posting of signs indicating the easement’s boundaries, and the removal of impervious surfaces. Mr. McClure sought judicial review, and the trial court held that the Mr. McClure was bound by, and the planning board had the authority to enforce the easement.

On appeal, the Maryland intermediate appellate court’s opinion opened with the following, which did not appear to bode well for the planning board or the conservation easement:

Few cases inflame such deep passions as a dispute involving individual property rights. The belief that fundamental concepts of liberty entailed strong property rights informed and influenced the Founders as they undertook the epochal task of drafting our Constitution. . . . Infringers of these cherished rights should beware for “nothing is better calculated to arouse the evil passions of men than a wanton and unredressed invasion of their ... property rights.

But the appellate court then went on to affirm the trial court’s holdings, rejecting each of Mr. McClure’s arguments.

• Mr. McClure argued that he was not bound by the conservation easement because it was not properly indexed in the local land records. The court disagreed, explaining that the validity of a properly recorded instrument is not affected by non-compliance with the indexing statute, which relates only to how the clerk is to organize enforceable interests.

• Mr. McClure argued that he was not bound by the conservation easement because he did not receive actual or constructive notice of the easement. The court again disagreed. The deed Mr. McClure received contained only a generic statement that the lot was subject to easements of record—it did not contain a specific reference to the conservation easement. Nonetheless, the court found that Mr. McClure had actual notice of the conservation easement because he signed several documents at the time of the lot’s purchase that specifically referenced the easement, including the contract of sale, which included a diagram of the easement. The court also found that Mr. McClure had constructive notice of the conservation easement because the easement was properly recorded and a diligent title search would have uncovered its existence. The court concluded

Although Mr. McClure wishes to play the ostrich and secrete away his head from the signatures on his deed and contract of sale, he will find no solace in the sands. An easement binds any person who acquires title to land with actual or constructive notice of that easement.

• Mr. McClure further argued that the planning board’s order was invalid because the board failed to require the developer to re-plat the subdivision to denote the conservation easement after it was granted. The court disagreed, finding that the County’s subdivision rules did not impose a re-platting requirement.

• Finally, Mr. McClure argued that the planning board did not have the authority to issue sanctions and order corrective actions for conservation easement violations. The court also rejected this argument, finding that the board had such authority by statute and that the board’s decision to hold Mr. McClure liable for his easement violations was not arbitrary and capricious and was supported by substantial evidence.

Nancy A. McLaughlin, Robert W. Swenson Professor of Law, University of Utah S.J. Quinney College of Law