Sunday, December 13, 2015

Keeping the Perpetual in Perpetual Conservation Easements

Keeping the Perpetual in Perpetual CEs copyVermont Law School Professors John Echeverria and Janet Milne have developed recommendations for protecting Vermont’s perpetual conservation easements (the project was supported by the Lintilhac Foundation).

In a VTDigger article, Echeverria and Milne explain: 

"Vermonters have invested a great deal of property, money, time and effort to create a network of conservation easements that protects a significant fraction of the state’s landscape. Virtually all of these easements were granted in 'perpetuity,' to place the lands off limits to development forever. Now the challenge facing Vermonters is to figure out how to ensure that these commitments to perpetual protection are upheld.

When a landowner places a conservation easement on her property, she does so to protect the particular conservation values of her specific parcel. When a land trust or a government agency accepts the conservation easement, it makes a legal commitment to uphold the easement restrictions on the property in perpetuity.

Absent rigorous safeguards, however, easement protections are at serious risk of erosion over time. Ownership of lands protected by easements will eventually pass from the original easement grantor to new owners. Legally, the easement restrictions will remain in place despite the changes in land ownership. But the new owners may lack the same level of commitment to conservation as the original land owner. Moreover, the new owners could profit from developing the land if the easements restrictions could be lifted. Inevitably, some future owners of lands subject to easements will press for modification or even termination of easement restrictions.

Several years ago some Vermont conservation groups proposed legislation that would have vested significant discretion in a new, politically appointed body, and in the groups themselves, to authorize amendment or termination of conservation easements. Under the proposal, an easement amendment or termination would have been allowed so long as the change served the larger cause of conservation, even if it resulted in destruction of the specific conservation values of the land originally placed under protection; thus, a conservation group could have moved an easement from one property to another or even from one town to another if it believed the transfer would be beneficial for the environment.

We and others criticized the proposed legislation as a breach of faith with easement donors that would ultimately undermine the cause of land conservation. A toxic mix of landowners with incentives to remove easement restrictions and liberal state policies allowing easement holders to modify easements would have undermined Vermont’s network of easement protections and defeated grantors’ legitimate expectations about easement perpetuity. It also ran afoul of federal tax rules governing donated easements. Ultimately, the groups that developed the legislative proposal withdrew their support for it. But all those involved in the debate recognized that Vermont needs some type of legislation governing the complicated issue of easement amendment and termination." Read more

Although the recommendations of Professors Echeverria and Milne focus on their home state of Vermont, the issues they highlight are of concern to us all. Ensuring the continued protection of the estimated 40 million acres now encumbered by conservation easements throughout the nation, as well as the billions of public dollars invested in the easements, should be a priority for policymakers and regulators at both the federal and state levels.

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

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