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What considerations guide a conservation easement holder’s processing of a landowner’s request for the holder to: approve an action subject to the holder’s review; waive the holder’s right to enforce one or more restrictive covenants in a temporary accommodation to the owner; or interpret the terms of the grant of easement as applied to a particular situation? This guide provides direction for responding to landowner requests. The Model Policy for Acting on Owner Requests for Review, Waiver, and Interpretation, in addition to the policy, includes a template for communicating holder decisions.
Like all relationships, the one between the holder of a conservation easement and the owner of the eased land benefits from good communication. When a landowner desires to take an action that isn’t plainly permitted by a conservation easement, the chances of an amicable outcome are greatly improved when a landowner contacts the holder early for consideration of the matter, and the holder responds with efficient professionalism.
Landowner needs and requests requiring easement holder response break down into four basic categories, three of which are addressed in this guide:
This guide highlights a range of considerations and best practices for holders when receiving, examining, and resolving these landowner requests.
A fourth category of requests, which pertain to amendments of grants of conservation easements, are considered at length in separate guidance published by WeConservePA, including but not limited to the following publications:
WeConservePA publishes the Model Policy for Acting on Owner Requests for Review, Waiver, and Interpretation to help easement holders solidify their process for addressing landowner requests and clarify who has authority to make and communicate decisions. Easement holders may adopt this model in whole or part, or use it to evaluate an existing policy or inform the development of a distinctly different policy.
An ad hoc approach to landowner requests is risky. Important details may be missed. Approvals may be improperly or inadvertently granted—or denied. Inconsistent approvals and denials breed distrust both with landowners and the public. Adopting a policy protects against these risks and offers a range of practical and legal benefits.
A formal policy substantially improves the likelihood that the holder’s deliberations regarding requests will be guided only by appropriate considerations and inoculates the holder from claims of arbitrary or malicious conduct toward landowners. Policy provisions for process and recordkeeping ensure a complete and navigable record if a conflict arises.
The value of consistent review criteria, process, and recordkeeping grows with time, as the tenures of individual staff members and landowners come and go.
No review policy can predict all possible nuances; gray areas requiring discretion are inevitable. While not strictly necessary, adopting a guiding philosophy regarding reviews, waivers, and interpretations provides a touchstone for staff and board members deciding between viable options. For example, a philosophy of “conservation first” provides a useful framework with two questions about any considered action:
Landowner requests should not be taken at face value. The initial task when a request is received is to refine the question to determine what action, if any, is required of the holder. What relief is sought, and how does the grant speak to the situation? For example, a request may reflect a misapprehension of the grant; presuppose a provision that does not exist; or suggest a plainly unreasonable construction of grant language. Where the answer is plain on the face of the grant, there may be no need to expend additional attention and resources on the issue.
If there is, in fact, an actionable request, the holder’s decision-makers must have a clear understanding of the matter to be considered. This will generally require submission of a written request by the landowner. Receipt by a holder of a written request has legally protective value—it confines the scope of the request and ensures a mutual understanding of the issues. It may be helpful for a representative of the holder to preliminarily review the grant of easement in light of the expected request and inform the landowner of what information would be productive to include in the written request.
A specific request is preferred over a broad one. For example, a landowner desiring to perform a single, specific, time-limited activity on eased land may request an unnecessarily expansive waiver or interpretation. Part of the initial review process is determining whether the request can be distilled to align with the matter at hand, thereby avoiding unintended future consequences, and, incidentally, increasing the chances of an amicable response.
Reviewing a request of any kind involves costs to holder, whether in the form of attorney or other professional fees or the allocation of staff time. Many modern grants include provisions entitling the holder to reimbursement of costs incurred in processing a request for review. Section 6.05 of the Model Grant of Conservation Easement and Declaration of Covenants provides:
Owners must pay or reimburse, as the case may be, Holder’s costs and expenses (including Losses, Litigation Expenses, allocated personnel costs, and reasonably incurred liabilities) in connection with . . . response to requests by Owners for Review, Waiver, or Amendment; and . . . compliance with requests for information [or] interpretation . . . .”
An initial task is to review the grant to determine if it includes such a provision. If it does—and the holder might choose to take advantage of the payment requirement—prompt notice to the landowner is useful to avoid surprises at a later date. If it does not, it may still be reasonable to request a contribution of funds.
In some instances, the review request, if approved, will result in an increase in short-term or long-term costs to theholder. For example, a time limited waiver to allow an event on the eased land may involve one or more special inspections by the holder’s staff. Discretionary approval of a green roof as an exception to impervious coverage limitations may require special recurring inspections of the roof’s maintenance, in addition to the holder’s other monitoring obligations. It may be reasonable, in instances such as these, to require a stewardship funding contribution in connection with approval of a request.
In some instances, the questions guiding a holder’s review may be clearly defined by the text of the grant, such as where the exercise of a building right requires approval of the plan for consistency with specific criteria. In other scenarios, one decision or another may implicate a wide range of competing issues that must be weighed by the holder in its reasonable discretion.
For mission-driven conservation organizations, “conservation first” is sound policy. Consider what action would best advance conservation in the public interest, consistent with the holder’s mission. Which course of action will better protect the conservation values of the property in perpetuity? A short-term approval or permission brings risks of creating future expectations or precedent, but it might also (or instead) build goodwill that will lead to future conservation payoffs.
From there, a range of practical and equitable considerations emerge. The analysis may be simple or complex, depending on the request. (Interpretations, for example, typically resolve primarily through study of the grant itself.) Considerations that may or may not have bearing on a request or even a whole category of requests, include the following:
If a landowner has a legal right to do something, it is immaterial whether that something is harmful to conservation or what the holder’s staff and leaders feel is right. A holder’s powers to advance conservation are limited to the powers provided by the conservation easement as set forth in the grant, not by what is seen as good and right for conservation (although the two are hopefully in sync most of the time).
Material inconsistency between responses to various landowners invites conflict and distrust. (Inconsistencies resulting in favorable treatment—whether or not intentional—of landowners with special relationships with the organization present serious legal risks associated with the doctrine of private inurement.) Does one or more of holder’s possible responses to the request align or conflict with prior determinations affecting other easements? If the request presents a matter of first impression, do any of the possible responses risk creating undesirable precedent?
Where a landowner’s request cannot be reasonably satisfied through review and approval, waiver, or interpretation, a holder should consider whether an amendment would be better suited and appropriate to the task.
Reasoned approval of requests for a holder’s interpretation or approval of actions subject to review will rarely, if ever, involve risks of impermissible private benefit, as any benefits to the landowner necessarily derive from the terms and meaning of the grant. Waivers, if reasonably limited in scale and duration and without harm to the conservation objectives of an easement, are also unlikely to constitute impermissible private benefit. However, if appreciable risk of impermissible private benefit exists and cannot be minimized with reasonable conditions, a request should be denied.
Does any third party have a legal right to weigh in on the request pursuant to the grant?
Resolution of a request may provide an opportunity to ensure that any outstanding violations are cured. Consider whether a particular organization decision may be appropriately conditioned upon necessary landowner actions. This may be appropriate for waivers and certain matters subject to approval by holder, but likely not for interpretation requests.
How might a potential decision cause the landowners undue hardship for which neither they, nor their predecessors in land ownership, bear any responsibility?
In general, a holder will seek to craft a response that has—in order of preference—a positive impact, no impact, or no more than a de minimis detrimental impact on the conservation values of the eased land. If a request risks a more substantial impact, can the impact be mitigated through conditions on the holder’s approval or waiver? Are short-term detrimental impacts offset by long-term benefits, or vice versa?
Might granting approvals or waivers substantially increase short-term or long-term costs of monitoring or other stewardship burdens? Is the landowner willing to make a contribution to offset an increase in holder costs?
How might a potential organization decision enhance or undermine the public’s confidence in the organization, or in conservation easements generally? How could the organization’s communications create positive outcomes?
Is there any compelling reason to memorialize the organization’s decision in the public record? For example, it may be beneficial to ensure public notice that a one-time landowner right provided under the grant has been exercised and thereby extinguished.
Legal review may be required where one course of action or another may lead to litigation or trigger other legal consequences. For example, where a holder is asked to interpret an ambiguous term in a grant, might the landowner’s preferred interpretation affect the operation of other provisions of the grant?
Who, within the holder’s organizational structure, is authorized to finalize a response to various types of review requests? A policy should specify the appropriate path a request will follow from initial outreach to a final decision, and the board of directors should ensure that it has properly authorized the designated authority, whether a staff member, executive, or committee. The authority structure may be different for different types of requests. For example, approval of waiver requests may be delegated to an executive staff member, while the issuance of a formal letter of interpretation may require approval of the board of directors.
In most cases, the letter or other written communication notifying the landowner of the holder’s decision is a legally effective instrument and should be considered as such. The holder may decide that legal review is required to ensure that rights are not inadvertently waived—for example, to ensure that a limited-scope authorization will not greenlight an open-ended series of similar activities. In general, a letter should aim for specificity and avoid sweeping permissions or approvals. Exceptions, conditions, and qualifications on the approval should be clearly identified to preserve legal recourse.
A decision letter should be signed by an authorized officer of the holder and delivered in accordance with the applicable notice provisions of the grant, though additional methods may be used if helpful to ensure actual, prompt receipt by the landowner. For example, mailing a hard copy by certified mail may be required by the grant, but a duplicate copy may be attached as a pdf to an email.
Review of matters subject to review can involve delicate balancing of competing factors. While a landowner may be entitled to a definitive response, a decision letter must strike a balance: providing a reasoned, well-supported decision, without excessive transparency.
A letter granting a landowner request should fully document the request, providing references to all materials submitted by the landowner and the dates of those submissions. This ensures clarity about what has and has not been requested and approved.
A letter affirming a landowner’s preferred interpretation of a grant provision will control until the holder and landowner agree otherwise. In most instances, interpretation requests are not made for clarity’s own sake, but as a request for determination by the holder that a landowner’s anticipated action is not disallowed by the easement. The determination should be narrowly tailored to address the specific issue at hand.
A letter granting a time-limited waiver affects holder’s enforcement rights. It should clearly define how and when the right expires and define types of conduct that will result in the termination of the waiver. Numerous conditions may be useful, such as providing for special inspections, requiring that visitors are notified about the easement and the protected nature of the property, and requirements for remediation of any detrimental impacts.
Preparing and maintaining letter templates is another measure to ensure consistent and complete responses. A sample template is included with the Model Policy for Acting on Owner Requests for Review, Waiver, and Interpretation.
While a formal decision letter should aim to “close” the matter, follow-up communications are to be expected. For the holder’s representative, the desire to be helpful and accessible may come into tension with need to avoid undue risk.
If the holder’s decision was unfavorable to the landowner, a landowner may simply desire additional feedback or information, but litigation risk may also be brewing. Follow-up communications should be documented, and records maintained together with those of the original request. Representatives of the holder should generally avoid expounding beyond the information provided in the letter and hold off on responding to difficult questions until reflection and consultation with appropriate parties—perhaps the holder’s CEO or legal counsel—has occurred.
If the holder’s decision was favorable, the same caution holds. The holder should also prepare to monitor any landowner activity triggered by the response, including marking calendars with applicable deadlines or expiration dates, and maintaining a file of subsequent landowner communications and submissions to ensure that actions remain within the bounds of what was approved.
For easements insured through Terrafirma, holders should consider filing a placeholder claim upon receipt of a landowner communication asserting rights contrary to the holder’s decision.
All materials received, prepared, and compiled in the course of responding to a request should be permanently filed. In the event of future conflict that implicates the reviewed matter, well-organized records will be critical.
