Conservation Easement Law, Philosophy, Speculation & Balderdash

A Guided Tour of the Conservation Easement Enabling Statutes

2023
Organizations/Sources: Land Trust Alliance
First published in 2010 and updated in 2014 and 2023, this report compares and contrasts the conservation easement enabling statutes enacted across the United States and discusses the key issues addressed and not addressed by these statutes.
Last Modified
Nov 02, 2023
Viewed
6214 times

Amending or Terminating Conservation Easements: Conforming to State Charitable Trust Requirements

2010
Guidelines for New Hampshire easement holders prepared through the collaborative efforts of the New Hampshire Department of Justice, Charitable Trusts Unit; Paul Doscher at the Society for the Protection of New Hampshire Forests’ Center for Land Conservation Assistance; and Nancy McLaughlin at the University of Utah Law School. 16 pages.
Last Modified
Apr 27, 2011
Viewed
4421 times

Amending Perpetual Conservation Easements: A Case Study of the Myrtle Grove Controversy

2006
Organizations/Sources: University of Richmond Law Review
Given that change is inevitable and predicting the future is impossible, it is clear that conservation easements must be able to evolve over time so they can continue to provide the conservation benefits for which they were acquired. But who should be entitled to make the decision to amend a “perpetual” easement, and what standards should be applied in determining whether and when such amendments are appropriate? This article uses a case study to explore the issue of amending perpetual conservation easements.
Last Modified
Jul 18, 2012
Viewed
4411 times

A Time to Preserve: A Call for Formal Private-Party Rights in Perpetual Conservation Easements

2005
Organizations/Sources: Georgia Law Review
Brown presents her thesis that private parties should have a common law property interest in conservation easements sufficient to confer standing to seek injunctive relief. She briefly describes the history and rationales underlying the creation and perpetuation of conservation easements and the close relationship between preservation and a strong private property regime, discusses challenges to perpetual conservation easements under the doctrine of changed conditions as well as the importance of private-party standing to the defense of conservation easements, and considers efficiency and social justice arguments in favor of a restricted application of the doctrine of changed conditions. She demonstrates that decentralizing property ownership interests by enforcing property owners’ decisions to burden their property with perpetual conservation easements is consistent with a democratic property system.
Last Modified
Oct 27, 2015
Viewed
3696 times

Conservation Easements as Charitable Trusts in Kansas: Striking the Appropriate Balance Among Grantor's Intent, the Public's Interest, and the Need for Flexibility

2009
Organizations/Sources: Washburn Law Journal
This 26 page article presents a brief history of the evolution of the law surrounding conservation easements and identifies some of the problematic areas with the current law. After evaluating the state of the law, it proposes a solution that would maintain the efficiency of conservation easements while ensuring the advancement of intended policy goals, and protecting the public’s interest in those easements. Finally, it examines the practical mechanics of how Kansas’s courts can apply charitable trust law to conservation easements.
Last Modified
Nov 04, 2015
Viewed
4520 times

Conservation Easements--A Troubled Adolescence

2005
This article briefly describes conservation easements and how they operate to protect the conservation values of land, describes the dramatic growth in the use of conservation easements over the past two and a half decades, and highlights some of the more troubling issues that have arisen as a result of the growth in the use of easements, as well as proposals for reform. The article asserts that if reforms can be successfully implemented, conservation easements can emerge from their troubled adolescence to take their appropriate adult role in the panoply of land conservation techniques, and may help lead us to a new paradigm of private property ownership.
Last Modified
Jul 18, 2012
Viewed
4023 times

Conservation Easements, Common Sense and the Charitable Trust Doctrine

2009
Organizations/Sources: Wyoming Law Review
This is the fourth in an exchange of articles published by the Wyoming Law Review discussing the application of charitable trust principles to conservation easements conveyed as charitable gifts.
Last Modified
Nov 23, 2010
Viewed
4050 times

Conservation Easements in Private Practice

2010
Authors: Shea B. Airey
This article presents an overview of conservation easements designed to help practitioners reap the myriad benefits that state and federal law authorize. It addresses three distinct subjects pertaining to conservation easements; an account of the development of conservation easements; an in-depth review of conservation easement tax law and examples of potential tax benefits; and the often-altruistic client motivations that drive the conservation easement field.
Last Modified
Nov 11, 2010
Viewed
3470 times

Conservation Easements: Perpetuity and Beyond

2007
Organizations/Sources: Ecology Law Quarterly
In this article, McLaughlin outlines the support for applying charitable trust principles to perpetual conservation easements, including uniform laws, the Restatement of Property, federal tax law, and case activity on this issue to date. She cautions that perpetual land protection is not appropriate in all circumstances and recommends a more considered use of perpetual conservation easements as a land protection tool. This article explores the possible use of a number of nonperpetual conservation easements to accomplish land protection goals.
Last Modified
Oct 27, 2015
Viewed
4387 times

Dynamic Conservation Easements: Facing the Problem of Perpetuity in Land Conservation

2005
Organizations/Sources: Seattle University Law Review
This article examines the “dynamic conservation easement”, an easement whose terms provide land use restrictions that may change over time. It argues they are better suited to serving their unique conservation purposes and are more likely to fulfill their promise to protect the land in perpetuity than static conservation easements, whose terms provide unchanging land use restrictions.
Last Modified
Nov 11, 2010
Viewed
5254 times

Forever and Ever, Amen: Land Trusts and the Frightening Thought of Perpetuity

2010
Authors: Tim Findley
Organizations/Sources: Range Magazine
Findley gives a brief overview of the land conservation movement in the United States and the use of conservation easements. He gives several examples of how conservation easements have successfully allowed landowners to protect their land.
Last Modified
Oct 29, 2015
Viewed
3860 times

Highlights of the new restatement (third) of property: Servitudes

2000
Authors: Susan F. French
Organizations/Sources: Probate and Trust Journal
The author provides an overview of the modern law of servitudes and surveys the changes to traditional servitudes law brought about by the 2000 Restatement (Third) of Property: Servitudes. The author explains how the new Restatement simplifies and clarifies this body of law, providing greater freedom to property owners while safeguarding the public interest
Last Modified
Oct 29, 2015
Viewed
5661 times

Historic Green Springs v. Louisa County Water Authority

2011
United States District Court for the Western District of Virginia found that The Historic Green Springs, Inc. -- a holder of a conservation easement -- has standing under the Clean Water Act as a plaintiff regarding discharge of wastewater into a creek whose protection is a subject of the easement and an interest of the organization. (2011 U.S. Dist. LEXIS 70515)
Last Modified
Oct 29, 2015
Viewed
5204 times

In Defense of Conservation Easements: A Response to The End of Perpetuity

2009
Organizations/Sources: Wyoming Law Review
Many conservation easements are conveyed to government entities or land trusts in whole or in part as charitable gifts. The primary issue addressed in this article is whether such easements constitute restricted or unrestricted charitable gifts for state law purposes. It offers a rebuttal to “In Hicks v. Dowd: The End of Perpetuity”, in which C. Timothy Lindstrom asserts that perpetual conservation easements donated to government entities or land trusts are unrestricted charitable gifts, and thus, the holders of such easements are not obligated under state law to administer the easements in accordance with their stated terms or purposes.
Last Modified
Nov 04, 2015
Viewed
4218 times

Legislating Against Perpetuity: The Limits of the Legislative Branch's Powers to Modify or Terminate Conservation Easements

2009
This article provides historical background on the evolution of several of the legal doctrines at play when conservation easements are modified or terminated; addresses the constitutionality of legislation attempting to modify or terminate a specific conservation easement; and addresses the constitutionality of legislation purporting to lessen the procedural and substantive burdens associated with the modification and termination of conservation easements in general.
Last Modified
Nov 11, 2010
Viewed
3704 times

Not a Charitable Trust: The Donated Conservation Easement in Pennsylvania

2022
Little evidence exists to support the proposition that a donated conservation easement, in the absence of a charitable trust agreement, is a charitable trust in Pennsylvania; indeed, there is compelling evidence to the contrary. (Holder covenants may be used to buttress easements and do not run into the legal obstacles or suffer from the policy failings of the trust proposition.) WeConservePA guide. 11 pages.
Last Modified
Sep 19, 2022
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4995 times

Not a Public Trust: The Land Trust-Held Conservation Easement in Pennsylvania

2023
No legal precedent exists in Pennsylvania for finding that a conservation easement acquired by a private land trust is a public trust.
Last Modified
Jun 30, 2023
Viewed
5410 times

Perpetual Trusts, Conservation Servitudes, and the Problem of the Future

2006
Authors: Susan F. French
Organizations/Sources: Cardozo Law Review
Private wealth-protecting perpetual trusts and environment-protecting conservation servitudes share the problem that both are long-term property arrangements that are likely to last far longer than the ability of their creators to predict what the future will bring. Existing doctrines can be used and extended to solve many problems that are likely to arise, but more will be needed. For conservation servitudes, more attention should be given to protecting the public interest against collusive terminations by action of a developer and the servitude holder and against retention of conservation servitudes of marginal value when the land is needed for other uses of benefit to the community.
Last Modified
Nov 11, 2010
Viewed
3620 times

Protecting the Public Interest and Investments in Conservation: A Response to Professor Korngold's Critique of Conservation Easements

2008
Organizations/Sources: Utah Law Review
McLaughlin and Machlis offer a rebuttal to Gerald Korngold’s article “Solving the Contentious Issues of Private Conservation Easements: Promoting Flexibility for the Future and Engaging the Public Land Use Process”, which presents a critique of conservation easements and a variety of suggestions for reform. They discuss five misconceptions that tend to pervade the criticism of conservation easements and result in proposals for reform that would be contrary to the public interest. They also discuss three of the primary reforms suggested in Korngold’s article and why they feel those reforms are both unnecessary and inadvisable.
Last Modified
Nov 11, 2010
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4455 times

Reconciling Development and Natural Beauty: The Promise and Dilemma of Conservation Easements

2010
Authors: Zachary Bray
Organizations/Sources: Harvard Environmental Law Review 119
Contemporary conservation easement practice has attracted many critics, based in part on well-publicized national scandals involving fraudulent donations of conservation easements for tax purposes and in part on more general concerns about the potential inefficiency of these easements. This article scrutinizes the current debate by examining various criticisms and proposals for reform of current conservation easement practice. It provides important detail on contemporary conservation easement practice, considers the interaction between contemporary practice and the abstract concerns raised in the academic debate, and offers some suggestions for reform and further study.
Last Modified
Nov 11, 2010
Viewed
4020 times

Reinventing Conservation Easements: A Critical Examination and Ideas for Reform

2005
Authors: Jeff Pidot
Organizations/Sources: Lincoln Institute of Land Policy
Part One of this report provides an introduction to some of the issues arising from conservation easements, as foretold at the time of the enactment of the federal laws that granted them tax subsidies. Part One also describes the reasons why the public has a stake in conservation easements and in their content and governance. Part Two provides a Primer on Land Trusts and Conservation Easements, including defining terms, providing historical context and reporting current trends and a preview of the future problems that they present. Part Three specifically discusses issues emanating from conservation easements and evaluates a number of alternative ways to resolve them.
Last Modified
Oct 29, 2015
Viewed
5004 times

Representing Non-Concurrent Generations: The Problem of Now

2008
Authors: James L. Olmsted
This article is a rebuttal the position of Professor Julia D. Mahoney that conservation easements should not be allowed to remain in effect in perpetuity and instead they should be time limited, or perhaps not created in the first instance. The article provides a brief discussion of the historical and philosophical antecedents of real property law in the United States, an historical and legal analysis explaining how conservation easements fit within the current real property regime of the United States, and expounds upon the merits of perpetual conservation easements. The final parts of the article provide rebuttal to critiques Mahoney has provided to this work.
Last Modified
Nov 11, 2010
Viewed
3613 times

Rethinking the Perpetual Nature of Conservation Easements

2005
Organizations/Sources: Harvard Environmental Law Review
This article argues that the charitable trust doctrine of cy pres should apply to donated conservation easements and, if interpreted as suggested, can provide a principled means of modifying or extinguishing easements that have ceased to provide sufficient public benefits to justify their continued enforcement (or have even arguably become detrimental to the public). It states that the landowner should be permitted to exercise dead hand control over the use of the property encumbered by the easement, but only so long as the easement continues to provide benefits to the public sufficient to justify its enforcement.
Last Modified
Oct 29, 2015
Viewed
4332 times

The Trouble with Time: Influencing the Conservation Choices of Future Generations

2004
Organizations/Sources: Natural Resources Journal
Thompason scrutinizes Julia Mahoney’s article “Perpetual Restrictions on Land and the Problem of the Future”, to see whether conservation easements and other existing efforts to conserve land across generations are quite as troubling as she suggests. Thompson argues that by shifting the decision-making authority over future land uses from a single private landowner to a land trust or various segments or representatives of the public, it is less likely for the land to be developed but still leaved the ultimate decision to future generations. He explores justifications for why one generation may want to make future developments more difficult and asks how society should balance the potential benefits of perpetual conservation easements against the possible costs to future adaptability.
Last Modified
Nov 11, 2010
Viewed
3255 times

Uniform Conservation Easement Act

1981
This document was drafted by the National Conference of Commissioners on Uniform State Laws and recommended for enactment in all of the states of the union in 1981. All or portions of the Uniform Act were subsequently adopted in many states.
Last Modified
Sep 30, 2013
Viewed
6212 times

When Perpetual is Not Forever

2012
Authors: Jessica E. Jay
Organizations/Sources: Harvard Environmental Law Review
This 78 page Harvard Environmental Law Review is subtitled "The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements". The article examines inconsistencies in the legal regimes and explores current and emerging common law, legislation, and policies addressing perpetual easement amendment and termination.
Last Modified
Nov 04, 2015
Viewed
4517 times