Managing Conservation Easements in Perpetuity - Environmental ...

All land trusts should review their
state’s conservation easement
enabling statute to inform the
contents of their easement amendment
policies and procedures.
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another piece of unprotected land (such amendments are discussed
further in this chapter and are considered by some experts as extremely
risky). Your land trust should determine if your state attorney general
has issued an opinion on this issue, or if it has been addressed by a
state court.
Where governmental approval is required, even if the statute does not
expressly limit the government’s discretion to act, the governmental
entity must still abide by certain principles. If the overseeing agency
is a municipality, some state laws permit aggrieved taxpayers to challenge
certain acts. In addition, under the “doctrine of public trust,”
the misuse of important public resources by government officials is
subject to legal challenge by the public. In most states, the public trust
doctrine allows the general public to file a lawsuit to stop a government
action that would destroy or diminish a public resource, such as
parkland. Public officials charged with easement oversight and land
trust officials should justify their amendment decisions in writing to
demonstrate that the public interest will not be harmed.Typically, land
trusts document their amendment decision by recitations in the actual
amendment. These recitations can take the form of an introductory
background statement, explaining the context of the amendment, the
essential facts and circumstances, any approval the land trust obtained
and so forth.The object of the background statement is to show transparency
of the process, adherence to land trust policy and principles
and continued permanence of the public benefit of the conservation
easement.The board resolution approving the amendment should also
document these same points.The baseline documentation supplement
likewise would also document the preservation of the purposes of the
conservation easement and continued public benefit, as well as adherence
to the original grantor’s intentions to the extent known.
State easement enabling statutes typically have significant variation.
The Uniform Conservation Easement Act (UCEA) seeks to reduce
that variation.The National Conference of Commissioners on Uniform
State Laws studies state laws to determine which areas of law should
be uniform and promotes the principle of uniformity by drafting
and proposing specific statutes in areas of the law in which uniformity
is desirable, such as the UCEA. The commissioners can only
propose changes — no uniform law is effective until a state legislature
adopts it. The commissioners approved the original UCEA in 1981,
and the UCEA has been adopted, in some form as of the review on
January 1, 2009, by 27 states, the District of Columbia and the Virgin
Managing Conservation Easements in Perpetuity