Managing Conservation Easements in Perpetuity - Environmental ...

170
trusts and their counsel must carefully consider what effect, if any, this
doctrine has on the organization’s ability to amend its easements. For
more details on the charitable trust and cy pres doctrines, see Amending
Conservation Easements: Evolving Practices and Legal Principles.
For a more detailed discussion of the charitable trust doctrine as it may
relate to conservation easements,see “Rethinking the Perpetual Nature
of Conservation Easements” and “Amending Perpetual Conservation
Easements: A Case Study of the Myrtle Grove Controversy,” both
by Nancy A. McLaughlin. For a contrary opinion, see “Conservation
Easement Amendments: A View from the Field,”by Andrew C. Dana.
All three articles are available at The Learning Center (http://learning
center.lta.org).
Uniform Trust Code
The UCEA Commissioners amended the comments to the UCEA in
2007 to clarify its intention that conservation easements be treated as
charitable trusts, conforming the UCEA to comments to the Uniform
Trust Code §414 in 2000, which state that a conservation easement
“will frequently create a charitable trust.” To date, the Uniform Trust
Code (UTC) has been adopted in 19 states (Alabama, Arkansas,
Florida, Kansas, Maine, Missouri, Nebraska, New Hampshire, New
Mexico, North Carolina, North Dakota, Ohio, Oregon, Pennsylvania,
South Carolina, Tennessee, Utah, Virginia and Wyoming).
Although Section 414 of the UTC, which allows for the modification
or termination of certain “uneconomic” trusts, specifically provides
that it does not apply to “an easement for conservation or preservation,”
the UTC drafters explain in their commentary:
Even though not accompanied by the usual trappings of a
trust, the creation and transfer of an easement for conservation
or preservation will frequently create a charitable trust.
The organization to whom the easement was conveyed will be
deemed to be acting as trustee of what will ostensibly appear
to be a contractual or property arrangement. Because of the
fiduciary obligation imposed, the termination or substantial
modification of the easement by the “trustee” could constitute
a breach of trust.
Although these and other Uniform Laws are not “the law” in their
own right, they are the law in states that have adopted them, and they
Managing Conservation Easements in Perpetuity