Managing Conservation Easements in Perpetuity - Environmental ...

The Whidbey-Camano Land Trust in Washington learned some important
legal lessons when it pursued an easement violation without a clear viola-
tions policy in place that staff followed consistently. WCLT discovered that a
successor landowner had cleared a septic drain field and put down a foun-
dation for a house outside the allowed building envelope on an easement
property. The land trust contacted the landowner to discuss the situation, but
in the midst of trying to negotiate a settlement, the landowner sued the land
trust for relief. In court, the landowner convinced the judge that he had not
understood the easement terms because they were inadequately explained
during the closing on the purchase of the property. The landowner prevailed.
The judge said that WCLT seemed to enforce its easements casually and that
it did not adequately explain the conservation easement to the landowner.
Following the ruling, the land trust adopted a clear policy on violation resolu-
tion and follows it closely.
WCLT summarized the lessons they learned in an article by Brenda Biondo in
the Winter 1997 issue of Exchange:
• Have a policy and procedures that allows the land trust to deal quickly
with enforcement problems
• While in an enforcement situation, put every conversation with the
landowner in writing, either in a letter reiterating the conversation or
at least in notes for the file
• Be consistent in enforcing violations
• Have the land trust’s policies and actions audited periodically, prefer-
ably by peers in a regional land conservation organization
• Remain visible to the landowner and community through regular
contact and other means
• Have a clear policy for disclosing and resolving any potential conflicts
of interest among land trust board, staff, volunteers or other insiders
There are additional important lessons that land trusts should take away from
this incident. First, land trusts should realize that others, including judges,
may not understand conservation easements nor accept their general valid-
ity; therefore, having systems, policies and procedures will support the
credibility of your land trust and your conservation easements. Take time to
educate the judge and jury. Land trusts must demonstrate competence in
everything they do. Second, remember that judges may be susceptible to
local pressures and publicity, so provide them with cogent reasons to rule in
your favor to decrease adverse publicity.
Violation Resolution and Easement Defense 267
Example