Managing Conservation Easements in Perpetuity - Environmental ...

3.
ment everything necessary to accurately describe the possible violation.
Depending upon the circumstances, such documentation may include
photographs, measurements and mapping of the particular location
in question, and field notes, as well as other information relevant to
the potential violation. If the violation you identified is a mere paperwork
lapse, then documentation may be minimal and field work will
be much less extensive or may not be necessary at all.
Be sure to talk with the landowner to discuss what you found. It is
easy to ask about the physical facts without stating that what you identified
might be a possible violation. It is important to choose your
words carefully when asking the landowner about an activity or use
you identified as a potential easement violation. Therefore, you should
use language that invites the landowner to talk to you about his or her
actions, rather than using words that might be interpreted as accusatory
or critical. For example, you might call the landowner and (after
making small talk) casually mention that you noted some trees had
been cut down. Then wait for the landowner to reply, basing your next
response on what he or she says.
At this point, it is too early for the land trust to send a formal letter to
the landowner or even for verbal communication of a possible problem.
Before taking either of these steps, the land trust should evaluate
the situation internally and with legal counsel.
Once these essential first steps are complete, your land trust should
immediately alert the designated land trust personnel, whether staff or
volunteer, of the potential violation in accordance with the land trust’s
policy or procedure. This individual should coordinate the completion
of the remaining steps. Time delays at this point can be harmful and
can further complicate resolution of the violation.
Review the documentation
Immediately after receiving information about a potential violation,
it is critical that you analyze the information and secure legal advice
about the potential violation. Other expert advice may also be necessary
to determine if, in fact, a violation of the conservation easement
has occurred. Review the conservation easement yourself and with
your land trust’s attorney. Does the easement clearly prohibit the activity?
Sometimes we think an activity is or should be prohibited by the
easement, but it is not. Or, a land trust may not realize a restriction is
ambiguously worded until it reviews the clause with an attorney who
Violation Resolution and Easement Defense 279
If a land trust delays
investigation, documentation
and communication about a
potential easement violation,
it can complicate resolution
of the violation.