Managing Conservation Easements in Perpetuity - Environmental ...

5.
When to Consult Outside Legal Counsel
Consulting legal counsel early in the violation evaluation process is essential
when facing a potentially significant violation. Some questions to ask
an attorney include:
• Do we really understand the conservation easement provisions
involved in this possible violation? Have we interpreted the entire
conservation easement document correctly as it relates to this
possible violation?
• What are the weaknesses of our position?
• What alternatives do we have in approaching resolution with the
landowner?
• What would a court think of each alternative and of our
interpretation?
• Is our response measured, proportionate and appropriate?
• How likely is the possible violation to erupt into judicial action?
• Is this a violation of an express restriction in the conservation easement
or does it require piecing together various restrictions to
make a case?
• Are we effectively documenting our attempts to achieve
compliance?
• Do we know all the facts of the violation?
One way to ensure effective and economical use of legal time would be
for your land trust to answer these questions internally first, then test
your answers with legal counsel. You could prepare a short comprehensive
memo when you meet with the attorney to review the issues and determine
next steps.
Identify potential mitigating factors and choose an
appropriate enforcement response
At this point, many land trusts require that staff or volunteers inform
the organization’s board chair immediately and legal counsel (if not
already informed) about the nature of the violation and the evidence
supporting the determination. Doing so may slow the process of
resolving the violation, so you should take steps to ensure the fastest
possible review commensurate with the severity of the violation.
Naturally, major violations will need more time to resolve.
Other land trusts (usually only the very large, well-staffed land trusts
with in-house legal counsel) handle all violations at the staff level and
inform the board only of major violations and the steps staff is taking
to pursue resolution. How your land trust arranges these responsibili-
Violation Resolution and Easement Defense 281