Managing Conservation Easements in Perpetuity - Environmental ...

determining their response to a violation. While some land trusts
consider mitigating factors when determining the severity ranking,
most land trusts use only a resource analysis for this determination
and then consider mitigating factors in determining the most appropriate
response to the violation.
Mitigating factors can help guide your land trust’s response to the violation
or influence your severity ranking. Whatever mitigating factors your land
trust decides to consider, document them in writing so that you consider
the same factors in every case, treating all landowners equally and fairly.
“Positive” Mitigating Factors
• The landowner demonstrates a legitimate misunderstanding of the
easement.
• The land trust did not follow its own procedures, such as failing
to give a landowner a timely response to his or her inquiry about
a proposed activity. Or the land trust’s actions contributed to the
violation (for example, poor communications with landowner).
• A third party committed the violation without the landowner’s
consent or knowledge.
• The landowner willingly and promptly stopped the prohibited
activity and resolved the violation.
• The landowner’s intent was consistent with the conservation
purposes of the easement.
• The violation was an innocent mistake by the landowner.
• The easement was poorly drafted or confusing.
• The landowner has special circumstances that cause the land trust
to feel compassion.
• The original easement grantor expressed a particular special intent
(recorded in a written document in the land trust’s possession)
regarding the particular resource in question.
• Funders or partners of the land trust have strong opinions about
the violation.
• The violation and the land trust response will have a persuasive
effect on public confidence in conservation.
“Negative” Mitigating Factors
• You can demonstrate (not just suspect) that it was an intentional
violation.
• The landowner has a documented history of violating his or her
conservation easement.
• The landowner violated local, state or federal laws.
• The landowner is uncooperative.
Violation Resolution and Easement Defense 283
You should consider the same
mitigating factors for every violation,
treating all landowners
equitably.