Managing Conservation Easements in Perpetuity - Environmental ...

The person designated to talk
with the landowner and propose
a resolution should be a skilled
negotiator who has the authority
to adjust the proposal appropriately
to fit the circumstances.
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not include direct landowner contact. Avoid disproportionately severe
and accusatory conversations. Coach your attorney to maintain a tone
of helpfulness, rather than one of an adversary, when dealing with
landowners at this stage of violation resolution.
The person designated to talk with the landowner and propose a resolution
should be a skilled negotiator who has the authority to adjust
the proposal appropriately to fit the circumstances. Your land trust will
need to decide if the person responsible for annual monitoring visits
and landowner relationships is the appropriate person to respond to a
violation. That person may know the landowner best, but the resolution
of the violation may not be congenial. It may be better to shield the
person conducting the annual monitoring visits from any unpleasantness
in resolving the violation.Your landowner communication will need
to be increasingly skillful as the violation severity increases. Be sure to
communicate clearly and often with the landowner as you work through
the process. Landowner anxiety may lead to precipitous preemptive litigation
that some extra care and attention on your part can prevent.
Voluntary resolution by the landowner
A voluntary, negotiated resolution to a violation is the most common
and highly preferred solution. Most easement violations are caused
unintentionally by landowners, abutters or other parties who were
unaware of the easement, did not understand it or did not take it
seriously. Landowners are often willing to voluntarily correct the
situation.
If you can involve the landowner in crafting the resolution to the
violation, you will have much more success in implementing the solution.
At minimum, it is best to have some alternatives to offer the
landowner. To the extent possible, be appropriately flexible with any
proposed violation resolution while, at the same time, upholding your
land trust’s obligation to enforce its easements.For moderate and major
violations, regardless of the degree of mitigating circumstances, your
land trust may want to choose landowner education and relationship
building by using creative problem solving or even paying the costs
of remediation. These types of violations usually require one or more
site visits to assess the situation, develop a solution and then ensure
that the agreed upon follow-up occurs. The solution to a violation
can involve a discretionary approval, amendment or other adjustment
to the conservation easement and/or remediation by the landowner.
Moderate to major violations also often involve other forms of reme-
Managing Conservation Easements in Perpetuity