Managing Conservation Easements in Perpetuity - Environmental ...

This type of violation creates an opportunity for landowner education.
You could encourage the landowner to talk with the land trust before
building anything on the conserved land to avoid future complications.
In granting the approval for the playhouse, you might limit its
use to a nonresidential children’s play toy and restrict it to its current
size. You could also require that the landowner remove the playhouse
or relocate it to the building envelope within a certain number of years
or prior to transfer of the property. To document the approval, photograph
the structure and identify its location on a map, and store the
approval letter in the land trust’s permanent records.
Even without an explicit discretionary approval clause in its easements,
a land trust may still be able to address these types of minor violations
by granting a license, a temporary waiver of a restriction or an interpretation
of an easement that acknowledges and allows a certain activity
or use, so long as it does not harm the conservation resources and is
not contrary to the purposes of the easement.
Remediation
If the violation causes adverse resource damage or negatively affects
the conservation purposes, the violation must be remedied and the
damaged property restored. Remediation does not always mean
having to restore the conserved property precisely to its prior condition.
Depending on the result of the land trust’s resource and legal
analysis, other alternatives may be available.
For example, suppose a neighbor mistakes the boundary line between
her property and an adjoining easement property. She cuts trees on the
easement property for a view of the lake that is surrounded by the easement
land. The neighbor immediately stops the activity when notified
of the true boundaries and apologizes for her actions. The easement
landowner agrees to have a surveyor clearly mark the boundaries to
avoid any future confusion about their location.The neighbor agrees to
plant some native trees in the cut area to provide a scenic screen for the
public view from the lake, which was one of the purposes for which the
easement was granted. This resolution is not full remediation, but it is
sufficient for the circumstances because it restores the land adequately
enough to uphold the conservation purposes for which the property
was conserved. Another example of when full remediation may not
be necessary is when a landowner inadvertently clears a portion of a
riparian buffer that, under the easement, was to remain in its natural
Violation Resolution and Easement Defense 301
Minor violations that cause no
more than nominal resource
damage can often be resolved
with the use of discretionary
approvals, licenses, waivers or
easement interpretation letters.