Managing Conservation Easements in Perpetuity - Environmental ...

violation if the net result diminishes the conservation purposes.
• Impermissible private benefit. The land trust must assess whether or not
the parking lot significantly enhanced the excluded area’s property
value. The land trust could not allow this impermissible private benefit
by allowing the parking lot to remain without the landowner equalizing
the gain he would reap from the approval.
2. The land trust may want to consult with the following:
• Community. If the land trust is concerned about the public reaction to
any of its options to resolve the violation, it should informally consult
with the community and neighbors about the issue. If the land trust
finds that no parties object to the parking area and that, in fact, there
is local support for this type of business, the land trust could reasonably
conclude that it would best serve the public interest and uphold
the land trust’s mission by addressing the violation through an amendment,
rather than by attempting to re-create prior conditions and causing
harm to other, as yet undisturbed, land to relocate the parking lot.
Without doubt, amending an easement to accommodate a violation can
be a slippery slope, and a land trust must be very thoughtful about the
message it sends to its community. Strict compliance with the amendment
policy and procedures can help land trusts keep their footing on
the slope.
• Attorney general review. If considering an amendment, the land trust
may want to seek the review of the state attorney general in this case
because it involves evaluating tradeoffs outside the original easement
area. An amendment of this kind will have more than a de minimus
effect on the original easement’s conservation attributes despite the
protection of any additional land.
Resolution
The land trust believed it would be difficult to force removal of the parking lot by
obtaining a court order requiring the landowner to restore the one acre to its previous
condition. The local court had recently proved unsympathetic to land trust
efforts to enforce another easement, and the land excluded from the easement
could not be configured for a parking lot without significant alteration of several
acres of previously undisturbed land.
The land trust considered whether and how to amend the easement to accommodate
the parking lot use. The land trust’s conservation analysis concluded that,
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