Managing Conservation Easements in Perpetuity - Environmental ...

VLT also conducted extensive research into the area of damages valuation, because
the stump value of the trees taken was only a few thousand dollars, but the damage
to the public purpose of the easement was priceless. The land trust attorney found
case law support for unjust enrichment theories, as well as theories for replacement
value and aesthetic value. VLT used all of these arguments in the mediation
discussion. However, it became clear to the mediator that Mr. Smith’s trespass
was an ongoing problem when, halfway through the mediation, which took place
at Mr. Smith’s vacation home, the landscapers reappeared on the easement property,
removed the snow fence that the land trust had erected to mark the boundary
and pushed more debris over the line. VLT’s attorney walked all the parties to the
mediation over to the window overlooking the current activity and the swath of cut
land to demonstrate Mr. Smith’s continued disregard for the boundary. This tactic
inspired greater cooperation from Mr. Smith, who immediately told the landscapers
to leave the premises.
Eventually, Mr. Smith agreed to accept responsibility and repair the damage to
the land and the losses to the land trust and the landowner. The forester’s expertise
about trees, timber values, long-term care of the resource and all other related
matters was critical in structuring the settlement agreement, as well as in determining
damages and how remediation would be handled.
VLT and the landowner utility company left the mediation with full payment of
their legal fees, full payment for all the land trust’s legal time and additional costs,
a substantial payment to the land trust for its enforcement fund over and above
its costs, and a tree-replanting and multiyear care plan for Mr. Smith to implement
and pay for that would be supervised by VLT and the utility company. Mr.
Smith was so thoroughly chastened by the process that he actually implemented
the plan faithfully. The new trees have softened the cut and the boundary is clearly
reestablished.
Questions
1. Why do you think the Vermont Land Trust was able to manage the situation
successfully?
2. What steps did the organization take to ensure a successful resolution?
Violation Resolution and Easement Defense 339
C A S E S T U D Y