Managing Conservation Easements in Perpetuity - Environmental ...

Dutchess Land Conservancy: Conservation Easement Violation Response Procedure
d) For either a major or a minor violation, the Conservancy may consider
the use of an amendment or a waiver (similar to amendment but not signed by
landowner) to resolve the violation. However, there are number of
considerations that the Conservancy must weigh before pursuing this route (refer
to DLC’s Conservation Easement Amendment Policy):
i) Consider the precedent set of condoning a violation with an easement
amendment. Consider encouraging easement landowners to ask for a review
of a proposed change to the easement protected property whether or not it’s
allowed under the terms of an easement in order to hold off a potential
violation.
ii) There has to be increased resource protection in exchange for any
adverse impact of the amendment. If the monetary value of the Conservation
Easement is increased or decreased by the amendment, an addition of other
restrictions should be negotiated so that the easement value remains the
same or is increased (requires an appraisal). Amendments should be either
conservation neutral or improve the conservation value.
iii) Consider whether or not the amendment would be controversial or incite
negative public reaction in the community.
iv) Consider the time and expense for the approval process (Board approval,
appraisal, and any secured lender that must subordinate its interests to an
easement amendment).
Note: If an amendment is pursued, Board approval is required before
informing the landowner. Document and update baseline data immediately.
The Conservancy should refer to its amendment policy for guidance.
The Executive Committee may develop alternative suggestions for remediation
and/or compensation by the landowner and should present them to the Board.
At this time, the Executive Committee may identify specific legal counsel to
provide consultant legal services.
6. Going to Court
Taking a violator to court should be considered as a last resort. Going to court is
expensive and time consumptive and will likely irreparably damage the relationship
between the property owner and the Conservancy. Court decisions can set
precedent that will affect easements either favorably or unfavorably. In certain
cases the Conservancy will have to go to court in order to defend an easement, stop
damaging activities, or obtain reparations. In such cases, the Conservancy should
consult with an experienced trial lawyer to assess the merits of the case, the
documentation of the alleged violation and the likelihood that the court will interpret
the activity as a violation of the easement. The Conservancy must also be sure to
maintain adequate enforcement funds to cover legal expenses.
Note: During this process, if the landowner can not be contacted by telephone,
draft and send a certified letter (return receipt requested) that specifies the violation
and requests a personal meeting to resolve the situation. A copy of the certified
letter should also be sent by first class mail. Specify a time frame for contact in the
letter.
DLC Conservation Easement Violation Response Procedure 12-13--02 – page 4 of 5
Violation Resolution and Easement Defense 353