Tad Ames, the President of the Berkshire Natural Resources Council and himself a former reporter, had an Op-Ed in the Boston Globe on February 13th, 2006 on a subject that should alarm conservationists and conservation entities alike. A recent case in Lenox, Massachusetts highlights an increasing and disturbing trend: landowners purchasing property subject to a conservation easement and subsequently seeking to amend or weaken its terms to their purposes, rather than accepting those under which it was initially protected. The problem is that conservation easements are not mere temporary injunctions: they are legal agreements between a landowner and a conservation entity intended to be enforceable in perpetuity, applying both to the grantor of the easement and to successor owners of the property.
Conservation easements (called conservation restrictions in Massachusetts and Connecticut), have been a legal vehicle recognized in the IRS tax Code Section 170(h) for three decades, now. They are a very powerful conservation tool, providing real protection for lands that remain in private ownership and preventing some of the worst development impacts these properties could otherwise experience. They are voluntary agreements between willing landowners and qualified entities such as land trusts, state or federal agencies, or municipalities and require these organizations to monitor and enforce the terms of the easements in perpetuity.
One of the great advantages of conservation easements is their flexibility. A well-crafted easement can be tailored to the specific conservation values of a property, the goals of the landowner who grants it, and the objectives of the conservation entity that accepts it. Some easements restrict certain development rights but provide for exceptions under specifically retained rights. Some have as their primary purpose the conservation of working landscapes and favor agricultural or forestry activities. Others allow public access, although this may not be a requirement of the easement holding entity. There are well over 1,000 land trusts nationwide, and here in the Northeast there are a plethora of qualified conservation entities with similar orientations but different mandates. A savvy landowner should be able to find the right organization to work with to craft an easement with real conservation value that meets his or her particular goals for the property.
Steven Small, the attorney who helped write the IRS code that established conservation easements in our tax law, has raised concerns that not all easements are as well crafted or well enforced as they should be. Recent scrutiny of The Nature Conservancy and other easement holding entities by the Senate Finance Committee noted serious concerns about tax deductions based on inflated easement values, laxity in easement enforcement, and deals with related parties. In an effort to put self-regulation out ahead of legislative action, The Land Trust Alliance is now leading the way in establishing better standards and practices and a Board of Accreditation for eligible Land Trusts.
In this climate of enhanced scrutiny, it is vital that this important conservation tool remain an effective and permanent means of land protection. It is highly troubling, then, to find the very terms and conditions of specific easements challenged by successor landowners and efforts made to weaken or overturn them to suit their interests.
The Lenox example is Springlawn Mansion, a gilded age cottage subject to a conservation restriction that limits the use of the Premises for recreational and theatrical uses, keeps the historic facade in place, and requires public walking trails. These were the terms of the original grantor, and while one could make the argument that the proposed uses of the successor would not materially impair the conservation values of the restriction, easements lose their potency and their permanence if they can be amended at will. Furthermore, barring the public from the property is a clear violation of the conservation purpose of the easement. Both Shakespeare & Company, the non-profit theater company which sold the restricted property, and the high-end resort developer who purchased it, knew that it was subject to terms that would not permit the uses proposed by its new owner. Rather than abide by the restriction, the developer is making an aggressive campaign to amend it.
The terms of conservation easements are meant to be enforceable in perpetuity. In Massachusetts under "Article 97" of the State Constitution, it takes a 2/3 vote of both houses of the State Legislature to permit development on publicly protected land, and therefore to overturn or weaken a conservation restriction. Perpetuity, then, lasts until a condemnation similar to a taking by eminent domain but requiring super majority votes in an act of legislature. According to a Mass-PIRG study quoted in Tad Ames Op-Ed piece; "40 parcels of public land have been turned over to private developers in the last 3 years." Even if we allow for one or two swaps of interest between the Commonwealth and private entities that bring new land into conservation in exchange for allowing development where it was previously restricted, this a disturbing trend.
It is hard to remain resolute under pressure to alter an easement, but it can and must be done. I speak here from experience. I know just how it feels to stand ones ground in the face of relentless pressure from a high powered attorney and super wealthy landowners over a request to weaken an easement. In my case, the concern was over less than 2/3 acre on property the landowners were planning to acquire, and in exchange for overturning the easement or amending some of its terms, they offered an easement over 17 acres of high quality wetland adjacent to one of our Preserves. The landowners were exceptionally generous contributors to conservation organizations and seemed to have the makings of good neighbors. Clearly they had the potential to make a huge gift to my organization's capital campaign.
Although the amendments they requested were minor, we felt compelled to defend the language and intent of the original easement, which prohibited "temporary or permanent structures" without defining precisely what constituted either. I and my conservation organization were willing to walk away from the deal and all the benefits it represented to uphold the principle of perpetuity, and when it finally became evident that we would not relent, the sale went forward without having to amend the easement. Nothing less than the same, resolute stand is required with the Springlawn Mansion Conservation Restriction, and similar cases that will inevitably come after it.