Nontraditional attempts to extinguish conservation easements

Successor owners of conserved land may be reaching for more non-traditional causes of action to defeat conservation easements. Land trusts need to be prepared for the unusual challenge and respond accordingly.  Excellent comprehensive timely records are the key to defeating this increasing trend of fabricating reasons to extinguish conservation easements.   

For example, in Leone v. Howell Twp., the easement prohibited structures “of any kind whatsoever” and required maintaining the protected property in its “natural state.” A successor landowner installed an underground irrigation system and a swing set on the protected property and converted natural vegetation to a mowed lawn. He cited his asthma as a disability that required accommodation under the Americans with Disabilities Act. He contended that keeping the area as a mowed lawn helped with his breathing. The trial court dismissed all claims for failure to state a cause of action under the state equivalent of a 12(b)(6) motion. The appellate court affirmed, finding that a municipality’s denial of a variance application was not grounds for a discrimination suit.

In McCulloch v. Town of Milan, a dispute arose over forest management activities on the protected property and the Town sought to enforce the easement. In an attempt to avoid the easement, the landowner filed a federal Fair Housing Act suit. An appellate court held for the defendant municipality finding no evidence of discrimination.

In Radtke v. Chester Twp, a new member of the Township Board filed suit against two other members, the Township and the land trust, alleging violations of state’s Open Meetings law, which requires notice and an opportunity to be heard for any meetings of public agencies. In particular, the plaintiff claimed that the one-on-one meetings and the e-mail communications between the land trust representatives and Township Board members and staff violated the law. The suit sought the rescission of the conservation easement. The trial court dismissed the suit, holding that there was no violation of the Open Meetings law because the meeting between the land trust’s representative and the Township Board members was for information gathering purposes, and there was no intent to deliberate on the easement. The appellate court agreed and the state supreme court declined to hear any further appeal.

These are just a few examples of new easement challenges that have recently gone to court but were successfully defended by a strong legal team and excellent records. As a risk management step, your land trust might engage your board in a conversation about full funding of conservation stewardship and also review your implementation of your recordkeeping policy.

We’re here to help! If you have any questions, please let us know.

Thanks,

Tom Kester
Operations Manager and Secretary
Alliance Risk Management Services LLC
Manager for Terrafirma Risk Retention Group LLC