Editor’s note: This commentary is by John Echeverria and Janet Milne, professors at Vermont Law School.
[V]ermonters have invested a great deal of property, money, time and effort to create a network of conservation easements that protects a significant fraction of the state’s landscape. Virtually all of these easements were granted in “perpetuity,” to place the lands off limits to development forever. Now the challenge facing Vermonters is to figure out how to ensure that these commitments to perpetual protection are upheld.
When a landowner places a conservation easement on her property, she does so to protect the particular conservation values of her specific parcel. When a land trust or a government agency accepts the conservation easement, it makes a legal commitment to uphold the easement restrictions on the property in perpetuity.
Absent rigorous safeguards, however, easement protections are at serious risk of erosion over time. Ownership of lands protected by easements will eventually pass from the original easement grantor to new owners. Legally, the easement restrictions will remain in place despite the changes in land ownership. But the new owners may lack the same level of commitment to conservation as the original land owner. Moreover, the new owners could profit from developing the land if the easements restrictions could be lifted. Inevitably, some future owners of lands subject to easements will press for modification or even termination of easement restrictions.
Several years ago some Vermont conservation groups proposed legislation that would have vested significant discretion in a new, politically appointed body, and in the groups themselves, to authorize amendment or termination of conservation easements. Under the proposal, an easement amendment or termination would have been allowed so long as the change served the larger cause of conservation, even if it resulted in destruction of the specific conservation values of the land originally placed under protection; thus, a conservation group could have moved an easement from one property to another or even from one town to another if it believed the transfer would be beneficial for the environment.
We and others criticized the proposed legislation as a breach of faith with easement donors that would ultimately undermine the cause of land conservation. A toxic mix of landowners with incentives to remove easement restrictions and liberal state policies allowing easement holders to modify easements would have undermined Vermont’s network of easement protections and defeated grantors’ legitimate expectations about easement perpetuity. It also ran afoul of federal tax rules governing donated easements. Ultimately, the groups that developed the legislative proposal withdrew their support for it. But all those involved in the debate recognized that Vermont needs some type of legislation governing the complicated issue of easement amendment and termination.
Vermont’s conservation easements should be held by land conservation groups and government agencies for the benefit of all Vermont citizens, and every easement holder should be held to a legal and a moral duty to protect the property in order to preserve its conservation values and carry out the intentions of the easement grantor.
Forever is obviously a long time, and some future, extraordinary circumstances may require breaking the promise of perpetuity in certain cases. However, the fundamental questions are when amendment or termination of an easement is appropriate, and who should make that decision. To address these questions, we have done an intensive study of the challenge of preserving conservation easements in perpetuity. We have come up with a comprehensive set of recommendations governing easement amendment and termination that we think can preserve the promise of perpetuity.
The recommendations include the following basic principles, procedures and standards. First, Vermont’s conservation easements should be held by land conservation groups and government agencies for the benefit of all Vermont citizens, and every easement holder should be held to a legal and a moral duty to protect the property in order to preserve its conservation values and carry out the intentions of the easement grantor.
Second, the commitment to the perpetual protection of the conservation values safeguarded by conservation easements – and virtually all conservation easements call for protection in perpetuity – should be respected to the maximum extent possible.
Third, the same standards and procedures for amendment or termination should apply uniformly to all conservation easements, regardless of when they were created, regardless of the type of holder, and regardless of the means by which the easement was created.
Fourth, certain, very limited types of amendment that do not jeopardize conservation protection should be able to proceed by agreement of the landholder and the easement holder. A landowner and an easement holder can of course decide to extinguish some development rights that the landowner has retained, enhancing the easement’s conservation benefits. They should also be able to agree to make technical amendments, such as fixing drafting errors, correcting a boundary line consistent with the grantor’s original intent or based on new survey data, or improving the clarity of easement language. More substantive easement amendments might also be possible, but only if they do not adversely affect the conservation values of the specific parcel of land protected by the easement and are consistent with the intentions of the original easement grantor.
Fifth, all easement terminations and other amendments, including amendments that could adversely affect the conservation values protected by the easements, should go forward only if changed circumstances make it impossible or impractical for the original easement to achieve its conservation purposes. A judge of the Vermont Superior Court should make this significant determination prior to any amendment or termination in order to protect the grantor’s and the public’s interests; the promise of perpetual protection should not be lightly set aside.
There are many more details, but this summary provides the highlights. If there is sufficient interest, the recommendations could be converted into legislative language or administrative rules.
We have created a website, Vermont Perpetual Easements, that contains the results of our efforts. The website provides background information on conservation easements and the recent discussions in Vermont about whether easement restrictions should be enforced in perpetuity. It lays out a detailed set of recommendations for how Vermont can ensure the protection of easements in perpetuity. The website also includes a set of questions and answers to address some of the specific issues that commonly arise in discussions about easement perpetuity.
We hope these materials will support a thoughtful conversation about easement perpetuity and help safeguard the public investment in conservation easements in the Green Mountain State.
