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The Enforceability of Exacted Conservation Easements

42 Pages Posted: 10 Sep 2011 Last revised: 10 Sep 2017

Jessica Owley

University at Buffalo Law School

Date Written: September 9, 2011

Abstract

The use of exacted conservation easements is widespread. Yet, the study of the implications of their use has been minimal. Conservation easements are nonpossessory interests in land restricting a landowner’s ability to use her land in an otherwise permissible way, with the goal of yielding a conservation benefit. Exacted conservation easements arise in permitting contexts where, in exchange for a government benefit, landowners either create conservation easements on their own property or arrange for conservation easements on other land.

To explore the concern associated with the enforceability of exacted conservation easements in a concrete way, this article examines exacted conservation easements in California, demonstrating that despite their frequent use in the state, their enforceability is uncertain. The three California statutes governing conservation easements limit the ability to exact conservation easements. California caselaw, although thin, indicates that courts may be willing to uphold exacted conservation easements even when they conflict with the state statutes. This examination of the California situation highlights California-specific concerns while providing a framework for examining exacted conservation easements in other states.

This article illustrates not only challenges of enforceability that arise with exacted conservation easements, but uncertainty in their fundamental validity and concerns about public accountability. This exploration illustrates that enforceability is not straightforward. This raises significant concerns about using exacted conservation easements to promote conservation goals, calling into question specifically the use of conservation easements as exactions.

Keywords: conservation easements, exactions, permits, accountability, statutory interpretation

Suggested Citation

Owley, Jessica, The Enforceability of Exacted Conservation Easements (September 9, 2011). Vermont Law Review, Vol. 36, 2011 pp. 261-302; Buffalo Legal Studies Research Paper No. 2012-034. Available at SSRN: https://ssrn.com/abstract=1925065

Jessica Owley (Contact Author)

University at Buffalo Law School ( email )

School of Law
528 O'Brian Hall
Buffalo, NY 14260-1100
United States
716-645-8182 (Phone)
716-645-2064 (Fax)

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