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An Empirical Study of Modification and Termination of Conservation Easements: What the Data Suggest About Appropriate Legal Rules

58 Pages Posted: 20 Nov 2015 Last revised: 19 Apr 2016

Gerald Korngold

New York Law School

Semida Munteanu

Lincoln Institute of Land Policy

Lauren E. Smith

London Fischer LLP

Date Written: November 18, 2015

Abstract

The acquisition of conservation easements by nonprofit organizations (“NPOs”) over the past twenty-five years has revolutionized the preservation of American land. Recently, however, legislatures, courts, practitioners, and commentators have debated whether and how conservation easements should be modified and even terminated. The discussion has almost always been on a theoretical level without empirical grounding and has sometimes generated much heat but little light. The discussion has lacked the necessary empirical context to allow legislatures and courts to thoughtfully develop resolutions to these issues free from sloganeering and posturing.

This article provides and analyzes a previously uncollected dataset that offers guidance on the appropriate rules of law for conservation easement modification. It examines policy goals in light of the data to suggest various modification rules that would be more effective than current practice. The dataset represents a significant sample of easement modifications that have been made during a six year period (2008-2013) and indicates several findings: first, modifications have actually been taking place, despite claims that conservation easements are “perpetual,” apparently indicating that NPOs need flexibility in at least some areas; most of the changes have been “minor” and have been either conservation neutral or conservation positive, though one would expect pressure for more significant alterations over time due to shifts in the environment and human needs; there is a range of types and degree of modifications to this point, suggesting that there should be a spectrum of procedural and substantive requirements for the different varieties of modifications; and, a mandate for a stand-alone, state registry of conservation easements and modifications would allow for improved policymaking.

The article suggests that a doctrine that requires different procedures and substantive rules for various categories of modifications — a sliding scale — may yield the best, policy-based results. The work also identifies and analyzes existing doctrines — federal tax law, specific state statutes, charitable trust doctrine, standing rules, and director liability — that would need to be altered or clarified to adopt effective modification rules.

Keywords: conservation easement, property, preservation, environmental, land, land trusts, empirical

Suggested Citation

Korngold, Gerald and Munteanu, Semida and Smith, Lauren E., An Empirical Study of Modification and Termination of Conservation Easements: What the Data Suggest About Appropriate Legal Rules (November 18, 2015). An Empirical Study of Modification and Termination of Conservation Easements: What the Data Suggest About Appropriate Legal Rules, 24 N.Y.U. Environmental Law Journal 1 (2016); NYLS Legal Studies Research Paper. Available at SSRN: https://ssrn.com/abstract=2692821

Gerald Korngold (Contact Author)

New York Law School ( email )

185 West Broadway
New York, NY 10013
United States

Semida Munteanu

Lincoln Institute of Land Policy ( email )

113 Brattle Street
Cambridge, MA 02138-3400
United States

Lauren E. Smith

London Fischer LLP ( email )

United States

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