Ending the Exceptionalism of Conservation Easements

Abstract

This Essay advances two arguments that are linked together. The first argument is that conservation easements enjoy legal exceptionalism from legislation, enforcement methods, and courts as seen in relevant case law. Furthermore, this exceptionalism of conservation easements can be damaging—namely, it hurts communities by creating wealth inequalities and may cause ecological problems. The second argument advances a bolder proposal that has not been explicitly advanced in the existing scholarship—that is, it is time to end this damaging exceptionalism of conservation easements by encouraging jurisdictions to statutorily limit the duration of conservation easements and to require conservation easements to be approved by local zoning boards. To further elucidate this proposal, this Essay will discuss Nebraska as a possible model for dealing with conservation easements and survey recent movement in other states and in the United States Congress to introduce legislation limiting the duration of conservation easements.

Keywords: conservation easements, easements, servitudes, property law, environmental law, land use law