103 Pages Posted: 22 Jul 2005
As the use of perpetual conservation easements as a land protection tool has grown, so have concerns regarding whether, when, and how such easements may be modified or terminated to respond to changed conditions. This Article argues that the charitable trust doctrine of cy pres should apply to donated conservation easements and, if interpreted as suggested, can provide a principled means of modifying or extinguishing easements that have ceased to provide public benefits sufficient to justify their continued enforcement (or have even arguably become detrimental to the public). The Article argues that a landowner should be viewed as striking the following "cy pres bargain" with the public upon the donation of an easement - the landowner should be permitted to exercise dead hand control over the use of the property encumbered by the easement, but only so long as the easement continues to provide benefits to the public sufficient to justify its enforcement. If, due to changed conditions, the continued protection of the encumbered land for the conservation purposes specified in the easement deed becomes "impossible or impracticable," a court should apply the doctrine of cy pres to restore the appropriate balance between the landowner's desire to exercise dead hand control, and society's interest in ensuring that charitable assets continue to provide benefits to the public. In cases where the donor evidenced a particularly strong personal attachment to the encumbered land and the continued protection of that land for a different conservation purpose is feasible, a court could apply the doctrine of cy pres to modify the easement to change its conservation purpose while continuing to protect the underlying land. Alternatively, in cases where the donor did not evidence a particularly strong personal attachment to the encumbered land, or where the continued protection of that land for a different conservation purpose is not feasible, a court could apply the doctrine of cy pres to extinguish the easement, authorize the sale of the unencumbered land, and direct that the proceeds attributable to the easement be used to accomplish the donor's specified conservation purposes in another location.
Keywords: conservation easements, perpetuity, cy pres
JEL Classification: K11, K32, K34,L30, L31, O13, Q24, R14
Suggested Citation: Suggested Citation
McLaughlin, Nancy A., Rethinking the Perpetual Nature of Conservation Easements. Harvard Environmental Law Review, Vol. 29, p. 421, 2005; U of Utah Legal Studies Paper No. 05-03. Available at SSRN: https://ssrn.com/abstract=757009