68 Pages Posted: 15 Jun 2006
Federal and state legislators encourage and facilitate the creation of "perpetual" conservation easements because they expect such easements to provide benefits to the public over the long term. Whether perpetual conservation easements will live up to that expectation will depend, in large part, upon the nature of the legal framework supporting and governing such easements over time. This article explores the legal framework within which perpetual conservation easements may be modified or terminated to respond to changed conditions. To put the issue in context, the article examines a real-world controversy involving the proposed amendment of a perpetual conservation easement encumbering a 160-acre historic plantation on the Maryland Eastern Shore to permit a seven-lot subdivision on the property, and the subsequent defense of the easement by its holder and the Maryland Attorney General on the ground that the easement constitutes a charitable trust. The article concludes that charitable trust rules operate to protect the public's interest and investment in perpetual conservation easements, and the holder of a perpetual conservation easement that simply agrees with the owner of the encumbered land to modify or terminate the easement in contravention of its stated purpose does so at its peril. Perpetual conservation easements are not merely private contracts between the owner of the land and the holder of the easement. Easement terminations - as well as amendments that are inconsistent with the stated purpose of the easement - require court approval in a cy pres proceeding, where appropriate consideration will be accorded to both the intent of the easement grantor and the interests of the public. In situations where the holder of a perpetual conservation easement simply agrees to amend (or terminate) the easement in contravention of its stated purpose, the charitable trust rules permit the state attorney general (or, if the attorney general declines to become involved or is ineffective, a party with a "special interest") to object. The article also explains that the charitable trust framework provides holders of perpetual conservation easements with a certain degree of flexibility to respond efficiently to inevitable changes. For example, an easement grantor can grant the holder the discretion to simply agree to amendments that are consistent with the stated purpose of the easement, thereby avoiding the inefficiencies that would arise from intrusive public oversight of the holder's day-to-day management of the easement.
Keywords: conservation easement, charitable trust, cy pres, amendment, implied power, easement enabling statute, perpetual, perpetuity, tax law, environmental law
JEL Classification: K11, K32, K34, L31, Q15, Q24
Suggested Citation: Suggested Citation
McLaughlin, Nancy A., Amending Perpetual Conservation Easements: A Case Study of the Myrtle Grove Controversy. University of Richmond Law Review, Vol. 40, p. 1031, 2006; University of Utah Legal Studies Paper No. 05-41. Available at SSRN: https://ssrn.com/abstract=903845