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From a land trust listserver.
 
Thanks to everyone who responded to my question last week concerning a violation for which I needed some negotiation recommendations. This was in reference to a property with a conservation easement that prohibits construction of any
permanent structures additional to what existed at the time the easement was granted (1975). It was discovered during a routine monitoring that these folks constructed an in ground pool without our knowledge or approval. There is no provision for a building envelope and the pool does compromise the natural resources protected by the easement. The property owners admit their ignorance of the easement and are anxiously awaiting our decision how to handle it. Heavily weighted and competing recommendations range from ...using caution (a minor fine), in that our actions would resound in that community, reflecting on our organization's willingness to work with landowners in a positive manner...to concerns that we do not want to set a precedent of handing
out slaps on the wrist for violators who would not otherwise have received pre-approval for their actions. The latter would impose a stringent fine that is some multiple of the cost of having the pool removed, which could realize several thousands of dollars, and that would in turn be used to purchase more easements. I would sincerely appreciate anyone's thoughts on these ideas.
 
Kelly Germann,
Conservation Biologist
Heritage Conservancy
85 Old Dublin Pike
Doylestown, PA 18901
Phone: 215-345-7020 Ext. 121
Fax: 215-345-4328
kgermann@heritageconservancy.org
Website: www.heritageconservancy.org




A word of caution: I would think carefully about setting a precedent that
allows landowners to "buy" their way out of CE violations. In other words,
if the landowner gives the land trust $$$, it's OK for him to violate the
CE?
 
Sylvia Bates
Land Conservation Consultant and Broker
435 Winona Road
New Hampton, NH 03256
(603) 279-8890
(603) 279-8892 fax
skbtnm@worldpath.net



Regarding an excerpt from previous message regarding disallowed

improvements:
"... The
property owners admit their ignorance of the easement....."
Are land trusts typically notified when the underlying land is deeded to a
new owner?
Do land trusts typically notify new owners of their obligations?
Is it just assumed that a new owner will read and understand the deed,
title, and easement documents?
Do land trusts typically answer questions from prospective purchasers and
new owners?
 
Sue Hoell
Appraiser
Helena, Montana



 
There isn't enough information to give a definitive answer. The response
would vary depending on whether the easement document is crystal clear or
ambiguous, what the relevant law is defining the term "structure," whether
there are community understandings as to the meaning of the term, and the
like.
If the easement is less than entirely clear, which is likely with a 1975
easement, one approach would be to negotiate an amendment strengthening the
easement in settlement--the amended easement could protect additional
conservation values, expand the land under easement, and clarify the
ambiguities, thereby ensuring that future enforcement will be less
problematic.
I agree with the word of caution, but the LT faced with a done deal has a
hard choice, especially when the violation is one that will not offend the
average juror and that offers a way out of a finding of violation. There is
a very real danger that a jury might find that a swimming pool is not a
"structure" within the meaning of the easement because the ordinary usage of
the term is for above ground buildings. Especially if the pool is near the
existing buildings and inoffensive in appearance, the jury will look for a
way to find no violation. The length of time between monitoring visits, the
lack of communication with new owners for an extended time, and similar
facts, if presented, would provide potential defenses and further encourage
the jury to find the LT to blame.
Before embarking against a violator, the LT has to take a candid look at the
potential benefits and risks of various courses of action, with respect to
the specific piece of property and its conservation values, with respect to
the duty owed to the original easement donor, with respect to the community
and how the LT's actions will be perceived, the likelihood of success or
failure and the effect of either result, and so on.
 
Ann Taylor Schwing
President, The Land Trust of Napa County

Thanks for responses.

As more and more jurisdictions publish ownership data on the Internet, it
should become easier to track deed changes.
Sue Hoell
Helena, Montana

Hear, hear! I agree that paying off the land trust should not be the

preferred remedy. As we speak, we are settling a lawsuit we filed against a
landowner (an original easement donor) who built a house (permitted within
certain limitations) without our approval. We were successful in forcing
the landowner to bring the house into compliance with the easement, which
required a redesign and demolition/reconstruction of part of the house. A
very painful learning experience for the landowner, but a pretty cut and
dried case. (And with the availability of pre-fab house parts, these
gigantic Faux Chateaus can go up in a jiffy--before you even realize there
is construction going on...)
It's ridiculous for any landowner to claim ignorance of a conservation
easement when the easement is part of the chain of title to the property.
Why aren't they or their attorneys (or mortgage lenders!) reviewing those
title searches??? Caveat emptor! No matter how hard we try to get notice
of conveyances and educate new landowners about their easements, there are always those that claim ignorance. As a community of land trust
professionals, we cannot allow these violations to continue by accepting a
fine.
 
Just my 2 cents....
-Kate Brown
Brandywine Conservancy
CBrown@brandywine.org

 
Perhaps a strengthening and clarifying amendment to the easement (either with or without a fine that would go to other land protections) would best serve to protect whatever the conservation values are. Perhaps some notice requirement to the land trust on the part of the landowner/seller when he has signed a purchase/sale agreement--or at closing. It could impose a sizeable fine on the seller if he does not notify the land trust of the sale of the parcel. Then the land trust could proactively educate (send letter) to new owner after closing introducing self as easement holder/partner in

conservation.
Certainly landowners and buyers should know what easements are on their
property.
 
Chris Orsinger
Friends of Buford Park & Mt. Pisgah
Eugene, Oregon