Conservation Easements: Amendments &Violations

New Jersey Land Conservation Rally March 16, 2016

James Wyse, Coughlin Duffy LLP

Judeth Yeany, Green Acres Program, DEP

Session Outline Introduction to Conservation Easement Violations

(Why your stomach should be churning)

LTA Standards

The IRS qualification requirements

Prevention & risk management

Dealing with easement violations

Roundtable discussion

Conservation Easement Violations

LTA Standards & Practices

Enforcement of Easements. The land trust has a written policy and/or procedure detailing how it will respond to a potential violation of an easement, including the role of all parties involved (such as board members, volunteers, staff and partners) in any enforcement action. The land trust takes necessary and consistent steps to see that violations are resolved and has available, or has a strategy to secure, the financial and legal resources for enforcement and defense.

Prevention The most important part of conservation easement

enforcement is preventing violations from occurring in the first place. Do everything you can to prevent violations or at least

reduce their severity.

One of the best prevention methods is a substantial and meaningful visit with the landowner on the land every year.

New Owners By far, most conservation easement violations are

caused by successor owners

Meet & Greet Land Trusts have a responsibility to meet and educate new owners Pay attention to changes in

ownership

Personally meet every successor owner

Help him or her understand your land trust

Help him or her understand the conservation easement

Instill appreciation of community conservation ethic

Build strong relationships

Written Policy

Your written violation policy and procedures will guide you through the difficulties of violation resolution

Adopt a violation policy and procedure before your first violation

As you learn more over time, you can refine your policy

Consistency Follow your organization’s written violation policy

Ensures fair and consistent treatment of all landowners

Can still act flexibly and adapt to different circumstances – policies do not need to be rigid

Demonstrate that your organization consistently addresses and resolves easement violations

Plan Ahead When you need legal help, you may not have time to carefully select a litigator to represent you

Interview attorneys in advance, before you need assistance

Make sure your baseline is in good shape

Document your monitoring visits

Be smart with e-communications

So You Found a Violation

Document the violation immediately

Photos, measurements, field notes

Talk with owner to discuss what you found

Ask about physical facts without stating that what you identified might be a violation

Choose your words carefully—be inviting, not accusatory or critical

Evaluate Take a deep breath

Alert appropriate staff

Review your violation policy and procedure

Read the conservation easement

Check the baseline documentation & monitoring reports

Identify the violations and the easement sections involved

Evaluate the scope, severity & duration of the violation

Action Items Take another deep breath

If you are insured for easement defense, contact the carrier

Contact legal counsel and discuss

Get advice on next steps to take & precautions for potential litigation

Confirm assessment of nature of violation and severity; mitigating & aggravating factors

Extra care if owner is an insider

Clarify internal lines of authority

Consider Options

Still breathing?

Discuss among staff and counsel what alternatives exist to appropriately address the violation, considering its degree of severity

If possible try to offer more than one resolution to the owner

Most land trusts call or visit the owner before sending a certified letter even when the easement requires written notification

Letters tend to harden resistance

Contact the Owner

Take an extra deep breath

Before you call, know the degree of flexibility you have in negotiating with the landowner. In the call: Acknowledge the landowner’s goodwill and

care for the land

State that you value the relationship and want to work on this problem together

Ask for his or her help

Describe the land trust’s concerns

Explain where the conservation easement addresses the activity

List the possible next steps and results the land trust would like to see

Ask for his or her thoughts

Contact the Owner

Avoid disproportionately severe and accusatory conversations

The person designated to talk with the owner and propose a resolution should be a skilled negotiator

Involve the owner in crafting the resolution (within limits)

Say you will follow up with a confirming letter

Communicate clearly and often

Involve legal counsel in each step

Moving to Resolution

Remember: punishment is not the goal

The goal is to: uphold the conservation easement,

resolve the violation,

educate the landowner and

maintain landowner goodwill to the greatest extent possible

Once you have established formal communication about the violation, use negotiating and listening skills to bring the matter to a satisfactory resolution

Hardball If, despite best efforts, owner will not cooperate, then a formal notice of violation and request to halt the activity and restore the site is your next response

Court action could be the first response to the discovery of a violation if: violation is severe enough

there is major, irreparable damage occurring to a resource that is central to the conservation purpose of the easement

When to Go to the Mat

It’s an emergency

You cannot prevent or avoid damage that is doing significant harm

The organization’s integrity is at stake

Legal analysis concludes that your land trust is likely to prevail

You are ready and able to manage media and public reaction

The statute of limitations is about to expire

You have the Godfather’s Board’s approval

Litigation No one wants or enjoys litigation (except the litigators)

Litigation is costly—very costly

Case must be prepared thoroughly; don’t take shortcuts

Consider mediation options

Organize relevant documentation

Maintain attorney-client privilege

Don’t say stupid things in emails and texts

Maintain your integrity, and your cool

Case Examples

Questions and Discussion