Preserving Preservation: Long Green Valley Association, Conservation Easements, and Charitable Trust Doctrine

Alyssa J. Domzal

Across the United States, landowners have preserved 19.8 million acres of farmland, forest, and wetlands through legal instruments known as conservation easements. In a perpetual conservation easement, a landowner voluntarily restricts the uses of his land in perpetuity to serve a conservation purpose, binding future owners of the land to the restrictions set forth in the easement deed. The land mass protected by these instruments is sizeable—roughly the size of South Carolina and nearly one-quarter the size of the National Park System—and those charged with its preservation face the threat of legal challenges in the years to come. Conservation easements came into wide use in the 1980s as a means for landowners to preserve their land while maintaining private ownership. Currently, land encumbered by the first wave of these easements is rapidly changing hands from the original conservation-minded easement donors to new owners. Because the easement terms limit future residential and commercial development and, thus, landowners’ ability to utilize their property, successor owners are much more likely to institute lawsuits to contest these terms.

Some have argued that to protect these conservation easements in perpetuity, courts should apply charitable trust doctrine. In a charitable trust, legal and beneficial title is split, and the landowner holds the legal title for the benefit of the general public. If conservation easements were construed as creating charitable trusts, the easement could not be substantially modified without a court proceeding to ensure the new terms comport with the easement donor’s purpose. Many argue that this approach would secure the easements against legal challenges, as successor landowners could not simply modify the easement terms to permit the development they desire. Additionally, construing the easement as a charitable trust confers standing on the state attorney general, and potentially on other interested parties, to enter into the legal proceedings and defend the charitable trust, which commentators note could be an additional tool to protect the conservation purpose of these easements.