Nancy A. McLaughlin, of University of Utah S.J. Quinney College of Law, has made available for download her article, Enforcing Conservation Easements: The Through Line, published in SSRN. The abstract is as follows:
In enforcement cases, courts tend to treat conservation easements as if they were traditional servitudes. This poses a major risk to the effectiveness of conservation easements as land protection tools. If, for example, courts extinguish conservation easements via merger, or bar holders from enforcing them on laches or estoppel grounds, or interpret them in favor of free use of property, many of the conservation gains made in the United States over the last three decades could end up being ephemeral.
This article tackles this problem by providing a solid foundation for the next chapter in conservation easement enforcement. It clearly articulates the ways in which conservation easements are different from traditional servitudes. It provides a roadmap of often-overlooked bodies of law relevant to their enforcement. It also brings together the handful of enforcement cases in which the courts (in one case, the dissenting judges) recognized the special status of conservation easements. These cases address different issues but there is a clear unifying theme—a through line: conservation easements are created to benefit the public and carry out legislatively stated public purposes, and it is contrary to the public interest to blindly apply to them principles intended to facilitate development or resolve disputes between private parties.
Armed with this knowledge, courts as well as nonprofit and government holders will be far better equipped to deal with the coming wave of enforcement cases in a manner that protects the public interest.
Posted by Jessica Ji, Associate Editor, Wealth Strategies Journal.