Illinois Court Upholds Land Trust Right to Amend
On April 25, 2008, an Illinois appellate court decided that a land trust may amend a conservation easement without court approval, but also held that the amendment in that case was invalid because it conflicted with other provisions in the easement. The court went beyond requiring that any amendment uphold the purposes of the easement as required by the federal tax code. The court’s holding could mean that no amendment is permissible in Illinois -- even with court permission -- that would be inconsistent with an existing provision of the conservation easement.
Potentially, this holding could affect the ability to exchange certain rights for others that are consistent with the conservation easement purposes, but that also change certain provisions. The court opinion also may make the validity of any existing or future amendment questionable, or whether a court could even authorize an amendment under principles of charitable trust law.
The appellate court stated in its opinion that amendments do not automatically alter the perpetual nature of the purposes of a conservation easement. Rather, amendments address only the language of the legal document, which the court saw as not being protected in perpetuity. The court wrote, “Like the property’s ’conservation values,’ the easement’s ’conservation purposes’ being protected in perpetuity is not the same as the easement’s language being protected in perpetuity. It is possible that the conservation purposes of the easement could remain the same even if the language of the easement were substantially altered.”
The court also emphasized that the conservation easement drafters contemplated amendment because they included an amendment provision in the conservation easement. This point is an important practice for land trusts and attorneys to note. The court opinion does not address what it would have done if the easement was silent on amendments. A reader may infer, however, that the court opinion would likely have been different.
This case was brought by a neighbor to the conserved land who opposed the amendments. In most states, a neighbor would never have been able to bring this kind of action, but Illinois’ conservation easement enabling statute has a unique provision allowing any person who owns property within 500 feet of a conservation-easement-encumbered property to bring an action to enforce that easement. Furthermore, like a handful of other state enabling acts, the Illinois statute is silent on amendment, giving rise to one of the issues in this case.
To the best of our knowledge and that of the attorney for the land trust, this case is the only reported decision that deals directly with the question of whether, under state law, an easement may be amended. The ruling, therefore, might have significance as a precedent beyond Illinois. In the 1998 Maryland case of Myrtle Grove, the Maryland Attorney General intervened to oppose an amendment of a conservation easement on charitable trust grounds. That amendment had not yet been consummated.
The Bjork court also held that it was appropriate for the trial court to “exercise its discretion to balance the equities” to determine the remedies available to the plaintiffs. The plaintiffs had argued that the court has no such discretion if an easement is violated.
The court did not address public policy issues, federal tax code issues, state enabling act issues or the charitable trust doctrine in its opinion. It relied entirely on the plain language of the conservation easement and on accepted principles of deed and contract law.
The plaintiffs have filed a petition for rehearing on the issue of the court’s discretion to determine remedies. The land trust plans to file a petition for rehearing and seek leave to appeal to the Illinois Supreme Court on the question of the validity of the easement amendment.
For more information, see:
- the appellate court decision;
- a case summary of the trial court decision prepared by Rob Levin, Esquire;
- a case summary prepared by Julia Magnus, Esquire.