Contact: Russ Shay
Director of Public Policy
202-638-4725, ext. 305 | rshay@lta.org
WASHINGTON, D.C.-- Voluntary conservation of private land received a boost yesterday when President Obama mentioned the work of land trusts in his remarks introducing the landmark America’s Great Outdoors Report at a reception in the East Room of the White House. The collective voice of land trusts was reflected in the report, which proposes to extend the enhanced tax incentive for conservation easement donations beyond 2011, fully fund the Land and Water Conservation Fund (LWCF), and focus a portion of LWCF on innovative projects that support urban parks, community green spaces and large-scale land conservation.
Mr. Obama said that “at a time when America’s open spaces are controlled by a patchwork of groups, from government to land trusts to private citizens, it’s clear that conservation in the 21st century is going to take more than what we can do here in Washington…Meeting the new test of environmental stewardship means finding the best ideas at the grassroots level, it means helping states, communities and nonprofits protect their own resources, and it means figuring out how the federal government can be a better partner in those efforts.”
The report draws inspiration from hundreds of land trust participants at America’s Great Outdoors listening sessions around the country. “I am proud of the nation’s 1,700 land trusts for pioneering the voluntary conservation incentives and locally driven partnerships embraced in this report,” Land Trust Alliance President Rand Wentworth said. “This initiative will significantly reorient federal conservation efforts to emphasize working lands and to embrace local governments and land trusts as effective partners in conserving the places that give meaning to our lives.”
The report’s vision statement describes a future in which “Rural lands—our working farms, ranches and forests—are conserved and restored through local partnerships.” The president’s Fiscal Year 2012 Budget Request makes a down payment on that vision by providing $200 million for the Farm and Ranch Lands Protection Program and $900 million for the LWCF, some of which “will be competitively awarded to address priorities and leverage resources for urban parks and public-private conservation projects.”
In communities across America, nonprofit land trusts are working with private landowners to keep farm, ranch and forest lands in productive use, create community parks and open space, protect important fish and wildlife habitat, and conserve our scenic and historic heritage. With the help of more than 100,000 volunteers and 2 million members, land trusts have conserved more than 37 million acres, including more than 12 million acres protected by voluntary conservation agreements with private landowners.
The Land Trust Alliance is a national conservation group that works on behalf of America’s 1,700 land trusts to save the places people love by strengthening land conservation throughout America. The Alliance works to increase the pace and quality of conservation by advocating favorable tax policies, training land trusts in best practices and working to ensure the permanence of conservation in the face of continuing threats.
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]]>A State of Vermont superior court on a summary judgment motion by Vermont Land Trust found that it did not owe the neighbors any duty of care and therefore did not act negligently. In its opinion, the court stated that in Vermont a plaintiff must show four elements to prevail on a claim of common law negligence:
The neighbors claimed that failing to determine the correct property boundaries as part of the land trust’s conservation project breached a duty owed to them and all adjacent landowners. The land trust argued that it owed no legal duty to the neighbors and even if it did, that it had not breached that duty in preparing conservation maps.
The court quoted the Law of Torts to the effect that “whether a duty exists is a question of fairness that depends on, among other factors, the relationship of the parties, the nature of the risk and the public interest at stake.”
The court also quoted the disclaimers contained on the land trust map which state: “This map is not a survey and must not be construed as one.
The information imparted with this map is meant to assist the Vermont Land Trust, Inc. in their efforts to clearly depict property boundaries, describe the placement of certain retained, reserved or excluded rights and to calculate acreage figures. Property boundaries, while approximate, were established using the best available information which may include: surveys, tax maps, and field mapping using G.P.S. and/or orthophotos.”
The court also cited that the conserving landowner signed the map and indicated that he agreed with the depiction of the property boundaries. Finally the court found that no special relationship existed between the land trust and the neighbors, and that no link existed to connect the land trust to the timber trespass or to the neighbors.
The neighbors pressed their claim to an equitable resolution of the undeniable damage done to them by the undisputed timber trespass of the successor owner of the conserved land. Despite the fact that the successor owner of the conserved land apparently is judgment proof and had lost the conserved land to mortgage foreclosure prior to the summary judgment motions, the court did not construe this as a sufficient equity argument to impose payment of damages on the land trust.
The court granted the land trust summary judgment and dismissed the case against it.
The court also entered judgment against the successor owner of the conserved land in the amount of $30,479.75. This amount represented loss of timber value of almost $12,000 calculated using “mill value” or the value of the trees generally paid by a mill at the time they were taken. It also represented a loss of sugaring value of more than $4,000 since the trees were sugar maples. The remaining $14,000 were attorney fees and expert costs.
Because the neighbors sued the land trust for negligence, the organization’s general liability insurance policy covered the attorney and other costs in defending the case. The attorney selected by the insurance company to represent the land trust was competent and responsive to the land trust and its desire to set good precedent. If the land trust had funded the litigation from their Legal Defense Fund, Rick estimates that it would have cost in excess of $10,000. This case was underway at the same time that it was involved in Right of First Refusal litigation (to be covered in a future eNews), putting additional strain on the land trust’s resources and staff.
This case also involved many Vermont Land Trust staff in the discovery process. Although plaintiff’s counsel ultimately did not take any depositions, he did pursue written discovery and initiated the deposition process and identified at least 5 staff to be deposed. Discovery and deposition preparation disrupted the ordinary course of business at the organization and further disruptions would have occurred if the plaintiffs took depositions.
The land trust does not customarily obtain surveys for its conservation projects. The disclaimer on the map is critical because the organization relies on landowner descriptions of the boundary lines, title research, field work, GPS coordinates and orthophotos to create a compilation representation of the boundary lines. Since these maps are not surveys, the land trust has long had the practice of so noting in bold type on the face of the map.
Another lesson learned from this case was that the disclaimer needed to be on all maps even those contained in the Baseline Documentation Report showing features of the conserved land such as agricultural soils. Apparently the discovery process in this case revealed that the forester for the original owner of the conserved land might have used some of the BDR maps without the disclaimer to prepare his forest harvest map, although the forester did not exactly follow the land trust’s drawn lines.
As a general matter, land trusts need to understand and plan for minimizing the disruptive effect of litigation on their conservation efforts, and to educate staff, board members and volunteers about the basics of litigation procedures in order to allay concerns. Managing community perception of the land trust and assisting board members and staff to refrain from comment on litigation also are critical components of any land trust litigation. Experts strongly recommend that part of any land trust litigation procedures include appointment of a single spokesperson for the land trust. This allows for one clear message that has been approved by the board and the lawyers to be communicated without confusion from other sources and reduces the chance for damaging errors.
Superior Court decisions, motions and pleadings:
Contact: Andrew Zepp
607-275-9487
ITHACA, NY -- The Finger Lakes Land Trust announced today that it has received an unprecedented gift of land featuring 1,300 feet of pristine shoreline on Skaneateles Lake. The twenty acre property is located in the Town of Spafford and features steeply sloping woodlands overlooking the lake as well as a significant portion of the Staghorn Cliffs – a 100 foot escarpment that is well known for its scenic character and its abundant fossils.
The gift was made by Syracuse area resident David Dickinsonand his children: Thomas Dickinson, Scott Dickinson, Gary Dickinson, Laura Dickinson Maguire, and Hollis Dickinson Wilson. The land had been in their family for more than 50 years.
The Dickinson property is located in an area known as the Skaneateles Highlands – a mosaic of forest and agricultural lands that encompass the southern half of Skaneateles Lake. The Land Trust recently completed a conservation plan for the Highlands, which identified undeveloped shoreline as the highest priority for protection.
A year in the making, the Dickinson family’s donation to the Land Trust reflects their desire to keep the land in its natural condition. “That was our intention all along,” says David Dickinson. “My mother discovered the property. We wanted to retain the beauty of the cliffs and preserve the gorgeous south end of the lake in appreciation of her.”
“This is a tremendous gift,” says Land Trust Executive Director Andrew Zepp. “We’re grateful to the Dickinson family for their generosity and their commitment to the land.”
“The south end of Skaneateles Lake is truly magnificent,” adds Skaneateles resident and Land Trust board member Doug Sutherland. “This remarkable gift secures an outstanding stretch of that shoreline. We hope it becomes the cornerstone for additional land protection in the watershed.”
“The New York State Department of Environmental Conservation (NYSDEC) applauds the Dickinson family and the Finger Lakes Land Trust for the donation and preservation of shoreline in this important watershed,” adds NYSDEC Regional Director Ken Lynch. “We appreciate the efforts of such great partners in fostering the conservation of New York’s magnificent open space and natural resources.”
The acquisition of the Dickinson property is the sixth project completed by the Land Trust within the Skaneateles Lake Watershed. Previous projects include the acquisition of Carpenter’s Falls and the establishment of the High Vista Nature Preserve, as well as the acquisition of a conservation easement on more than 2,000 feet of frontage on Bear Swamp Creek – one of the largest tributaries to the lake.
During the coming year, the Land Trust will develop a management plan for this latest acquisition. In honor of David Dickinson’s mother, the property will be known as the Cora Kampfe Dickinson Conservation Area.
The organization is also continuing to pursue the protection of additional lands within the Skaneateles Lake Watershed and fundraising is underway to support these efforts and to cover costs associated with the long-term stewardship of the Dickinson property.
The Finger Lakes Land Trust was established in 1989 to work cooperatively with landowners and local communities to protect those lands that define the character of the region. To date, the organization has secured more than 12,000 acres of significant open space lands through direct acquisition as well as the use of conservation easements on lands that remain in private ownership. The Land Trust today owns and manages a network of 27 public conservation areas and holds and monitors 75 conservation easements. Additional information about the Land Trust may be obtained at www.fllt.org or by calling (607) 275-9487.
]]>The Massachusetts Land Court dismissed a law suit against The Trustees of Reservations (MA) brought by a neighbor to enforce a conservation restriction (Massachusetts name for conservation easement). The Court entered a final judgment ruling that the neighbor had no standing to enforce the conservation restriction.
“This case required a large investment in time by our staff and outside legal counsel,” explained Chris Rodstrom, Director of the Conservation Restriction Program at The Trustees of Reservations, “but by prevailing we’re now in a stronger position to deal with any other abutters to our 340 conservation restrictions that attempt to unduly influence our stewardship program.”
This decision has limited precedential value because it is a judgment in the Trial Court; nonetheless, it still is useful for any land trust dealing with a neighbor that is threatening a lawsuit. It may also have some value in other lower courts especially coupled with the Tallman decision to show how other courts have dealt with the issue.
The owner of the conserved land granted the conservation restriction in 2008 to the Trustees. The restrictions provided for a building envelope, access and utilities on the 36 acre property in a spot where a home and barn had previously stood. A year later, the land owner proposed to dismantle an existing historic home it owned elsewhere in town and move it into the building envelope. The neighbors, Frank and Jean Granara, objected alleging that the access would have to be widened to accommodate moving the house and would disturb 978 feet of bordering vegetated wetlands. The access driveway abuts the rear boundary of the Granaras’ home on a small lot.
The Trustees had reviewed and approved the landowner plans as consistent with the purposes of the restrictions. The Granaras sued the landowner, Stetson Kindred of America, Inc. for violating the restrictions and the Trustees for failing to enforce the restritions. The Granaras claimed that they personally benefit from the restrictions on the Stetson property since it increases their property values and therefore they have the right to enforce the restrictions. The Trustees countered that the Granaras’ lacked standing to sue and to enforce the restrictions and that in any event the contemplated actions are consistent with the restrictions. On joint motion of the parties, the court considered two issues: whether Stetson’s activities violate the restrictions and whether the Granaras have standing to enforce the restrictions.
The court held for the Trustees on all counts finding that only named holders in the restrictions have any right to enforce them.
“It helped to have a good conservation restriction stewardship program in place,” added Chris Rodstrom, “since we could demonstrate to the judge that our approval of the building was carefully considered and well documented.”
Elizabeth Tallman filed a case, (Tallman v. Outhouse, et. al.) against her neighbors, Mr. and Mrs. Outhouse, the owners of abutting property partially protected by a conservation easement, the Rockingham County Conservation District (conservation easement grantee) and the Society for the Protection of New Hampshire Forests (executory interest holder in the conservation easement). Ms. Tallman claimed she had a third party right to enforce the easement, and that the Conservation District and the Forest Society were failing to enforce the terms. She also asserted a right of unfettered access to the protected property, which the Court rejected, upholding the landowners' right to post against and to control public access. Essentially, she sought a ruling that conservation easement prevented her neighbors from building their home on land not encumbered by the easement, and that the easement prevented access to the residence site. Elizabeth Tallman asked the Court to order that, among other things, the easement precluded the construction of the house and access to it, and that the conservation restrictions also extended to the excluded 1.23 acres as a result of an equitable servitude.
The neighbor’s legal positions required the easement holders to vigorously oppose the assertion that abutters have legal standing to interpret or enforce easements, or to restrict or utilize easement land for their personal goals. There were other related disputes at issue in the lawsuit, but the critical matter for the Forest Society, and for the land conservation community as a whole, was the whether abutters or other third parties can sue to enforce conservation easements granted to land trusts, municipalities and state agencies. The New Hampshire statute that authorizes conservation easements does not include an express statement that only the holders of a conservation easement have legal standing or a right to sue to enforce the easement.
This was essentially a dispute between neighbors that escalated to include both easement holders. One of the neighbors had very nice land subject to an existing conservation easement. The complaining abutter tried to use the easement as a sword for her personal purposes against the wishes, interpretation, and authority of the easement holders. Voluntary settlement attempts proved fruitless. The court ruled explicitly that New Hampshire recognizes no third party right of enforcement, and further that the Outhouses’ plan to build a house on the unrestricted portion of their land cannot be viewed in any way as a violation of the easement. The court also acknowledged that the Outhouse’s use of the historic access route that crossed a small potion of the easement land was not a violation of the easement.
The Court found for the defendants on all counts and also held that the easement did not require open access to the general public. This is what the Conservation District and Forest Society sought from the court and is a very good result for the NH land trust community.