A Tribute to Premier Environmental and Conservation Attorney, Robert J. Sugarman
Robert J. Sugarman, tireless advocate for conservation and longtime environmental and civil rights attorney, died June 28, 2008 at the age of 70. For more than a decade, through state and federal courts, including bankruptcy court, he defended the principle of the perpetual enforceability of a conservation easement in accordance with its terms.
Bob was one of Philadelphia’s and the country’s top environmental lawyers. A graduate of Harvard Law School, Bob Sugarman advocated for land preservation, but his concerns were not just about open space. He wanted to preserve the fabric of communities, historical landmarks and anything that would help people have better connections to the world they live in and have better lives.
Bob Sugarman represented the French and Pickering Creeks Conservation Trust in the landmark case of French and Pickering Creeks Conservation Trust v. Natale. The Natale case ended after nine years of litigation with the demolition, by court order, of the house built in violation of the conservation easement. The Natales had prior notice of the conservation easement and its restrictions and that the land trust took its obligations to uphold the conservation easement seriously.
In 1989, the Natales bought a farm subject to a conservation easement that limited construction to accessory farming structures. The land trust made many vigorous efforts to acquaint the Natales with the conservation easement provisions and even offered to buy back the land from them The Natales refused all offers of help to resolve the problem. They ignored the easement’s restrictions and the land trust’s commitment to enforce the easement. That same year, the Natales sought and received municipal approval to construct a 4,800-square-foot home on the property. The land trust filed suit and attempted to stop construction before building started, but the court refused to grant an injunction. Eventually, in 1993, the land trust won a ruling that declared construction of the house violated the easement. Still, the Natales refused to cooperate, declining the opportunity to remove the house intact from the land. Eventually demolition was the only remaining option and the house was destroyed in 1998. As late as 2001, the Natales were still pressing various harassment and due process claims against the land trust.
A simple conservation easement enforcement action turned into an epic decade-long litigation battle that the land trust ultimately won. However, winning in court does not always mean the end of the story The land trust is still seeking to recoup its litigation expenses by pressing its claims through the landowner’s bankruptcy proceedings.
See In Re Natale, 2006 U.S. Dist. LEXIS 21060 (E.D. Pa., 2006). See also Natale v. Schwartz, 1999 U.S. Dist. LEXIS 18933 (E.D. Pa., 1999) and Natale v. Schwartz, 151 F.Supp.2d 562 (E.D. Pa., 2001), in which a federal court dismissed alleged violations of 42 U.S.C. §§1983 and 1985 and related due process rights.
Bob Sugarman vigorously fought this case for a decade for substantially less than fair compensation because he believed so strongly in the permanence of land conservation. Although Bob provided considerable pro bono time, the land trust incurred almost $100,000 in court, legal, demolition and other costs. Despite court orders to the landowners to pay those costs, the land trust has yet to receive the money. The Natale case is still cited by many as a historic decision for land trusts from which we can learn many lessons.
- Sometimes land trusts will not be able to resolve disputes voluntarily no matter how hard they try.
- Be prepared for long, arduous and expensive litigation. It is prudent and necessary.
- Establish a legal defense fund or other fund sufficient to defend the land trust portfolio.
- Do not rely exclusively on recovering costs from the landowner or other parties to litigation. Courts do not always award costs even to the successful litigant and, when awarded, costs are often not recovered.
- Establish clear drafting standards for conservation easements.
- Develop and consistently implement a successor owner education and relationship building program.
- Connect with the larger conservation community so that help is readily available when the precedent-setting case arrives.
- Adopt a policy and procedures that allow the land trust to deal quickly with enforcement problems.
- Realize that others, including judges, may not understand conservation easements or may be philosophically opposed to conservation easements and plan accordingly.
- Land trust credibility and competence is on trial as much as the violation at issue; therefore implementing systems, policies and procedures that support the credibility of your land trust and your conservation easements is essential to litigation success.
- Remember that judges may be susceptible to local pressures and publicity. Provide them with cogent reasons to rule in your favor that decrease adverse publicity.
- Document in writing every conversation with the landowner while in an enforcement situation, preferably in a follow-up letter to the landowner or at least in notes for the file.
- Enforce violations consistently.
- Periodically audit the land trust’s policies and actions.
- Maintain regular contact with the landowner and community .