Heroic Defense of the Land and Ethics

“We have a duty and we couldn’t shirk it,” Lyme Land Conservation Trust (CT) Executive Director George Moore told the reporters.  Faced with a violation, the land trust sued. The judge awarded the land trust $650,000 for legal fees and ordered restoration of the property, finding the successor landowner was “… willful and caused great damage to the protected area’s natural condition.”

Great Teamwork

In the lawsuit, the land trust argued that successor owner Beverly Platner had seriously damaged the conserved natural land by tearing out native shrubs and grasses, adding 30 truckloads of fill, planting commercial lawns, installing an irrigation system, moving the driveway onto the conserved meadow and changing the natural forest into a park. The Connecticut Attorney General's office intervened in the matter to "protect the public interest". Given the importance of this case to the state’s goal of conserving vital natural resources, he put the legal weight of his office behind the case to uphold the conservation restriction.

Connecticut attorneys see the state’s damages statute as the most pro-conservation in the nation. One especially useful feature is the pre-judgement lien that a land trust can obtain before trial if it can show damage and likelihood of prevailing. This allows the land trust to put a lien on the property before the trial for the full allowable damages award and has successfully spurred speedy settlement in some cases. The land trust must prove its case, however, to have the court allow the pre-judgment lien.

The damages award is based on a 2006 statute (section 52-560a(d), erroneously cited in the opinion as 52-5602(d), that allowed a court to award damages of up to five times the cost of the property restoration.  Here, the court found that restoration would cost approximately $100,000 and multiplied that estimate by 3.5 to reach a damage figure of $350,000.

Read the judge’s decision on damages and attorneys fees and the republished and augmented original decision in Lyme Land Conservation Trust, Inc. v. Platner, No. KNL-CV-09-6001607-S, 2010 Conn. Super. LEXIS 1571 (Super. Ct. Conn. Jud. Dist. New London June 24, 2010)(Lyme I); 2013 WL 3625348 (Super. Ct. Conn. Jud. Dist. New London May 29, 2013)(Lyme II); (Super. Ct. Conn. Jud. Dist. New London March 12, 2015)(Lyme III)(Bench Decision on declaratory judgment); (Super. Ct. Conn. Jud. Dist. New London March 26, 2015)(Decision on damages and attorney fees)(Lyme IV).

Damages Awarded

The judge applied a 3.5 multiplier to damages (he could have gone as high as 5 times under the damages statute). He applied the multiplier to his estimate of the total cost ($100,000) that the owners were likely to incur in restoring their property to its condition at the time they bought it. Hence, he awarded damages to the Land Trust of $350,000.

He also awarded attorneys’ fees, costs and expenses totaling $300,000 for a total award of $650,000. Of that $300,000, approximately $74,000 will come to the land trust to compensate it for attorneys’ fees it paid and for certain other out-of-pocket expenses it incurred in connection with the case.  Thus the total amount to be received by the land trust will come to $424,000. The balance goes to the attorneys representing the land trust.

The decision is subject to appeal.  Moreover, Mrs. Platner’s lawyers have filed a motion before the trial judge for reargument of certain aspects of his opinion. Mrs. Platner will have 30 days from the judge’s decision on this motion within which to file a notice of appeal.

The judge also scheduled a hearing for May 27, 2015 to consider and rule upon the best means for restoring the property in accordance with his order. The land trust will be filing a judgment lien on Mrs. Platner's property to secure performance of her financial obligations under the judge's decision. He has retained jurisdiction in order to oversee this process.

Background

In 1981, the land trust accepted a conservation easement over a residential property. In 2007, Beverly Platner purchased the protected property. Soon after, Mrs. Platner destroyed a natural meadow, converting it to a highly-manicured, golf-course-like mowed and irrigated, residential lawn with ornamental plantings. They added 37 dump truck loads of topsoil and hydroseedee with residential lawn type grasses. After several years of applying fertilizers six or seven times a year as well as frequent applications of herbicides, fungicides and pesticides, the turf was so thick that broad leaf weeds had trouble penetrating it according to testimony at the trial.  

The landscaper planted approximately over 1000 exotic ornamental plants costing approximately $65,000 on the conserved land.  He also planted 36,000 daffodils costing more than $26,000. Mrs. Platner converted a forest to a manicured park devoid of understory and woody debris. Finally Mrs. Platner’s contractor created a sand beach on the river with 22.5 tons of imported sand and moved their driveway onto part of the conserved land. Pictures after the conversion of the natural meadow are included in the Attorney General’s presentation.

The property borders the Connecticut River in the Town of Lyme and also borders Selden Creek and Selden Cove. Aerial photographs depict the property as it existed about the time the defendants became owners of the property in 2007. It is apparent that the protected areas were then quite different from the areas not subject to the restrictions.

[Note: There was no evidence at the trial as to the conservation attributes of the natural land prior to its conversion into a residential landscape.]  

After two years of attempts to resolve the matter voluntarily, the land trust filed suit in 2009, seeking a declaratory judgment that the landscaping activities violated the easement. Mrs. Platner claimed that the easement was unclear or invalid. Another issue raised by Mrs. Platner was that in the easement, the Land Trust was identified only as “Lyme Conservation Trust,” omitting the word “Land” from its name.  Her attorneys filed a motion to dismiss for lack of standing because the name on the conservation easement was different from the land trust’s formal corporate name. Title insurance coverage would have helped the land trust first avert this problem by having a thorough title check, and if still missed, would have defended at least this part of the case.

In January 2013 the Connecticut Attorney General moved to intervene in the case in support of the land trust, and the landowner opposed. In Lyme I, based on evidence presented by the land trust that it was the same entity named in the conservation easement, the court denied the motion to dismiss on standing ground, but reserved for trial whether the land trust is in fact the holder of the easement.

In Lyme II, the court ruled that the Attorney General could intervene by right, because it had authority to initiate an enforcement action under Connecticut’s conservation easement enabling statute. Furthermore, the court found that the Attorney General’s intervention would be consistent with its rights under a separate statute to represent the public interest with respect to charitable gifts and charitable trusts.

In Lyme III, the court ruled in an oral bench decision that the easement was valid and unambiguous in prohibiting the lawn and related landscaping activities. The court ordered restoration of the lawn to its previous natural condition.

In Lyme IV, the court awarded the land trust damages and legal fees of $650,000, based on a finding that Platner’s actions were willful and caused great damage to the protected area's natural condition. The court restated and corrected its bench opinion from Lyme III and merged the opinion into the damages decision.

During the course of the ongoing legal battle, Mrs. Platner filed a separate suit for defamation against the land trust and its then President, but the case was resolved in a confidential settlement. The land trust’s insurance carrier for its Directors and Officers coverage paid for the defense of the defamation matter. As for Lyme I, the lesson for other land trusts is to make sure that it has filed an “assumed name” or “doing business as” form with the state whenever an alternate name is used.

The ruling in Lyme II on the Attorney General’s right to intervene is noteworthy, for the issue is likely to arise in other jurisdictions. See Windham Land Trust v. Jeffords for an earlier cases in Maine dealing with Attorney General intervention.

The ruling in Lyme II was based largely on the fact that Connecticut’s conservation easement enabling statute grants authority to the Attorney General to initiate conservation easement enforcement actions to protect the public interest. The underlying rationale also points to the more general statute governing the Attorney General’s authority to protect the public’s interest generally.

Just about every state has a similar statute so the argument for Attorney General standing to intervene could apply.

Lessons Learned

• Be a well-regarded member of your community
• Be engaged with the people in your town
• Be a great communicator
• Have title insurance
• Have solid documentation when you acquire land or easements
• Prepare detailed baseline reports, including photographs of the land, at the time of acquisition.
• Visit the property at least every year and document it appropriately
• Engage new owners immediately to become invested in great stewardship
• Act promptly when landowners clearly do not cooperate and document that
• Persist
• Act proportionally to the severity of the damage
• Have dedicated competent professional lawyers and experts
• If your attorney general supports conservation and is willing to work with you, consider engaging assistance from that office
• Invest in the right kind and amount of insurance! General liability, directors and officers (with employment practices if you have employees), title, volunteer, and Terrafirma insurance all are part of a prudent risk sharing package.