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© 2002 The Trust for Public Land Home Regions Programs Staff Details Appendix Conserving Land for People Enforcing Covenants Craig Lee Vice President The Trust For Public Land
© 2002 The Trust for Public Land Conserving Land for People 2
© 2002 The Trust for Public Land Conserving Land for People 3 TPL and Covenants 150 covenants, 2,500 transactions totaling 300,000 acres Helped establish over 150 land trusts during the 1980’s and 90’s Co-authored the “Conservation Easement Handbook” Increased use of Covenants in past 7 years
© 2002 The Trust for Public Land Conserving Land for People 4 Why Enforce Covenants Elements of Covenant Stewardship Legal Responsibility Helps Maintain Land Trust’s legal authority to enforce Engenders public confidence in your Covenant Program
© 2002 The Trust for Public Land Conserving Land for People 5 LTA’s Survey on Covenant Violations LTA’s US 1999 Conservation Easement Study surveyed 175 local and regional land trusts out of 1,300 (2 million acres total), 7,400 CES 7% have experienced violations
© 2002 The Trust for Public Land Conserving Land for People 6 LTA’s Survey ~ Key Findings 500 violations were reported –383 of which were considered minor 115 violations required significant amount of the trust’s resources for resolution –21 cases involved lawsuits –In each of these cases, the violator was not the original landowner Prohibited surface alterations was the most common major violation –Leveling ground for roads –Digging drainage ditches Cutting vegetation and Construction of prohibited structures are also frequent violations
© 2002 The Trust for Public Land Conserving Land for People 7 Most Frequent Violations in LTA’s Study
© 2002 The Trust for Public Land Conserving Land for People 8 Costs in Resolving Violations Major easement violations ranged $100,000 to $100 –Average cost for major violations was $10,000 –Staff costs from $100 - $28,000 –Associated costs range from $100 - $4,000 Litigated violations costs $5,000 to $100,000 –Average of $35,000
© 2002 The Trust for Public Land Conserving Land for People 9 Prepare for the Next Generation Risk of violation increases when covenants are transferred to 2 nd generation landowner In litigation cases –All were monitored, most annually –Landowner was aware of the terms of the covenant
© 2002 The Trust for Public Land Conserving Land for People 10 Making Policy Changes
© 2002 The Trust for Public Land Conserving Land for People 11 Recommendations for Better Enforcement Covenants must be carefully and clearly drafted Have policies and procedures in place before a violation occurs Regular, structured monitoring is essential, and contact with the landowner during monitoring visits is recommended Good landowner and community relations are critical Land trusts should have the financial resources to monitor, enforce and defend easements against violations Land trusts should consult experienced legal counsel as soon as a violation is discovered or suspected
© 2002 The Trust for Public Land Conserving Land for People 12 Lessons from the Whidbey Island Violation Though easement was sound, relationship with 2d generation owner was tenuous Survey the building envelope Keep diligent records of visits; put it in writing; operate more business-like Informality of relationship between land trust and land owner hurt LT’s case in court Find the right personality combination between your board and the owner “Equitable Relief” – to relocate the foundation, land trust was denied this but got the screening remediation Decision not to appeal the ruling– because LT negotiated a favorable remediation plan with the owner (vegetative screening) and the court costs were prohibitive ($15k for the lower court proceedings alone)
© 2002 The Trust for Public Land Conserving Land for People 13 Stewardship Endowment How to set an amount Who pays?
© 2002 The Trust for Public Land Conserving Land for People 14
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