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Conservation Easements: Common Stewardship Scenarios and
Easement Interpretation
Second Connecticut Lake from MagallowayFire Tower
Contact Information
• Reagan Bissonnette, Director of Easement Stewardship, Society for the Protection of NH Forests,224-‐9945, [email protected]
• Paul Gagnon, Conservation Easement Steward, Society for the Protection of NH Forests, 224-‐9945, [email protected]
• Martha Sunderland, Henniker Conservation Commission & Piscataquog Land Conservancy Board of Trustees, 428-‐3735, [email protected]
Introduction
• Who are the parties?• Common conservation easement sections• Role of Conservation Commissions• Baseline documentation reports• Monitoring responsibilities
Easement Parties
• Landowner• Easement Holder• Executory Interest Holder
Conservation Commissions, though their towns, may be involved in any of these capacities
Common Easement Sections
• Purposes• Use limitations• Reserved rights• Resolution of disagreements• Breach of easement• Extinguishment & condemnation• Amendment
Conservation Commission Role in Easement Process
• Initiate easement process:– CC acts as Information resource for private easements– CC acts as lead for easements on public/town owned land or land donations to town
• Follow through:– Funding, Easement Language, Survey and Baseline documentation
• Long Term:– Maintenance, Annual monitoring, Conflict resolution
Baseline Documentation ReportsExample with Minimal Content
Land Types: Total acreage: 74.7 acres 95% Forestland 5 % Wetland
Buildings, Structures, & Improvements on Property:• Describe size, type, and condition of buildings, structures and improvements, include historical, cultural features. • There were a number of wooden dwelling and animal husbandry structures on the western portion of the
property (town lot 47). They were torn down prior to the easement. Presently there are no structures on the property. There are 5 piles of untreated wood which remain (Photos 7, 10 and 11). The plan is to burn 4 of the piles during the coming winter. The last pile is small, remote and close to the ground (photo 11). There is an ATV trail which crosses the south eastern section of the property (lot 50) upon what appears to be an old road bed. There are old woods roads on the western section of the property which served the prior residential uses. The old roads on the western tract will be blocked with boulders once the burning has taken place. There is a very small area which was an old bottle and can dump which is mostly cleaned up.
Condition of Land:• Describe condition and management status of forest or farmland, condition of wetlands or waterways, unusual
features, listed species or natural communities; note erosion, gravel pits, dumping or pollution.• This easement encompasses three town tax lots; lot 47 on the western side of Warner Road and lots 48 and 50 on
the eastern side of the road as surveyed May 2012. Lot 48 is also known to the town as the Preston Memorial Forest. The property has a variety of attributes including: numerous rock formations and outcrops; the western tract includes 750 feet of frontage on both sides of Brown Brook which leads into a large wetland which extends from the property onto adjacent land, a shrub and forested wetland exists along the road on the eastern sections of the property; numerous vernal pools are present throughout the property. The forest is of varied composition. There is a mature red oak / white pine component on much of the eastern side, a red pine stand exists near the ATV trail, the western tract is mixed hardwood and softwood.
• The property has about 4,500 feet of scenic road frontage along Warner Road. There is abundant wildlife on the property including deer, moose, porcupine, coyote, beaver, and nesting raptors.
Baseline Documentation ReportsTypical Contents
• Property Information• Property History• Property Description and Conservation Attributes• Current Condition• Attachments
– Maps– NH Natural Heritage Bureau Report– Hazardous Waste Review– Survey Plan– Photographs– Legal Information– Preparer Resume
Monitoring ResponsibilitiesEnsure that the terms of the Conservation Easement are upheld.
• Understand the conservation easement—its purposes, terms, restrictions, and reserved rights.
• Understand the extent of the property boundaries.• Understand the condition of the property BEFORE the easement existed
(through the Baseline Documentation Report).• Monitor the property yearly (more often if needed). Monitoring activities
should be sufficient to reasonably rule out (or discover) easement violations.
• Keep in regular contact with the owner(s) of the property. • Where violations or problems exist, ensure they are resolved in a manner
consistent with the terms of the easement.• Follow up and confirm resolutions to violations, major reserved rights
actions, and other processes. • Engage professional and advisory services and agencies as necessary to
accomplish your task. • Thoroughly document your activities and correspondence. Secure your
documents.
Monitoring ResponsibilitiesWhat you are not responsible for:
• Activities, however objectionable, that are not in conflict with the terms of the easement. Don’t stretch or shrink the terms of the easement.
• Enforcing against a condition that existed before the easement was created, as documented in the BDR or through some other proof. Note the difference between “a use” and “a condition.”
• Enforcing against activities that have a de minimis impact to the conservation attributes of the property (and do not confer private benefit, ex. the beer can thrown over the wall).
• Activities that occur (and remain) outside the area of land protected by the conservation easement.
• Managing the property for the landowner (in most cases).
Sample Hypotheticals
• Violation• Request for substantive change• Amendments• Orphaned easement
Violation -‐ Farnum Hill
2007 vs 2008
Request for Substantive Change• Town of North Hampton -‐ Lamprey Field– Placement of barn in open field– Complaint by neighbor reviewed by Attorney General’s Charitable Trusts Unit
• Duties owed by CE holders:– Duty of loyalty– Duty of obedience– Duty of care
• Article at http://www.nhacc.org/files/5214/4070/9418/NHACC_Article_08272015_RB.pdf
Amendments• AG Amendment Guidelines + Amendment Policy of easement holder govern process
• Amendment provision in easement • Risk Levels: – Low risk (ex. scrivener’s errors); requires AG notice– More risk (ex. tradeoffs); requires AG approval – High risk (ex. extinguishment); requires court approval
• AG Guidelines at http://doj.nh.gov/charitable-‐trusts/documents/conservation-‐easements-‐guidelines.pdf
Orphaned Easements
• Results when easement holder abandons its monitoring and enforcement responsibilities or holder dissolves
• Report to AG as soon as possible
Resources• Land Trust Alliance Learning Center: www.learningcenter.lta.org
• NH Land Trusts Map: http://extension.unh.edu/resources/files/Resource004474_Rep6377.pdf
• Good Forestry in the Granite State: http://extension.unh.edu/goodforestry/
• UNH Cooperative Extension: http://extension.unh.edu/• Boundary Marking: https://extension.unh.edu/resources/files/Resource000244_Rep263.pdf
