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Update - June 2001:

CONSERVATION EASEMENT BILL IN PENNSYLVANIA LEGISLATURE

H.R. 975 Would Cancel Traditional Protections for Private Property, Allow Third Parties to Enforce Conservation Easements
By Carol W. LaGrasse

A bill providing for conservation easements has been moving unopposed through the Pennsylvania Legislature. The bill, which is in the General Assembly as H. R. 975, would legalize certain abuses of traditional private property rights and contract law that are prohibited by traditional American law, or common law, but are essential to the successful operation of conservation easements.

One of the most powerful clauses in the bill would allow third parties to enforce conservation and preservation easements. This means that whether or not a not-profit organization is the actual land trust that holds the easement that restricts the use of the private property, that outside organization can go to court to stop a use of the property that could be prohibited by the easement.

The bill would therefore allow third parties to go to court even if the parties to the easement, including government holders of easements, were perfectly happy that the terms of the easement were being satisfied. The potential burden to private property owners is great, as conservation easements are being widely acquired by not-profit land trusts and government. In Pennsylvania, land trusts are claiming that the conservation easements being bought under the federal Forest Legacy Program can not be enforced by outside parties. But if the law goes into effect, whether before or after the easement is acquired, not-profit organizations will be able to go to court and sue private property owners to stop use of their property.

Since conservation easements are often written nebulously, and therefore hard to interpret, such conservation easement laws are setting the stage for even more litigation and instability of property rights than exists now in states like Pennsylvania, where only the entity that owns the easement can currently bring a lawsuit to enforce the preservation document.

The outcome of nine years of litigation in Chester County, Pennsylvania, points to the instability of private property rights on land subject conservation easements even under current Pennsylvania law. Augustine Natale purchased farmland in 1989. When he was about to build a farmhouse, he was sued by the French and Pickering Creeks Conservation Trust, the holder of a conservation easement attached to his land before he bought it. When the land trust lost in the lower court, Mr. Natale went ahead and built his long-dreamed-of farmhouse. But even though the lower court held that the conservation easement was not clear enough to stop the use of the land for a farmhouse, that court was reversed, and in 1998, the elderly, broken-hearted farmer stood by while the farmhouse was crushed down to rubble to carry out a final court order.

Under the bill currently pending in the legislature, the actual conservation easement would not have to mention that third parties are able to enforce the easement. To solve the problem of third party enforcement, it has been proposed that a positive clause be inserted into an easement stating that it is enforceable only by the parties to the easement, but it is unclear whether such a clause would survive litigation if the conservation easement bill became law.

The Pennsylvania conservation easement bill is modeled after the "Uniform Conservation Easement Law," which was ramrodded through the National Conference of Commissioners on Uniform State Laws in 1981 over the concerns of states with strong coal mining interests. In one form or another, the uniform bill has been silently maneuvered through many state legislatures in the two decades since, but not every state has yet passed the bill.

A number of historic protections exist that, in the absence of the uniform law, would prevent conservation easements from being enforced in court. Basically, common law rulings, based on principles of equity and the importance of private property and clear title, serve to stop untraditional, negative encumbrances on private land. It is very important to the land trusts that these common law protections be eliminated, which is why the two-decade effort to pass the Uniform Conservation Easement Law continues unabated, even in coal mining regions. Along with proposing to cancel the traditional prohibition against enforcement of contracts by outside parties, the conservation easement law proposed in Pennsylvania follows the uniform law by proposing to cancel the other classical common law protections and substitute the new "right" to make perpetual negative encumbrances on land that are nearly impossible to undo.

Coal mining interests have a special clause in the Pennsylvania bill that is designed to protect them. Timber and farming interests have apparently not gotten involved in the framing of the bill, and, thus far, are out in the cold. It would be a blow to ordinary private property owners, who do not have the lobbying clout of industry groups, for several major interests to obtain special amendments that seemed to protect them and caused them to drop any opposition that they may develop to the bill.

The Pennsylvania conservation easement bill, H. R. 975, is accessible over the web at:

www.legis.state.pa.us

Other information about contacting a member of the legislature is also posted there.

Pennsylvania citizens who would like to preserve property rights should vehemently oppose any legislation that is designed to diminish not only the future of private property rights, but to diminish private property ownership itself.

At the wise use conference in Reno, Nevada, in 1999, James Burling, Senior Counsel at Pacific legal Foundation in Sacramento, California, succinctly summed up the threat of conservation easements:

"Conservation easements work by splitting an estate in real property and throwing one of these parts into the dustbin of history."

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