Over the past two years, the Office of the Maine Attorney General has upheld the continued existence of a conservation easement that a landowner had sought to terminate.
The conservation easement protects a 13-acre stream corridor on a parcel in the Town of Buckfield. The easement had been granted to the Town by a previous landowner in 2003 as one of the conditions of a subdivision approval by the Town. But only one lot of the subdivision was sold, and the remainder of the lots was purchased by the current landowner in 2005. Thus, in 2006 the Town revoked the subdivision approval at the current landowner’s request. In 2011 the landowner enrolled part of her land, including the conservation easement protected property, in Tree Growth and commissioned a forest management plan for this area. The landowner then sought the Town’s consent to terminate the conservation easement, declaring that the forest management plan would uphold the conservation values of the property, and the easement was no longer needed, especially because the subdivision had never been built. The Town approved the termination request in a special town meeting in December 2012. If the story had ended there, the easement would likely have been terminated and no one in the land conservation community would have even heard about the incident.
However, since 2007 the Maine Conservation Easement Act has required judicial approval of any conservation easement termination. Furthermore, the Maine Attorney General must be made a party in such an action. Thus, the landowner wrote the Attorney General in February 2013 to obtain its consent to the termination. Amy Mills, an Assistant Attorney General at the time, replied by a letter stating that the Office would not support the termination. Mills wrote that even though the easement had been created out of a subdivision approval process, “it does not necessarily follow that the foregoing conservation values of the protected property no longer persist in the absence of development of an adjacent subdivision.” Mills then referred to the provision of the statute requiring judicial approval for termination.
In January 2014 the landowner filed suit in District Court and named the Town and the Attorney General as respondents. The Attorney General successfully moved to remove the case to Superior Court, and continued to oppose the termination. Eventually, Lauren Parker, an Assistant Attorney General who succeeded Mills, entered into discussions with the Town’s attorney and the landowner’s attorney, and the parties reached a stipulated dismissal by which the landowner essentially agreed to drop her request for termination of the easement. The parties are still awaiting the court’s adoption of the dismissal, but that is expected to be a mere formality.
In my view, the process unfolded exactly as it should have, and the Office of the Attorney General should be applauded for its efforts. Given that conservation easements are intended to last in perpetuity, it should be very difficult for a conservation easement to be terminated. Requiring court approval and Attorney General involvement ensures that an ill-considered termination will not occur. This will not be the last time the Attorney General will have to step in to protect a conservation easement. In fact, right now an upscale retirement residential facility in the Town of Scarborough is seeking to terminate a conservation easement in order to expand its campus by another 52 units. See this Bangor Daily News article for more information.
The land trust community is oh so close to achieving one of its key policy goals of the past several years: the permanent extension of the conservation easement enhanced income tax incentives. This provision is part of a larger bundle of charity-related extensions included in the America Gives More Act (H.R.4719) that was passed by the House of Representatives in the fall. And the charity-related extensions are part of a larger “tax extenders” bill under negotiation in the House, Senate, and the White House.
The Land Trust Alliance is urging conservationists to meet with and contact their Senators to urge passage of this bill. For more information on how to lend a quick hand to the effort, see the Alliance’s policy page. Both Senator Collins and Senator King have co-sponsored a bill that would make the easement incentives permanent, but they need to hear from us about how important it is that this occur by the end of the year. Collins can be reached at (202) 224-2523 and King can be reached at (202) 224-5344.
I send E-Bulletins 3 or 4 times per year to provide updates and analyses on legal and policy matters respecting Maine land conservation. I do my best to keep my messages brief, timely, and useful to conservation-minded landowners, as well as land trust professionals and volunteers. At the same time, no one should rely on these E-Bulletins as legal advice, and I encourage you to consult a qualified attorney for advice on any particular situation.
If you find this free E-Bulletin to be valuable and interesting, please forward it to a friend or colleague. Subscriptions remain free, and I respect my subscribers’ privacy.