A case is winding its way through the Maine court system that will have state and national implications for who has standing to enforce a conservation easement. The Cumberland County Superior Court recently ruled that a landowner subject to one geographic portion of a conservation easement protected property does not have standing to sue to enforce that easement as it pertains to a separate area of the protected property owned by another landowner. Woodworth v. Chebeague & Cumberland Land Trust, No. CUMSCCV-14-523 (Me. Super. Ct., Cum. Cnty. May 5, 2015)(Mills, J.)(available online here by typing “Woodworth” in plaintiff line). However, the plaintiff has appealed, and the matter will now go before the Maine Supreme Court.
Here’s the background: In 1997, Marion Payson donated a conservation easement on 100 acres of coastal land in the Town of Cumberland to the Chebeague & Cumberland Land Trust (CCLT). The easement allowed for numerous building lots, and for unlimited subdivision. In June 2014, the Payson heirs agreed to sell the bulk of the protected property to a developer, and the family retained only a 2-acre parcel. Between locking down the property under contract and the closing, the developer (unbeknownst to the Payson heirs) worked out a deal to sell the Town a 25-acre portion of the protected property for $3 million. The Town proceeded with plans to develop a beachfront park, including an access road, parking area, and a pier, as the Town had been seeking public beach and shore access for many years. Meanwhile, CCLT determined that the road, parking area and recreational structures would not violate the conservation easement. Cumberland voters narrowly approved the beach park purchase in November 2014. The Payson family (acting through the Estate of Merrill Robbins, the record owner of the 2 acres) objected to the sale to the Town and filed suit against CCLT and the Town in December, claiming that the public park would violate the conservation easement.
The Town and CCLT filed motions to dismiss for lack of standing. In particular, they argued that the Estate had no standing because it didn’t own the shorefront and roadway to be developed into the beach park. Maine’s conservation easement act confers standing on “an owner of an interest in the real property burdened by the easement.” 33 M.R.S. § 478(1)(C). Generally, this is a straightforward matter because most conservation easements prohibit division of the protected property, and so there is only one landowner. But what happens if a conservation easement is originally granted by multiple landowners over separately owned parcels, or if the easement allows later division of the protected property? Can any one of those landowners bring an action to enforce the conservation easement as it pertains to another landowner (i.e., a broad reading of the statute)? Or does the landowner have standing only with respect to her portion of the protected property (i.e., a narrow reading of the statute)?
This is a novel issue in Maine and in just about every state. The only Maine conservation easement standing case is Cluff Miller v. Gallop, No. YORSC-2003-022 (York Cnty. Super. Ct. July 8, 2003)(Fritzsche, J.), where the Superior Court ruled that an abutter does not have standing to enforce a conservation easement. Meanwhile, in the only case that is directly on point, a Connecticut trial court judge in McEvoy v. Palumbo, 52 Conn. L. Rptr. 745 (Conn. Super. Ct. Nov. 16, 2011) held that a landowner who owned a portion of a protected property did not have standing to enforce the conservation easement as it pertained to another landowner’s portion of the protected property.
In Woodworth, Justice Mills found that the phrase “owner of an interest in the real property burdened by the easement” is ambiguous, insofar as it could reasonably be interpreted to mean either the broad reading or the narrow reading. However, the court went on to conclude that the underlying policy and legislative intent of the Maine conservation easement enabling statute supports the narrower reading. In particular, she noted that the Maine comment to this provision suggests a particular emphasis on narrowing the range of parties having standing. In turn, the relevant Uniform Conservation Easement Act (UCEA) comment implies the intent to ensure that a landowner can hold an easement holder accountable with respect to affirmative obligations owed to that landowner, and not generally to all landowners under the easement. Next, Justice Mills cited McEvoy and a Massachusetts case limiting conservation easement standing. She also noted that from a policy perspective, standing in this context is not needed because the Attorney General has standing under Maine’s statute in the event that a holder fails to enforce a clear violation. Finally, she rejected standing on a “special interest” theory because Maine’s enabling statute expressly omits the UCEA provision granting standing to “a person authorized by other law.”
In my view, Justice Mills’ opinion is well reasoned and clearly written. However, the Office of the Maine Attorney General has signaled its intent to file an amicus brief in support of the landowners on appeal. Although the AG will take no position on the merits of the landowners’ argument about the correct interpretation of the conservation easement, the AG apparently disagrees with the trial court on the standing issue.
From a policy perspective, I think Justice Mills reaches the right outcome because on the whole, neighbors’ attempts to enforce easements are usually not due to irresponsible land trust holders, but rather to overzealous neighbors. In other words, for every occasional instance where a neighbor might bravely and rightly try to hold a lax land trust to account, there are nine other times where the neighbor is simply unhappy about a land trust’s reasonable interpretation of its easement. Although the neighbor in this case was not just any neighbor, and held an interest in a portion of the easement, the same basic dynamics apply. Therefore, the Maine Supreme Court should affirm this decision.
Unfortunately, the Land For Maine’s Future program remains in limbo due to the antics of our Governor. I wrote in March about how Governor LePage is refusing to release LMF bond funds unless the Legislature yielded to his aggressive timber cutting policies on Public Reserved Lands. In June, the Legislature approved by over a two-thirds vote LD 1378, as amended, a bill that would require the Governor to release voter-approved bonds unless there are legitimate, objective reasons for holding them. The Governor is expected to veto the bill any day now, and then it will return to the Legislature for a possible override. The Senate vote was 26 to 9 in favor, enough of a cushion to afford the loss of a few Republican votes. But the House vote was 102 to 48 in favor, and if only 3 Republicans bail on the bill and choose to support the Governor, the bill will fail. Thus, if you live in a district represented by a Republican House Representative or Senator, it’s critical that you speak up and tell him/her that you’re paying close attention to the override vote and would like to see this bill passed. To see how your senator and representative voted the first time around click here and here. Representatives who voted Yes voted in support of the bill. The vote in the Senate was on whether or not to kill the bill; Senators who voted No voted against killing the bill. (Hat tip to Maine Audubon for providing this information.)
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.