© 2002 The Trust for Public Land

Home Regions Programs Staff Details Appendix

Conserving Land for People

Enforcing CovenantsEnforcing Covenants

Craig Lee

Vice President

The Trust For Public Land

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Conserving Land for

People

3© 2002 The Trust for Public Land

Conserving Land for

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TPL and CovenantsTPL 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

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Why Enforce Covenants 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

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LTA’s Survey on Covenant ViolationsLTA’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

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LTA’s Survey ~ Key FindingsLTA’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

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Most Frequent Violations in LTA’s StudyMost Frequent Violations in LTA’s Study

0

5

10

15

20

25

30

35

1st Qtr

Surface alteration

Cutting vegetaton

Prohibited structures

Timber harvest

Alteration ofwetlands/watercoursesCommercial activity

Dumping of waste

Subdivision

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Costs in Resolving ViolationsCosts 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

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Prepare for the Next Generation Prepare for the Next Generation • Risk of violation increases when

covenants are transferred to 2nd generation landowner

• In litigation cases– All were monitored, most annually– Landowner was aware of the terms of the

covenant

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Making Policy ChangesMaking Policy Changes

Clarify easement documentsImprove landowner communicationsStrengthen monitoring standardsCreate/ improve easement acquisition policiesCreate violation policy/resolution proceduresCreate amendment policy

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Recommendations for Better EnforcementRecommendations 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

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Lessons from the Whidbey Island ViolationLessons 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)

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Conserving Land for

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Stewardship EndowmentStewardship Endowment

• How to set an amount

• Who pays?

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Conserving Land for

People