Conservation Easements: Amendments &Violations

Transcription

1 Conservation Easements: Amendments &Violations New Jersey Land Conservation Rally March 16, 2016 James Wyse, Coughlin Duffy LLP Judeth Yeany, Green Acres Program, DEP

2 Session Outline Introduction to Conservation Easement Violations (Why your stomach should be churning) LTA Standards The IRS qualification requirements Prevention & risk management Dealing with easement violations Roundtable discussion

3 Conservation Easement Violations

4 LTA Standards & Practices Enforcement of Easements. The land trust has a written policy and/or procedure detailing how it will respond to a potential violation of an easement, including the role of all parties involved (such as board members, volunteers, staff and partners) in any enforcement action. The land trust takes necessary and consistent steps to see that violations are resolved and has available, or has a strategy to secure, the financial and legal resources for enforcement and defense.

5 Prevention The most important part of conservation easement enforcement is preventing violations from occurring in the first place. Do everything you can to prevent violations or at least reduce their severity. One of the best prevention methods is a substantial and meaningful visit with the landowner on the land every year.

6 New Owners By far, most conservation easement violations are caused by successor owners

7 Meet & Greet Land Trusts have a responsibility to meet and educate new owners Pay attention to changes in ownership Personally meet every successor owner Help him or her understand your land trust Help him or her understand the conservation easement Instill appreciation of community conservation ethic Build strong relationships

8 Written Policy Your written violation policy and procedures will guide you through the difficulties of violation resolution Adopt a violation policy and procedure before your first violation As you learn more over time, you can refine your policy

9 Consistency Follow your organization s written violation policy Ensures fair and consistent treatment of all landowners Can still act flexibly and adapt to different circumstances policies do not need to be rigid Demonstrate that your organization consistently addresses and resolves easement violations

10 Plan Ahead When you need legal help, you may not have time to carefully select a litigator to represent you Interview attorneys in advance, before you need assistance Make sure your baseline is in good shape Document your monitoring visits Be smart with e-communications

11 So You Found a Violation Document the violation immediately Photos, measurements, field notes Talk with owner to discuss what you found Ask about physical facts without stating that what you identified might be a violation Choose your words carefully be inviting, not accusatory or critical

12 Evaluate Take a deep breath Alert appropriate staff Review your violation policy and procedure Read the conservation easement Check the baseline documentation & monitoring reports Identify the violations and the easement sections involved Evaluate the scope, severity & duration of the violation

13 Action Items Take another deep breath If you are insured for easement defense, contact the carrier Contact legal counsel and discuss Get advice on next steps to take & precautions for potential litigation Confirm assessment of nature of violation and severity; mitigating & aggravating factors Extra care if owner is an insider Clarify internal lines of authority

14 Consider Options Still breathing? Discuss among staff and counsel what alternatives exist to appropriately address the violation, considering its degree of severity If possible try to offer more than one resolution to the owner Most land trusts call or visit the owner before sending a certified letter even when the easement requires written notification Letters tend to harden resistance

15 Contact the Owner Take an extra deep breath Before you call, know the degree of flexibility you have in negotiating with the landowner. In the call: Acknowledge the landowner s goodwill and care for the land State that you value the relationship and want to work on this problem together Ask for his or her help Describe the land trust s concerns Explain where the conservation easement addresses the activity List the possible next steps and results the land trust would like to see Ask for his or her thoughts

16 Contact the Owner Avoid disproportionately severe and accusatory conversations The person designated to talk with the owner and propose a resolution should be a skilled negotiator Involve the owner in crafting the resolution (within limits) Say you will follow up with a confirming letter Communicate clearly and often Involve legal counsel in each step

17 Moving to Resolution Remember: punishment is not the goal The goal is to: uphold the conservation easement, resolve the violation, educate the landowner and maintain landowner goodwill to the greatest extent possible Once you have established formal communication about the violation, use negotiating and listening skills to bring the matter to a satisfactory resolution

18 Hardball If, despite best efforts, owner will not cooperate, then a formal notice of violation and request to halt the activity and restore the site is your next response Court action could be the first response to the discovery of a violation if: violation is severe enough there is major, irreparable damage occurring to a resource that is central to the conservation purpose of the easement

19 When to Go to the Mat It s an emergency You cannot prevent or avoid damage that is doing significant harm The organization s integrity is at stake Legal analysis concludes that your land trust is likely to prevail You are ready and able to manage media and public reaction The statute of limitations is about to expire You have the Godfather s Board s approval

20 Litigation No one wants or enjoys litigation (except the litigators) Litigation is costly very costly Case must be prepared thoroughly; don t take shortcuts Consider mediation options Organize relevant documentation Maintain attorney-client privilege Don t say stupid things in s and texts Maintain your integrity, and your cool

21 Case Examples

22 Questions and Discussion