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Bar News - September 16, 2015


Environmental, Telecomm, Utilities & Energy Law: AG Reviews Complaint of Conservation Easement Violation

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Report Offers Lessons for Conservation Easement Holders

Do you advise holders of conservation easements, such as land conservation nonprofits, municipalities and their conservation commissions, or conservation districts? Are you familiar with the process the Charitable Trusts Unit (CTU) of the Office of the NH Attorney General – which is responsible for the oversight of donated conservation easements as charitable trusts – uses to review complaints of conservation easement violations?

The NH Attorney General recently issued a report in response to a complaint of a potential conservation easement violation. The report is instructive because it highlights steps conservation easement holders can take to uphold their fiduciary duties with respect to their easements. This article provides an overview of the situation and the CTU’s conclusion, then outlines key lessons for conservation easement holders.

Facts: The Town of North Hampton Conservation Commission holds a donated conservation easement on property known as Lamprey Field. The three purposes of the easement are, to retain open space, protect the salt marsh, and preserve scenic enjoyment of the salt marsh and farm land from two public roads. The easement prohibits commercial activities except for agriculture, which must not materially impair the scenic quality of the property viewed from public roads. Barns are permitted as necessary to support agriculture if sited to have minimal impact upon scenic views from public roads.

The landowners obtained a permit in October 2013 to move a barn from an adjoining lot onto a new concrete foundation built on the easement property at a high spot visible from a public road. The barn was moved around September 2014. A neighbor complained to the CTU in October 2014 that the relocation violated the terms of the easement.

The Conservation Commission became aware of the planned barn relocation in June 2014, and the commission chair apparently stated at that time that agricultural uses and barns were permitted. Then in December 2014, the Conservation Commission formally considered the barn relocation at a meeting where the neighbor had an opportunity to speak. The Conservation Commission subsequently consulted with the town administrator and town counsel, held a site walk on the property, and discussed and voted on the matter in March 2015. The Conservation Commission considered a number of factors, including alternative location options for the barn and the fact that protected views are subject to change on a working farm. The Conservation Commission ultimately voted that the barn relocation did not violate the terms of the conservation easement.

Attorney General Review: The CTU limited its review to the fiduciary duties the Conservation Commission owes as the holder of the conservation easement. The CTU outlined three fiduciary duties owed by holders of charitable trusts as they apply to holders of conservation easements.

First, under the duty of loyalty, easement holders may not engage in conflicts of interest transactions or related private inurement. The CTU found no such evidence. Second, under the duty of obedience, easement holders must adhere to the conservation values set forth in the easement deed. The CTU found that the Conservation Commission carefully considered the easement language and conservation values of the easement. Third, under the duty of care, easement holders must actively monitor the activities on and changes to the conserved property to ensure compliance with the terms of the easement deed. The CTU noted that the Conservation Commission could have been more proactive with its review of the permit and complaint.

The CTU concluded that the decision of the Conservation Commission was well supported by the language of the easement deed and that the Conservation Commission ultimately reviewed the matter with considerable care. Therefore, the CTU chose not to take any action with respect to the Conservation Commission’s decision to permit the barn relocation.

Lessons for Conservation Easement Holders

The three fiduciary duties owed by holders of donated conservation easements are summarized below. Bullets indicate action items conservation easement holders can take to help ensure they uphold each fiduciary duty.

Duty of Loyalty – Duty to avoid engaging in conflict of interest transactions or related private inurement.

  • Consider implementing a conflict of interest policy under which potential conflicts of interest, including financial conflicts, must be disclosed and discussed so actual conflicts can be avoided.

Duty of Obedience – Duty to adhere to conservation values set forth in the easement deed.

  • When considering potential violations or planned activities on a conservation easement, carefully review the language of the easement, the conservation values contained in the easement, and any reserved rights.
  • When conflicts between easement terms arise, consider them carefully and document the decision-making process. The CTU acknowledges that conservation easement holders must sometimes balance competing interests (in this case, promoting farming versus preserving a pristine landscape).
  • If a violation is discovered, notify the possible responsible parties and ensure the violation is remedied. The seriousness and permanency of the violation should inform the nature of the remedy.

Duty of Care – Duty to actively monitor the activities on and changes to the conserved property to ensure compliance with the terms of the easement deed.

  • Periodically inspect conservation easement properties.
  • Establish a complaint intake process to promptly follow up with allegations of violations and carefully consider such complaints. The nature of the violation should inform the scope of investigation, so a more serious allegation should result in a more thorough inquiry.
  • Commit to a review process when learning of substantial work planned for land subject to a conservation easement. For municipalities, implement a system so building inspectors, or other town officials, can identify land as subject to a conservation easement before issuing permits.

Reagan Bissonnette

Reagan Bissonnette is the director of easement stewardship at the Society for the Protection of NH Forests, a statewide land conservation non-profit. An adapted version of this article originally appeared in the August newsletter of the New Hampshire Association of Conservation Commissions (NHACC) (www.nhacc.org). This article does not constitute an official legal opinion of NHACC, its members, or the Society for the Protection of NH Forests.

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