Legal Considerations for Conservation Easement Monitoring

• Case Study o North Hampton Conservation Commission’s handling of the Lamprey Field Conservation Easement1 o They got it right, mostly

• Legal Background o RSA 477:45 through :47 authorize conservation easements in New Hampshire ▪ RSA 477:45 defines conservation restrictions and preservation restrictions ▪ RSA 477:46 makes them enforceable ▪ RSA 477:47 makes them interests in real estate o Conservation easements are considered charitable trusts and therefore the Charitable Trusts unit of the NH Attorney General’s office is involved in enforcement and amendment o All Conservation Commission policies should be written and available to members of the Commission, the Town Selectboard, and Town residents ▪ This allows for greater transparency, greater buy-in by residents, and helps maintain consistency across years, boards, and properties

• Why Monitor? o Monitoring is not usually legally required ▪ Except if made mandatory by the terms of the conservation easement ▪ No NH statute requires an easement holder to monitor its easements o Monitoring is still critical to protect the legal interests of the Town in the properties for which they hold easements (and some others – see below) o The Land Trust Alliance has set standards for accreditation of land trusts,2 including standards for monitoring of their conservation easements ▪ These standards include: • “Adopt a written policy and/or procedure for monitoring conservation easements that establishes consistent monitoring protocols and recordkeeping procedures”;

1 See N.H. Department of Justice, Report of the Attorney General: Lamprey Field Conservation Easement, https://www.doj.nh.gov/charitable-trusts/documents/north-hampton-conservation0easement.pdf 2 See Land Trust Alliance, Land Trust Standards and Practices: Ethical and Technical Guidelines for the Responsible Operation of a Land Trust, https://www.landtrustalliance.org/taxonomy/term/17

Offices in Concord and Keene, New Hampshire and Portland, Maine 3 Maple Street, Concord, NH 03301 • nhlandlaw.com

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• “Monitor each conservation easement property at least once per calendar year”; and • “Promptly document the annual monitoring activities for each conservation easement” ▪ While Conservation Commissions are not land trusts, the guidance of the Land Trust Alliance is an indication of best practices for conservation easement monitoring

• What Properties to Monitor & How Often o Technically, requirements based on ownership. But general best practice is to monitor all properties annually o Privately-owned land with conservation easement to Town ▪ Town, usually through the Conservation Commission should do at least annual monitoring to protect the property rights o Properties owned by the Town in fee ▪ Likely no monitoring requirement, but annual monitoring is in the best interest of the Town, to protect the boundaries of the property ▪ Look to the deed language • Monitoring can be important especially if the land was given to the Town with conservation purposes in the donative deed o Properties owned by the Town, with conservation easement to another land trust ▪ Entity holding the easement has its obligation to monitor ▪ May also be a good idea for the Town to monitor, to compare with the easement holder, document violations independently, and/or cover additional areas of a large property o Other (rarer) situations ▪ Property owned in another town • If fee ownership – Monitor as you would lands owned in fee in your town • If conservation easement ownership - monitor as you would any other conservation easement property • This arrangement of owning in another town likely resulted from a cooperative or mutually beneficial relationship between the towns and such cooperation, information sharing, and good relationship should be fostered, one way to do that is coordinating monitoring together

Offices in Concord and Keene, New Hampshire and Portland, Maine 3 Maple Street, Concord, NH 03301 • nhlandlaw.com

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• Purposes of Monitoring o Protect Town property right ▪ Establishment and knowledge of the boundaries ▪ Establish and maintain Town presence on property o Monitor and maintain any Town improvements ▪ Parking areas, signage, trails, plantings, etc. o Prevent damage to conservation values ▪ Identify and monitor dump sites, require prompt removal, take action ▪ Learn ecological baseline – recognize changes including timbering o Maintain communication with landowner ▪ Annual communication with notice of monitoring, copy of report, discussion and resolution of any violations o Minimize liability ▪ Identify and fix any dangerous conditions

• What Should Monitoring Include? o Establishing a Baseline Documentation Report3 o Walking the boundary to check for encroachments by neighbors o Checking any signage and structures installed by the Conservation Commission and/or Town o Walking across the property where members of the public may have accessed, including likely trash dump sites, trail sites, hunting (or poaching if hunting not allowed) sites, and camp sites o Review the terms of the easement itself for compliance, e.g. any requirement to remove structures, maintain a trail, etc. o Creation of a consistent report for comparison and maintenance of robust files

• Legal Obligations to the Landowner o Notice is not necessarily required for a monitoring visit o However, best practice is to give the landowner notice – they are (generally) your partner in monitoring, not your adversary ▪ The Land Trust Alliance also recommends maintaining ongoing communication with landowners4

3 See Land Trust Alliance, Baseline Documentation Report—Starting Easement Stewardship Right!, https://alliancerally.org/wp-content/uploads/2018/05/Rally2018_D09.pdf 4 See Land Trust Alliance, Land Trust Standards and Practices: Ethical and Technical Guidelines for the Responsible Operation of a Land Trust, https://www.landtrustalliance.org/taxonomy/term/17

Offices in Concord and Keene, New Hampshire and Portland, Maine 3 Maple Street, Concord, NH 03301 • nhlandlaw.com

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o Landowners may also appreciate receiving a copy of the monitoring report for their review and records, but this is not legally required

• Legal Obligations to the Town and/or Public o Conservation Commissions work on behalf of the Town and the Town’s residents o The NH Attorney General has stated that Conservation Commissions owe a duty of loyalty, a duty of obedience, and a duty of care when managing conservation easements.5 o Careful and complete monitoring of easements is part of the Conservation Commission’s obligation to the residents and easement itself ▪ This includes maintenance of complete records, available for inspection under RSA 91-A, the Right-to-Know Law. o Enforcement of conservation easement terms and resolution of violations are part of the obligation to monitor o Conservation Commission does have some discretion on the course of action for violations, but it is recommended that all violations be addressed ▪ Doing nothing in the face of a violation could mean the Conservation Commission is breaching its duties, which could create legal liability for the Conservation Commission and/or the Town

• Remedying a Violation o Options include, but are not limited to: ▪ Phone call and/or face to face meeting with the violator (if known) identifying the violation, the specific date of observation, and proposed remedy • This is a good option for a first violation that is not too serious and where the violator is known to be somewhat friendly, not adverse • This should be documented as well ▪ Sending a letter (or email) to the violator (if known) identifying the violation, the specific date of observation, and proposed remedy ▪ Changes to management of the property including limiting public access or activities (as consistent with the terms of the easement), changing any co-management arrangement with the landowner, and/or increasing frequency of monitoring

5 See Bissonnette, Reagan, Attorney General Reviews Complaint of Easement Violation Lessons for Conservation Commissions, attached handout

Offices in Concord and Keene, New Hampshire and Portland, Maine 3 Maple Street, Concord, NH 03301 • nhlandlaw.com

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▪ Adding additional and/or different signage, fences or other structures identifying the conservation area and public access areas ▪ Mediation outside of court ▪ Litigation • Should always be a last resort, but sometimes necessary ▪ Sometimes insurance policies may require notice to the insurer, depending on the nature of the violation

• Discretion to Enforce? o A conservation commission could choose to not enforce a violation because it was an isolated incident, a negligible violation, or has been satisfactorily resolved o Best practice would be for the conservation commission to inform (in writing) the Selectboard or City Council of the violation, even if the recommendation is not to enforce o Also, decisions not to enforce should not be taken lightly: enforcement of all violations sends a message of zero tolerance to the violators, can increase confidence of the town residents in the work of the Conservation Commission, and prevent future violations

Offices in Concord and Keene, New Hampshire and Portland, Maine 3 Maple Street, Concord, NH 03301 • nhlandlaw.com

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