Alexis Peters

Vermont’s Long Trail is the oldest long-distance hiking trail in the country, but it may be lost because of an amendment to the state’s conservation easement statute.[1] Since 1930, the Trail has run nearly 273 continuous miles through Vermont.[2] In 1986, the Green Mountain Club (GMC) recognized the pressing need to protect the land through which the Trail runs.[3] At that time, thirty miles of the Trail were for sale, thirty miles had no guaranteed public use, and two parts were completely shut down––causing hikers to walk along the road for 3.5 miles.[4] In order to preserve the Trail for future generations, GMC began acquiring conservation easements and has since conserved approximately 25,000 acres of land.[5]

A conservation easement is a private land use mechanism consisting of an agreement between a landowner and a land trust or government agency.[6] The landowner retains ownership of the property while agreeing to refrain from using it in specific ways in order to “conserve” the land.[7] For example, a landowner may agree to give up his or her right to develop the land or farm it in a certain way so that the public can enjoy the benefit of open space.[8]

Conservation easements are a statutory rather than common law creation.[9] While use of conservation easements has grown as a land management tool in recent decades, their enabling statutes still have room for improvement.[10] For instance, many states’ conservation easement statutes remain unclear as to whether and how a conservation easement may be amended or terminated.[11] Over the past few years, Vermont has begun to consider whether and how to change its statute to provide clearer amendment criteria and procedure.[12] Examining Vermont’s experience could be helpful for other states wishing to change their statutes.

During the 2013–2014 Legislative Session, the Vermont Senate passed S.119, which provided criteria and procedures for amending conservation easements.[13] The House ultimately abandoned the bill, but the topic will likely rise again. Amendments may be necessary or desirable for a variety of reasons. For example, parties may wish to amend a conservation easement because of unforeseen circumstances. These include changes in accepted farming practices, the federal government wishing to add a piece of property to a national wildlife refuge,[14] or a land trust seeking to eliminate ambiguity from an easement provision.[15]

A state statute laying out the amendment process could provide more uniform guidance for those seeking to amend easements, allow public participation in the process, and ensure that the easement and its purposes are preserved.[16] Regardless of whether Vermont enacts a statute elaborating the revision process, conservation easements can be amended under Vermont statutory law.[17] However, a revised statute would help ensure that such amendments are subject to a fairer process that is more likely to preserve the original parties’ intent.[18]

This Note critiques Vermont’s current conservation easement law and recommends revisions to improve it. Using the Long Trail as a case study, the Note examines how a new law would affect already-existing easements. Part I provides an overview of Vermont’s conservation easement statutory and common law, including a brief history of the Long Trail’s easements. Part II compares S.119 with Vermont’s current conservation easement law, critiques the bill, and discusses potential effects of a similar bill on the Long Trail. Part III then compares Maine’s conservation easement law to S. 119 and discusses how it would affect the Long Trail if adopted in Vermont. Finally, Part IV uses the analyses provided in Parts I–III to propose recommendations for Vermont’s potential bill.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

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[1] The Long Trail, Green Mountain Club, http://www.greenmountainclub.org/page.php?id=2 (last visited Mar. 17, 2015).

[2] Id.

[3] Green Mountain Club, A Century in the Mountains: Celebrating Vermont’s Long Trail 165 (2009); Long Trail Protection, Green Mountain Club, http://www.greenmountainclub.org/page.php?id=16 (last visited Mar. 17, 2015).

[4] Long Trail Protection, supra note 4.

[5] A Century in the Mountains: Celebrating Vermont’s Long Trail, supra note 4, at 165–66; Long Trail Protection, supra note 4.

[6] Jeff Pidot, Reinventing Conservation Easements: A Critical Examination and Ideas for Reform 3 (Lincoln Inst. of Land Policy 2005).

[7] Id.; Jessica Owley, Changing Property in a Changing World: A Call for the End of Perpetual Conservation Easements, 30 Stan. Envtl. L.J. 121, 137 (2011).

[8] Owley, supra note 8, at 136.

[9] Owley, supra note 8, at 135; see also Nancy A. McLaughlin, Perpetual Conservation Easements in the 21st Century: What Have We Learned and Where Should We Go from Here?, 2013 Utah L. Rev. 687, 696–97 (2013) (“Because most conservation easements are held in gross, state conservation easement ‘enabling’ statutes were deemed necessary to sweep away the common law impediments to the long-term validity of such in gross restrictions.”).

[10] Daniel P. Selmi et al., Land Use Regulation 781 (Wolters Kluwer Law & Business 4th ed. 2012).

[11] Jessica E. Jay, When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, 36 Harv. Envtl. L. Rev. 1, 3–4 (2012).

[12] Id. at 53.

[13] S. 119, 2013–2014 Leg. (Vt. 2013).

[14] See Jay, supra note 12, at 3 (explaining that the government “must always have clear title on lands it acquires, so the easement would have to be terminated before they could close the purchase”).

[15] Id. at 3–4.

[16] Jay, supra note 12, at 71, 76.

[17] Vt. Stat. Ann. tit. 10, §§ 821–823, 6301–6309 (West 2014).

[18] Robert Klein, Easement Amendment Working Group (Pursuant to S.179) 5 (2013), available at http://www.vlt.org/images/0_PDFs/Easement_amendment_working_group_final.pdf; Conservation Easements: Perpetual and Flexible, Vt. Land Trust, http://www.vlt.org/land-stewardship/amendment (last visited Mar. 21, 2015) (“Current law allows a land trust and the owner of conserved land to amend or terminate a conservation easement, with no public notice, no clear criteria, and no third-party approval.” ).