The Long and Winding Road: Easement Modification and the Future of Long Distance Hiking Trails
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. While hiking in Vermont’s Green Mountains in 1909, James P. Taylor formulated the idea of creating a trail that would link the mountain range. The following year he founded the Green Mountain Club (GMC), an organization that spent the next twenty years cutting trails and building shelters from Massachusetts to the Canadian border. Since 1930, the Trail has run nearly 273 continuous miles through Vermont. In 1986, GMC recognized the pressing need to protect the land through which the Trail runs. 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. In order to preserve the Trail for future generations, the Long Trail Protection Program was born. Through this program, GMC has purchased land or acquired easements surrounding 60 miles of the Trail, conserving approximately 25,000 acres of land.
A conservation easement is a private land use mechanism consisting of an agreement between a landowner and a land trust or government agency. The landowner retains ownership of the property while agreeing to refrain from using it in specific ways in order to “conserve” the land. Conservation easements are negative easements, meaning they prohibit the landowner from using the land in certain ways. For example, a landowner may agree to give up her right to develop the land or farm it in a certain way so that the public can enjoy the benefit of open space. Conservation easements are also “in gross” rather than “appurtenant,” since they benefit the “holder whether or not the holder owns or possesses other land.” Conservation easements have a “conservation purpose” or create a “conservation benefit,” and are held in perpetuity. Being held in perpetuity means that “they allow easement donors to direct land uses for all time.” Because of the difficulties the common law presents to longterm easements in gross, conservation easements are a statutory, rather than common law, creation. While use of conservation easements has grown as a land management tool in recent decades, their enabling statutes still have room for improvement. For instance, many states’ conservation easement statutes remain unclear as to whether and how a conservation easement may be amended or terminated. Over the past few years, Vermont has begun to consider whether and how to change its statute to provide clearer amendment criteria and procedure. Examining Vermont’s experience could be helpful for other states wishing to change their statutes.
Vermont has examined whether amendments can be necessary and desirable. In 2012, the Vermont General Assembly passed S. 179. 21 This established “a working group on perpetual conservation easements to study the issues relating to the creation of a formal and transparent public process for the amendment of perpetual conservation easements, the criteria for approving such amendments, and the entity most appropriate to review and approve such amendments.” The working group subsequently generated a report outlining what it viewed as the need for legislation regulating conservation easement amendments. 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, or a land trust seeking to eliminate ambiguity from an easement provision. 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. Regardless of whether Vermont enacts a statute elaborating the revision process, conservation easements can be amended under Vermont statutory law. 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.
During the 2013–2014 Legislative Session, the Vermont Senate passed S. 119, which provided criteria and procedures for amending conservation easements. The House ultimately abandoned the Bill, but the topic will likely rise again. This is due, at least in part, to tension between Vermont’s two major land trusts: Vermont Land Trust (VLT) and Upper Valley Land Trust (UVLT). VLT was concerned that the State lacked guidance in this area and advocated for the Bill in hopes of attaining more oversight of conservation easement amendments than is currently present. UVLT, on the other hand, found that S. 119 would replace more stringent common law conservation easement modification requirements and opposed such added flexibility.
This Note critiques Vermont’s current conservation easement law, and recommends revisions. 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.
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