Enforcing perpetual conservation easements against third-party violators.

Author:Jay, Jessica E.
Position:III. Legal Cases and Case Studies of Third-Party Violations B. Vermont Cases 3. Chain Saws on Big Jay through V. Conclusion, with appendix and footnotes, p. 117-159
  1. Chain Saws on Big Jay

    The Green Mountain Club (GMC) acquired 1,573 acres including Big Jay Peak in 1993 as part of its Long Trail Protection Program. (141) GMC transferred the land to the state, retaining a conservation easement restricting development and vegetation cutting. (142) The Long Trail, the nation's oldest long distance hiking trail, crosses the property and climbs Big Jay Peak yielding spectacular views. (143) The State of Vermont owns and manages Big Jay Peak as part of Jay State Forest under the State of Vermont Department of Forests, Parks, and Recreation. (144)

    State foresters and GMC personnel investigated conserved land on Big Jay Peak in northern Vermont after ski resort employees reported hearing chainsaws running on land protected with the conservation easement. (145) GMC discovered that two backcountry skiers had illegally cut nearly a thousand trees to create a ski trail measuring twenty to sixty feet wide and more than 2,000 feet long on the conserved property. (146) State officials estimated the value of the damaged timber to be nearly $50,000. (147) The conservation easement makes no mention of enforcing easements against third-party violators, but places responsibility for violations on the property's landowner. (148)

    Following the damage, Big Jay Peak ski area officials collaborated with the Vermont Agency of Natural Resources and GMC and identified the two men responsible for the damage and forced them to pay restitution. (149) The two men pleaded no contest to felony unlawful mischief at trial and signed a confession. (150) They were later arraigned on felony charges of unlawful mischief greater than $1,000. (151) The men received a suspended eighteen to thirty-six month sentence felony conviction and served sixty days with a preapproved furlough community restitution program. (152) They were also barred from the Big Jay Peak property. (153)

    Both men made restitution payments over two years, and one of the violators served some jail time for violating probation. (154) Both men also served sixty days with a work crew run by the Vermont Department of Corrections. (155) GMC and the co-holder of the conservation easement, the Vermont Housing and Conservation Board (VHCB), have received about $10,000 to date in restitution. (156)

    GMC worked with the State of Vermont, the adjacent Jay Peak Ski Resort, and volunteers to re-vegetate the cut area. The same group worked to prevent skiing on the cut land while the area re-vegetated because young trees cresting the snow pack in winter are especially susceptible to damage from skiers. (157) Management of the area over the next decade will be critical to restoring and erasing the scar from the mountain. (158) GMC and the state are determined to see trees grow again on the scar, and continue to monitor the situation and assist as necessary. (159) An agreement signed by the Vermont Department of Forests, Parks, and Recreation, GMC, Jay Peak Resort, and the VHCB allows backcountry skiers and snowboarders responsible access from Jay Peak Resort to the backcountry terrain located in the Jay State Forest at Big Jay Peak. (160) While the scarred portion of the mountain will remain closed to skiers and riders at all times to ensure that re-vegetation is successful, the agreement provides a framework for allowing access to Big Jay peak during periods of adequate snow cover. (161)

    Jay Peak Resort has agreed to enforce the closure of Big Jay Peak during low snow conditions, with penalties including the loss of skiing or riding privileges. (162) The state will enforce the no-cutting prohibition on the Big Jay Peak parcel consistent with the provisions of the conservation easement and Vermont law. (163) The agreement also addresses erosion control and restoration of the scar, as well as promotion of a "Leave No Trace" backcountry skiing ethic. (164) This incident is considered to be the most serious case of damage to public lands in Vermont's history. Lessons learned by GMC and the state include that relying on neighbors to report bad acts can be an effective way to monitor easements and their violations. Also, it is important to act quickly to identify easement violators, especially third-party violators, and to seek severe penalties in order to send a message to other potential wrongdoers. GMC also learned that collaborating with other entities and volunteers to restore the damaged area assists in the ongoing education of the public about the nature of the conservation easement and the boundaries of its coverage. (165)

    1. Residential Development Trail v. Conservation Easements Open Space

      Colorado's easement enabling statute, like Vermont's, precedes the UCEA. It provides apparent rights for both the easement holder and landowner to seek injunctions to enforce its easements. The statute makes no mention of enforcing easements against third-party violators. (166) Colorado's statutory framework however, does create enforcement rights against third parties for any trespass against the real property of someone with a proprietary interest in the property, which an easement holder could argue is a conservation easement. (167)

      Colorado Open Lands (COL), a statewide land trust in Colorado, initially successfully defeated construction by a third party of a twenty-foot wide trail on conserved land where the conservation easement only permitted construction of a footpath with COL's prior consent. (168) The case arose from a one hundred acre conservation easement granted to COL by the landowner, who was the real estate developer of adjacent land being developed into ten residential lots. (169) The landowner reserved the right in the easement to grant access to the ten prospective adjacent lot owners for recreational purposes, including use of a footpath that did not exist at the time of the easement grant. (170) The conservation easement specifically allowed foot, bike, ski, and horse use on a footpath to be designed by the landowner and approved by COL prior to construction. (171) The conservation easement also specifically identified the developer as responsible for any and all third-party violations on the conservation property arising from the prospective landowners of the residential lots. (172) After selling the ten lots, the developer sold the conserved land to one of the new lot owners. (173) In December 2007, four of the ten lot owners and the homeowners association (HOA) filed a complaint against the developer and COL based on access and use of the lots, trail, and conservation area. (174)

      The developer, unbeknownst to COL, had granted the HOA and lot owners a recreation license referencing a twenty-foot-wide trail on the conserved land, in violation of the conservation easement. (175) The developer did not consult with or obtain COL's approval before granting the license. (176) The trail license also specified a route that had not been approved by COL, as required by the language in the conservation easement. (177) The footpath reserved in the conservation easement, while not stating a width, was specific in being a footpath only, not a trail. (178) In addition, the conservation easement did not reserve a specific trail location. (179) The conservation easement required only that the footpath location be proposed by the landowner and approved by COL. (180)

      In 2006, the developer reminded the HOA that the conservation easement required that COL approve the trail prior to construction. The lot owners were reportedly angry and believed they had been defrauded by the developer regarding their rights to access and use the conserved land. (181) The lot owners did not understand that because the conservation easement preceded their lot deeds, it controlled the arrangements that they could make with the trail. (182) Unable to resolve the situation with the developer, the lot owners sued the developer and named COL in an action to quiet title. (183)

      COL's staff, board, and legal counsel decided that the fundamental issues in the case--trail location and width--were critical to the conservation easement, and that development of the proposed trail would be a major violation of the easement. (184) Additionally, COL did not want an adverse ruling from a court or a settlement contrary to the purpose, intent, or terms of the conservation easement. For these reasons, COL decided to remain involved in the case in lieu of petitioning the court to dismiss the case. (185)

      In the process of responding to discovery requests, COL's staff reviewed all of the property files, including emails, and compiled over 400 documents, most of which were stored electronically. (186) Before it delivered any document in discovery, COL reviewed it thoroughly for accuracy and relevance, which took an enormous amount of time. However, COL believed that a complete understanding of the process was critical, particularly for newer staff members who were not working for COL prior to the lawsuit. (187) Much time was also spent on staff and legal counsel education as to respective issues related to the litigation and trial preparation. (188)

      COL, with the help of an ecological consultant, prepared multiple trail locations it believed would be consistent with the requirements of the conservation easement in order to promote a resolution. (189) At a day-long mediation, experts spent significant time working with all the parties on trail design, location, and size. (190) The baseline consultant that COL retained to help with trail location and design played an important role in mediation and at trial in demonstrating how the easement purposes would be affected by various locations and widths. (191) At the end of the mediation, COL and the HOA reached a mutually acceptable resolution regarding trail location and width. Ultimately, the HOA did not accept the settlement due to an irresolvable ongoing dispute between the HOA and the owners of the conserved land. (192) The landowners therefore...

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