Rethinking the perpetual nature of conservation easements

Harvard Environmental Law Review

Volumn 29, Issue 2, 2005, Pages 421-521

  McLaughlin, Nancy A ^a  

^a UNIVERSITY OF UTAH   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL LEGISLATION; ENVIRONMENTAL PROTECTION; NATURE CONSERVATION;

EID: 24044534419     PISSN: 01478257     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (544)

1. John Stuart Mill, Dissertations and Discussions: Political, Philosophical, and Historical 36 (Boston, William V. Spencer 1864) (1859).
2. The terms "conservation easement" and "easement" as used in this Article refer to an agreement between the owner of the land encumbered by the easement and the holder of the easement that restricts the development and use of the land to achieve certain conservation goals, such as the preservation of wildlife habitat, agricultural land, or an historic site. Easements encumbering historic structures are referred to herein as "preservation" or "façade" easements.
3. The terms "land trust" as used in this Article refers to private, nonprofit charitable organizations that operate to protect land for conservation purposes through a variety of means, including the acquisition of conservation easements, and certain governmental agencies that operate in a manner similar to private land trusts, such as the Maryland Environmental Trust and the Virginia Outdoors Foundation. See Nancy A. McLaughlin, Increasing the Tax Incentives for Conservation Easement Donations - A Responsible Approach, 31 Ecology, L.Q. 1, 61 (2004) ("Virtually all land trusts function as publicly supported charitable organizations. They are organized and operated specifically to provide benefits to the public, and their activities are subject to oversight by state regulators (generally the state attorney general), the IRS, and the public.").
4. See Land Trust Alliance, National Land Trust Census, at http://www.lta.org/aboutlta/census.shtml (last visited Apr. 11, 2005) (on file with the Harvard Environmental Law Review). The Land Trust Alliance, which is the umbrella organization for the nation's local, state, and regional land trusts, periodically collects census data with respect to the local, state, and regional land trusts operating in the United States, but does not collect data with respect to land trusts that operate on a national scale, such as The Nature Conservancy, or government agencies that do not operate in a manner similar to private land trusts, such as the United States Fish and Wildlife Service or state and local governments. Telephone Interview with Martha Nudel, Director of Communications for the Land Trust Alliance (Feb. 12, 2002). National land trusts and government agencies that do not operate in a manner similar to private land trusts also have been acquiring conservation easements.
5. See, e.g., Conservancy Update, 53 Nature Conservancy 19, 20 (Fall 2003) (noting that as of the fall of 2003, The Nature Conservancy had protected 1.8 million acres by means of 1682 conservation easements).
6. See Special Report: The 1994 National Land Trust Survey, Exchange: J. Land Trust Alliance, Fall 1994, at 2, 2 (737,000 acres protected by conservation easements as of 1994);
7. Martha Nudel, Conservation Easements Emerge as the Decade's Top Land Protection Tool, Exchange: J. Land Trust Alliance, Winter 1999, at 5, 5 (approximately 1.4 million acres protected by conservation easements as of 1998);
8. Martha Nudel, Conserved Acreage, Number of Land Trusts Soared in the 1990s, Exchange: J. Land Trust Alliance, Fall 2001, at 5, 5 (2,589,619 acres protected by conservation easements as of 2000);
9. Rob Aldrich, Land Trusts Double the Number of Acres Protected, Exchange: J. Land Trust Alliance, Winter 2005, at 10, 10 (5,067,821 acres protected by conservation easements as of 2003).
10. While some conservation easements terminate after a specified number of years (and are referred to as "term easements"), the vast majority of conservation easements are granted in perpetuity because most recipient conservation organizations accept only perpetual easements and landowners donating easements are eligible for the various federal and state tax incentives only if their easements are perpetual. See The Conservation Easement Handbook: Managing Land Conservation and Historic Preservation Easement Programs 7 (Janet Diehl & Thomas S. Barrett eds., 1988) [hereinafter Conservation Easement Handbook].
11. See, e.g., Stephen J. Small, Conservation Easements Today: The Good and the Not-So-Good, Exchange: J. Land Trust Alliance, Spring 2003, at 32, 33-34 (noting that there are easements being donated and accepted by land trusts that allow far too much construction on the land they protect, and that, until about 2000, "90-plus percent of the inquiries about conservation easements" the author received were from landowners who "really wanted to protect the land," but that, "[i]n the last two or three years, at least one-third of the inquiries about conservation easements [had] come from landowners who think they can get away with something by donating a conservation easement ...").
12. See McLaughlin, supra note 3, at 110 n.429 (noting, for example, that the value of a parcel of land as habitat, or as an integral part of a functioning ecosystem, or as part of a rural, agricultural, scenic, or historic landscape, may be substantial at the time an easement is donated, but will decline as the surrounding area is converted to residential, commercial, and industrial development).
13. See, e.g., USDA, 1997 National Resources Inventory: Highlights, Revised December 2000, available at http://www.nrcs.usda.gov/ technical/land/pubs/97highlights.html (last visited Feb. 23, 2005) (noting that in the ten-year period from 1982 to 1992, 1.4 million acres of non-federal land were converted to development each year, while during the following five-year period that figure jumped to 2.2 million, and, thus, the pace of development during the five-year period from 1992 to 1997 was more than one and one-half times that of the previous ten-year period).
14. See also U.S. Gen. Acct. Off. Rep. GAO/RCED-00178, Community Development: Local Growth Issues - Federal Opportunities and Challenges 11-12 (2000) (noting that the nation will face a growing demand for residential, commercial, and industrial development in the years ahead because the population of the United States is expected to increase by almost fifty percent in the next fifty years and, historically, land consumption has increased faster than population growth).
15. See infra note 155 (describing the public benefits in the form of ecosystem services that flow from land in its undeveloped state).
16. See, e.g., Andrew Dana & Michael Ramsey, Conservation Easements and the Common Law, 8 Stan. Envtl. L.J. 2, 22 (1989) (noting that "[c]onservation easements are a new type of property interest, clearly not contemplated by common law");
17. Gerald Korngold, Privately Held Conservation Servitudes: A Policy Analysis in the Context of in Gross Real Covenants and Easements, 63 Tex. L. Rev. 433, 436 (1984) (discussing the question of which body of property law should govern conservation easements).
18. Restatement (Third) of Property: Servitudes 36, § 1.6 cmt. a (2000) [hereinafter Restatement of Servitudes] (noting that the primary problem was caused by the rule prohibiting equitable enforcement of restrictive-covenant benefits held in gross).
19. See Richard R. Powell, Powell on Real Property § 34A.01 n.1 (Michael Allan Wolf ed., 2003) (noting that only Wyoming lacks a special statute on the subject). Wyoming enacted an easement enabling statute in February of 2005, to take effect on July 1, 2005.
20. See Act of Feb. 25, 2005, 2005 Wyo. Sess. Laws 127 (providing for conservation easements largely in accordance with the Uniform Conservation Easement Act) (to be codified at Wyo. Stat. §§ 34-1-201 to 34-1-207 (2005)). North Dakota's easement enabling statute applies only to term easements encumbering "historic sites."
21. See N.D. Cent. Code § 55-10-08 (2003). North Dakota also has an unusual statute that limits the duration of any easement, servitude, or nonappurtenant restriction on the use of real property to ninety-nine years, thus making it seemingly impossible to create a perpetual conservation easement in North Dakota.
22. See N.D. Cent. Code § 47-05-02.1.2 (2003).
23. Under the doctrine of cy pres, if the purpose of a restricted charitable gift or charitable trust becomes "impossible or impracticable" due to changed conditions, and the donor of the gift or settlor of the trust manifested a general charitable intent, a court may formulate a substitute plan for the use of the gift or trust assets for a charitable purpose "as near as possible" to the charitable purpose specified by the donor or settlor. See infra note 32 and accompanying text (discussing the doctrine of cy pres).
24. See Uniform Conservation Easement Act (1981) § 3 cmt. [hereinafter UCEA]; Uniform Law Commissioners, A Few Facts About the Uniform Conservation Easement Act, at http://www.nccusl.org/ update/uniformact_factsheets/uniformacts-fs-ucea.asp (last visited Mar. 25, 2005) (listing twenty-one states and the District of Columbia as having adopted the UCEA). Georgia, Oklahoma, and Wyoming also have adopted the UCEA in whole or in substantial part.
25. See Ga. Code Ann. §§ 44-10-1 to 44-10-5 (Harrison 2002);
26. 60 Okl. Stat. Ann. tit. 60, § 49.1 (West 2005);
27. Act of Feb. 25, 2005, 2005 Wyo. Sess. Laws 127 (providing for conservation easements largely in accordance with the UCEA) (to take effect on July 1, 2005, and to be codified at Wyo. Stat. §§ 34-1-201 to 34-1-207 (2005)).
28. See also Alexander R. Arpad, Private Transactions, Public Benefits, and Perpetual Control Over the Use of Real Property: Interpreting Conservation Easements As Charitable Trusts, 37 Real Prop. Prob. & Tr. J. 91, 121 (2002) (noting that the drafters of the UCEA apparently believed that "attempting to dictate a consistent legal framework for the modification or termination of easements would interfere too much with other substantive state law").
29. See, e.g., Korngold, supra note 11, at 441-42 ("It is not entirely clear, for example, that preservation of land is and always will be preferable to its use as a hospital or church providing services to the community, a lower income housing project, a condominium containing recreational facilities and natural settings for its residents, a public recreation area for picnicking, swimming and sports, or a commercial or industrial area providing jobs for an economically depressed region. The choice of the best current use of a parcel of land is difficult enough; more difficult still is the decision today regarding future use, because future needs are more speculative. Rigid choices today may defeat the right of future generations to make critical decisions affecting their lives.") (internal citations omitted);
30. Julia D. Mahoney, Perpetual Restrictions on Land and the Problem of the Future, 88 Va. L. Rev. 739, 753 (2002) ("[T]he assumption that the present generation is competent to engage in perpetual land use planning reflects an unduly bounded conception of the changes that are likely to occur in nature itself, in scientific knowledge, and, last but certainly not least, in cultural attitudes. Conservation servitudes are ill-suited to adapt to such changes.").
31. See, e.g., Dana & Ramsey, supra note 11, at 38 (noting that, because of the difficulty in determining the flow of benefits to the public associated with conservation easements and the relative ease in determining the burden imposed by an easement on a property owner, courts could be expected to invoke the property law doctrine of relative hardship for the benefit of the landowner in virtually every case). See also infra notes 92 (noting that, in their current form, the property law doctrines of changed conditions, frustration of purpose, or relative hardship would not adequately protect the public's interest or investment in conservation easements) and 155 (describing the public benefits in the form of ecosystem services that can flow from a conservation easement). infra note 248 and accompanying text (noting that easements valued in the hundreds of thousands and even multiple millions of dollars are increasingly common, and the prospect of realizing even a modest percentage of that value upon extinguishment would likely induce landowners and speculators alike to try their hand at "breaking" easements). The public's investment in donated easements comes in a variety of forms, including foregone revenue from the various federal, state, and local tax incentives offered to easement donors; the enactment of easement enabling legislation; attorney general and judicial oversight of the enforcement of easements; federal, state, and local tax benefits provided to easement donees; and public funds expended to staff and operate government agencies that accept easement donations. of that value upon extinguishment would likely induce landowners and speculators alike to try their hand at "breaking" easements). The public's investment in donated easements comes in a variety of forms, including foregone revenue from the various federal, state, and local tax incentives offered to easement donors; the enactment of easement enabling legislation; attorney general and judicial oversight of the enforcement of easements; federal, state, and local tax benefits provided to easement donees; and public funds expended to staff and operate government agencies that accept easement donations.
32. See, e.g., Dana & Ramsey, supra note 11, at 38-39; infra note 248 and accompanying text (noting that easements valued in the hundreds of thousands and even multiple millions of dollars are increasingly common, and the prospect of realizing even a modest percentage of that value upon extinguishment would likely induce landowners and speculators alike to try their hand at "breaking" easements). The public's investment in donated easements comes in a variety of forms, including foregone revenue from the various federal, state, and local tax incentives offered to easement donors; the enactment of easement enabling legislation; attorney general and judicial oversight of the enforcement of easements; federal, state, and local tax benefits provided to easement donees; and public funds expended to staff and operate government agencies that accept easement donations.
33. See infra Part II.D (discussing how the National Trust for Historic Preservation in the United States believed it was free to simply agree with a subsequent owner of easement-encumbered land to significantly modify the terms of the easement).
34. See also Dana & Ramsey, supra note 11, at 35 (noting that a land trust might simply decide that the conservation value of an easement is no longer justified given the costs associated with its enforcement, and this could lead to termination of the easement either directly, by release, or indirectly, by abandonment).
35. See, e.g., Jeffrey M. Tapick, Threats to the Continued Existence of Conservation Easements, 27 Colum. J. Envtl. L. 257, 285-86 (2002) (noting that "state legislators probably hoped that by limiting the eligible holders to government entities and charitable organizations, the easement holder would not be inclined to release a conservation easement without good cause ... [because they] are obligated to base their actions and decisions primarily out of concerns for the public interest and the interest of land preservation. However, it is not inconceivable that [such a holder] could ignore this mandate, and base its decision to release a viable easement on the best interests of the landowner, [and that] opponents seeking to destroy the easement could approach the easement holder and try and convince them to release the easement, perhaps using political pressure if the holder is a government entity, or through financial inducements if the holder is a private organization.").
36. The laws that might govern the modification or termination of conservation easements conveyed to or held by agencies of the federal government are not addressed in this Article.
37. See, e.g., City of Salem v. Attorney Gen., 183 N.E.2d 859 (Mass. 1962);
38. Lewis v. Bd. of County Comm'rs, 128 N.E.2d 818 (Ohio Ct. App. 1954), discussed in note 30, infra;
39. see also infra note 201 and cases cited therein.
40. See McLaughlin, supra note 3, at 19-20 n.74 (2004) (explaining that a significant percentage of the easements conveyed to the nation's local, state, and regional land trusts were conveyed after the issuance of the Treasury Regulations interpreting § 170(h) in 1986, and that the available evidence indicates that most of those easements were donated rather than sold to such land trusts).
41. There is very little case law involving the application of the equitable rules governing a donee's use and disposition of charitable assets (including the doctrines of administrative deviation and cy pres) to property that was sold, rather than donated, to a government agency or charitable organization for a specified charitable purpose - perhaps because it is rare for an agency or organization that is paying for property to agree to include potentially cumbersome restrictions in the deed of conveyance. However, in at least one case involving a partial sale of land to a government agency for a specified charitable purpose, the court held that such equitable rules applied. See Cohen v. City of Lynn, 598 N.E.2d 682 (Mass. App. Ct. 1992) (holding that the conveyance of land to a city by deeds stating that the land was to be used "forever for park purposes" created a public charitable trust; acceptance of the deeds by the city constituted a contract between the grantors and the city that must be observed and enforced; there was "no authority ... to the effect that the receipt of substantial consideration prevents a grantor from conveying property to a municipality in such manner as to establish a public charitable trust"; and that the application of the doctrine of cy pres was inappropriate because it had not become impossible or impracticable to carry out the original charitable purpose of the conveyance).
42. See Austin Wakeman Scott & William Franklin Fratcher, The Law of Trusts, § 348.1, at 8-9 (4th ed. 1989). The private inurement and private benefit doctrines generally require that, to maintain tax-exempt status, none of the income or assets of a charitable organization may be permitted to directly or indirectly unduly benefit any person, whether related to the organization or not.
43. See Bruce R. Hopkins, The Law of Tax-Exempt Organizations 484, 522 (8th ed. 2003).
44. See Scott & Fratcher, supra note 25, § 348.1, at 9, 16.
45. See also Marion R. Freemont-Smith, Governing Nonprofit Organizations 51 (2002) (explaining the development of the law with regard to restricted charitable gifts and charitable trusts).
46. St. Joseph's Hospital v. Bennett, 22 N.E.2d 305, 306 (N.Y. 1939).
47. See id.
48. See id. at 308.
49. See also Blumenthal v. White, 683 A.2d 410 (Conn. 1996) (holding that, while a gift of land to a city with instructions that the land be used as a public park and never transferred did not create a trust "in strict sense, it may be so regarded," that the city held the land as a "quasi-trustee," and that the doctrine of administrative deviation should be applied to permit the city to deviate from the terms of the trust to carry out the testator's intent). A few of the rules applicable to charitable trusts are not applicable to restricted charitable gifts or "quasi-trusts."
50. See Scott & Fratcher, supra note 25, § 348.1, at 10-11 ("The circumstances under which and the proceedings by which creditors can reach the property are different ...").
51. See, e.g., Lewis v. Bd. of County Comm'rs, 128 N.E.2d 818 (Ohio Ct. App. 1954) (holding that devise of testator's residence and residue of estate to county "for the purpose of being kept, maintained and operated as a home for old ladies" created a charitable trust);
52. Town of Cody v. Buffalo Bill Memorial Ass'n, 196 P.2d 369 (Wyo. 1948) (holding that charitable trust rules applied to a gift of land to a charitable association to be used to memorialize the memory of William F. Cody, commonly known as Buffalo Bill, and an attempted transfer of the land to the Town of Cody without authorization of a court of equity was void);
53. City of Salem v. Attorney Gen., 183 N.E.2d 859 (Mass. 1962) (holding that a gift of land to city to be used "forever as public grounds" established a trust restricting the use of the land to public park purposes, and the city could not use three acres of the land for a public school building);
54. Am. Inst. of Architects v. Attorney Gen., 127 N.E.2d 161 (Mass. 1955) (stating that a gift of the residue of a testatrix's estate to the American Institute of Architects to maintain "scholarships for advanced study by deserving architects, and/or deserving students of architecture" created a "quasi trust," and use of the gift was restricted to the purposes set forth in the testatrix's will);
55. Newhall v. Second Church & Soc'y of Boston, 209 N.E.2d 296 (Mass. 1965) (holding that church receiving a gift of silver vessels dedicated to baptismal purposes was subject to a duty to use the vessels for such purposes and could not sell them without court authorization).
56. See also Marie C. Malaro, Museum Governance 79 (1994) [hereinafter Malaro, Museum Governance] (noting that "when a museum accepts an object for its collection, for example, with a condition requiring permanent display or permanent retention, the museum bows to the 'dead hand'; it agrees that utilization of the object will be controlled forever by the donor");
57. infra note 121 (describing a museum's obligation to seek court approval under the doctrine of administrative deviation or cy pres to deviate from the terms of a restricted gift of artwork).
58. See Scott & Fratcher, supra note 25, § 399, at 479.
59. See, e.g., id., § 399.2, at 489-90;
60. G. B. Bogert & G. T. Bogert, The Law of Trusts and Trustees § 431, at 95 (rev. 2d ed. 1991).
61. See also Fremont-Smith, supra note 26, at 49 ("By the end of the twentieth century the cy pres doctrine and its companion doctrine of deviation had been adopted by statute, case law, or dictum in forty-nine states.").
62. See, e.g., Restatement (Second) of Trusts § 348 (1959) ("A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose.");
63. Scott & Fratcher, supra note 25, § 348, at 8 ("The trustees of a charitable trust are under a duty 'to deal with the property for a charitable purpose.' In the case of a private trust it is the duty of the trustees to deal with the property for the benefit of the designated beneficiary or beneficiaries .... In the case of a charitable trust, property is devoted to the accomplishment of purposes that are beneficial or may be supposed to be beneficial to the community.").
64. See Bogert & Bogert, supra note 32, § 435, at 130 (noting that if the trustees of a charitable trust believe that it has become impossible or impracticable to carry out the trust as originally planned, they have a "duty to bring a suit in equity to secure a decree applying cy pres");
65. Fremont-Smith, supra note 26, at 438-39 (noting that a trustee has the duty to petition the court for the application of administrative deviation if he knows or should know of circumstances that justify such action; that a trustee's duty to seek the application of the doctrine of cy pres is implicit in the duty of loyalty; that in a situation where it becomes impossible, impracticable, or wasteful to continue to fulfill the original purposes, the trustee cannot fulfill his duty to the public beneficiaries unless he seeks modification under the cy pres doctrine; that interpretation of the traditional duty of loyalty to make explicit that it includes the duty to seek revision of purposes when they can no longer be carried out would assure that charitable funds will be used for purposes beneficial to the public on a contemporaneous basis; and that while the attorney general can bring a cy pres petition on his own motion, it would be preferable for trustees to understand this as one of their duties rather than let it pass to the state by default.
66. Elias Clark, Charitable Trusts, The Fourteenth Amendment and the Will of Stephen Girard, 66 Yale L.J. 979, at 979 (1957) ("A charitable trust serves two masters - the property owner who created it and society which is its beneficiary.").
67. See Scott & Fratcher, supra note 25, § 348.1, at 9 (noting that the "Attorney General can maintain a suit to prevent a diversion of the property to purposes other than those for which it was given" in the case of both charitable trusts and gifts to charitable corporations).
68. See id. § 391, at 360-61.
69. It is assumed that a conservation easement constitutes a property interest sufficiently substantial to be the subject of a charitable gift or a charitable trust. See Jesse Dukeminier & Stanley M. Johanson, Wills, Trusts, and Estates 581 (6th ed. 2000) (noting that trust property may be any interest in property that can be transferred, including contingent remainders, leasehold interests, choses in action, royalties, and life insurance policies);
70. UCEA, supra note 15, § 1(1) (defining a conservation easement as a "nonpossessory interest in property");
71. id. §§ 1, 2(a) (providing that a conservation easement may be conveyed in the same manner as other easements, subject to the requirement that the holder thereof be a government agency or charitable organization);
72. Arpad, supra note 15, at 130 (concluding that most modern conservation easements can constitute the res of a trust).
73. See also infra notes 236 and 237 and accompanying text (discussing the ways in which the nature of the property interest embodied in a conservation easement could be conceptualized).
74. It is also assumed that a conservation easement donated to a government agency or charitable organization for one or more of the conservation purposes specified in the applicable state easement enabling statute is donated for a "charitable" purpose as that term is defined under state law and, thus, would be subject to the equitable rules governing a charitable donee's use and disposition of charitable assets, including the doctrines of administrative deviation and cy pres. See Scott & Fratcher, supra note 25, § 399, at 479 ("The cy pres doctrine is applicable only to dispositions for charitable purposes ...");
75. Fremont-Smith supra note 26, at 48, 173 (noting that while some commentators have questioned the importance of the state law definition of a "charitable" purpose in light of the overriding consideration of tax exemption and consequent deference to the definition of charitable purposes in the Internal Revenue Code, the state law definition of a charitable purpose is probably of greatest continuing importance in connection with the application of the doctrines of administrative deviation and cy pres). State courts and ligislators have specifically declined to frame a preciese definition of the term "charitable" because ideas regarding social benefit and public good change from time to time, and the concept of charity must be able to adjust and expand to take into account the changing needs of society, new discoveries, and the varying conditions, characters, and needs of different communities.
76. See Scott & Fractcher, supra note 25, § 368, at 133-34.
77. See also, e.g., Bogert & Bogert, supra note 32, § 369, at 82, 83 (noting that it is inadvisable to bind courts to any set formula, as they need latitude to include new purposes as society develops and public opinion changes). Thus, while the courts have held that certain purposes are clearly charitable - namely the relief of poverty, the advancement of knowledge or eduction, the advancement of religion, the promotion of health, and governmental or municipal purposes (such as the erection of public buildings, bridges, and the like) - there also exists a very expansive general or "catchall" category of charitable purposes, into which falls a vast nunmber of miscellaneous purposes that have been deemed beneficial to the community.
78. See Scott & Fratcher, supra note 25, § 368, at 130;
79. Restatement (Third) of Trusts § 28(f) (2001) [hereinafter Restatement of Trusts]. The donation of conservation easements, which is facilitated in forty-nine states and the District of Columbia through the enactment of easement enabling legislation and heavily subsidized through federal, state, and local tax incentives, is precisely the type of new and unanticipated "charitable" activity that should be deemed to fall within the broad reach of the term. In addition, the fact that an easement donor may be primarily or solely motivated by selfish factors (such as the desire to create a permanent monument to himself or the desire to convert some of the equity in his land to cash in the form of tax savings) should be immaterial to the question of wether the donation ios considered to be charitable. All the courts should (and generally do) ask is whether the net result of the gift is to advance the public interest in some substantial way.
80. See Bogert & Bogert, supra note 32, § 366, at 61.
81. See also Scott & Fratcher, supra note 25, § 348, at 6 ("It is the purpose to which the property is to be devoted that determines whether the trust is charitable, not the motives of the testator in giving it.").
82. The doctrines of administrative deviation and cy pres are distinct in that the former applies to a modification of the administrative terms of a charitable gift or trust, and the latter applies to a modification of the charitable purpose of a charitable gift or trust. See, e.g., Report of Committee on Charitable Trusts and Foundations, Cy Pres and Deviation: Current Trends In Application, 8 Real Prop. Prob. & Tr. J. 391, at 398-400 (1973) [hereinafter Report of Committee on Charitable Trusts and Foundations] (noting, however, that in practice the line between the two doctrines is less than precise). To illustrate the application of the doctrine of administrative deviation to modify an administrative term (as opposed to the charitable purpose) of an easement, assume that thirty years ago a landowner donated an easement to a land trust for the purpose of preserving wildlife habitat and forestland, and included a "no burn" provision in the easement that prohibits the owner of the land and the holder of the easement from engaging in controlled burns on the property or permitting naturally caused fires to run their course, While the "no burn" provision might have been considered prudent at the time of the donation of the easement, due to changed conditions and advances in ecological science such a provision might now be deemed to defeat or substantially impair the charitable purpose of the easement (that is, the protection of the encumbered land for the purpose of preserving wildlife habitat and forestland). Modifying the easemnt to delete the no burn provision would serve to enhance, rather than after, the charitable purpose of the easement and could be accomplished through the appilicatioon of the doctrine of administrative deviation.
83. See supra note 37 and accompanying text.
84. See infra notes 77-78 and accompanying text.
85. See infra note 80 and accompanying text.
86. See infra Part II.A.2.
87. See Marie C. Malaro, A Legal Primer on Maanging Museum Collections 106-07 (1985) [hereinafter Malaro, Legal Primer] (describing a case in which a Maryland court determined that a nonprofit historical society had the right to dispose of a valuable desk it had received years earlier as a gift from a patron, despite the insistence of the donor's heirs that there was an implicit understanding between the donor and the society that the desk would always be retained for display by the society, because there was no deed of gift evidencing the conveyance. The court stated that "[g]ifts cannot be presumed to be conditional. Their conditions must be clearly set forth, as the memories of men do fade with time.");
88. Persan v. Life Concepts, Inc., 738 So. 2d 1008, 1010 (Fla. Dist. Ct. App. 1999) (holding that a charitable organization had the right to sell land given to it pursuant to a deed containing no restrictions, despite testimony of the donor that the land was intended to be used for the construction and operation of living facilities for disabled adults).
89. See, e.g., Stephen E. Weil, Rethinking the Museum 113 (1990) (noting that in 1979, the Corcoran Gallery of Art sold one hundred nineteenth-century European paintings from its collection through public auction, and excerpting the preface to the auction catalogue, which states that "[i]n the case of the European paintings owned by William Wilson Corcoran, the donor himself (in what is an extraordinary example of farsighted museum philanthropy) stipulated in his deed of gift that their disposition was at the discretion of the Trustees.").
90. See, e.g., Bogert & Bogert, supra note 32, § 324, at 376-77;
91. id. § 48, 74 ("The primary question in every case [involving precatory language] is the intention of the testator, and whether in the use of precatory words he meant merely to advise or influence the discretion of the devisee, or himself to control or direct the disposition intended.");
92. Scott & Fratcher, supra note 25, § 351, at 49-50 ("Where the settlor uses language expressive of a desire rather than of a command, precatory rather than mandatory language, it is a question of interpretation whether his intention is to leave the donee or legatee free to decline to carry out the designated charitable purpose, or to impose a binding obligation on him to devote the property to the designated purpose.").
93. In re James' Estate, 130 N.Y.S.2d 693 (N.Y. Sup. Ct. 1954).
94. Id. at 697-98.
95. See id.
96. See also Scott & Fratcher, supra note 25, § 348. 1, at 18 n.11 ("If the donor uses precatory language and does not manifest an intention to impose a binding restriction on the use of the property, the corporation is not bound thereby.").
97. In re Hamilton's Estate, 186 P. 587 (Cal. 1919), involved language included in a will that, while precatory in nature, was nonetheless found to impose legally binding restrictions on the legatee's use and disposition of the property. In In re Hamilton's Estate, the testator devised the residue of his estate (consisting of approximately $60,000) to the Right Reverend William J. Walsh, Archbishop of Dublin, with the "requesf" that masses be offered for the repose of his soul and the souls of his relatives in certain designated churches in Dublin. After examining the testator's will in its entirety and the circumstances surrounding its execution, the Supreme Court of California held that the testator intended to impose a duty on the Archbishop to use the funds to procure the saying of masses in the designated churches, and that a valid charitable trust had been created. In support of its decision, the court noted, inter alia, that, while the word "request" is one of petition of favor, "very frequently ...a... command or positive direction is, as a matter of polite or deferential expression, cast in the form of a request," and that there was no relation or bond between the testator and the archbishop which would make the latter a natural object of the testators's bounty.
98. See id. at 588, 590.
99. See, e.g., supra notes 26-30, accompanying text, and cases cited therein.
100. See also Estate of Heil, 259 Cal. Rptr. 28 (Cal. Ct. App. 1989) (holding that a provision in the testator's will directing that the residue of his estate be "given to the State of Nevada for the preservation of the wild horses in Nevada" was not precatory in nature, as it "contain[ed] no words of entreaty, request, wish or recommendation, which constitute the essence of a precatory statement," and, instead created a charitable trust and imposed an "imperative obligation" on the state).
101. Nickols v. Commissioners of Middlesex County, 166 N.E.2d 911 (Mass. 1960).
102. Id. at 914.
103. I b i d.
104. The opinion states that the trees that were cut were "for the most part, things of great beauty ... that might have endured as beautiful trees for many years." See id. at 914-15.
105. See id. at 915.
106. See id.
107. Under Massachusetts law, the citizens had standing to sue "as citizens by mandamus to 'enforce a public duty of interest to citizens generally.'" Id. at 916. Under Massachusetts law, the citizens had standing to sue "as citizens by mandamus to 'enforce a public duty of interest to citizens generally.'" Id. at 916
108. See id.
109. See id.
110. See id. at 917.
111. See id. at 918-19.
112. See id. at 919.
113. See id. at 917-19.
114. See id.
115. See id. at 921.
116. See Thomas S. Barrett & Stefan Nagel, Model Conservation Easement and Historic Preservation Easement, 1996: Revised Easements and Commentary from "The Conservation Easement Handbook" 12 (1996) [hereinafter Model Conservation Easement].
117. I b i d.
118. Id. at 13. The term "Property" used in the statement of purpose refers to the specific land encumbered by the easement as described in a legal description attached to the easement as an exhibit.
119. See id. at 12, 26.
120. American Heritage Dictionary of the English Language 113, 712 (3d ed. 1992).
121. The typical deed conveying a conservation easement also contains a formal grant clause similar to the following: "Grantors hereby voluntarily grant and convey to Grantee a conservation easement in perpetuity over the Property of the nature and character and to the extent hereinafter set forth." See Model Conservation Easement, supra note 66, at 13 (emphasis added). The idiom "in perpetuity" is defined to mean "for an indefinite period of time; forever."
122. See American Heritage Dictionary of the English Language 1350 (3d ed. 1992). Accordingly, the formal grant clause in the typical deed conveying a conservation easement reinforces the conclusion that the donor intends to obligate the donee to use the easement to protect the specified conservation values of the encumbered property "forever."
123. See McLaughlin, supra note 3, at 41-47 (discussing three surveys of easement donor motivation).
124. See, e.g., Jackson Hole Land Trust, Frequently Asked Questions, "What is a conservation easement?," at http:// www.jhlandtrust.org/our_work/faq.php#3 (last visited Feb. 23, 2005) ("A conservation easement is a voluntary contract between a landowner and a land trust, government agency, or another qualified organization in which the owner places permanent restrictions on the future uses of some or all of his or her property to protect scenic, wildlife, or agricultural resources .... The easement is donated by the owner to the land trust, which then has the authority and obligation to enforce the terms of the easement in perpetuity. The landowner still owns the property and can use it, sell it, or leave it to heirs, but the restrictions of the easement stay with the land forever.") (emphasis added) (on file with the Harvard Environmental Law Review); infra Part II.D (describing how the National Trust for Historic Preservation in the United States made such representations to the donor of an easement).
125. See also Karen F. Marchetti, Planning and Managing Conservation Easements: The Legal Perspective, Land Trust Alliance Rally 2002 37 (Oct. 2002) (on file with the Harvard Environmental Law Review) ("[I]t is unlikely that a conservation easement was granted with the expectation that the land trust might at its pleasure dispose of the easement and apply the proceeds to its general conservation purposes, as with trade lands. It is implicit in a perpetual easement that the purposes of the gift, the preservation of that particular parcel of land, will be honored barring unforeseeable or extremely improbable circumstances.").
126. See infra Part II.D (discussing proposed amendments to the Myrtle Grove easement that were inconsistent with the charitable purpose of the easement).
127. See Treas. Reg. § 1.170A-14 (as amended by T.D. 8069, 51 Fed. Reg. 1496 (Jan. 14, 1996));
128. Treas. Reg. § 1.170A-14(g)(6).
129. See also Model Conservation Easement, supra note 66, at 17, 71. An astute reader will note that this "extinguishment" provision bears a remarkable resemblance to the doctrine of cy pres.
130. See Treas. Reg. § 1.170A-14(c)(2) (2004). The restriction on transfer provision is intended to prevent the holder of an easement from circumventing the requirements with regard to extinguishment by transferring the easement (through a sale or exchange) to the owner of the encumbered land, in whose hands the easement is likely to be extinguished under the doctrine of merger.
131. See supra note 23.
132. See, e.g., Model Conservation Easement, supra note 66, at 22, 82.
133. For example, the Model Conservation Easement expressly grants to the holder of the eaement the right "[t]o preserve and protect the conservation values of the Property." See Model Conservation Easement, supra note 66, at 13. To avoid any question regarding the scope of the discretion granted to an easement holder, however, it is recommended that a provision be included in the easement deed expressly granting the holder the right to amend the easement deed in any manner consistent with (or neutral with respect to) the stated purpose of the easement.
134. See Scott & Fratcher, supra note 25, § 186, at 10 ("Because of the reluctance of many courts to find that the trustee has powers that are not clearly expressed in the trust instrument, and because of the resulting doubts that arise as to the existence of certain powers, it is customary in well-drawn trust instruments to make provisions in express words conferring upon the trustee powers that are or may become necessary or appropriate for the efficient administration of the trust. The administration of the trust may be seriously impeded not only by the lack of such powers but also by doubts, even though the doubts are not well founded, as to the existence of the powers.").
135. There will, of course, be situations in which it is not clear whether a proposed amendment is "consistent with" the conservation purposes of the easement and, thus, falls within the discretion granted to the holder of the easement in the easement deed. For example, the holder of an easement may determine that relocation of a designed house site on the encumbered land is "consistent with" the conservation purposes of the easement, but reasonable people might disagree with that determination. To avoid damaging negative publicity and potential liability for breach of fiduciary duties, the holder of an easement should interpret its discretionary authority to make amendments conservatively, and consider petitioning the court for instructions when there is a question as to whether a proposed amendment falls within such authority.
136. See infra Part III.B.1 (discussing who might have standing to bring or intervene in an action involving a conservation easement). From the holder's perspective, it would be far preferable to be granted express authority to agree to amendments that are consistent with (or neutral with respect to) the charitable purpose in the easement deed, thereby reducing the potential for lawsuits alleging a breach of the holder's fiduciary duties.
137. St. Joseph's Hospital v. Bennett, 22 N.E.2d 305, 307 (N.Y. 1939).
138. See UCEA, supra note 15, § 3(b) (emphasis added).
139. See also Ala. Code § 35-183(b) (2004);
140. Alaska Stat. § 34.17.020(b) (Michie 2004);
141. Ariz. Rev. Stat. Ann. § 33-273.B (West 2004);
142. Ark. Code Ann. § 15-20-409(b) (Michie 2003);
143. Del. Code. Ann. tit. 7 § 6903(b) (2003);
144. D.C. Code Ann. § 42-203(b) (2004);
145. Ga. Code Ann. § 44-10-4(c) (Harrison 2002);
146. Idaho Code § 55-2103(2) (Michie 2004);
147. Ind. Code Ann. § 32-23-56(b) (West 2004);
148. Kan. Stat. Ann. § 58-3812(b) (2004);
149. Ky. Rev. Stat. Ann. § 382.820(2) (Banks-Baldwin 2004);
150. Me. Rev. Stat. Ann. tit. 33 § 478.3 (West 2004);
151. Minn. Stat. § 84C.03(b) (2004);
152. Miss. Code Ann. § 89-19-7(2) (2004);
153. Nev. Rev. Stat. § 111.430.2 (Michie 2004);
154. N.M. Stat. Ann. § 47-12-4.B (Michie 2003);
155. Okla. Stat. Ann. tit. 60, § 49.4.B (West 2005);
156. Or. Rev. Stat. § 271.755(2) (2003);
157. 32 Pa. Stat. Ann. tit. 32, § 5055(c)(1) (West 2004);
158. S.C. Code Ann. § 27-8-40(B) (Law. Co-op. 2004);
159. S.D. Codified Laws § 1-19B-58 (Michie 2003);
160. Tex. Nat. Res. Code Ann. § 183.003(b) (Vernon 2003);
161. Va. Code Ann. § 10.1-1010.F (Michie 2004);
162. W.Va. Code Ann. § 20-12-5(b) (Michie 2002);
163. Wis. Stat. Ann. § 700.40(3)(b) (West 2004);
164. Act of Feb. 25, 2005, 2005 Wyo. Sess. Laws 127 (to take effect on July 1, 2005, and to be codified at Wyo. Stat. §§ 34-1-201 to 34-1-207 (2005)).
165. UCEA, supra note 15, § 3, cmt. (emphasis added).
166. The drafters of the UCEA declined to specify the proper approach to the modification or termination of easements in the event of changed conditions, noting instead that a variety of doctrines, including the doctrine of changed conditions applicable to common law servitudes and the doctrine of cy pres applicable to charitable trusts, have been judicially developed and, in many states, legislatively sanctioned as a basis for responding to such circumstances. See id.
167. See also Arpad, supra note 15, at 121 (noting that the drafters of the UCEA apparently believed that "attempting to dictate a consistent legal framework for the modification or termination of easements would interfere too much with other substantive state law").
168. See UCEA, supra note 15, § 3(a)(4).
169. See also Alaska Stat. § 34.17.020(a)(4) (Michie 2004);
170. Ariz. Rev. Stat. Ann. § 33-273.A.4 (West 2003);
171. Ark. Code Ann. § 15-20-409(a)(4) (Michie 2003);
172. Del. Code. Ann. tit. 7, § 6903(a)(4) (2004);
173. D.C. Code Ann. § 42-203(a)(4) (2004);
174. Fla. Stat. Ann. § 704.06(9)(d) (West 2005);
175. Ga. Code Ann. § 44-10-4(a)(4) (Harrison 2002);
176. Idaho Code § 55-2103(i)(d) (Michie 2004);
177. Ind. Code Ann. § 32-23-5-6(a)(4) (West 2004);
178. Kan. Stat. Ann. § 58-3812(a)(4) (2004);
179. Ky. Rev. Stat. Ann. § 382.820(1)(d) (Banks-Baldwin 2004);
180. La. Rev. Stat. Ann. § 9:1274(4) (West 2005);
181. Minn. Stat. § 84C.03(a)(4) (2004);
182. Miss. Code Ann. § 89-19-7(1)(f) (2004);
183. id. § 89-19-7(1)(d) (expressly granting standing to the Mississippi attorney general);
184. Nev. Rev. Stat. § 111.430.1(d) (Michie 2004);
185. Okla. Stat. Ann. tit. 60, § 49.4.A.3 (West 2005);
186. Or. Rev. Stat. § 271.755(1)(d) (2003);
187. Pa. Stat. Ann. tit. 32, § 5055(a)(6) (West 2004);
188. S.C. Code Ann. § 27-8-40(A)(4) (Law. Co-op. 2004);
189. Tex. Nat. Res. Code Ann. § 183.003(a)(4) (Vernon 2004);
190. Va. Code Ann. § 10.1-1013.8 (Michie 2004);
191. id. § 10-1-1013.8 (expressly granting standing to the Virginia attorney general);
192. W.Va. Code Ann. § 20-12-5(a)(4) (Michie 2003);
193. Wis. Stat. Ann. § 700.40(3)(a)(4) (West 2004).
194. See also Tenn. Code Ann. § 66-9-307 (2004) (providing that conservation easements may be enforced by the beneficiaries of the easement or their bona fide representatives).
195. UCEA, supra note 15, § 3, cmt.
196. See, e.g., Cal. Civ. Code §§ 815-815.10 (West 2005);
197. Haw. Rev. Stat. Ann. §§ 198-1 to 198-5 (Michie 2004).
198. See, e.g., La. Rev. Stat. Ann. § 9:1273.A (West 2005);
199. Utah Code Ann. § 57-185 (2004).
200. See, e.g., Mass. Gen. Laws ch. 184, § 32 (Law. Co-op. 2005);
201. N.J. Stat. Ann. § 13:8B-5 (West 2005).
202. See also Va. Code Ann. § 10.1-1704 (Michie 2004) (providing that land encumbered by certain "open space" conservation easements held by public bodies may not be "converted or diverted" from open space land use unless, inter alia, the conversion or diversion is determined by the public body to be "essential to the orderly development and growth of the locality.").
203. Some obliquely provide that a conservation easement may be enforced by "proceedings in equity" or "equitable proceedings" or "appropriate equitable relief." See, e.g., Mich. Comp. Laws § 324.2144(1) (2004);
204. Mont. Code Ann. § 76-6-210(1) (2004);
205. N.C. Gen. Stat. § 121-39(a) (2003).
206. See, e.g., supra note 30 and cases cited therein; infra note 201 and cases cited therein.
207. See also Kevin A. Bowman, The Short Term Versus the Dead Hand: Litigating Our Dedicated Public Parks, 65 U. Cin. L. Rev. 595, 608 (1997) (noting that "[m]any courts, following a modern trend, have viewed a dedication of land to a municipality for park purposes as an expression of intent to create a [charitable] trust [where] the municipality act[s] as trustee ... and the general public as beneficiary," and that other courts have applied charitable trust principles to accomplish the same ends without directly finding that a charitable trust existed because trust principles provide the best means of enforcing the intent of the grantor).
208. See infra notes 236 and 237 and accompanying text (discussing the ways in which the property interest embodied in a conservation easement could be conceptualized).
209. See infra Part III.A (discussing the "cy pres bargain").
210. See also generally Fremont-Smith, supra note 26 (describing the history of the development of the equitable rules governing a donee's use and disposition of charitable assets, including the need, evident from almost the first emergence of charities as legal entities, for the supervision of those entrusted with charitable assets to help prevent negligence, maladministration, and diversion of charitable funds to purposes contrary to those specified by the donor). Applying the property law doctrines of changed conditions, frustration of purpose, or relative hardship in their current form to modify or terminate conservation easements conveyed to government agencies and charitable organizations would be inappropriate because those doctrines were developed in the context of private transactions entered into by private parties for private benefit and, thus, would not adequately protect the public's interest or investment in conservation easements.
211. See, e.g., Korngold, supra note 11, at 484-89 (arguing that the doctrine of changed conditions might not allow courts to terminate conservation easements even if it were in the public interest, and that the doctrine of relative hardship, which focuses on the conflict between individual landowners, is too narrow to encompass the public interest).
212. See Restatement of Servitudes, supra note 12, § 7.11, cmts. a, b (recommending that the modification or termination of conservation easements conveyed to government agencies and charitable organizations be governed by a special set of rules based, in part, on the doctrine of cy pres, and noting that these servitudes should be afforded more stringent protection than privately held conservation servitudes because of the public interest involved). Accordingly, if the property law doctrines of changed conditions, frustration of purpose, or relative hardship are invoked to modify or terminate conservation easements conveyed to government agencies and charitable organizations, they should be applied in a manner consistent with the equitable rules governing a donee's use and disposition of charitable assets.
213. See I.R.C. § 170(h)(5)(A) (2004);
214. Treas. Reg. § 1.170A-14(g)(6) (2004).
215. See also supra note 74 and accompanying text (noting that, since 1986, any donor of a conservation easement interested in claiming a federal charitable income tax deduction has generally been required to include a provision in the deed of conveyance stating, in effect, that the restrictions in the easement may be extinguished only if and when changed conditions have made the continued use of the property for the conservation purposes specified in the easement "impossible or impractical," and only then in the context of a judicial proceeding).
216. See supra note 71 and accompanying text.
217. In re Preservation Alliance for Greater Philadelphia, O.C. No. 759 (Ct. Com. Pl. of Philadelphia June 28, 1999) (decree granting extinguishment of façade easement) (on file with the Harvard Environmental Law Review) [hereinafter Decree].
218. See also Transcript of Hearing on Emergency Petition for Extinguishment of Façade Easement, In re Preservation Alliance for Greater Philadelphia, O.C. No. 759 (Ct. Com. Pl. of Philadelphia June 28, 1999) [hereinafter Transcript] (on file with the Harvard Environmental Law Review).
219. Although the court did not expressly state that it was applying the doctrine of cy pres to extinguish the easement, the application of that doctrine can be assumed from: (i) the court's holding, see Decree at 1, that the façade easement constituted a "charitable interest" subject to Pennsylvania's Decedent's, Estates and Fiduciaries Code, 20 Pa. Stat. Ann. §§ 101-8815 (West 2004), which includes the statutory formulation of the doctrine of cy pres, see id. § 6110, and (ii) the fact that the holder of the easement represented to the court that it held the façade easement in or as a charitable trust, and requested that the court extinguish the easement and replace it with other covenants pursuant to the doctrine of cy pres.
220. See Transcript at 7-8.
221. See Transcript, supra note 95, at 5-8.
222. See id. at 26, 4-5.
223. See Decree, supra note 95.
224. The easement enabling statute in Pennsylvania mirrors the UCEA in stating that the statute does "not affect the power of a court to modify or terminate a conservation or preservation easement in accordance with the principles of law and equity ...." See 32 Pa. Stat. Ann. § 5055(c)(1) (West 2004);
225. supra notes 15, 82, and 83 (discussing the UCEA).
226. See supra note 2 (defining the term "conservation easement" for purposes of this Article to mean easements encumbering land (as opposed to historic structures)).
227. See Peter S. Goodman, In Maryland, Fighting to Save a "Way of Life"; Family in Court to Protect Land, Fulfill Matriarch's Wishes, Wash. Post, Mar. 20, 1998, at C1.
228. Deed of Easement by Margaret Henry Donoho, Grantor, and the National Trust for Historic Preservation In the United States, Grantee 1 (Dec. 13, 1975) (on file with the Harvard Environmental Law Review).
229. Id. at 2.
230. Id. at 3.
231. Before the sale of Myrtle Grove, the attorney for Donoho's estate, who was assisting the heirs with the sale, asked a representative from the National Trust how confident the heirs could be that the easement could "not be broken legally and that its restrictions will not dissolve over time ... making possible previously prohibited activities or outright subdivision by a later purchaser," to which the representative responded that easement restrictions "never dissolve over time" and that the National Trust "has the authority to enjoin and reverse unauthorized subdivision." See Memorandum of Law in Support of Attorney General's Motion for Summary Judgment at 9, State v. Miller, No. 98-003486 (Md. Cir. Ct. Apr. 21, 1999) [hereinafter Attorney General's Memorandum] (on file with the Harvard Environmental Law Review).
232. See Letter from Richard Moe, President, National Trust for Historic Preservation in the United States, to Mr. and Mrs. Herbert S. Miller (Feb. 7, 1994) (on file with the Harvard Environmental Law Review).
233. The attorney for the National Trust sent the Concept Approval letter to the president of the National Trust for his signature without discussion, and the president apparently signed the letter without reading it. See Attorney General's Memorandum, supra note 104, at 13.
234. See, e.g., Goodman, supra note 100 ("[W]hen Donoho's relatives found out about the deal, they were outraged. They rallied a group of environmental organizations that saw matters similarly.").
235. See id. (noting that in correspondence subsequent to the Consent Approval letter, the staff of the National Trust touted the purported benefits of the agreement with the Millers - "new land under easement, more vegetation and more money flowing to the trust to pursue its mission").
236. Melody Simmons, Maryland Sues on Plan for Farm on Shore; Group had Decided to Allow Development of Protected Land, Balt. Sun, July 10, 1998, at 1B.
237. See also Attorney General's Memorandum, supra note 104, at 14 (noting that the President of the National Trust requested that the Vice President and General Counsel investigate the matter; the Vice President concluded that the National Trust had not considered its "fiduciary responsibility with respect to the easement" or "the intent of the donor" in approving the Myrtle Grove subdivision; and that, in June of 1994, the Vice President wrote a letter to the attorney for the Miller Trust stating that the National Trust's approval of the easement amendment and proposed subdivision had been "improvidently granted, and must now be withdrawn") (internal quotations omitted).
238. See Attorney General's Memorandum, supra note 104, at 14.
239. See id. at 28;
240. State v. Miller, No. 98-003486 (Md. Cir. Ct. Apr. 21, 1999) (Consent Judgment), at 1-2 [hereinafter Consent Judgment] (on file with the Harvard Environmental Law Review). In November of 1998, the Eastern Shore Land Conservancy, The Nature Conservancy, and five landowners who owned land either adjoining or in close proximity to Myrtle Grove filed a Motion to Intervene asserting, inter alia, that there were significant clusters of preserved lands adjacent to and in the immediate area of Myrtle Grove (including a 500-acre parcel owned by The Nature Conservancy that is directly opposite the entrance to Myrtle Grove, supports an unusually old hardwood forest, and provides habitat for a small population of the endangered Delmarva Fox Squirrel); that amending the Myrtle Grove easement to permit the proposed subdivision would have an adverse effect on the natural attributes of the area and on the use, value, and enjoyment of properties adjacent to or near Myrtle Grove; that many of the adjacent or nearby landowners had acquired their properties and encumbered them with conservation easements in part because of the existence of the Myrtle Grove easement; and that the proposed subdivision would severely compromise the ability of conservation organizations to both solicit easement donations and raise the funds necessary to continue their operations.
241. See Motion to Intervene, State v. Miller, No. 98-003486 (Md. Cir. Ct. Apr. 21, 1999) (on file with the Harvard Environmental Law Review).
242. See Consent Judgment, supra note 111.
243. See Peter S. Goodman, Agreement Saves Estate on Maryland's Eastern Shore; Trust had Wrongly Approved Subdivision, Wash. Post, Dec. 11, 1998, at G7.
244. See Nickols v. Commissioners of Middlesex County, 166 N.E.2d 911, 914 (Mass. 1960).
245. See also supra notes 52-65 and accompanying text.
246. Attorney General's Memorandum, supra note 104, at 30.
247. See also id. at 2-3: Under Maryland law, a trust is created when property is held by one party, a trustee, for the benefit of another. A trust is charitable if its purpose and intent is charitable. Here, Mrs. Donoho gave property, a preservation easement on Myrtle Grove, to the National Trust, for the benefit of Maryland's people, for charitable purposes: to preserve the property in perpetuity for future generations. By her gift, she created a charitable trust. The Miller Trust's efforts to transmogrify Myrtle Grove into a multiple-lot subdivision violates the express terms and purposes of the trust.
248. Id. at 29.
249. See also Md. Code Ann., Real Prop. § 2-118(d) (2004).
250. Attorney General's Memorandum, supra note 104, at 28 (emphasis added).
251. Id. at 31.
252. See id.
253. See also supra note 111 (noting that Myrtle Grove was adjacent to and in the immediate area of significant amounts of similarly protected lands). Not all state attorneys general can be expected to be as proactive as the Maryland attorney general in protecting the public's interest in conservation easements. For example, in 1993, the owners of a 1043 acre ranch located in Johnson County, Wyoming, conveyed a conservation easement to the Board of Johnson County Commissioners (the "Board") "to preserve and protect in perpetuity the natural elements and ecological and aesthetic values of the Ranch."
254. See Memorandum in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiffs' Motion for Summary Judgment at 1-2, Hicks v. Dowd, No. 2003-0057 (Wyo. Dist. Ct. Oct. 27, 2003) [hereinafter Plaintiffs' Memorandum] (on file with the Harvard Environmental Law Review);
255. Conservation Easement Litigation Heads to Court, Casper Star Trib., Dec. 15, 2003. In accordance with the agreement of the parties, the Board later conveyed the easement to a tax-exempt organization created by the Board. Plaintiffs' Memorandum at 2, 4. In 1999, the easement donors sold the ranch subject to the easement, and in 2002 the Board adopted a resolution that would extinguish the easement and allow the value attributable thereto to inure to the benefit of the new owners of the ranch. Id. at 4-5, 23. A resident of Johnson County and a Wyoming corporation that publishes a newspaper of general circulation in that county filed suit alleging, inter alia, that the easement is held in a charitable trust, and that the tax-exempt organization may not extinguish the easement without receiving court approval therefor in the context of a cy pres proceeding. Id. at 1-16. The Wyoming attorney general was given notice of the proceeding, but declined to intervene, noting that "the interests of the public, as beneficiaries of the conservation easement ... are being represented by arguments of counsel on all sides."
256. See Letter from Patrick J. Crank, Wyoming Attorney General, to Judge John C. Brackley (May 3, 2004) (on file with the Harvard Environmental Law Review). The case is scheduled to go to trial in October of 2005.
257. See E-mail from Dennis Kervin, counsel for the plaintiffs, to Nancy A. McLaughlin (Apr. 13, 2005) (on file with the Harvard Environmental Law Review). The Hicks case illustrates that state attorneys general cannot necessarily be relied upon to protect the public's interest in conservation easements.
258. See also Scott & Fratcher, supra note 25, § 391, at 361, 363 (noting that the attorney general is charged with many duties that have nothing to do with the enforcement of charitable trusts and the result has been more or less sporadic enforcement of charitable trusts). This suggests that measures should be taken to expand the class of persons who have standing to enforce a conservation easement, such as granting third-party rights of enforcement in the easement deed.
259. See infra notes 141-142 and accompanying text (discussing standing issues).
260. See Arpad, supra note 15, at 144-45 (noting that land trusts generally have avoided using trust language in conservation easements because: (i) as evidenced in the Myrtle Grove controversy, "involvement of the attorney general can be a mixed blessing to conservation easement holders, although it should be a substantial safeguard for the public as beneficiaries," and (ii) "the potential for increased administrative costs in order to meet the fiduciary standards of a trustee," including the potential cost of court proceedings for cy pres or administrative deviation that would be necessary to approve any substantial easement modification).
261. Museums, for example, have long accepted their obligation to seek court approval to deviate from restrictions placed on their use or disposition of charitable gifts of artwork. See Malaro, Legal Primer, supra note 45, at 109 ("As a general rule, a legal restriction imposed by a donor (as distinct from a moral restriction founded on precatory language) and accepted by the museum subsequently cannot be waived by the museum of its own accord. If the museum wishes relief, it must seek court approval either in a cy pres action or in an action based on the doctrine of equitable deviation.").
262. See McLaughlin, supra note 3, at 64-68 (discussing the lack of accreditation of land trusts and increasing reports of incompetent and even "rogue" land trusts);
263. Korngold, supra note 11, at 455-63 (discussing the importance of land use decisions to society).
264. See supra notes 77-78 and accompanying text.
265. See also supra note 80 and accompanying text (noting that, even in the absence of such a grant of discretion, the holder of a conservation easement could simply agree with the owner of the underlying land to make uncontroversial amendments to the easement (such as to correct a drafting error or clarify vague language) because no person with standing is likely to object, but that from the holder's perspective, it would be far preferable to be granted express authority to agree to such amendments in the easement deed, thereby reducing the potential for lawsuits alleging a breach of the holder's fiduciary duties).
266. A detailed discussion of how the administrative terms of a conservation easement, the charitable purpose of which has not become impossible or impracticable, could be amended in manners consistent with (or neutral with respect to) such purpose is the subject of a separate, future article.
267. See Rob Atkinson, Reforming Cy Pres Reform, 44 Hastings L.J. 1112 (1993) (describing the bargain).
268. See Uniform Law Commissioners, A Few Facts About the Rule Against Perpetuities, at http://www.nccusl.org/Update/ uniformact_factsheets/uniformacts-fs-usrap.asp (last visited Feb. 17, 2005) (on file with the Harvard Environmental Law Review) (noting that The Uniform Statutory Rule Against Perpetuities, which has been adopted in twenty-eight states, modifies the Rule Against Perpetuities by adopting a "wait and see" approach and invalidating future interests only if they do not vest within ninety years after their creation);
269. Dukeminier & Johanson, supra note 38, at 854 (noting that a few states have abolished the Rule Against Perpetuities and allow a trust to endure forever if the trustee has the power to sell the trust assets, while others have abolished the Rule's application to trusts of personal (as opposed to real) property).
270. See Atkinson, supra note 125, at 1114.
271. See id.
272. See id. at 1114-15 ("The reason for this relative generosity in the case of charitable gifts is an implicit quid pro quo: In exchange for perpetual donor control, society gets wealth devoted to recognizably 'public' purposes. Wealth that donors would otherwise pass to individuals for 'private' purposes is in a sense devoted to the public domain. Thus the restraints the law allows to endure are not wholly idiosyncratic; they must advance purposes that the courts, as custodians of the commonweal, certify as publicly beneficial.").
273. See also supra note 39 (discussing the purposes that are considered to be "charitable" under state law).
274. See Atkinson, supra note 125, at 1114-15.
275. See also Scott & Fratcher, supra note 25, § 399.4, at 535-36 ("Some vain and obstinate donors indeed might prefer to have their own way forever, whether that way should ultimately prove beneficial or not. But why should effect be given to such an unreasonable desire? A man is not allowed to control the disposition of property for private purposes beyond the period of perpetuities. He is permitted to devote his property in perpetuity to charitable purposes only because the public interest is supposed to be promoted by the creation of charities. The public interest is not promoted by the creation of a charity that by the lapse of time ceases to be useful.");
276. Restatement of Trusts, supra note 39, § 67, cmt. a (noting that the modern rationale for the doctrine of cy pres is based primarily on the perpetual duration of charitable trusts and the resulting risk that the charitable purposes designated by the donor may become obsolete as the needs and circumstances of society evolve over time).
277. See infra Part III.B.2.a (discussing the cy pres standard of "impossibility or impracticability").
278. See supra note 2 (defining the term "conservation easement" for purposes of this Article to mean easements encumbering land (as opposed to historic structures)).
279. See, e.g., UCEA, supra note 15, § 3(a)(1) and (2) (providing that any action affecting a conservation easement may be brought by the owner ofthe land and the holder of the easement). Most conservation easement enabling statutes contain similar provisions.
280. See also supra note 84 and accompanying text (noting that twenty-two states and the District of Columbia have adopted the UCEA provision granting standing to bring an action affecting a conservation easement to any "person authorized by the other law");
281. supra notes 36-37 and accompanying text (noting that the state attorney general, as the representative of the public is given the power to bring a proceeding to enforce the terms of a charitable gift or trust and is also a necessary party and entitled to be heard in any proceeding involving the application of the cy pres doctrine).
282. The rule proposed in Part III.B.2.c.ii(2), infra, regarding the division of proceeds upon the extinguishment of an easement and sale of the unencumbered land would eliminate the ability of owners of easement-encumbered land to realize a windfall upon the extinguishment of their easements and likely reduce the incentive for such owners to seek extinguishment.
283. See Scott & Fratcher, supra note 25, § 379, at 316-18 (discussing the duties of the trustee of a charitable trust, including the duty to exercise due diligence in the administration of the trust and the duty of loyalty, which requires the trustee to administer the trust solely with a view to the accomplishment of the purposes of the trust).
284. See supra notes 34-35 and accompanying text (noting that the holder of a restricted charitable gift or trustee of a charitable trust serves two masters - the donor of the gift or trust assets and the public (as the beneficiary of the gift or trust) - and has the obligation to seek the application of administrative deviation or cy pres if circumstances justify such action).
285. See infra Part III.B.2.c.ii(2) (discussing the division of proceeds upon the extinguishment of an easement and the value that should be attributable to the property interest embodied in the easement).
286. Such policies and procedures should address, inter alia, the standard the holder will apply in determining when the charitable purpose of a conservation easement has become "impossible or impracticable." In developing such policies and procedures, holders of conservation easements could learn a great deal from the experience of museums with the controversial practice of deaccessioning, which involves the sale of artwork that was once accessioned into a museum's collection. See, e.g., Malaro, Museum Governance, supra note 30, at 57 (noting that in the museum context, a museum with carefully conceived written policies and procedures regarding deaccessioning is likely to make sound decisions and maintain public confidence);
287. Weil, supra note 46, at 116-17 (recommending tightly written deaccessioning procedures that are intended to assure that deaccessioning decisions will be subject to scrupulous review and consultation, and noting that a deaccessioning process that is "murky, secretive, and seemingly arbitrary" may appear to the public as at least questionable and quite possibly unethical"). It also is advisable for the holder of a conservation easement to seek the approval of the state attorney general and other interested parties (such as other conservation organizations operating in the area and the donor or the donor's heirs) before initiating a cy pres proceeding.
288. Cf. Dukeminier & Johanson, Supra note 38, at 875 (discussing In re Estate of Buck, No. 23259 (Cal. Super. Ct. Aug. 15, 1986) (unreported but reprinted in 21 U.S.F. L. Rev. 691 (1987)), wherein a testator left the residue of her estate to the San Francisco Community Foundation to be used for charitable purposes in the affluent county of Marin, California. After the assets increased significantly in value, the Foundation petitioned the court for the application of the doctrine of cy pres to expand the geographic scope of the trust to include other counties in the San Francisco Bay area. The court refused to apply the doctrine of cy pres, and the attorney general of California, as supervisor of charitable trusts, intervened in the proceeding arguing against the application of the doctrine and asking whether the trustee was in violation of its fiduciary duties for bringing such a suit and ought to be removed as trustee.).
289. See also infra note 249 (discussing why easement donees are unlikely to acquire and administer easements with the intent to extinguish such easements and obtain the cash value attributable thereto).
290. See, e.g., Crow v. Clay County, 95 S.W. 369 (Mo. 1906) (considering but ultimately rejecting the attorney general's argument that a trust fund's limitations should be modified pursuant to the doctrine of cy pres because the charitable purpose of the fund had failed due to changed conditions and the trustee was committing continuous breaches of trust in its use of the fund for purposes contrary to the intent of the testator).
291. See Bogert & Bogert, supra note 32, § 441, at 200.
292. See, e.g., UCEA, supra note 15, §§ 1(3), 3(a)(3) (providing that an action affecting a conservation easement may be brought by any government agency or charitable organization eligible to be a holder of the easement that is expressly granted a third-party right of enforcement in the easement deed);
293. Tenn. Envtl. Council v. Bright Par Assoc., 2004 Tenn. App. LEXIS 155 (Tenn. App. Ct. Mar. 8, 2004) (holding that under the Tennessee easement enabling statute, which provides that a conservation easement may be enforced by the "beneficiaries of the easement," any resident of Tennessee has standing to enforce a conservation easement);
294. Burgess v. Breakell, 1995 Conn. Super. LEXIS 2290 (Conn. Super. Ct. Aug. 7, 1995) (holding that the owner of land adjoining land encumbered by a conservation easement did not have standing to bring an action to enforce the terms of the easement prohibiting commercial logging on the grounds that the state easement enabling statute limited standing to enforce an easement to the holder or owner of the easement);
295. Scott & Fratcher, supra note 25, § 391, at 366 (noting that "a person who has a special interest in the performance of a charitable trust can maintain a suit for its enforcement," but he "must show that he is entitled to receive a benefit under the trust that is not merely the benefit to which members of the public in general are entitled").
296. See Scott & Fratcher, supra note 25, § 391, at 379.
297. See infra Parts III.B.2.c.ii(1)-(2) (arguing that the donation of a conservation easement involves the conveyance of a property right to the donee, and discussing the way in which the donee's property right could be valued upon extinguishment of the easement).
298. See supra note 32 and accompanying text (describing the doctrine of cy pres).
299. See also In re Estate of Du Pont, 663 A.2d 470, 478 (Del. Ch. 1994) (describing the three step cy pres process). If in the second step of the cy pres process the court determined that the donor had a specific (rather than general) charitable intent in donating the easement, the doctrine of cy pres would not apply, the charitable gift of the easement would "fail," and the easement (or the value attributable thereto) would revert to the donor, if the donor is alive, or, if the donor is not alive, pass by resulting trust to either the residuary beneficiaries under the donor's will or the donor's heirs under the law of intestate succession.
300. See infra note 180 and accompanying text. As discussed in Part III.B.2.b.ii, infra however, for a variety of reasons courts are very likely to find that an easement donor has a general charitable intent and, thus, to proceed to the third and final step in the cy pres process.
301. If the doctrine of cy pres is applied to modify or extinguish a conservation easement as described in this Part, either the easement or the value attributable thereto would remain in public hands and continue to be devoted to charitable conservation purposes. Accordingly, there should be no adverse tax consequences to the donor of an easement as a result of the application of the doctrine of cy pres.
302. [See supra Part III.A (discussing the cy pres bargain).
303. Scott & Fratcher, supra note 25, § 399.4, at 530.
304. See, e.g., In re Thorne, 102 N.Y.S.2d 386, 387, 389 (N.Y. Sur. Ct. 1951) (involving devises in 1916 and 1919 of an eighteen acre parcel of land to a city for use as a public park, subject to the restriction that "said park not...be used as a recreational park...for picnics or bathing, but simply for driving [in horse-drawn vehicles] and walking" (emphasis omitted); in refusing to apply the doctrine of cy pres to permit the park to be used for "picnicking, fishing, and general park purposes," the court noted that, although it was presently "impracticable" to use the property for driving in the sense employed in the wills, such a change of circumstances did not justify disregard for the plain mandate in the wills prohibiting the use of the land for picnicking and bathing, particularly given that the testatrices had stated in each of their wills that it was their intention that the park "beautify" the area and "not in any way be conducted or managed so as to create a nuisance and be objectionable to the property owners" in the area, which was largely residential;
305. St. James Church v. Wilson, 89 A. 519, 520 (N.J. Ch. 1913)(involving a 1908 bequest of a remainder interest in $14,000 to St. James Church for the purpose of erecting an Episcopal church on a certain tract of land conveyed to St. James Church by the testator during his lifetime; the court applied the doctrine of cy pres to allow St. James Church to use the fund for the general benefit of the Episcopal church in the neighborhood in which the tract of land was located, noting that changed circumstances had caused the population of the area to stagnate if not decline, no new parish could be created in such a location under the canons and laws of the Episcopal church for lack of assurance that sufficient money could be raised to pay the annual salary of a priest and lack of a sufficient number of male communicants to compose a lawful vestry and, that "the general charitable intent of a testator may be carried out [if] it should be undesirable, impracticable or against public policy, although not impossible under altered circumstances to carry out the [testator's] special intent");
306. Village of Hinsdale v. Chicago City Missionary Society, 30 N.E.2d 657, 665 (III. 1940) (involving a gift of six lots to a village in which the donor resided with instructions that one lot be used as the site of a public library and the proceeds from the sale of the other lots be used for the construction and maintenance of the library; after the village attempted unsuccessfully to raise sufficient funds for the construction of a library on the designated lot, and another building (which contained adequate and appropriate space for present needs and the means for appropriate expansion) was leased and used as the library, the court determined that the doctrine of cy pres could be applied to permanently abandon the use of the designated lot as a site for the library, noting that, while continued use of the lot as a site for the library was not impossible, conditions had arisen that may render "inexpedient and wasteful" the erection of a library on the lot);
307. Towne Estate, 75 Pa. D. & C 215, 217 (Pa. Orphans' Ct. 1950) (involving a 1912 bequest of funds to a private trust company to be used for the purpose of maintaining and providing an ample supply of water to a drinking fountain for horses and dogs erected by the testator; the court applied the doctrine of cy pres and authorized the payment of the funds remaining in the trust account to a local branch of the Society for the Prevention of Cruelty to Animals based on the fact that the income from the fund was insufficient to maintain the fountain and "the fountain...actually serves no one, because there are no horses using the highways...and dogs are prohibited from wandering at large").
308. Report of Committee on Charitable Trusts and Foundations, supra note 40, at 391-92 (1973).
309. See, e.g., In re Estate of Buck, No. 23259 (Cal. Super. Ct. Aug. 15, 1986) (unreported but reprinted in 21 U.S.F. L. Rev. 691 (1987)) (refusing to apply the doctrine of cy pres as described in note 138, supra, the court noted that "[t]he cy pres doctrine should not be so distorted by the adoption of subjective, relative, and nebulous standards such as 'inefficiency' or 'ineffective philanthropy' to the extent that it becomes a facile vehicle for charitable trustees to vary the terms of the trust simply because they believe that they can spend the trust income better or more wisely elsewhere");
310. In re Estes Estate, 523 N.W.2d 863 (Mich. Ct. App. 1994) (refusing to remove a restriction when a testator left a bequest to a church to be used "solely for the purpose of helping to build a new church and shall not be used for repair or additions to present church or for any other purposes," and the church, which had no plans for or interest in a new building, petitioned for release from the restriction under the Uniform Management of Institutional Funds Act ("UMIFA"), which authorizes release from "obsolete, inappropriate, or impracticable" restrictions; reversing the trial court, the appellate court held that (i) building a new church was not "obsolete, inappropriate, or impracticable" and, therefore, the church could not be released from the restriction, and (ii) contrary to the commentary to the UMIFA, the UMIFA standards for release from restrictions were not significantly distinguishable from those governing cy pres).
311. See, e.g., In re Rothrock, 452 N.W.2d 403 (Iowa 1990) (applying the doctrine of cy pres to permit a church to use funds bequeathed to it "solely for building new church" to defray the expenses of remodeling the existing church and parsonage, stating that the doctrine of cy pres is "a liberal rule of construction used to carry out, not defeat, the testator's intent");
312. In re Estate of Vallery, 883 P.2d 24 (Colo. Ct. App. 1993) (affirming the trial court's application of the doctrine of cy pres to permit a foundation to use income from a fund that the testator directed be used for the "hospitalization costs" of needy Knights Templar to defray the costs of other health care services provided to such Knights Templar, concluding that changes in the methods of financing health care since the time of the testator's death had rendered the restriction on the use of the fund an "impracticable" limitation).
313. See Roger G. Sisson, Relaxing the Dead Hand's Grip: Charitable Efficiency and the Doctrine of Cy Pres, 74 Va. L. Rev. 635, 644 (1988);
314. Alex M. Johnson, Jr., Limiting Dead Hand Control of Charitable Trusts: Expanding the Use of the Cy Pres Doctrine, 21 Hawaii L. Rev. 353, 371 (1999) (noting that while "a few courts have shown increased willingness to apply cy pres by construing its requirements liberally, the majority continue to construe the doctrine narrowly").
315. See Fremont-Smith, supra note 26, at 49;
316. Scott & Fratcher, supra note 25, § 399.4, at 537 (noting that "it is believed that there is a tendency in more recent cases to permit a cy pres application even though it is difficult to say that it is impracticable to carry out the specific purpose, but where it would be so unwise to do so that the donor presumably would not have desired to insist on it").
317. See supra Part III.A (discussing the cy pres bargain).
318. The difficult-to-value benefits to the public that flow from land in its undeveloped state include the purification of air and water, the mitigation of floods and droughts, the detoxification and decomposition of wastes, the generation and renewal of soil and soil fertility, the pollination of crops and natural vegetation, and the dispersal of seeds and translocation of nutrients.
319. See Gretchen C. Daily, Introduction: What Are Ecosystem Services?, in Nature's Services, Societal Dependence on Natural Ecosystems 3-4 (Gretchen C. Daily ed., 1997) (defining such "ecosystem services" as the conditions and processes through which natural ecosystems, and the species that make them up, sustain and fulfill human life).
320. See also John Harte, Land Use, Biodiversity, and Ecosystem Integrity: The Challenge of Preserving Earth's Life Support System, 27 Ecology L.Q. 929, 961-63 (2001): As a result of our increasing numbers and affluence, huge areas of once ecologically healthy private land in the United States, far more land than is now or ever could be in public protected status, are gradually being converted to land with little ecological value.... The most obvious examples of this stem from the trends across the nation toward increasing suburbanization and exurbanization (extremely low density residential development in rural areas).... This trend is creating patchworks of ecologically incoherent micro-landscapes that, as a whole, cannot support the diversity of species and the ecological functions of the habitats that previously existed on the land...[s]uccess or failure in reversing this trend is critical to the future of ecosystem integrity in the United States.
321. Id. at 961-63.
322. One has only to read about the controversies surrounding the designation of National Monuments to understand that state and local economic interests are often at odds with national conservation interests, particularly in western states. See Robert B. Keiter, Keeping Faith with Nature 184 (2003) (noting that President Clinton's use of his executive power under the Antiquities Act to establish the 1.7 million-acre Grand Staircase-Escalante National Monument in southern Utah predictably provoked angry responses from the state's Republican political leaders, as well as its rural communities where both the president and his secretary of the interior were hung in effigy on the day of the announcement).
323. See supra notes 71 and accompanying text.
324. See infra Part III.B.2.c.ii (arguing that a conservation easement held by a government agency or charitable organization is an asset that is owned by the public, and upon the extinguishment of the easement in the context of a cy pres proceeding, the value attributable thereto should remain an asset owned by the public that should be devoted to charitable purposes "as near as possible" to those specified by the donor).
325. "Open space" is an inherently nebulous concept, the meaning of which will vary depending upon the location and characteristics of the encumbered land and the subjective judgment of the person called upon to define it. Indeed, as illustrated by the case study discussed in Part III.C, infra, one person's " open space" can be another's collection point for trash and Lyme disease.
326. See supra notes 7-8 and accompanying text.
327. See, e.g., Scott & Fratcher, supra note 25, § 399.4, at 536-37 ("It would seem rather that the charitable-minded would be discouraged by the sight of charitable institutions gradually ceasing to accomplish the high purposes for which they were created.").
328. Cf. Andrew C. Dana, The Silent Partner in Conservation Easements: Drafting for the Courts, The Back Forty, Jan./Feb. 1999, at 1, 3-5 (discussing different outcomes in conservation easement enforcement cases based on the different judicial philosophies of judges).
329. The "charitable purposes" for which most conservation easements are donated - for example, the protection of privately owned land for the purpose of preserving wildlife habitat, agricultural land, or open space - are unique. See supra note 39 (discussing why conservation easements shouldd be deemed to be conveyed for "charitable purposes"). Accordingly, existing case law applying the doctrine of cy pres is of little help in articulating a standard of "impossibility or impracticability" in the easement context. With regard to the rare conservation easement, the charitable purpose of which is the protection of privately owned land for use as a public park, existing case law may provide some guidance as to the appropriate standard of "impossibility or impracticability."
330. See, e.g., Cohen v. City of Lynn, 598 N.E.2d 682, 686 (Mass. Ct. App. 1992) (determining that the charitable purpose of a gift of land to be used for "forever for park purposes" had not become impossible or impracticable, the court noted that while it could find no precise and widely accepted definition of "park" or "park purposes," an expansive interpretation of those terms was in accord with the general definition found in judicial opinions, including Shoemaker v. U.S., 147 U.S. 282, 297 (1893), in which the Supreme Court stated that virtually every city and town is planning parks "as a pleasure ground for rest and exercise in the open air"). Conservation easements protecting privately owned land for use as a public park are rare because most private landowners are not willing to provide access to their land to the general public.
331. See William T. Hutton, Tax Strategies in Land Conservation Transactions 3-10 (2002) (on file with author) (noting that a prospective donor's agreement to public access is rarely to be expected).
332. I.R.C. § 170(h)(4)(A) (2004).
333. See Land Trust Alliance, The Standards and Practices Guidebook: An Operating Manua for Land Trusts 8-16 to 8-17 (on file with the Harvard Environmental Law Review): The IRS's...criteria for determining the deductibility of conservation easements can be used by land trusts as a guide to test the public benefit of easements... tax-deductible or not. In effect, these rules define conservation values that are considered to be in the national interest (and thus their protection is worthy of federal tax benefits)....If a property does not meet the criteria...it should be a warning signal to the land trust - the land trust needs to scrutinize the transaction to be sure it has sufficient public benefit to proceed.
334. See also Conservation Easement Handbook, supra note 6, at 12 (noting that the requirements for a charitable income tax deduction under § 170(h) and the Treasury Regulations interpreting that section provide a useful and logical starting point for the development of an agency's organization's easement selection criteria, even where a tax deduction is not a factor, because both the IRS and easement program administrators invested many months of effort to develop such requirements, and those who have worked with such requirements generally consider them workable); Land Trust Alliance, Background to the 2004 Revisions of Land Trust Standard and Practices 14 (2005) ("All land conservation transactions must provide some public benefit .... In order to ensure that projects have a public benefit, land trusts may want to start by incorporating the IRC's conservation purposes tests into their criteria to help ensure that any transactions involving a federal or state income tax deduction (or credit) meet these tests.").
335. See Treas. Reg. § 1.170A- 14 (2004) (providing numerous examples of the types of conservation easements that would satisfy each of the four conservation purposes tests). For a detailed description of the four "conservation purposes tests" and the types of easements that would satisfy such tests,
336. see generally Stephen J. Small, Federal Tax Law of Conservation Easements (1997).
337. See McLaughlin, supra note 3, at 52-55 (noting that, because of the breadth of the land protection objectives of § 170(h), the tremendous diversity of land in the United States, and the inherently subjective nature of the concept of "public benefit," a significant number of the standards are unavoidably subjective, particularly those that permit the donor of an easement to retain rights to subdivide and develop the encumbered land).
338. See, e.g., UCEA, supra note 15. § 1(1) (providing that a conservation easement may be created for the purpose of retaining or protecting naturall, scenic, or open-space values of real property, assuring its availability for agricultural, forest, recreational, or open-space use, protecting natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectura, archaeological, or cultural aspects of real property - but providing no further guidance with regard to the meaning of any of those terms).
339. For example, conservation easements encumbering land "pursuant to a clearly delineated Federal, state, or local governmental conservation policy" - which means that the land has been identified as worthy of preservation by representatives of the general public at the national, state, or local level - will generally satisfy the "open space" conservation purposes test. See Treas. Reg. § 1.170A-14(d)(4)(iii)(A). Examples of conservation easements that would satisfy the "open space" conservation purposes test include those that protect land located within a state or local landmark district or farmland pursuant to a state program for flood prevention and control. See Treas. Reg. § 1.170A-14(d)(4)(iii)(A), 14(d)(4)(iv)(B). In addition, conservation easements encumbering lands that provide habitat for rare, threatened, or endangered species (classifications which clearly change over time), or that are included within or buffer land that is protected for conservation purposes at the local, state, or national level (such as local, state, or national parks, nature preserves, wildlife refuges, or wilderness areas) will satisfy the "wildlife habitat" conservation purposes test. See Treas. Reg. § 1.170A-14(d)(3)(ii).
340. Because of reports of abuses in the conservation easement donation area, the Joint Committee on Taxation recommended that § 170(h) be revised to severely limit the types of conservation easements that would qualify for the federal charitable income tax deduction. See Staff of the Joint Committee on Taxation, Options to Improve Tax Compliance and Reform Tax Expenditures, JCS-2-05 296 (2005), available at http:// www.house.gov/jct/s-2-05.pdf. If changes are made to the conservation purposes tests under § 170(h), the courts would have to consider whether it is appropriate to apply the new, more stringent tests in determining whether an easement provides public benefit sufficient to justify its continued enforcement for purposes of the cy pres analysis. Given the difficulty associated with accurately measuring the public benefit being produced by a conservation easement, and the fact that the extinguishment of an easement generally will result in the development and more intensive use of the underlying land (and, thus, the substantially irreversible destruction of its remaining conservation values), it is recommended that the courts evaluate any changes made to the conservation purposes tests under § 170(h) with a bias against extinguishment. In other words, the courts should adopt legislative changes making the tests more stringent for purposes of the cy pres analysis only if such changes are supported by compelling evidence that they reflect real shifts in society's understanding and priorities with respect to private land conservation (as opposed to, for example, political reaction to perceived abuses of the federal tax incentives offered to easement donors).
341. Donors of conservation easements often state in their easement deeds that the land encumbered by the easement is being protected for a variety of convervation purposes. See Model Conservation Easement, supra note 66, at 34-36 (discussing the issues associated with multipurpose easements). In such cases, the donor is signaling that he or she intends that the easement will continue to be enforced for as long as the protction of the encumbered land for any of the specified conservation purposes is possible or practicable.
342. If the court determined that the easement would not satisfy any of the "historic preservation," "wildlife habitat," or "open space" conservation purposes tests of § 170(h) at the time of the cy pres proceeding, and that the donor had a general charitable intent, the court should then proceed to the third and final step in the cy pres process - formulating a substitute plan. It is in the third and final step of the cy pres process that the court should endeavor to ascertain from the terms of the easement and the circumstances attending its donation whether the donor of the easement, if presented with the "impossibility or impracticability" of the continued protection of the encumbered land for the conservation purposes specified in the easement deed, would have preferred: (i) that the easement be modified and the land continue to be protected for a different conservation purpose - such as for use as a public park or (ii) that the easement be extinguished, the unencumbered land sold, and the proceeds attributable to the easement be used to protect land with historic, agricultural and/ or wildlife habitat characteristics in another location. Absent a clear indication in the easement deed that the donor intended that the land would continue to be protected for public recreation or educational purposes, simply assuming that all easement donors would prefer the first option would give inappropriate deference to right or easement donors to control the disposition of their property. In some cases the evidence may indicate that the donor would have preferred the second option. See infra note 233 and accompanying text.
343. In some circumstance, an easement that does not satisfy the applicable conservation purposes test or test under § 170(h) may nonetheless provide significant benefits to the public. For example, one can imagine a circumstance where a rural, agricultural area has been targeted for landscape protection by a land trust, but the county or state in which the area is located has failed to develop a comprehensive land use plan and, thus, easements encumbering land in such area woulc not satisfy the "open space" conservation purpossss test under § 170(h) because protection of the land would not be "pursuant to a clearly delineated governmental conservation policy." See supra note 169 (discussing the "open space" conservation purposes test as it relates to land protected pursuant to a "clearly delineated governmental conservation policy");
344. Ralph E. Heimlich & William D. Anderson, Development at the Urban Fringe and Beyond: Impacts on Agricultural and Rural Land, USDA Agriculltural Economic Report No. AE803 55 (2001), available at http://www.ers.usda.gov/publications/aer803/ (noting the difficulties facing states and localities in developing and implementing appropriate land use plans and that local land-use planning efforts are in desperate need of updating because "in some localities land-use plans have not been updated since the 1920's; in others, such plans are nonexistent"). The public benefit from preserving such lands may well be sufficient to justify the continued enforcement of the easements, despite the failure of the locality or state to enact "clearly delineated governmental conservation policies," and the failure of the easements to satisfy any of the other conservation purposes tests under § 170(h).
345. See McLaughlin, supra note 3, at 60-63 (describing the public accountability and financial incentives that motivate government agencies and land trusts to accept easements that best advance their land protection goals, including the fact that every easement represents a liability to the accepting agency or organization in the form of ongoing monitoring and enforcement costs).
346. See, e.g., In re Village of Mount Prospect, 167 III. App. 3d 1031 (1988) (in which a court refused to apply the doctrine of cy pres to permit the sale of part of a parcel of land that had been dedicated to the city "for public purposes" in part because the court had before it a petition signed by fifty-six nearby residents objecting to the sale of the land).
347. See supra note 39 (discussing the expansive "catchall" category of valid charitable purposes under state law);
348. supra note 150 (discussing In re Estate of Buck, No. 23259 (Cal. Super. Ct. Aug. 15, 1986) (unreported but reprinted in 21 U.S.F. L. Rev. 691 (1987)), in which the California Superior Court argued that the cy pres doctrine should not be distorted by subjective, relative, and nebulous standards such as "inefficiency" or "ineffective philanthropy");
349. First National Bank & Trust Co. of Wyoming v. Brimmer, 504 P.2d 1367, 1370-71 (Wyo. 1973) (refusing to apply the doctrine of cy pres to create a new class of beneficiaries of a charitable trust, and noting that "a settlor must have assurance that his ... instructions will not be subject to the whim or suggested expediency of others after his death").
350. Landowners who understand that the long-term preservation of the conservation values of their and depends, in large part, on what happens to the land surrounding their land are more likely to become actively involved in landscape preservation efforts by contacting and educating their neighbors.
351. The surprise and indignation would be justifiable in cases where the government agency or land represented to the donor that the easement restrictions would be enforced "in perpetuity" or "forever," regardless of changed conditions, See, e.g., supra note 72.
352. See, e.g.. Bogert & Bogert, supra note 32, § 436, at 132.
353. See Scott & Fratcher, supra note 25, § 399.3, at 520-21, 526-29 (noting that when the failure of a charitable gift or trust occurs at some time subsequent to the death of the donor, it is not clear whether the property should revert to the residuary beneficiaries under the donor's will or the donor's heirs under the laws of intestate succession);
354. id., § 399.3, at 529 ("These questions would never arise if it were held that the doctrine of cy pres should always be applied where the trust fails at some time subsequent to the [the testator's] death.").
355. See Rogers v. Attorney General, 196 N.E.2d 855, 860-62 (Mass. 1964);
356. Bogert & Bogert, supra note 32, § 437, at 142. If the donor is dead, oral evidence as to what he said was his objective is inadmissible. Id. § 437, at 137.
357. Scott & Fratcher, supra note 25, § 399.2, at 499;
358. Restatement of Trusts, supra note 39, § 67 cmt, at 513.
359. Restatement of Trusts, supra note 39, § 67 cmt. b, at 513.
360. See Bogert & Bogert, supra note 32, § 437, at 137.
361. See id. and cases cited therein.
362. See, e.g., Village of Hinsdale v. Chicago City Missionary Society, 30 N.E.2d 657, 664-65 (III. 1940) (in applying cy pres to a gift of land to a village to be used as the site for a library, the court noted that the donor's general charitable intent to provide the inhabitants of the village with library facilities was evidenced not only by his gift of the land, but also by his previously demonstrated
363. Estate of Zahn, 93 Cal. Rptr. 810, 813-14 (Cal. Dist. Ct. App. 1971) (in applying cy pres to bequests of land that had been made for specified charitable purposes, the court noted that the "record is replete" with evidence that the donor had a general charitable intent to provide the Salvation Army with a music home for deserving Christian students and a rest home for Christian women, including the substantial time the testatrix devoted to charitable and community work and, in particular, projects of the Salvation Army for which the testatrix had supreme respect; the testatrix's love for music, her membership in the church choir, and her support for the training of young opera stars; and the testatrix's concern about the situation of young girls who came alone to Los Angeles and needed a safe place to live while working or attending school).
364. See Bogert & Bogert, supra note 32, § 437, at 137-40 and cases cited therein.
365. See, e.g., State v. Rand, 366 A.2d 183 (Me. 1976).
366. Scott & Fratcher, supra note 25, § 399.3, at 518.
367. See also Restatement of Trusts, supra note 39, § 67 Reporter's Notes, cmt. b (noting that much criticism of the doctrine of cy pres has focused on the artificial and speculative inquiry into whether a settlor had a "general" charitable intent and on the reality that, with the passage of time, courts are and rightly have been increasingly likely to find such an intent).
368. See Rand, 366 A.2d at 197.
369. See id.;
370. Scott & Fratcher, supra note 25, § 399.3, at 518 (noting that "[i]f many years and perhaps centuries have elapsed since the creation of the trust, it is frequently impossible and always expensive to ascertain the persons who would be entitled to the property" and that thus, "there is a stronger reason .... to apply the cy pres doctrine where the particular purpose of the testator fails at a subsequent time than there is where the purpose fails at the outset").
371. See Rand, 366 A.2d at 197;
372. Scott & Fratcher, supra note 25, § 399, at 476 (noting that where property is given in trust for a particular charitable purpose, the trust will not ordinarily fail even though it is impossible to carry out the charitable purpose, and the court will ordinarily direct that the property be applied to a similar charitable purpose, the theory being that the settlor presumably would have desired that the property be applied to purposes as near as possible to his stated purposes rather than that the trust should fail altogether).
373. See Restatement of Trusts, supra note 39, § 67 cmt. b;
374. Uniform Trust Code § 414, cmt. (2000) [hereinafter Uniform Trust Code].
375. Restatement of Trusts, supra note 39, § 67 cmt. b.
376. Uniform Trust Code, supra note 193, § 413 cmt.
377. See Fremont-Smith, supra note 26, at 177 (stating that Georgia, Massachusetts, Virginia, Arizona, Nebraska, New Mexico, and Wyoming apply the presumption).
378. See id.
379. See McLaughlin, supra note 3, at 41-47 (discussing three surveys of easement donor motivation).
380. A gift of the donor's homestead is analogous to the gift of a conservation easement encumbering the donor's homestead or other beloved land because in each case the donor is making a gift of an interest in the property for the purpose of ensuring that the property will be used as the site of a specified charitable activity (with the "charitable activity" in the case of an easement donation being, for example, the protection of wildlife habitat, open space, or agricultural land.
381. See Scott & Fratcher, supra note 25, § 399.2, at 511;
382. Bogert & Bogert, supra note 32, § 437, at 143 (noting that "[w]here a charity is to be located on real estate which had constituted the home of the testator and so he had a personal and sentimental interest on that account, some courts have held that his intent was particular and special, but in other cases a finding of general intent has been made," and citing to cases in which the court found the intent of the testator was particular and special, but the trusts were impossible or impractical of fulfillment at the outset rather than after some passage of time).
383. See, e.g., Wilkey's Estate, 10 A.2d 425 (Pa. 1940);
384. Rogers v. Attorney General, 196 N.E.2d 855 (Mass. 1964);
385. Estate of Zahn, 93 Cal. Rptr. 810 (Cal. Dist. Ct. App. 1971);
386. In re St. John's Church, 261 N.Y.S. 428 (N.Y. App. Div. 1933);
387. In re Neher, 18 N.E.2d 625 (N.Y. 1939);
388. In re Du Pont, 663 A.2d 470 (1994).
389. See, e.g., Wilkey's Estate, 10 A.2d at 425 (involving a testatrix who devised her family homestead, which had been owned by her family since the days of William Penn, to the Presbyterian Church to be used as the site for the construction of a new church as a memorial to her family and shortly before the testatrix's death the homestead was taken by eminent domain; rather than allowing the gift to fail, in whch case the condemnation proceeds would pass to the testatrix's residuary beneficiaries or intestate heirs, the court found that the testatrix had a general charitable intent and authorized the sale of the homestead and the use of the proceeds therefrom to construct the church in a nearby location, despite acknowledging that the testatrix wanted the church to be built on the homestead "which to her was followed because it had been in the possession of her forefathers for upwards of two and a half centuries");
390. Rogers, 196 N.E.2d at 855 (involving a testatrix who left a sum of money and her family homestead to certain trustees to establish a home for aged women as a memorial to her family; the trustees never established the home, and forty-four years after the testatrix death the homestead was found to be in nearly total disrepair and it was conceded to be "impossible or impracticable" to use it as a home for aged women due to insufficient funds; rather than allowing the trust to fail, in which case the trust assets would pass to the testatrix's residuary beneficiaries or interstate heirs, the court determined that the testatrix had a general charitable intent and authorized the sale of the homestead and the use of the proceeds for similar charitable purposes at another location, despite the court's express recognition that the testatrix "had a strong attachment to the family homestead and ... desired its preservation").
391. See Treas. Reg. § 1.170A-24 (as amended by T.D. 8069, 51 Fed. Reg. 1496 (Jan. 14, 1986));
392. Treas. Reg. § 1.170A-14(g)(6) (2004).
393. See Model Conservation Easement, supra note 66, at 18, 74-75.
394. Such a limiting provision technically satisfies the Treasury Regulations because the regulations require that the donor "agree that the donation of the [easement] gives rise to a property right, immediately vested in the donee organization, with a fair market value that is at least equal to the proportionate value that the [easement] at the time of the gift bears to the value of the property as a whole at that time," and that the donee be entitled to "at least" that value in the event the easement is extinguished. See Treas. Reg. § 1.170A-14(g)(6)(ii) (2004) (emphasis added).
395. For the reasons discussed in Part III.B.2.c.ii(2), infra, absent countervailing equitable considerations, the owner of the easement-encumbered land should be entitled only to the fair market value of his or her interest that land - that is, the fair market value of the land subject to the perpetual easement.
396. See infra Part III.B.2.c.ii(2) (discussing the perverse incentives that would be created if the value attributable to a conservation easement could be captured by parties other than the government agency or charitable organization holding the easement on behalf of the public).
397. Although the regulations provide that the Donation Percentage "shall remain constant," for the reasons noted in the text, that provision should be interpreted to mean that the regulations require the setting of a minimum (or floor) percentage value for the donee's property right - not that the percentage value of such right must be fixed. See Treas. Reg. § 1.170A-14(g)(6)(ii) (2004).
398. This would be consistent with the rule proposed for the valuation of the donee's interest upon the extinguishment of an easement in Part III.B.2.c.ii(2), infra. There is no explanation in the Treasury Regulations for the requirement that the donor set a minimum (or floor) percentage value for the donee's property right upon extinguishment. See supra note 208 and accompanying text. That requirement was presumably included in the Treasury Regulations to protect the public from the downside risk of a decline in the value of the property interest embodied in the easement.
399. See supra note 184 and accompanying text (noting that general charitable intent may be evidenced by a statement to that effect in the gift or trust instrument).
400. See, e.g., Bogert & Bogert, supra note 32, § 442, at 208;
401. id. § 431, at 95 (noting that the words "cy pres" are Norman French for "as near," and the phrase, when expanded to its full implication, was "cy pres comme possible," which meant "as near as possible").
402. See id. § 442, at 206.
403. See id.
404. Restatement of Trusts, supra note 39, § 67 cmt. d.
405. See Bogert & Bogert, supra note 32, § 442, at 206-07 (noting that if the settlor is alive at the time of the cy pres proceeding "he should be consulted and his wishes should be given consideration by the court, although they are not binding upon it");
406. Restatement of Trusts, supra note 39, § 67 cmt. d.
407. See Restatement of Trusts, supra note 39, § 67 cmt. d;
408. Fremont-Smith, supra note 26, at 49 (noting that the trend in the case law has been to move away from strict adherence to the original intent of the donor in the framing of schemes).
409. See Restatement of Trusts, supra note 39, § 67 cmt. d.
410. I b i d.
411. See Bogert & Bogert, supra note 32, § 441, at 201 and 207.
412. Id. § 441, at 200 (noting that the courts of equity have sole power to frame substitute plans themselves, or to approve of new plans drawn up by others);
413. Scott & Fratcher, supra note 25, § 399, at 481 (noting that, while the attorney general is generally a necessary party in a proceeding for the application of cy pres, "[t]he determination of the proper scheme is for the court,... and the Attorney General has no power to control the disposition" of the trust assets).
414. See Scott & Fratcher, supra note 25, § 399, at 480;
415. Bogert & Bogert, supra note 32, § 441, at 200-01.
416. See Bogert & Bogert, supra note 32, § 441, at 200;
417. See Scott & Fratcher, supra note 25, § 399, at 480.
418. See also Ashbridge's Estate, 61 Pa. D. & C. 279 (Pa. Orphans' Ct. 1948) (describing the activities of a court appointed master in developing a substitute plan for proposal to the court).
419. See supra note 199 and accompanying text (discussing the analogy between the gift of a homestead and the gift of a conservation easement).
420. See In re Du Pont, 663 A.2d 470 (1994) (involving a donor who gave the site of his "ancestral home" and considerable funds to a hospital association to be used for the construction of a convalescent care hospital as a monument to his family; forty-two years after the hospital was constructed and operated on the site, advances in medicine made the convalescent care hospital obsolete, and the association moved its convalescent care facility to a more modern facility in a different location; in applying the doctrine of cy pres the court insisted that the remaining endowment funds - which were considerable - be used to underwrite related alternative charitable uses of the "monumental" facility on the site of the donor's ancestral home);
421. In re Neher, 18 N.E.2d 625 (N.Y. 1939) (involving a testatrix. who devised her homestead to the village in which it was located as a memorial to her husband and with the direction that the property be used as a hospital; seven years after accepting the gift the village petitioned the court for the application of cy pres, asserting that it did not have the resources necessary to establish and maintain a hospital on the property and that a modern hospital adequate to serve the needs of the village had recently been established nearby, and requesting permission to erect a building on the property to be used by the village for administrative purposes; the Court of Appeals of New York reversed the appellate court and the trial court, which had denied the application of cy pres, and remitted the matter to the trial court with instructions to frame a scheme for carrying out the testatrix's intent, which was to give the homestead to the village for general charitable purposes in memory of her husband).
422. See In re Du Pont, 663 A.2d at 479 (determining that the donor's "central intention" was to create a living charitable monument to his family on the site of his ancestral home, and that the rendering of convalescent care on the site was not the core motivation for the gift);
423. In re Neher, 18 N.E.2d at 626 (determining that the testatrix's "paramount intention" was to give her homestead to the village in memory of her husband for general charitable purposes, and the direction that the homestead be used as a hospital could be ignored when compliance became altogether impracticable).
424. See, e.g., Wilkey's Estate, 10 A.2d 425 (Pa. 1940) (homestead was taken by eminent domain);
425. Rogers v. Attorney General, 196 N.E.2d 855 (Mass. 1964) (homestead could not be renovated due to insufficient funds);
426. In re St. John's Church, 261 N.Y.S. 428 (N.Y. App. Div. 1933) (same);
427. Estate of Zahn, 93 Cal. Rptr. 810 (Cal. Dist. Ct. App. 1971) (use of homestead for the specified charitable purpose was inconsistent with local land use plans).
428. See, e.g., Wilkey's Estate, 10 A.2d at 428 (determining that building and endowing a family memorial church was the testatrix's "paramount" purpose);
429. In re St. John's Church, 261 N.Y.S. at 434 (determining that "the supreme and paramount idea" in the mind of the decedent was to establish a home for aged women in memory of his mother, and the location of the home was a "secondary matter").
430. See, e.g., Wilkey's Estate, 10 A.2d at 428 ("[I]t is reasonable to believe that [the testatrix] would have desired, in all events, that a [memorial church] should be erected and maintained, and if, for any reason, it could not be built on the site of her ancestral home, that it should be erected somewhere in the vicinity rather than not at all.").
431. See Bogert & Bogert, supra note 32, § 442, at 211-12;
432. Wilkey's Estate, 10 A.2d at 425 (applying cy pres, the court authorized the sale of the testatrix's homestead and the use of the proceeds to construct the memorial church seven city blocks from the original site).
433. See also State v. Rand, 366 A.2d 183 (Me. 1976) (applying cy pres, the court allowed the use of condemnation proceeds to create a new family memorial park one mile away from the original site but within the same neighborhood).
434. See Scott & Fratcher, supra note 25, § 399.2, at 509;
435. Village of Hinsdale v. Chicago City Missionary Society, 30 N.E.2d 657 (III. 1940) (applying the doctrine of cy pres when the donor gave a parcel of land to the village in which he resided to be used as the site for a library; conditions arose that rendered erection of the library on the parcel "inexpedient and wasteful," and the court allowed the village to permanently abandon the use of the parcel as the site for the library).
436. Protection of the encumbered land a new conservation purpose would obviously have to provide sufficient public benifet to be considered a valid charitable purpose.
437. See, e.g. supra Part III.C.3.c.i (discussing the continued enforcement of the easement in the case study to protect the land for use as a public park). Given that the stakes involved in an easement extinguishment are quite high, the court should err on the side of continuing to enforce the easement for a different conservation purpose. Unlike, for example, the deaccessioning of an object of art, such as a Monet, from a museums's collection, which would, at worst, result in the of the object from the public domain if it is sold to a private collector extinguishment of an easment generally will result in the development and more intensive use of the underlying land and, thus, the destruction of its remaining conservation values. Thus, extinguishment of an easement would be more akin to burning the Monet or, more accurately, selling the Monet to a deranged private collector known for destroying artwork. Accordingly, easement extinguishment decisions should be approached with the utmost caution and with a set of clearly defined standards that will appropriately and consistently balance the interests of the donors with the changing needs of the public.
438. In a "conservation buyer" deal, a conservation buyer may: (i) purchased land identified by a land trust as having particularly high conservation value (such as land that provides habitat for rare, threatened, or endangered migratory songbirds), (ii) donate a conservation easement to the land trust encumbering such land for the purpose of protecting the habitat of such songbirds (the conservation buyer would generally receive tax savings for such donation), and (ii) sell the easement-encumbered land. In such a case, the conservation buyer might have no strong personal attachment to the encumbered land beyond the desire to see that the land is protected for the purpose of providing habitat to the migratory songbirds. If, due to changed conditions, the land ceased to serve as habitat for the migratory songbirds, the court should ascertain from the terms of the easement and the circumstances surrounding its donation whether the conservation buyer would have preferred that: (i) the easement be modified and the land continue to be protected for some other conservation purpose, such as the preservation of "open space," or (ii) the easement be extinguished, the unencumbered land sold, and the proceeds attributable to the easement used to protect migratory songbird habitat in another location. In such a case, the evidence might indicate that the donor's paramount intent was to provide habitat for migratory songbirds and, thus, that the second option would be more consistent with the donor's intent.
439. See infra Part III.C.3.c.ii (discussing the extinguishment of the easement in the case study in the that no entity is willing to undertake the financial and other responsibities associated with the operation and management of the encumbered land as a public park).
440. See supra note 222 and accompanying text.
441. Conceptualizing the donation of a conservation easement as the gift of a "right to restrict" the development and use of land is consistent with the common law understanding of a servitude, which is defined, in part, as a legal device that creates a right (referred to as a "benefit") that runs with the adjacent land (referred to as the "benefited" or "dominant" estate). See Restatement of Servitudes, supra note 12, § 1.1, at 8.
442. While conservation easements typically are held in gross (in that they do not "benefit" an appurtenant parcel), and benefits held in gross were of questionable validity under the common law, the easement enabling statutes expressly validate such benefits in gross. See id.;
443. UCEA, supra note 15, § 4 cmt.
444. See Arpad, supra note 15, at 114, 116 (noting that, while some may view a conservation easement as "extinguishing" the development and use rights restricted therein, the notion of a property right being completely extinguished has no basis in the common law, and to say that a property right, such as the property right to cut timber, is simply extinguished offers no reliable guidance to the courts in determining the difficult questions about who may have a claim to those rights if conditions changed).
445. If the courts adopt a rule that allocates a significant portion of the previously suppressed development and use value to owners to easement-encumbered land in cy pres proceedings, the real estate market can be expected to respond, and the value of easement-encumbered land can be expected to rise as estinguishment of the easement in a cy pres proceeding becomes more likely.
446. See McLaughlin, supra note 3, at 70 ("[B]ecause there is little excludable private benefit inherent in [a perpetual conservation] easement that might make it attractive to any buyer except a representative of the public, easements are not susceptible to direct valuation in real markets.").
447. See id. at 70-71 (noting that most if not all donated easements are valued using the "before and after" method for the reasons noted in note 239, supra, and accompanying text; the method is a well-established appraisal technique for valuing partial interests in land; and the federal government frequently uses the method in the context of government acquisitions and eminent domain cases).
448. See, e.g., Treas. Reg. § 1.170A-14(h)(3)(i) 2004.
449. See also id. § 1.170A-7(c) defining "fair market value" for these purposes as the price at which the land would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having a reasonable knowledge of relevant facts). For purposes of the "before and after" method, the easement is deemed to be truly perpetual, and the fair market value of the land immediately after it is encumbered by the easement is estimated without considering the possibility of extinguishment of the easement or the nature of the valuation rule that might be implemented in a cy pres extinguishment proceeding.
450. See McLaughlin, supra note 3, at 25 (noting that the easement valuation cases "reveal that easements have reduced the value of the land they encumber by as little as 2 percent and as much as 91 percent, with an average diminution of approximately 43 percent").
451. The "before and after" method estimates the price that the landowner would accept for the easement and be indifferent as between: (i) selling the easement and then selling the encumbered land for its fair market value, and (ii) selling the encumbered land for its fair market value. The "before and after" method does not puport to measure the "public interest" value of an easement, which can be described as the guaranteed future stream of public benefits flowing from the undeveloped land. See supra note 155 (discussing ecosystem services). The "public interest" value of an easement is conceptuallly unrelated to the extent by which the easement diminishes the fair market value of the land it encumbers. In the context of a cy pres proceeding, the "public interest" value of an easement is assessed in the first step of the cy pres process, when the court determines whether the charitable purpose of the easement has become "impossible or impracticable."
452. Recordation of a conservation easement is required by many state easement enabling statutes and, for all practical purposes, by the Treasury Regulations interpreting § 170(h). See Conservation Easement Handbook, supra note 6, at 202;
453. Satullo v. Commissioner, 66 T.C.M. (CCH) 1697 (1993), aff 'd, 67 F.3d 314 (11th Cir. 1995).
454. Given that no court has yet applied the doctrine of cy pres to a conservation easement, any prediction regarding the valuation rule a court will adopt in such an equitable proceeding would be purely speculative. According, any purchaser of easement-encumbered land who pays a premium due to speculation on the outcome of a cy pres proceeding would have no fairness claim to an outcome rewarding his speculation. In addition, if the donor of the easement is still the owner of land when the easement is extinguished, the donor also would have no fairness claim to any more than the fair market value of the land subject to the perpetual easement, having voluntarily made a gift of the perpetual easement to the public and, in many cases, having been rewarded by the public for his generosity with significant tax savingsg that were based on the proportional value of the easement as established under the "before and after" method.
455. In the Hicks v. Dowd litigation, discussed in note 119, supra, the Plaintiff's Memorandum indicates that the new owners of the easement-encumbered land purchased the land for a price that "no doubt reflected the easement's burden on the property value," and that, if the easement is extinguished as proposed (with no payment to the holder of the easement), such owners would own much more valuable property than they originally purchased and receive a "huge windfall."
456. See Plaintiffs' Memorandum, supra note 119, at 23.
457. To provide an extreme example, one can imagine the owner of land subject to an easement, the conservation purpose of which is the protection of habitat for some rare species of plant or animal, "paving the way" for the extinguishment of the easement by extirpating such species from the land or making alterations to the land intended to make it uninhabitable by such species. Many such activities would either not be expressly prohibited by the terms of the easement or impossible for the holder of the easement to detect.
458. See McLaughlin, supra note 3, at 25-26 n.90 (noting that case law reveals court-approved easement values with a low of $20,800 and a high of $4,970,000, and that there is anecdotal evidence that easements valued in the millions of dollars are becoming more common).
459. One could argue that a division of proceeds according to the values determined under the "after and before" method might give easement holders an incentive to solicit and accept easements they believe will fail the "impossibility or impractibility" standard in the near term (or purposefully allow the conservation values of certain encumbered lands to decline to a point where the easements would likely fail such standard) so that they can obtain the cash value attributable to the easements. The concern is somewhat far-fetched for least at two important reasons. First, an easemnet holder - as a charitable organization or government agency - is neccessarily a repeat player in its world, and has little incentive to engage in activities that are likely to impair its ability to continue to pursue its mission. Compare the easement holder's imperative with the speculator's ability to get in, make a killing, and move on (by buying encumbered land, breaking the easment through anti-social but not strictly illegal behavior and aggressive ligitation, and never returning to that particular location). An easement holder would likely get away with the schemes mentioned above only once before public outcry would shut down the holder's institutional ability to obtain easements. Second, the court in cy pres proceeding presumably would recognize what the easement holder has done, and appoint a new trustee to administer the public's share of the proceeds from the sale of the unencumbered land. See Scott & Fratcher, supra note 25, § 387 (discussing the removal of a hostile to the purposes of the trust).
460. As discussed in notes 204-206, supra, and accompanying text, in situations where the donor of an easement fixed the percentage of the proceeds from the sale of the unencumbered land to which the done is entitled upon extinguishment, the donor could be viewed as having had a general charitable intent with regard to that fixed percentage, and a specific charitable intent with regard to the remaining value attributed to the easement (which would pass by resulting trust to the donor, or, if the donor is not alive, to the donor's residuary beneficiaries or instate heirs).
461. See 59A Am. Jur. 2d Partition § 6 (2004) ("The original purpose of partition was to permit cotenants to avoid the inconvenience and dissension arising from sharing joint possession of land. An additional reason to favor partition is the policy of facilitating transmission of title, thereby avoiding unreasonable restraints on the use and enjoyment of property.");
462. Thomas J. Miceli & C. F. Sirmans, Partition of Real Estate; or Breaking Up is (Not) Hard to Do, 29 J. Legal Stud. 783, 783 (2000) ("[W]hat was once a productive union may become an inharmonious association, thus creating a threat of inefficient land use due to the 'anticommons' problem ... [and] [i]n this case, the law offers each owner an escape route in the form of the right to partition.");
463. Miller v. Miller, 564 P.2d 524, 527 (Kan. 1977)("'The right of partition ... is based on the equitable doctrine that it is better to have the control [of property] in one person than in several who may entertain divergent views with respect to its proper control and management.'") (citation omitted).
464. See 59A Am. Jur. 2d Partition § 148 (2004).
465. See also id. § 115 ("If each tenant has an undivided half interest, the court should only assign the half interest in the property to each tenant and should not grant a greater share to either.");
466. Powell, supra note 13, § 50.07 ("[P]artition means the division of the land held in co-tenancy into the co-tenants' respective fractional shares.");
467. Jonathan I. Charney, Note, Partition in the Modern Context, 1967 Wis. L. Rev. 988, 992 n.13 (1967) (in a partition by sale, the proceeds are "brought into court and ... divided by order of the court among the parties in proportion to their respective rights");
468. J. D. Eaton, Real Estate Valuation in Litigation 514-16 (2d ed. 1995) (discussing the appraiser's assignment in connection with partition litigation as consisting of a valuation of the entire property and then - in a partition in kind - dividing the property into parcels that correspond in value to the co-tenants' respective proportional interests).
469. See 59A Am. Jur. 2d Partition § 3 (2004).
470. Blonquist v. Frandsen, 694 P.2d 595, 596 (Utah 1984).
471. See also 59A Am. Jur. 2d Partition § 6 (2004) (same).
472. A charitable organization holding a conservation easement must also be careful to not run afoul of the private inurement and private benefit doctrines, which would jeopardize its tax exempt status. See supra note 25 (discussing those doctrines).
473. See, e.g., Paul Milgrom & John Roberts, Economics, Organization & Management 136-39 (1992) (discussing commitment in the context of contracting parties seeking to avoid "hold-up" of one by another and noting that "[i]t is too risky to rely on others to act consistently contrary to their own selfish interests unless there is something that commits them to that behavior").
474. Another potential cause of bargaining breakdown is the "retaliation" problem. If the owner of the easement-encumbered land views a proposed division of proceeds as unfair, she may refuse to cooperate in the extinguishment of the easement and sale of the unencumbered land to punish or retaliate against the holder of the easement. The potential for retaliation, however, would be greatly reduced by the fact that the court, rather than the holder of the easement, would determine how the proceeds from the sale of the unencumbered land would be divided, and the holder of the easement would have no power to change that decision. A party has no control over the division. Moreover, a division of proceeds based, in large part, on the values determined under the "after and before" method would not be arbitrary, and it would be difficult for the owner of the encumbered land to argue that such division is unfair. See, e.g., Manuel A. Utset, Reciprocal Fairness, Strategic Behavior & Venture Survival: A Theory of Venture Capital-Financed Firms, 2002 Wis. L. Rev. 45, 119-28.
475. See, e.g., Part III.C.3.ii(1), infra (discussing the possible deviation from the values established under the "after and before" method where the owner of the land encumbered by the easement is a charitable foundation established by the easement donor).
476. See also supra notes 204-206 and accompanying text (discussing the possible consequence if the donor of the easement fixed the percentage of the proceeds from the sale of the unencumbered land payable to the holder in the deed of conveyance). In any case, the amounts allocated to the parties should be reduced proportionately by transaction costs.
477. See generally Powell, supra note 13 § 79F. In some limited circumstances the public interest in developing the encumbered land might be considered compelling enough to convince a court to interpret state law to permit the holder of the easement to sue for partition. Such a suit could result in either an actual partition of the land based on the values of the parties' respective interests as established by the court, or the sale of the unencumbered land and a division of the proceeds according to such values. Under current law, however, it appears that a party seeking to partition property must have a possessory interest in the property.
478. See generally id. § 21.05.
479. See supra note 219 and accompanying text.
480. See supra note 229 and accompanying text.
481. See supra Part III.B.2.c.11(2) (discussing the division of proceeds upon the extinguishment of an easement and the value that could be attributable to the property interest embodied in the easement).
482. The government agency or land trust that was the holder of the extinguished easement normally would be the recipient of the proceeds attributable thereto (on behalf of the public). If, however, the court determines that the holder breached its fiduciary duties (perhaps by failing to monitor or enforce the easement) or is otherwise unfit, the court could appoint a new trustee to administer the proceeds. See supra note 249.
483. Such a plan might be developed by the recipient government agency or land trust. See supra note 221 and accompanying text. Such a plan might also be developed by a master, referee, or auditor appointed by the court.
484. See supra note 222 and accompanying text.
485. See generally Reed F. Noss & Allen Y. Cooperrider, Defenders of Wildlife, Savings Natures's Legacy: Restoring and Protecting Biodiversity 129-77 (1994) (discussing buffers and linkages to core reserve areas).
486. See, e.g., Rogers v. Attorney General, 196 N.E.2d 855, 862 (Mass. 1964) (in authorizing the sale of the family homestead and the use of the proceeds to accomplish the donor's charitable purpose elsewhere, the court mandated that "some formal recognition be given to the [donor's] family").
487. See, e.g., Conservation Easement Handbook, supra note 6, at 87-107 (stressing the importance of proper monitoring and enforcement of conservation easements);
488. Darla Guenzler & The Bay Area Open Space Council, Creating Collective Easement Defense Resources: Options and Recommendations v (2002) [hereinafter Collective Easement Defense], available at http:// www.openspacecouncil.org/Easements/defense.html ("[T]he conservation community anticipates a wave of litigation as successor landowners assume control of easement-protected properties.").
489. See also Reed v. Eagleton, 384 S.W.2d 578 (Mo. 1964). In that case, the testator bequeathed the residue of his estate in trust to the City of St. Joseph, Missouri, to be used to acquire park and other recreational lands within the city that would then be transferred to and improved and maintained by the city; when the trust funds far exceeded the amount needed to purchase land to serve the recreational needs of the citizens of the city, and the city presented compelling evidence that it did not have sufficient funds with which to improve or maintain the recreational lands to be transferred to it by the trust, the Supreme Court of Missouri authorized the use of some of the trust funds for the improvement and maintenance of such lands, noting that the limitation that the trust funds be used only for the pruchase of land should be subordinated to the accomplishment of the testator's primary object - to benefit the citizens of St. Joseph.
490. See, e.g., Lesley Ratley-Beach et al., Easement Stewardship: Building Relationships for the Long Run, Exchange: J. Land Trust Alliance, Spring 2002, at 6, 6-10 (describing the sophisticated system used by the Vermont Land Trust to evaluate stewardship funding needs for its easements).
491. See supra Part III.A (describing the "cy pres bargain").
492. See, e.g., Collective Easement Defense, supra note 267, at v ("[T]raditionally, the land conservation community has focused on acquisition, not on securing funds for stewardship or defense costs.").
493. Cf. Land Trust Alliance, Land Trust Standards and Practices, Standard 11.A (Revised 2004) requiring land trusts to secure the dedicated or operating funds to cover current and future stewardship expenses associated with each of their easement transactions). The same concern is evident in the museum context, where current codes of ethics promulgated by various museum professional organizations require that the proceeds obtained from the sale of even unrestricted gifts of artwork be used solely to acquire other works of art.
494. See, e.g., Malaro, Legal Primer, supra note 45, at 151 (noting that "[s]uch a practice usually serves the best interests of the public because it lessens the temptation to drain collections in order to meet support expenses");
495. Weil, supra note 46, at 115 (noting that "many regard such a restriction as essential to preventing governing boards or other ruling authorities from looking to a museum's collections as a potential source of operating funds").
496. Commentators have argued for a relaxation of the restriction on the use of deaccessioning proceeds in the museum context for the same reasons. See, e.g., Jennifer L. White, Note, When It's OK to Sell the Monet: A Trustee-Fiduciary-Duty Framework for Analyzing the Deaccessioning of Art to Meet Museum Operating Expenses, 94 Mich. L. Rev. 1041 (1996) (arguing that the courts should approve a museum director's use of proceeds from the sale of deaccessioned art to meet operating expenses if the director's conduct comports with the strict duties imposed upon a trustee under the law of trusts);
497. Jason R. Goldstein, Deaccession: Not Such a Dirty Word, 15 Cardozo Arts & Ent. L.J. 213, 230 n.82 (1997) (recommending a more liberal use of museum deaccessioning as a means of raising the funds necessary for the care and maintenance of the museum's collection, programs, and physical plant).
498. Many land trusts are all-volunteer operations and would not have the existing staff or resources to deal responsibly or efficiently with a large infusion of cash from the extinguishment of a conservation easement. See, e.g., Martha Nudel, Land Trusts Grow Stronger With More Staff, Larger Budgets, Exchange: J. Land Trust Alliance, Winter 2002, at 5, 5 (noting that the 2000 Census found that approximately half of the nation's local, state, and regional land trusts were run entirely by volunteers).
499. The facts of the case study are loosely based on the conservation easement discussed in the following reports. To facilitate the discussion of the doctrine of cy pres, many of the facts have been altered. See Rex Springston & Meredith Fischer, Old Moody Farm; Protected Property?/ Group Wants to Sell Land for Development, Richmond Times Dispatch, Jan. 24, 2003, at A1;
500. Meredith Fischer & Rex Springston, "No Reason" To Develop Property, Some Say; Opposition Surfaces to Plans for Old Moody Family Farm, Richmond Times Dispatch, Feb. 8, 2003, at B1;
501. Rex Springston & Meredith Fischer, Trade Land Here for Some There?/ Shifting Protections From Moody Property Would Permit Growth, Richmond Times Dispatch, Nov. 29, 2003, at A1;
502. Rex Springston, Shift State Protections on Land?/ Agency Suggests Opening the Chesterfield Property to the Public as a Park Instead, Richmond Times Dispatch, Dec. 4, 2003, at A1.
503. Some facts about the donor were also drawn from Texas State Historical Ass'n, Mary Moody Northen, Incorporated, in The Handbook of Texas Online, at http://www.tsha.utexas.edu/handbook/online/articles/ view/MM/vrmmn.html (last visited Apr. 23, 2005) (on file with the Harvard Environmental Law Review). The Myrtle Grove easement is not used as the case study in this Section because the charitable purpose of the Myrtle Grove easement has not become "impossible or impracticable" under any reasonable interpretation of that standard.
504. See supra note 119 and accompanying text.
505. See Field Trial Magazine, Lyme Disease, at http:// www.fielddog.com/ftm/lyme.htm (last visited Feb. 17, 2005) (noting that the national rate for Lyme disease is 3.9 cases per 100,000 people, but there are hot spots where the chance of contracting the disease is extremely high, and providing two examples of such "hot spots": (i) Ipswich, Massachusetts, near the Crane Beach Reservation, which has a severe overpopulation of white-tailed deer and three out of four households have at least one family member who has contracted Lyme disease, and (ii) the island of Nantucket, off Massachusetts, where the deer herd has been allowed to proliferate and the incidence of Lyme disease is 449.1 per 100,000 people) (on file with the Harvard Environmental Law Review).
506. Whether the Foundation, as residuary devisee, or Westons's intestate heirs would be entitled to the proceeds attributable to the easement in such circumstances is unclear. See supra note 180 and accompanying text. The Foundation would, however, recieve the remaining proceeds from the sale, as the owner of the underlying land.
507. It is assumed for purposes of this Article that the appraisal obtained by the Foundation accurately reflects the price at which the land encumbered by the easement and the land unemcumbered by the easement could be sold at the time of the cy pres proceeding.
508. See supra note 276.
509. See also supra Part III.B.2.c.ii(2) (discussing the "after and before" method and the recommended division of proceeds in a cy pres extinguishment proceeding).
510. See Scott & Fratcher, supra note 25, § 391, at 376-77 ("Where on the termination or failure of a charitable trust the settlor or his heirs ... are entitled to receive the property, they can maintain a suit to recover the property. In such a case they are enforcing rights adverse to the trust and are not attempting to enforce it.") Whether the Foundation, as residuary devisee, or Weston's intestate heirs would be entitled to the proceeds attributable to the easement in such circumstance is unclear.
511. See supra note 180 and accompanying text.
512. See supra note 142 and accompanying text (noting that it is within the court's discretion to permit such intervention).
513. See also supra note 141 and accompanying text (discussing the extent to which parties other than the owner of the encumbered land, the holder of the easement, and the state attorney general might have standing as a matter of right to intervene in a cy pres proceeding involving a conservation easement).
514. See Matthew Schuerman, Birth Control for Deer?, Audubon Mag. (2002), at http://magazine.audubon.org/webstories/ deer_birth_control.html (describing such a vaccination program) (last visited Sept. 26, 2004) (on file with the Harvard Environmental Law Review).
515. It does not appear that the residents would have any formal legal claim with regard to the diminution in the value of their property as a result of a modification or extinguishment of the easement. See generally Abraham Bell & Gideon Parchomovsky, Of Property and Antiproperty, 102 Mich. L. Rev. 1 (2003) (noting that owners of property adjacent to land preserved as a public park, such as Central Park in Manhattan, possess de facto quasi-property interests of considerable value, but absent legislation formally recognizing such interests, the property owners have no formal legal claim to the continued preservation of the land as a park, and their quasi-property interests can be enforced only through extrajudicial enforcement mechanisms such as politics).
516. The full three-step cy pres process would require: (i) a determination that Weston's specified charitable purpose (as set forth in the deed of conveyance) had become "impossible or impracticable," (ii) a determination that Weston had a general charitable intent when she donated the easement, and (iii) the formulation of a substitute plan for the use of the easement (or the value attributable thereto) for a charitable purpose "as near as possible" to Weston's original charitable purposes. It is in the third and final step of the cy pres process that the court would endeavor to ascertain from the terms of the easement and the circumstances attending its donation whether Weston, if presented with the "impossibility or impracticability" of the continued protection of the farm for the conservation purposes specified in the easement, would have preferred: (i) that the easement be modified and the land continue to be protected for a different charitable purpose - such as for use as a public park, or (ii) that the easement be extinguished, the unencumbered land sold, and the proceeds attributable to the easement used to protect land with rural agricultural, historic, open space, and wildlife habitat characteristics in another location.
517. See Treas. Reg. § 1.170A-14(d)(5) (2004). The "historic preservation" conservation purposes test under § 170(h) applies to land areas that are of national historic interest, such as Civil War battlefields or land located within a registered historic district. The donation of an easement that protects land areas of local or state (rather than national) historic interest can satisfy the "open space" conservation purposes test of § 170(h) if the state or locality has identified such land as worthy of preservation pursuant to a "clearly delineated governmental conservation policy."
518. See infra notes 285-287. Despite the existence of the family graveyard, however, neither the eastern state nor County X has identified Aubry Farm as worthy of preservation pursuant to a clearly delineated governmental conservation policy.
519. See William T. Hutton, supra note 163 at 3-11 and 3-12, noting that "there are probably few situations where an easement should be presumed to satisfy the 'scenic' requirement," and those situations will involve, for example, national park in-holdings, riparian properties in scenic river corridors, and properties abutting and entirely viewable from well-traveled mountain valley roads in the vast expanses of the northern Rockies).
520. Section 170(h)(4)(A)(iii) of the Internal Revenue Code provides that an easement will satisfy the "open space" conservation purposes test if the preservation of the land encumbered by the easement is: (i) for the scenic enjoyment of the general public, or (ii) pursuant to a clearly delineated governmental conservation policy and, in each case, will yield a significant public benefit. Thus, even if Aubry Farm was particularly scenic, or its preservation was "pursuant to a clearly delineated governmental conservation policy," to satisfy the "open space" conservation purposes test, the court would also have to find that continued enforcement of the easement would "yield .. a significant public benefit". See Treas. Reg. § 1.170A-14(d)(4)iv) (2004) providing a list of eleven non-exclusove factors germane to the determination of whether and easement "yields a significant public benefit").
521. See Treas. Reg. § 1.170A-14(d)(4)(iii)(A) (2004).
522. See id. To qualify as preserving property pursuant to a "clearly delineated governmental conservation policy," an easement must further as specific, identified conservation project.
523. See id.
524. As noted in Part III.C.1, supra, the Plantation and surrounding farmlands have been identified as worthy of preservation as a Rural Historic District in County X's Comprehensive Plan, and as worthy of preservation as a registered historic districts at both the state and Federal levels. Open space easements donated before the easements of § (170(h), or to land trusts with lenient (or nonexistent) easement selection criteria, may not satisfy the "open space" conservation purposes test under § 170(h). In addition, as local comprehensive plans are revised to reflect changing land use patterns and demographics, some open space easements that once qualified for a deduction under § 170(h) as preserving property "pursuant to a clearly delineated governmental policy" may no longer qualify. The charitable purpose of such an easement should nonetheless be found to be "possible or praticable," if the easement satisfies one of the other conservation purposes test under § 170(h) or there is continuing public support for the enforcement of the easement. In assessing the "impossiblity or impracticability" of the charitable purpose of such easements, the court should be mindful of the fact that some localities might rezone an area as a growth area in an effort to extinguish easements encumbering land in the area and permit development, even though the easements continue to provide significant benefits to the public.
525. See Treas. Reg. § 1.170A-14(d)(3) (2004).
526. See also id. § 1.170A-14(f), Example (2) (providing that the donation of an easement prohibiting further development on a farm that is contiguous with, and will provide a compatible buffer to, a nature preserve qualifies for a deduction under § 170(h)).
527. See supra note 282 and accompanying text (explaining that continuing to enforce the easement for a new conservation purpose, such as for use as a public park, would constitute a change in the charitable purpose of the easement, and should be permissible only through the application of the full three-step cy pres process).
528. At least one state easement enabling statute requires that the grant of a conservation easement be consistent with local land use plans. See Va. Code Ann. § 10.1-1010.E (1998) ("No conservation easement shall be valid and enforceable unless the limitations or obligations created thereby conform in all respects to the comprehensive plan at the time the easement is granted for the area in which the real property is located.").
529. See also Mont. Code Ann. § 76-6-206 (2004) (providing that "[i]n order to minimize conflict with local comprehensive planning, all conservation easements shall be subject to review prior to recording by the appropriate local planning authority ..." although the planning authority's comments are not binding on the grantor or grantee and are merely "advisory in nature"). In Massachusetts, a designated public official must approve conservation easements.
530. See Mass. Gen. Laws ch. 184, § 32 (Law. Co-op. 2005).
531. See McLaughlin, supra note 3, at 109 (discussing the increasing focus of land trusts on protecting entire landscapes).
532. See supra note 282 and accompanying text (explaining that continuing to enforce the easement for new conservation purpose, such as for use as a public park, would constitute a change in the charitable purpose of the easement and should be permissible only through the application of the three-step cy pres process).
533. In formulating a substitute plan, the court likely would consider the suggestions of all interested parties, including the Land Trust, the state attorney general, the Foundation, members and representatives of the general public, other conservation organizations, and the Weston heirs. See supra note 219 and accompanying text. Given the complexity involved in formulating a substitute plan for the use of a failed easement (or the value attributable thereto), the court might refer ther matter to a master, referee, or auditor.
534. See supra note 222 and accompanying text.
535. In determining the modifications that would be made to the easement to permit the use of the land as a public park, the court would likely consider the original conservation purposes for which Weston donated the easement - to conserve and forever maintain the rural, agricultural, historic, open space, and wildlife habitat character of the land. See, e.g., In re Thorne, 102 N.Y.S.2d 386 (N.Y. Sur. Ct. 1951) (refusing to apply the doctrine of cy pres to permit a public park to be used for "picnicking, fishing, and general park purposes" when the will devising the land to the city for use as a public park stated that it was "not to be used as a recreational park ... for picnics or bathing, but simply for driving [in horse-drawn vehicles] and walking" (internal quatations omitted)).
536. For similar reasons the Land Trust and other conservation groups operating in the area also may be unwilling to purchase or accept title to the land and thereby assume responsibility for the ongoing operation and maintenance of the land as a public park. Moreover, even if the land subject to the easement is conveyed to County X or the eastern state for use as a public park, the Land Trust and the other conservation organizations operating in the area may be disinclined to accept responsibility for monitoriong and enforcing the easement as modified because of the liability issues associated with easements that encumber land to which the public is granted access. See Bill Silberstein & Ellis Rosenzweig, Minimizing Liability for Public Access on Private Lands, Exchange: J. Land Trust Alliance, Spring 2002, at 24 (describing the added risks and responsibilities associated with conservation easements encumbering land to which the public is granted access).
537. See Report of Committee on Charitable Trust and Foundations, supra note 40, at 393-94 ("[T]he courts have shown considerable ingenuity in the approcahes they have taken to framing appropriate schemes, and this comment applies to the methodology applied in reaching solutions as well as to the sulutions themselves."). The court should, of course, choose a location for the lot or lots to be sold that would have a minimal adverse impact on the use of the remaining land as a public park.
538. See supra note 226-228 and accompanying text (noting that, in cy pres "gift of homestead" cases where the continued use of the homestead for a related charitable purpose is either impossible or not feasible, the courts authorize the sale of the homestead and the use of the proceeds therefrom to accomplish the donor's specified charitable purpose in some other location - even if the evidence inidicates that the donor had a particularly strong personal attachment to the homestead and a desire to see it preserved - to avoid the failure of the charitable gift or trust).
539. See supra note 229 and accompanying text (noting that, in "gift of homestead" cases, if the evidence indicates that the donor intended to confer charitable benefits on the residents of a particular city, town, or other district, the court will usually direct that the proceeds from the sale of the homestead be applied to charitable purposes somewhere in that district).
540. The amounts allocated to the Land Trust and the Foundation by the court should be reduced proportionately by transaction costs. Also, the Aubry Farm easement was donated in 1976 - ten years before the Treasury Regulations interpreting § 170(h) were promulgated. Accordingly, the easement does not contain the provisions addressing extinguishment and the division of proceeds required by those regulations. See supra note 203 and accompanying text (discussing those provisions).
541. See Slade v. Gammill, 289 S.W.2d 176 (Ark. 1956) (involving trustees of a charitable trust, established to maintain a small cemetery, who conveyed a portion of the cemetery to a church in exchange for the church's agreement to, inter alia, move all bodies interred in the conveyed portion of the cemetery to the other portion of the cemetery, erect a suitable monument in the cemetery in memory of the settlor, and provide for the continuous care of the cemetery; the court approved the sale by the trustees in cy pres proceeding, noting that trustee's solution to the lack of funds for the maintenance of the cemetery was "very fine and sensible" and carried out the prupose of the settlor - the permanent maintenance of the burial places of those whose bodies are interred in the cemetery).
542. See Marianna Macri, Associated Press, Church relocating to avoid sprawl; takes deceased along, Pittsburgh Post-Gazette, July 26, 2004, at B4 (describing the relocation of a cemetery by a small church in Montgomery ville, Pennsylvania, due to sprawl development, and noting that "[c]emetery moves are relatively commonplace, especially in areas undergoing rapid development").
543. See Slade, 289 S.W.2d at 176.
544. Recall that the Rural Historic District is the only remaining area of the county that contains land with characteristics similar to those Weston sought to protect with her easement.