Has a Recent Supreme Court, Appellate Division Decision Changed the Way New York Courts Will Treat Conservation Easements?

By Brian Troy, J.D. Class of 2018 Touro Law Review Junior Staff Member

On July 20, 2016, the Second Department of the Supreme Court, Appellate Division handed down a decision in favor of a landowner defending against a land trust that claimed the owner was in violation of a conservation easement that burdened his land.[1] This case, Orange Cnty. Land Tr., Inc. v. Tamara Amelia Farm, LLC, was brought to the Appellate Division by the plaintiff/appellant Orange County Land Trust, Inc. (“OCLT”).[2] The defendants/appellants were the previous owner, Tamira Amelia Farm, LLC, and the current owners, Vincenzo Oppedisano and Clemente Farm, LLC. (“Clemente”).[3]

A conservation easement is a restriction on the use of one’s property to maintain open space and to preserve the land’s natural properties and conditions.[4] The easement requires a voluntary agreement between a private landowner and not-for-profit conservative organization or public body.[5] Conservation easements will usually contain “permanent, perpetual restrictions on the use and development of the landowner’s property.”[6] These restrictions run with the land and are enforceable in perpetuity against any future landowners.[7] For these reasons, conservation easements usually reduce the value of the land to which they are attached.[8] There is a strong public policy favoring the creation and enforcement of conservation easements, as they are one of many tools New York uses to preserve the natural resources and scenic beauty of the state.[9]

The plaintiff alleged multiple violations of the conservation easement.[10] These violations included the building of a barn in a prohibited area, the construction of an access road to the barn, and failure to obtain approval for building the barn.[11] The barn and access road were built in what the easement referred to as the “farm area” of the property.[12] OCLT claimed that improvements such as the barn and road were not permitted in this area.[13] Construction projects and improvements were restricted to the 29-acre “farmstead complex,” while the 50-acre farm area was to be used for agricultural purposes.[14]

When interpreting the easement, the court looked to its language to try and determine the intent of the parties.[15] The stated purpose of the conservation easement was “to conserve productive agricultural and forestry lands and natural resources associated with the Property for the benefit of the public and for future generations, and also to conserve the scenic character of the Property for the benefit of the public and for future generations.”[16] The court stated that this purpose applied both to the farm area and the farmstead complex.[17] The court reasoned that because the easement had an agricultural element in its stated purpose, the building of a barn in the farm area was consistent with its purpose.[18]

It is standard for a land trust to include terms in a conservation easement requiring the landowner to receive permission before any construction or improvements take place on the burdened property.[19] Although Clemente clearly violated the easement by neglecting to ask OCTL for permission to construct the barn and access road, the court decided that OCTL waived any redress for this violation when it agreed to consider applications retroactively.[20] The court dismissed OCLT’s retroactive withholding of permission as unreasonable “under the terms of the easement and the circumstances.”[21] The New York Court of Appeals denied review of Orange Cnty. Land Tr.[22]

This case presented several issues that New York courts have yet to address regarding conservation easements.[23] A further examination of the issue of whether OCLT unreasonably withheld consent would have been both beneficial to this case, and future cases that encounter standard of consent issues.[24] The defendants had expressed confusion and difficulties regarding the process for applying to OCLT for the permissions in the first place, and it is unclear what the standards for withholding consent are in these situations.[25] The court did not discuss this, and doing so would have provided clarity on an issue that has not been discussed in New York.[26]

The court also had an opportunity to examine how restrictive covenants will be treated in New York when they are part of a conservation easement.[27] Public policy against restrictions on the free use of land requires a strict construction of restrictive covenants, and all ambiguities should be construed against the party creating the restrictions.[28] The presence of these covenants in conservation easements, however, introduces the competing public policy of enforcing conservation easements, which would promote construction of the terms in favor of the restriction.[29] The easement in Orange Cnty. Land Tr., contained a provision stating that all terms should be construed in favor of the holder, which raises questions as to the validity of such provisions depending on which public policy the courts find more compelling.[30] The court did not discuss this provision in their decision.[31]

This decision has attracted the attention of land use attorneys in New York, forcing them to wonder how strictly conservation easements will be enforced in the future.[32] The decision may undermine the enforcement of a widely used tool for conserving New York’s natural and agricultural resources.[33]

[1] Orange Cnty. Land Tr., Inc. v. Tamara Amelia Farm, LLC, 34 N.Y.S.3d 618 (N.Y. App. Div. 2016), appeal denied, No. 2016-1178 (N.Y. Feb. 14, 2017).

[2] Id.

[3] Id.

[4] “Conservation easement” means an easement, covenant, restriction or other interest in real property, created under and subject to the provisions of this title which limits or restricts development, management or use of such real property for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural condition, character, significance or amenities of the real property. . . .

N.Y. Envtl. Conserv. Law § 49-0303 (McKinney 2016).

[5] Id.

[6] Jessica E. Jay, Land Trust Risk Management of Legal Defense and Enforcement of Conservation Easements: Potential Solutions, 6 Envtl.L. 441, 451 (2000).

[7] Id. at 452.

[8] Id. at 453. “Giving away rights, such as the right to develop, reduces the value of a landowner’s property.” Id.

[9] “The policy of the state shall be to conserve and protect its natural resources and scenic beauty and encourage the development and improvement of its agricultural lands for the production of food and other agricultural products.” N.Y. Const. art. XIV, § 4.

[10] Orange Cnty. Land Tr., Inc., 34 N.Y.S.3d at 618.

[11] Id. at 620.

[12] Id.

[13] Id.

[14] Jessica Owley, Interpreting Conservation Easements in New York, Land Use Prof Blog (Aug. 15, 2016), http://lawprofessors.typepad.com/land_use/2016/08/a-recentconservation-easement-case-from-new-york-has-a-lot-of-land-trusts-worried-in-2004-the-orange-county-land-trust-e.html.

[15] Orange Cnty. Land Tr., Inc., 34 N.Y.S.3d at 620.

[16] Id.

[17] Id.

[18] Id. “Contrary to the plaintiff’s contention, construction of the barn did not violate the easement, because such construction was consistent with the easement’s agricultural purpose and its particular requirements. . . .” Id.

[19] See Sample Conservation Easement 1, Schoharie Land Trust, http://schoharielandtrust.org/index.php/get-started/benefits-to-you/state-tax-incentives/56-stewardship/conservation-easement/102-sample-conservation-easement-1 (last visited Mar. 11, 2016).

[20] Orange Cnty. Land Tr., 34 N.Y.S.3d at 618.

[21] Id.

[22] Orange Cnty. Land Tr., Inc. v. Tamara Amelia Farm, LLC, No. 2016-1178, 2017 WL 581856 (N.Y. Feb. 14, 2017).

[23] See Owley, supra note 14.

[24] Id.

[25] Owley, supra note 14.

[26] Id.

[27] See Orange Cnty. Land Tr., 34 N.Y.S.3d at 618.

[28] See Wetlands Am. Tr., Inc. v. White Cloud Nine Ventures, L.P., 782 S.E.2d 131, 165-66 (Va. 2016). The decision, in this case, includes an interesting discussion on this topic. The majority held in favor of applying strict construction to an ambiguity in a conservation easement, while a dissenting opinion argued for abolishing strict construction when conservation easements are involved. Id.

[29] Id. (Roush, J., dissenting).

[30] See Owley, supra note 14.

[31] See Orange Cnty. Land Tr., 34 N.Y.S.3d at 618.

[32] See Owley, supra note 14.

[33] See Land Trust Alliance: New York Program, Land Trust Alliance, http://www.landtrustalliance.org/what-we-do/our-regional-programs/northeast/new-york-program (last visited Feb. 21, 2017).

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