1. Enforcing Covenants Craig Lee Vice President The Trust For Public Land

3. TPL and Covenants • 150 covenants, 2,500 transactions totaling 300,000 acres • Helped establish over 150 land trusts during the 1980’s and 90’s • Co-authored the “Conservation Easement Handbook” • Increased use of Covenants in past 7 years

4. Why Enforce Covenants • Elements of Covenant Stewardship • Legal Responsibility • Helps Maintain Land Trust’s legal authority to enforce • Engenders public confidence in your Covenant Program

5. LTA’s Survey on Covenant Violations • LTA’s US 1999 Conservation Easement Study surveyed 175 local and regional land trusts out of 1,300 (2 million acres total), 7,400 CES • 7% have experienced violations

6. LTA’s Survey ~ Key Findings • 500 violations were reported • 383 of which were considered minor • 115 violations required significant amount of the trust’s resources for resolution • 21 cases involved lawsuits • In each of these cases, the violator was not the original landowner • Prohibited surface alterations was the most common major violation • Leveling ground for roads • Digging drainage ditches • Cutting vegetation and Construction of prohibited structures are also frequent violations

7. Most Frequent Violations in LTA’s Study

8. Costs in Resolving Violations • Major easement violations ranged $100,000 to $100 • Average cost for major violations was $10,000 • Staff costs from $100 - $28,000 • Associated costs range from $100 - $4,000 • Litigated violations costs $5,000 to $100,000 • Average of $35,000

9. Prepare for the Next Generation • Risk of violation increases when covenants are transferred to 2nd generation landowner • In litigation cases • All were monitored, most annually • Landowner was aware of the terms of the covenant

10. Making Policy Changes

11. Recommendations for Better Enforcement • Covenants must be carefully and clearly drafted • Have policies and procedures in place before a violation occurs • Regular, structured monitoring is essential, and contact with the landowner during monitoring visits is recommended • Good landowner and community relations are critical • Land trusts should have the financial resources to monitor, enforce and defend easements against violations • Land trusts should consult experienced legal counsel as soon as a violation is discovered or suspected

12. Lessons from the Whidbey Island Violation • Though easement was sound, relationship with 2d generation owner was tenuous • Survey the building envelope • Keep diligent records of visits; put it in writing; operate more business-like • Informality of relationship between land trust and land owner hurt LT’s case in court • Find the right personality combination between your board and the owner • “Equitable Relief” – to relocate the foundation, land trust was denied this but got the screening remediation • Decision not to appeal the ruling– because LT negotiated a favorable remediation plan with the owner (vegetative screening) and the court costs were prohibitive ($15k for the lower court proceedings alone)

13. Stewardship Endowment • How to set an amount • Who pays?