Conservation Easements and Perpetuity: Till Legislation Do Us Part

Article excerpt

I

INTRODUCTION

Although conservation easements have many appealing features, their drawbacks have caused some observers to see the heavy reliance on them by land trusts as a weakness with possibly serious consequences. First, relative to fee acquisition, conservation easements may more often lead to defects in the conservation quality of land protected, the level of protection provided, and the adequacy of stewardship. (1) A second broad category of defect is the uncertain durability of the protection provided by conservation easements. The protection provided may be fragile or, at least, of unproven dependability. (2) The loss of a parcel thought to be conserved also involves a loss of the time, energy, and money spent on locating the land, negotiating the deal, documenting conservation values, and monitoring and stewarding the land for as long as it remains under protection.

Although a broad consideration of both categories of potential defects would be valuable, the discussion here is narrow, focused mainly on the implications for conservation-easement durability that may be derived from a particular legislative action in Michigan in 2009 through 2010 concerning the Colony Farm Orchard. The case involves the introduction, and eventual passage, of a bill stripping a restriction requiring that the land be used for public park, recreation, or open space. The claimed purpose of removing the servitude was to allow expansion of Western Michigan University's (WMU) nearby Business Technology Research (BTR) Park, which would involve selling the Colony Farm Orchard land as lots to private tenants. The servitude was not cast in the form of a conservation easement, though it may have met the requirements under the Applicability section of the Uniform Conservation Easement Act, (3) as well as Michigan's conservation easement enabling statute. (4) Be that as it may, the case illustrates a vulnerability to legislative action that could extend to standard conservation easements.

The following section sets out the background of the Colony Farm Orchard case, including the first attack upon the Orchard's restrictions. Section III describes the second attack, the Colony Farm Orchard case. Section IV analyzes the conditions that allowed this attack to succeed and that may set the stage for future attacks on conservation easements. Section V discusses ways the legislative process can defeat the perpetual nature of conservation easements. Section VI explains what can be done to make land protection durable in the increasingly changing world in which we now live. Those readers primarily interested in the underlying analysis of the legal challenges to conservation easements may wish to read Section IV or V first.

II

SETTING OF THE COLONY FARM ORCHARD CASE

A. What was the Colony Farm?

The Colony Farm was an agricultural outpost of the Michigan Asylum for the Insane (later Kalamazoo State Hospital). It was established just beyond the southwest corner of the city on a 324-acre farm and adjoining parcels purchased by the state in the late 1880s. Patients and employees were housed in several large brick "cottages." The operation was self-sufficient and also provided food for the main hospital three miles away in the city. Products included the whole range typical of an early twentieth-century farm. (5)

Although the farming operation was a success agriculturally and therapeutically, it was phased out in the 1950s for economic reasons. By 1969, operations at the site were terminated, and soon thereafter, furnishings were auctioned off and the buildings demolished. (6) Over the next several years, land declared surplus to the operations of the Department of Mental Health was transferred to other state agencies or sold. (7)

B. The Orchard, the Baker Farm, and Asylum Lake

The Colony Farm Orchard is one of three adjacent Colony Farm properties transferred to WMU (8), whose main campus is in Kalamazoo. …