Exacting Conservation Easements in California

Document Type

Article

Publication Date

2012

Abstract

The enforceability of exacted conservation easements is a threshold question for their continued use. This brief article, prepared for the publication of the Environmental Law Section of the California Bar Association, builds on earlier work on exacted conservation easement to examine tricky enforceability questions arising in that state. In California, three statutes regulate agreements of this type: the Scenic Easement Deed Act (SEDA), the Open Space Easement Act (OSEA), and the Conservation Easement Act (CEA). It is not clear whether exacted conservation easements are permissible under any of these three statutes and the CEA’s requirement that conservation easements be “voluntary” and complicates matters. With a close look at the CEA and related case law, this article assesses the likelihood of enforcing exacted conservation easements in California.

The California cases present two possibilities. One group of cases indicates that courts might choose to enforce exacted conservation easements based on the underlying law that served as the basis for the exaction. In such cases, it does not appear to matter whether the exacted conservation easements follow the requirements outlined in CEA or other California property law. Other cases, however, hint that courts might refuse to enforce exacted conservation easements that do not follow the requirements of California property law, requiring any created restrictions to adhere to the conservation easement or servitude statutes. The result is a conflicting legal landscape with few published cases and little legislative history to guide courts, local governments, and citizens.

Publication Title

Environmental Law News

First Page

3

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