Amending Perpetual Conservation Easements Confronting the Dilemmas of Change

As conservation easements age, land trusts have begun to confront changed circumstances that they could not have anticipated when the easements were drafted, and under which an amendment may serve conservation or other public interests. These may involve changes in law, species, technology, community needs, or even climate. The questions to be asked are:

• What criteria should be used to determine whether an easement amendment would be appropriate?
• What process should be used to make that determination?
• Who decides?

The land trust community is divided over whether or not easements are charitable trusts, which can only be amended with a court’s approval. This paper explores the legal, ethical, and public relations issues surrounding amendments and the limitations of applying the charitable trust doctrine. It proposes a legislative solution to clarify the rules for amending easements in response to changed circumstances.