The Link Between Conservation Restriction Drafting, Stewardship, and Enforcement

1. The Link Between Conservation Restriction Drafting, Stewardship, and Enforcement Elizabeth L. Wroblicka, Esq. Etheredge & Steuer, P.C. Northampton, MA

2. Seminar Goals • Explore advanced CR drafting techniques • Understand how the wording of a CR affectsyour ability to monitor • and enforce • Be aware of what are you obligating your land trust to do • Know how to draft baseline and monitoring reports that will • be admissible in court

3. WARM UP EXERCISE Examples of CR Clauses….What are the Issues? Any sound emitted from the protected property must be below a certain decibel level so as not to disturb nearby birds with loud noises 2. Agricultural CR restricts the use of a residential building on the property to farm workers only Grantor wanted to protect historically significant stones by prohibiting any of the stones from being moved Landowner owns property adjacent to the CR property. CR attempts to limit landowner’s use of the adjacent property.

4. Practical Considerations Underlying CR Drafting Decisions Is this provision capable of being monitored? Do we have the stewardship staff expertise and time? 2. What sort of relationship with the landowner will this engender? Are you being consistent with all of your landowners (no private benefit) Is this clause necessary to protect the conservation values? 4. Are you willing to go to court to enforce this clause? Do you have the funding, will your board back you, will the community support you? 5. Project Circumstances: grant funding, tax deduction, acreage, location, uses, existing natural resources

5. General Drafting Guidelines • Avoid ambiguities • Avoid overly restrictive, inflexible provisions • Avoid internal inconsistencies • Use objective, measurable standards for permitted/prohibited uses • Use performance goals when referring to natural resources

6. CR Drafting Techniques • Requiring CR Holder Approval • -when use this • -stewardship ramifications • Creating Affirmative Landowner Obligations • -when use this • -stewardship ramifications

7. CR Drafting Techniques • 3. Referring to Other Laws • -when use this • -stewardship ramifications • 4. Prioritizing Conservation Purposes • -when use this • -stewardship ramifications • 5. Creating Resource Zones • -when use this • -stewardship ramifications

8. CR Drafting Techniques • 6. Excluding Buildings • -when use this • -stewardship ramifications • 7. Referring to Land Management Plans • -when use this • -stewardship ramifications

9. General Tenets of Fee Ownership and Function of a CR • Fee title owner retains all the rights of ownership except what the CR expressly restricts • Fee title owner still needs to comply with applicable laws, such as forest cutting practices act and zoning, regardless of what CR states. • CR should contain more stringent standards than relevant laws to protect conservation values, otherwise, simply a “no development” CR • If a CR permits activities, such as recreation, agriculture, or forestry, that may be harmful to other recognized conservation values, then CR should also give Grantee a way to curtail the potentially harmful activity to avoid running afoul of prohibition against inconsistent uses

10. Components of a Working Forest CR (WFCE) • CR should contain a forest management goal that has some teeth and is more restrictive than state forest cutting laws. • CR should require a FMP review [and approval] before any harvest over a certain size • Review and approval of FMP based on consistency with terms of CR • CR should reference state regulatory process and third party certification where applicable • Monitoring of WFCE may involve pre and post harvest visit to verify work done consistently with FMP and no other violations of CR occurred.

11. Drafting Stewardship Records for Admission into Evidence • Key documents for CR enforcement actions: CR, Baseline Documentation Report, Monitoring Reports • 2. Hearsay Rule and its Exceptions: • Recorded Documents • Public Records • Business Records Rule • Credibility • Authentication • Managing Stewardship Records for Litigation