The Unanswered Question of New York’s Conservation Easement Law:
Land or Not Land?
Todd Matthew Thomas
JD, University at Buffalo, 2004.
MS, SUNY College of Environmental Science and Forestry, 1999. tmthomas@stny.rr.com
Abstract
Conservation easements are hailed by nearly as sides in Adirondack land use struggles as a useful compromise. In a transaction that transfers certain use rights for the property, the State of New York has prevented further development on numerous tracts of land while still allowing some uses, such as motorized recreation and logging, banned under the “Forever Wild” clause. In the challenge to the Champion sale of 1999, however, certain unanswered questions were raised concerning the status of conservation easements under the Environmental Conservation Law and Forever Wild clause. This paper explores the legal issue of how easements currently have an ambiguous classification under NY law, while suggesting a common sense approach toward management of easement areas.
In 1998, the State of New York and the Forestland Group entered into an agreement with Champion International for the purchase of Champion’s forest holdings in the Adirondack region of New York State. The State purchased 29,000 acres in fee simple, mostly ½ mile-wide corridors along rivers and a large wetland complex in Franklin County. The Forestland Group purchased 110,000 acres for use in sustainable forestry, and then sold conservation easements across the entire property to the State.
Both State ownership and the conservation easements changed established use patterns. State land is open to the public and manmade structures are not allowed within the Forest Preserve, meaning hunting clubs that had leased land from Champion would be required to vacate and destroy/remove their camps at the end of a grace period established by the State. The Forestland Group, as a condition of the easement, decided to no longer lease land to hunting clubs, subject to a fifteen-year extension of existing leases. Existing leases were for three years. Numerous hunting club members, as individuals and as an unincorporated association (collectively the Plaintiffs), sued to invalidate the land purchase, alleging violations of numerous State laws and State Constitutional provisions. Primarily, they argue that conservation easements are “state land” and thus violate N.Y. Constitution Article 14, §1, calling for State lands in the Adirondacks to be preserved as wild forest lands, and Environmental Conservation Law §49-0301, which states the State cannot hold conservation easements which are part of the Forest Preserve.
The strife over the use of these State lands and State-owned easements has definite political overtones that raise an array of questions that likely have no easy or generally accepted answers. There is no doubt an ongoing upstate/downstate environmental split, at least at the most general level, mirroring urban/rural splits on a multitude of other issues. To many urban residents, the Adirondack environment is little more than an abstract positive. To local residents and people within an easy drive of the area, the environment is often conceived more in terms of recreational potential. In facetious terms, city slickers are useless tree huggers who couldn’t find a marked trail with a GPS unit and $300 Merrill Boots while locals are ill-educated rednecks who see the woods only as a place to destroy via gas-powered recreation and rifle fire. Such stereotypes, while as incorrect as all stereotypes are wont to be, shape much of the dialog on the topic of Adirondack land use. This conflict has evolved over time, spiking with each new State action concerning Adirondack land use.
The most contentious development in the Adirondack saga occurred just over 30 years ago, when the State of New York passed the Adirondack Park Agency Act and the Agency of the same name was created within the Executive department of State government. The Act gave the Agency zoning powers over State and private land within the boundaries of the Adirondack Park. Reaction from locals could best be described as fierce opposition. While the opposition became muted over the last generation, the 1990 Commission on the Adirondacks rekindled the flame of opposition. The 256 recommendations proposed by the Commission triggered organizing by local opponents, mirroring and backed by the national Wise Use movement. In reaction, the environmental advocacy group the Residents’ Committee to Protect the Adirondacks formed in 1990 to voice a pro-Commission local perspective while the Adirondack Council and other environmental groups called for support of the Commission report. When the widespread opposition resulted in the foundering of the proposals in the State Legislature, diehard opponents were heartened and a core permanent opposition was formed, while many of the “casual” opponents lost interest after the defeat of the proposals. Much of the same opposition had been seen, in a less developed form, in the defeat of the 1990 bond referendum, which was phrased as an upstate/downstate struggle over the control of Adirondack lands.
The above is related as context for the legal struggle that briefly took place during the flurry of litigation following the Champion land deal and lingers as an unanswered question and potential legal obstacle. Issues raised in the case go beyond the dueling perceptions that can likely never be reconciled, though growing from those issues, and pose legal questions that require answers which affect the management of State lands and conservation easements. The legal challenges to the Champion deal were dismissed based on the statute of limitations, as discussed below. The merits of the case were not decided by the courts, leaving this an undecided area of law which has implications on the activity of all actors in the land conservation/land use area. In the section below, the specifics of those cases will be discussed, followed by a section focused on the important language of Environmental Conservation Law §49-0301 and the issue of whether conservation easements owned by the State of New York should be classified as “State land” within the protections of Article XIV of the New York State Constitution.
Aubin v. State: The source of unanswered questions.
In 1999, Howard Aubin and other users (hunting club lessees) of the former Champion property who were also active in the property rights movement filed suit to invalidate the sale of land to the State and a third party buyer. The parties filed a complex original complaint over 100 pages long, containing nine causes of action in 400 numbered paragraphs. The action was filed October 28, 1999. An amended complaint was filed December 16, 1999. The plaintiffs amended due to changes in the parties joining the lawsuit. Subsequent to the initial filing, the St. Lawrence County Board of Legislators voted, despite significant public criticism and legal questions about whether the County could even be a party, to join the lawsuit as a plaintiff and contribute toward legal fees. Further, several of the hunting camps had changed status, either dropping from the suit or joining as corporate entities. However, the plaintiff parties remained roughly identical despite changes in nomenclature. In both lawsuits, defendants were the State of New York, John Cahill, as Commissioner of the DEC, H. Carl McCall as Comptroller, the (unnamed in the suit) Director of the Division of the Budget, and two State agencies, the Adirondack Park Agency and Office of Real Property Services, collectively referred to as “the State respondents.” Additionally, Champion International, The Conservation Fund and the Forestland Group (“the private defendants”) were sued for their part in the land transaction.
Both sets of defendants moved to dismiss the suit on multiple grounds. Key to the State respondents claim was that the suit was barred by the statute of limitations. These parties claimed that the suit, while filed as a declaratory judgment action, was in fact an Article 78 petition. CPLR 3001 and 3017(b) authorize declaratory judgment actions, though mainly defined by case law. The purpose of these actions is to define the legal rights of parties with a civil controversy. CPLR Article 78 (commonly “Article 78”) proceedings replaced a number of common law writs in New York, allowing for judicial action akin to a writ of mandamus or prohibition. The writs, and now the Article 78 actions, allow affected parties to challenge the decisions of government agencies and compel or prohibit certain actions. These actions are typically bound by a four-month statute of limitations, beginning from the time of the governmental action that is being challenged.
At the Supreme Court (trial court) level, the motions to dismiss were granted. Acting Supreme Court Justice Dan Lamont found for the respondents, after an analysis of the causes of action raised by the plaintiff/petitioners. All but one of the causes of action, he wrote, “clearly allege procedural defects or violations in the administrative process” for which Article 78 proceedings were the appropriate action for seeking relief. The court then considered the appropriate statute of limitations for bringing suit a claim, and found that the statutory 60-day limit concerning Adirondack Park Agency actions was the controlling period. The Court held that the APA was the lead agency, in approving the land transaction and issuing permits, and thus the special provisions concerning actions of that agency controlled. From the issuance of the APA permits and consummation of the transaction on July 1, 1999, the sixty-day period then ran until August 30, 1999. The two Aubin suits, filed October 28 and December 16, respectively, were beyond this date and statutorily barred. Further, as noted in the factual information within the decision, service was not made on the defendants until December 22, 1999 at the earliest and January 18, 2000 for the final party. The court noted that this late service, 52 days after the four month statute of limitations would have expired (on November 1, 1999), meant that even if the 60-day limit arguably did not apply, procedural missteps by the plaintiff’s still barred the lawsuit. The one cause of action held not to be an Article 78 claim, the seventh, was dismissed as it was a dependent claim based on the other causes of action. With the action held to be an Article 78 and dismissed, the court did not address the arguments of the plaintiffs concerning the alleged illegality and Constitutional violations of the land sale, concentrating solely on the “procedural mess” (in Judge Lamont’s own words) created by plaintiff’s lawyers.
Aubin et al appealed the Supreme Court decision to the Appellate Division of the Third Department. This Department is the one within which the majority of contested lands lie, but also the one in which Albany sits and where decisions made in the State capitol are routinely challenged. A five-judge panel heard the appeal and affirmed the decision of the lower court, with some modifications. While the 60-day period was held applicable to claims against the Adirondack Park Agency, the appellate court held that the claims against other State parties were subject to the statutory four-month period of CPLR 7800. However, the Court held that the procedural error of late service still invalidated the attempt to bring the lawsuit. CPLR 306-b reads that service in an Article 78 proceeding may be made up to 15 days after the expiration of the statute of limitations without permission of the court, or later if “good cause” is shown or an extension is in “the interesting of justice.” The court noted that December 22, 1999, was “well beyond the 15-day period” and the record gave no indications for any exception to the statutory period. After the Appellate Division upheld the dismissal, the Court of Appeals declined to hear another appeal of the issues.
The result of the litigation did nothing to resolve the legal questions about the status of conservation easements posed by the petitioners/plaintiffs. The dismissal due to procedural errors avoided answering difficult Constitutional and statutory questions, perhaps a benefit to the State when compared to complex analysis and potentials for disruption caused by developing answers. However, despite some sections of the law that appear conflicting, the overall regulatory scheme and traditional status of real property easements indicate that the plaintiffs were in error and that conservation easements are not “state land” as contemplated by Article 14 of the State Constitution.
Statutes and Regulations
The basis of the Aubin plaintiff’s suit was based in a literal interpretation of certain sections of law concerning the management and acquisition of property by the State of New York. Section 49-0213 of the Environmental Conservation Law reads “[t]he commissioners shall report on…land acquisition activities, including: lands acquired, whether in fee title or by conservation easement…” Based on sections such as this, the argument was made that conservation easements are classified as “land” and should be subject to the “Forever Wild” clause.
A different conclusion can be gleaned from the definition of “conservation easement” in the next title of the ECL, which creates New York’s statutory conservation easement. Title 3, §49-0303 defines as conservation easement as “an interest in property”, not as “land.” Given the specific reference to easements as a form of land, this use indicates a lesser form of ownership in property.
Section 530 of the Real Property Tax Law, dealing with the valuation of taxable State land, reads “Lands and state lands shall include conservation easements created pursuant to title three of article 49 of the ECL within the Adirondack or Catskill Parks…” In later sections, though, the RPTL lists state lands subject to taxation (§532), including Forest Preserve lands, but not including conservation easements. These are listed as taxable property in a separate section (§533) devoted specifically to state-held easements. While it does not directly contradict the prior sentence that listed easements as land, it does return to the ambiguity of the ECL with dual definitions.
The regulations of the land management agencies do not cast any more light on the status of conservation easements. Office of Parks, Recreation and Historic Preservation regulations define real property as “lands” and “interests in lands less than full title.” (371.1(f)) This fits with the RPTL language concerning the special status of easements, although it also contradicts the ECL language of easements as “land.” Department of Environmental Conservation regulations (190.0(4), 591.2(g)) also refer to an easement as “an interest in real property.”
This leaves courts with a not uncommon question, balancing text versus intent. To say that the State did not mean “land” when it said “land” flies in the face of certain conventions of statutory interpretation. However, this is potentially indicated by the ambiguousness of the various statutes. The use of “land” in the Constitution applies to lands owned in fee title by the State. When land is wholly owned and under the control of the State, then it is subject to the restrictions of the Forever Wild Clause. This is why Syracuse University is the owner, on paper, of the State University of New York College of Environmental Science and Forestry’s Newcomb campus. These 11,000 acres, if owned by the State (via the State University), would violate the Constitution. The property is not managed in a “Forever Wild” capacity and a change to manage in such a way would defeat the institution’s purpose for ownership. This ownership issue is completely analogous to the reality of conservation easement ownership. Such a designation would also defeat the stated purpose of conservation easements. If land under a State easement cannot be kept in timber production or closed to the public, they lose all value to industrial owners and to the State as a protection tool. It is contrary to the stated purposes of land protection in §49-0101 of the Environmental Conservation Law to create a restrictive definition that limits the ability of the State to use such a land protection tool.
Common law easements
The traditional nature of the easement is separate from that of fee ownership of a parcel, which grants greater rights to control the property. A conservation easement, by definition, is different from outright ownership of a piece of real property. New York jurisprudence has long held that easements constitute an interest in land. “The definition of an easement is the right which one man has to use the land of another for a specific purpose. 3 Kent’s Com. 528, cited in Tabor v. Bradley, 18 N.Y. 109 (1858). As well, “an easement is a right without profit, created by grant or prescription, which the owner of one estate may exercise in or over the estate of another for the benefit of the former.” More recent cases have relied on the Greenwood Lake definition .
Other states have defined easements in a similar fashion in their jurisprudence. Maryland courts have followed the rule that an easement is a “nonpossessory interest in the real property of another.” Michigan courts have said that an easement is “a liberty, privilege, or advantage without profit, which the owner of one parcel of land may have in the lands of another.” As well, a historic New Jersey decision stated an easement is “a right, distinct from ownership, to use in some way the land of another.” The weight of New York and persuasive precedent indicates that easements have never been “land” and are an interest in land. While a common law easement is not identical to the statutory conservation easement created by ECL Article 49, the development of easement jurisprudence indicates a common theme that an easement, generally, has never been classified as congruous with fee ownership.
Practical Considerations: Price and Use
The State increasingly favors easements as a flexible land protection tool. The State Land Master Plan states easements are “less-than-fee interests in private lands that serve an important public purpose, in either providing public access to state lands or in preserving the natural, open-space character of the private land burdened by the easement.” Easements carry a lesser price than the outright purchase of land. When the State purchased the 14,700-acre William C. Whitney Wilderness Area in 1997, a price of $17.1 million was paid. Simple division supplies that the price paid per acre was $1,163. In 2000, the State purchased 450 acres of shoreline and islands on Blue Mountain Lake for $1,418,000, or $3,151 per acre. The Champion deal, in comparison, included both fee and easement purchase. Overall, 139,000 acres were protected at a cost of $24.9 million, or $179 per acre. Prior to the Champion deal, 18,950 acres in the same region were protected by conservation easement at a cost of $1.6 million, or $84 per acre. While productive forestland has a significantly lower market value per acre than waterfront land, the lesser price of easements extends to shoreline property as well. In 2003, 5,000 acres in the central Adirondacks, including two lakes in their entirety, was protected by conservation easement at a cost of $2,300,000, or $460 per acre. In each case, purchase of an easement assured protection of the land at a far lower cost than full fee ownership, while allowing many uses incompatible with State ownership to continue.
The use of easements prevents many of the most damaging uses while allowing private control and timber harvest to continue on the property. Each easement contains separate conditions and requirements negotiated by the parties. In an immediately relevant example, the Champion easement lists the “Reserved Rights” of the property owner, including “the right to conduct commercial forestry activities related to the management of forest resources and the harvesting of timber….” The right also remains with the landowner to lease lands to hunting clubs for a period of fifteen years. However, development rights are limited to only those future projects agreed upon in the easement or later agreed to by procedures set out in the easement. As well, permitted construction and timber uses are still subject to riparian buffers and other environmental protection strategies as spelled out in the easement. This flexible combination allows the State to assure the economically and culturally important activities continue, but in a way that safeguards environmental and other public values.
Finally, the State prefers easements in many cases to reduce an administrative burden. Lands owned by the State in fee title are automatically part of the “Forever Wild” Forest Preserve. Newly purchased lands must be inventoried by DEC and APA staff for both recreational and environmental features, and then lands added to the Forest Preserve are subject to public hearings to assign a land use classification. State resources are then used to monitor and protect the lands, from Forest Ranger and Environmental Conservation Officer patrols to DEC road maintenance work. As well, the Adirondack Park Agency Act requires a management plan be completed for all State lands. This is an intensive document including information on ecology, recreational use, cultural significance and planned future uses. As well, this process is subject to public hearing at the DEC and must be approved by the APA staff and Commissioners prior to enactment.
Easement lands, however, have use patterns proscribed as part of the document. The State and the private owner then share responsibility for upkeep and management of the property. For example, in the Champion easement, Terms and Conditions Item 7, at 31, requires State and private cooperation in maintenance of the road system. Through the use of easements, the state is able to protect Adirondack lands while using a lesser amount of money and resources on the land protection efforts.
Conclusion
Although Plaintiffs raise a novel Constitutional question on the nature of easements, contractual provisions in the easement already control in case of dissolution of the easement. As well, the existing web of law concerning conservation easements does not give a single definition as to the nature of this interest in land. Some, as the Plaintiffs recite, claim easements to be “land” while other sections of State law define easements as lesser interests in land. The nature of easements also contradicts the Plaintiffs’ argument. Easements are a useful conservation tool endorsed by all interested parties in the conservation community. The use of easements further demonstrates that they are not “land” in any sense. Based on these factors, Plaintiffs’ cause of action and request for declaratory relief based on this fallacious assumption should be dismissed.
