Right place, right time: Considerations for allowing new rights of way on conserved properties

When, and under what conditions, a land trust can allow a new right of way (utilities, access, other encroachments) on a property subject to conservation easement or on lands owned? As with any request, start with obtaining a full written description of the proposed use so that you fully understand the purpose, scope, location, duration, ongoing maintenance, access, surfacing, width and other issues.

For existing ROWs, the language of the easement itself dictates whether a new right of way is permitted and whether the landowner can consent to a third-party user of an existing access route. If it is not explicitly prohibited, then read the entire easement with specific attention to the conservation purposes and values, and limitations on structures and surface alteration. Analyze the proposed use and the location to determine whether it is inconsistent with the conservation purposes or any of the prohibitions. If so, the right of way would likely constitute a violation. If the easement allows for utility improvements to service permitted uses, then it is possible that the utility right of way is permissible. About 73% of the reported disputes involve conservation easements.

Amendments to existing conservation easements to permit a new right of way outside of building areas may be contrary to conservation purposes and may be too high risk to undertake. Use the 2017 edition of the Amendment Report to assess any such requests for existing conservation easements. Any time a land trust considers an amendment, full due diligence is required, including a title update, mortgage subordination, baseline and map update and Form 990 reporting.

The process for determining whether to permit new rights of way on a fee property is different from that for a conservation easement, but the starting point is the same. Does the proposed use comport with the conservation values and purposes? If not, the request should be denied. If it is consistent, the same process can be used to evaluate new uses or expanded uses or width of existing ROWs. Again, the land trust is under no obligation to consent. Any evaluation should consider the heightened litigation risk associated with rights of way, in addition to impermissible private benefit and adverse impacts to conservation. About 27% of Terrafirma ROW claims involve land owned by a land trust.

Third parties are unilaterally widening, grading and creating rights of way without first discussing with land trusts and landowners. Here is one example: Acting without permission, neighbors turned an old grassy track into a paved road across a preserve, created a new ROW to access backlands and then demanded a formal ROW so they could sell house lots adjacent to conservation land. Another example: land trusts also have allowed third parties to use access ways without limiting the time of use, or manner of use and without an enumerated purpose. As a result, years later that same third party is claiming, instead of a one-time limited access, a full formal legal ROW through a preserve.

There are more challenges, including lawsuits, by third parties who may have intermittently used an existing dirt track without permission and now are seeking legal prescriptive access rights, or third parties who had a verbal understanding allowing use of a dirt lane to access other property and then suddenly paved and widened it. Increasingly, third parties (involved in 75% of related Terrafirma claims), and in some instances original owners (6%) and successor owners (19%), are seeking to develop adjacent land and demanding access across conservation land.

While this might seem benign, especially if there is an existing dirt track or even a road, the problems associated with ROWs are numerous and serious, not the least of which is adverse conservation impact and impermissible private benefit. The western half of the country seems to have a disproportionate number of these challenges and related Terrafirma access claims involved: 44% for the western states, 15% for the Great Lakes states, 15% for New England states and 26% for the Atlantic coast states including the Southeast.

ROW litigation has been steadily on the rise, with the goal of expanding existing ROWs with vague or nonexistent written agreements, or creating new paved and widened access to service lots around preserves and conservation easement land. ROWs shared among multiple owners also breed disputes that often end up involving the land trust in bitterly fought litigation. These are expensive and protracted disputes. Silence by adjacent parties in response to land trust cease and desist letters does not indicate acquiescence; nor does verbal assent to removing encroachments. It usually means that they are preparing litigation.

Land trusts need to be mindful of when, and under what conditions, they can allow a new right of way (utilities, access, other encroachments) on a property subject to conservation easement or on lands owned. As with any request, start with obtaining a full written description of the proposed use so that you fully understand the purpose, scope, location, duration, ongoing maintenance, access, surfacing, width and other issues.

Note that neither the land trust nor a landowner has an obligation to consent to new requests for use or for a new right of way of any kind unless a court of competent authority so orders. In the case of utility condemnation, some land trusts prefer to negotiate compensation with the utility company out of court, but in such instances the land trust must mitigate private benefit risks and obtain full compensation. If the utility responds with asserting its rights of eminent domain, consult the Condemnation practical pointer. For more information, access the Practical Pointer Requests for New Utility Rights of Way.

Here is some further information on considerations when analyzing ROWs:

• Mission and donor restrictions

  Is the ROW consistent with the land trust’s mission, articles and bylaws. Review compliance with any donor restrictions. Even absent specific donor intent that would prohibit consideration of, or run counter to the proposal, if the donor or their family is still present in the area, it would be important to consider how they would feel/learn/react.

• Existing encumbrances

  If the proposed ROW purports to expand on an existing ROW, work with legal counsel to review the language of the existing ROW, and if such language is vague, then state common law, to determine whether the proposed use is in fact an expansion or rather is within the scope of the existing ROW. If the existing ROW does not permit expansion explicitly, you have no obligation to approve a new expansion right.

  Review the title work for the property and determine whether existing encumbrances would conflict with the ROW. Evaluate any deed restrictions. Consider rights held by others to the property’s surface and mineral uses, such as an existing agricultural lease or severed ownership of the mineral rights. Evaluate whether construction/operation/maintenance of a ROW would interfere with those rights. If the property is encumbered by a mortgage or deed of trust, consult with the lender to determine whether the ROW is consistent with the terms of the loan.

• Private benefit/private inurement

  Consider whether the request would violate the private benefit or private inurement doctrines. For further guidance on private benefit and inurement analysis see the 2017 edition of the Amendment Report beginning at page 11 and the Practical Pointer Private Inurement and Impermissible Private Benefit.

• Perception of or actual conflicts of interest

  Is any party involved in the request for a new or expanded ROW an insider to the land trust, related to any board or staff members, an attorney who has previously represented the land trust or any other person that may present an appearance of impropriety.

• Public opinion

  Consider how the community might react to a decision to locate a ROW on a preserve or easement land and what if any reputational risks might follow.

• Public benefit

  How does the proposal address public benefit of the conservation values? Is it neutral, adverse, would the ROW disrupt any conservation values or is there any opportunity for a net-positive increase to conservation values? Also, is the impact temporary, permanent, or intermittent over perpetuity?

• Avoid the slippery slope

  Once a land trust consents to a new or expanded ROW, it may be approached for more or people will merely assume there are no objections and use the conservation land for their own purposes. Be aware that the rationale for the decision will set the precedent for requests in the future, as pressures on the finite resource of land continue to increase.

• Constant maintenance and pressure on conservation

  How impactful would the ROW be over time? Would there be a need for future negotiations with the parties using the ROW? Will there be maintenance required that in turn will require ongoing monitoring and possible enforcement? Is a ROW the best legal arrangement?

In short, while land trusts always want to be good neighbors and stewards, ROWs are a time when a land trust would engage in extensive due diligence before considering granting rights and, if rights are granted then be sure to address increased enforcement costs and offset impermissible private benefit. Whatever the land trust decides, especially for accredited land trusts, it should document fully the entire process, due diligence and conclusions.