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Abstract

In fiscal year 2004, Wal-Mart added 139 new discount stores, supercenters, and “neighborhood markets” to its already significant chain of stores across the United States. Wal-Mart developers submit their proposals to governing town bodies all over the country with the promise that the $20 million construction of a 200,000 square foot store will create 500 new jobs for the local economy, will have a payroll of over $12 million, will increase the tax base of the area, and will provide convenient, affordable shopping for consumers. For these reasons, the big box stores are a hard offer for town planners to resist, and they often accept the stores with open arms, seeing them as a way to “put life back into the community” or to offer more shopping choices for their “underserved” town. Yet the proliferation of Wal-Marts and other stores contribute dramatically to problems of urban sprawl, traffic congestion, disappearance of green space, and loss of small businesses, and often come with many hidden costs, both economic and environmental. In the face of this development pressure, there is a legal tool that many private parties, local communities, and even states and the national government are using to conserve land: the conservation easement. Across the nation, small non-profit land trusts have sprung up in local communities; these land trusts have been aggressively pursuing conservation easements to conserve open space, preserve agriculture land, protect watersheds, and other conservation purposes. In addition, many communities have incorporated conservation easements into their comprehensive plans, often requiring developers, for example, to grant a conservation easement to the town as part of a subdivision proposal. Even state governments have increasingly used conservation easements to protect large swaths of land, engaging in lengthy and complex land transactions. But what happens if the town is the holder of a conservation easement on a parcel of land and that parcel is threatened by the very development that the town wants to welcome and encourage? What should happen if the town refuses to enforce the easement against the developer? Are there appropriate legal structures in place to ensure that the easement is enforced? Or should courts grant broader enforcement power to the public, as primary beneficiaries of conservation easements, in order to secure proper enforcement: a power of citizen enforcement? While there is significant debate about the certainty of conservation easements to last in perpetuity, the fact remains that there are already thousands of conservation easements in this country and the pace of conservation easement growth will likely only increase in the coming years. Stronger enforcement mechanisms are necessary now in order to protect the public benefit. All conservation easements have an important public interest at stake, and the public cannot take the risk that this interest will be lost forever if enforcement actions cannot be brought by parties willing to protect the publicly subsidized investments. Given the lack of litigation surrounding conservation easements up to this point, every court decision handed down offers a chance to evaluate the strength of the instruments, how they will be interpreted in a judicial context, and what the effective theories are for enforcement of conservation values. Due to the statutory nature of the easements, and because the language of the statutes vary from state to state, there exists an opportunity to discuss the desirability of certain provisions over others. Although different theories have been advanced that would give effect to various avenues of enforcement by different parties, often it will come down to an interpretation of the language of a specific state statute to determine who has standing to enforce.

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