Thursday, September 6, 2018
Nancy A. McLaughlin (Utah), Uniform Conservation Easement Act Study Committee Background Report:
This report was prepared by Nancy A. McLaughlin, Robert W. Swenson Professor of Law at the University of Utah S.J. Quinney College of Law, in her role as Reporter for the Uniform Law Commission's Uniform Conservation Easement Act Study Committee. The report provides an overview of the Uniform Conservation Easement Act (UCEA), which was approved by the Commission in 1981, and examines the provisions in individual state conservation easement enabling statutes that differ from the provisions in the UCEA.
Conservation easements are generally held by governmental entities or charitable conservation organizations “in gross.” The benefit of the easement runs to the governmental or nonprofit holder and the general public rather than to the owner of some nearby property, as would be the case with a more traditional “appurtenant” easement.
Historically, courts struck down most private land use restrictions held in gross because they were viewed as reducing the marketability of land. Over time, however, state legislators came to recognize that restricting the development and other uses of property for conservation or historic preservation purposes can provide significant benefits to the public. Accordingly, to facilitate the use of conservation easements as land protection and historic preservation tools for the benefit of the public, all fifty states and the District of Columbia enacted some form of legislation that removes the potential common law impediments to the creation and long-term validity of conservation easements. These statutes are generally referred to as conservation easement “enabling” statutes.
In just over half the states and the District of Columbia, the conservation easement enabling statute is based on the Uniform Conservation Easement Act (UCEA), which the National Conference of Commissioners on Uniform State Laws, now known as the Uniform Law Commission (ULC), approved in 1981.1 The other states have enacted their own form of enabling statute, in some cases well before the approval of the UCEA.