Maine Land Conservation Law E-Bulletin – April 2011

In this Issue:

• Introduction
• Important Conservation Bills Before Maine Legislature and Federal Congress
• Case Law Update: Dog Park Consistent With Conservation Purposes?
• Upcoming Event – Maine Land Conservation Conference

Introduction

Welcome to this issue of the Maine Land Conservation Law E-Bulletin!  I send E-Bulletins 3 or 4 times per year to provide updates and analyses on legal and policy matters respecting Maine land conservation.  I do my best to keep my messages brief, timely, and useful to conservation-minded landowners, as well as land trust professionals and volunteers.  At the same time, no one should rely on these E-Bulletins as legal advice, and I encourage you to consult a qualified attorney for advice on any particular situation.

If you find this free E-Bulletin to be valuable and interesting, please forward it to a friend or colleague.  Subscriptions remain free, and I respect my subscribers’ privacy.  Anyone who would like to receive this E-Bulletin or the Maine Nonprofit Law E-Bulletin can e-mail me at rob [at] roblevin.net.  If you’d like to be removed from my list, simply drop me a line at that same address.

Important Conservation Bills Before Maine Legislature and Federal Congress

With Republicans at the helm in Augusta and in control of the U.S. House of Representatives, it’s all hands on deck to protect our state and nation’s environmental laws and land conservation programs.  If you care about these programs, now is the time to make phone calls to your state and federal representatives.

At the state level, your influence is especially significant if you are represented by a Republican or a conservative Democratic representative or senator.  The difference between gutting and protecting a host of laws and programs is whether there are enough Republicans and conservative Democrats willing to stand up to the generally anti-environmental position of the LePage Administration and some of the more extreme legislators.

Maine Coast Heritage Trust, through its Public Policy Coordinator Jeff Romano (207-729-7366), is actively tracking a few dozen land-conservation-related bills.  The full list of such bills is available for download at http://mltn.org/resources/public_policy.html. Some of the most damaging bills have already died in committee, due to the efforts of the nonprofit and land conservation communities.  But among those still to be considered are a variety of bills before the Environmental and Natural Resources Committee that would loosen the protections of the Shoreland Zoning Act and the Natural Resources Protection Act.

To look up the names and contact information for your State Representative and State Senator, visit http://www.maine.gov/portal/government/edemocracy/lookup_voter_info.php.  And you can always call the House switchboard at 1-800-423-2900 or the Senate switchboard at 1-800-423-6900.   To see the membership on the key environmental committees, see http://mlcv.org/index.asp?pset=2&Cid=636.

At the federal level, Senators Collins (202-224-2523) and Snowe (202-224-5344) need to hear from Mainers in support of conservation funding programs such as the Land and Water Conservation Fund, Forest Legacy, and the North American Wetlands Conservation Act.  These programs have protected thousands and thousands of acres of Maine forests, wetlands, and parklands.  If the Republican leadership has its way, funding for these programs will be slashed.

Case Law Update: Dog Park Consistent With Conservation Purposes?

Under contract with the Land Trust Alliance, I research and compile a comprehensive database of land conservation-related court opinions.  The current edition of Land Conservation Case Law Summaries includes 223 cases and is available to Alliance members at http://learningcenter.lta.org.  Occasionally, I discuss particularly important or interesting cases in this E-Bulletin.

An interesting little case in Massachusetts raises the question of whether an unleashed dog park was consistent with deed restrictions that a property be used for conservation purposes.  Here’s what happened:  In 1962, certain donors gifted the Town of Foxborough three parcels to be used as conservation land. Each deed contained a provision that the lands are to be “managed and controlled by the Conservation Commission of the Town of Foxborough.”  In 2006, the Town Board of Selectmen (Board) and the Conservation Commission (Commission) decided to use a portion of the gifted parcels as a no-leash dog park.  Two years later opponents of the dog park filed a lawsuit, arguing, among other things, that the dog park use was contrary to the 1962 deed restrictions.  Wary of the litigation costs, the Board settled the suit, over the objections of the Commission, by agreeing to the removal of the dog park.   The appellate court affirmed, holding that the Conservation Commission did not have the right to block the settlement agreement.  In Hubrich v. Town of Foxborough, No. 10-P-396 , 2011 Mass. App. Unpub. LEXIS 37 (Mass. App. Ct. Jan. 12, 2011)(Unpublished).  The ultimate issue of whether the dog park was consistent with the deed restrictions was not addressed.

This unpublished case is not useful as formal precedent, but serves as a good reminder for land trusts to be proactive about pet-related issues in the drafting of conservation easements, deed restrictions, or management plans.

Upcoming Event: Maine Land Conservation Conference

What:  Maine Land Conservation Conference

Where:  Topsham, Maine

When: April 29-30, 2011

Maine Coast Heritage Trust presents the Maine Land Conservation Conference in support of its Maine Land Trust Network program and Maine’s land conservation community. The conference provides training on best practices in land trust management, land transactions, fundraising and stewardship. It provides a forum for learning about the most pressing issues facing land conservation today.  One of the workshop sessions will be Five Most Important Case Law Updates, presented by Rob Levin.  Register at http://mltn.org/meetings/conservation_conference.html.

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