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Maine Attorney General Helps Enforce an Easement

After years of costly litigation, the Windham Land Trust has won its case to protect the Freeman Farm in Gray from commercial uses prohibited in the 2003 conservation easement it holds. In March 2009, the Maine Supreme Judicial Court upheld the land trust’s objection to having the farm’s conserved lands converted to a campground and festival grounds for commercial music venues. The easement restricts uses on the land to farming, forestry and “residential recreation.” The current landowners sought to convert the farm into a commercial campground, allowing approximately 1,000 guests of a country music festival (held on the adjoining, unrestricted acres) to camp on and use the 88 acres held under easement.

In Windham Land Trust v. Jeffords, et. al (2009 ME 29), the Law Court defined “residential recreational use” to exclude use by “paying guests” for camping, wagon rides, sleigh rides, hiking, snowshoeing, or cross country skiing. Only the residents and non-commercial guests can use the easement land for recreational purposes. This court ruling sets a precedent that may help define future cases involving easements that prohibit commercial recreation.

The most notable dimension of this case was that the Maine Attorney General (AG) intervened at the request of the land trust. Over the objection of the landowner, the Law Court upheld the Superior Court’s approval of the AG’s request to intervene, based on the newly amended Maine Conservation Easement Act [Title 33 M.R.S. Section 476(1)(D)] and on the AG’s charitable trust powers. This holding occurred even though the land trust was not bankrupt as a result of the litigation. The Law Court also held that the rights conferred on the AG’s office by Section 476(1)(D), passed in September 2007, apply retroactively to older easements and are not unfair or barred by the Contract Clause of the Maine or U.S. Constitution.

Considering all the demands placed on the AG’s office, the land trust community should commend it for standing behind the enforcement action of a small land trust. The efforts of that office, the persistence of the Windham Land Trust, and the wisdom of the Court all have helped strengthen conservation easements in Maine.

by Karin Marchetti Ponte, MCHT General Counsel