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OLD LYME — Between 1980 and today, private residents and developers donated approximately 43 conservation easements to the town of Old Lyme. The easements restrict development and use on a portion of each landowner’s property as well as specifying that the town will “vigorously enforce the conditions established.”
To date, the town has yet to conduct any routine inspections of these easements. In fact, the town is not even sure which properties or how many have easements on them.
“The town of Old Lyme holds these easements that’s why the Open Space Commission needs to start inspecting them,” said Amanda Blair at the last Open Space Commission meeting on June 14. “They were never doing it before.”
When asked what vigorously enforcing the conditions of conservation easements meant, First Selectwoman Bonnie Reemsnyder said, “I can only say that vigorous was meant to be just what it says.”
Across the state of Connecticut, and even the country, towns failing to keep up with inspections of their conservation easements is far from uncommon.
“It happens all over. It’s not just in Old Lyme, it’s all over the state and it’s all over the country,” said Bill Sweeney, an attorney practicing primarily in land use and zoning. “Many towns don’t have the resources to inspect and don’t even know what parcels they have.”
Sweeney explained that keeping track of and monitoring conservation easements is especially challenging for small towns like Old Lyme. These towns often do not have the flexibility in their budget or staff to spend time inspecting and enforcing easements.
“When someone purchases a property attorneys may not show the owner or bank the full deed including the easement,” Blair said at the June 14 meeting. “People don’t understand what these things are. They may not know they have a restriction on their property.”
This leaves land owners, especially those who have purchased the properties since the easements were donated, in a tough situation.
“Many local governments across Connecticut hold conservation and preservation restrictions. But as local decision-makers and priorities change, these restrictions can be neglected or forgotten,” said Sara Bronin, a UConn Law Professor focusing on historic preservation issues and the Chair of the Connecticut Trust for Historic Preservation. “In other words, the Town of Old Lyme isn’t alone.”
In the past couple months, the Open Space Commission has taken on the project of searching through the towns land records to determine where these easements are located and to develop a plan to visit and inspect them for the first time, including 47 Mile Creek Road, where an easement donated in 1993 will be inspected for the first time.
When the first few conservation easements were donated, the town had yet to form a Conservation Commission. The Commission was formed by four residents in 1997 and 12 years later the Open Space Commission was formed. According to George James, a current and original board member of the Conservation Commission and former member of the Open Space Commission in Old Lyme, the two commissions have been trying to figure out how to manage conservation easements.
“What I recommended when I was on the board with the Open Space gang was that the town hire someone to maintain conservation easements. That person should be able to get out in the woods and not get lost, be a reasonably personable person and needs to have some legal knowledge,” James said. “It’s a gigantic job and a technical job.”
So far, the town has not taken James’ recommendation and the task has fallen in the lap of the Open Space Commission – a board of eight volunteers.
“It is my understanding that with the formation of the Open Space Commission sometime around 2009, the first Chair, Diana Atwood-Johnson, made it her goal to develop a system of inspection and enforcement,” Reemsnyder said. “She spoke to me here and there about her efforts before she passed away in 2018.”
The current commission was not able to find the work that Atwood-Johnson did and began researching the town’s land records from scratch this spring, Blair said at the June 14 meeting. Once the location of all the easements is found, the Open Space Commission is aiming to inspect these easements once every five years, Blair said. Standard practice for nonprofits – like the Old Lyme Land Trust – that hold conservation easements is an inspection every year.
Over the past decade it has become more common for conservation easements to be given to organizations like land trusts and the nature conservancy. These organizations are more adept at managing conservation easements because they have a focused mission to preserve the natural landscape and open space, Sweeney said.
“The conservation easement holder has a duty and an obligation legally and otherwise to enforce the conditions and terms of the easement,” said Erin Heskett, the vice president of national services for the Land Trust Alliance. “It is not uncommon for there to be violations by the easement donor. Our standards are that land trusts should be monitoring their easements at least one time annually. Maintaining consistent and regular communication with their landowners is the best way to avoid problems.”
The more often inspectors are out on easement properties, the less likely it is for damage to the land and misunderstandings by the landowner to occur, Heskett said. The best practices that the Land Trust Alliance outlines also include taking careful notes during each inspection, filing the notes and sending a copy with any concerns to the landowner.
However, even though the town of Old Lyme has not closely monitored or kept organized records of its easement properties, that does not exempt most landowners from their obligations.
“If the restriction was written to last forever, property owners must abide by them forever. They are not relieved of their responsibilities just because the holder of the restriction has become lax about enforcing them,” Bronin said. “Property owners should also be aware that in some cases, the Attorney General will step in to enforce restrictions, to ensure that the public interest in conservation and preservation is upheld.”