An Act To Amend the Conservation Easement Laws
Maine Legislature, Session 123, LD 1737
Committee: Judiciary
Sponsors: PIOTTI
Amends: 33 MRSA §476, 33 MRSA §477, 33 MRSA §477-A, 33 MRSA §479, 33 MRSA §479-C

Legislative Document 
No. 1737 
H.P.1220 
House of Representatives, March 26, 2007 
An Act To Amend the Conservation Easement Laws 
Reference to the Committee on Judiciary suggested and ordered printed. 
Presented by Representative PIOTTI of Unity. 
Printed on rec ycled pu~r 
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MILLICENT M. MacFARLAND 
Clerk 
Be it enacted by the People of the State of Maine as follows: 
Sec. 1. 33 MRSA §476, sub-§3, as enacted by PL 1985, c. 395. §3, is amended to 
read: 
3. Real property. "Real property" includes without limitation surface waters. 
Sec. 2. 33 MRSA §477, sub-§l, as enacted by PL 1985, l:. 395, §3, is amended to 
read: 
1. Conservation easement. Except as otherwise provided in this subchapter, a 
conservation easement may be created, conveyed, recorded, assigned, or released, 
modified, tenninated or othenvise altered or afrested in the same manner as other 
easements created by written instrument. A conservation easement may be terminated or 
amended by the parties only as provided in section 477-A, subsection 3. 
Sec. 3. 33 MRSA §477, sub-§3, ~, as enacted by PL 1985, c. 395, §3, is 
amended to read: 
B. 
Change of circumstances renders the easement no longer in the public interest as 
determined by the holder with the approval of the court as provided in section 477-A, 
subsection 3, paragraph B in an action under section 478. 
Sec. 4. 33 MRS A §477, sub-§5, as enacted by PL 1985, c. 395, §3, is amended to 
read: 
5. Entitled to enter land. The instrument creating a conservation easement must 
provide in what manner and at what times representatives of the holder of a conservation 
easement or of any person having a 3rd party right of enforcement shall be are entitled to 
enter the land to assure compliance. 
Sec. 5. 33 MRSA §477-A is enacted to read: 
§477-A. Conservation easement standards 
1. Conservation values. A conservation easement executed on or after the effective 
date of this section must include a statement of the conservation purposes of the 
easement, the conservation attributes associated with the real property and the benefit to 
the general public intended to be served by the restriction on uses of the real property 
subject to the conservation easement. 
2. Baseline documentation. For a conservation easement executed on or after the 
effective date of this section, the grantor must make available to the holder and the 3rd 
party with rights of enforcement, no later than 180 days following the date of the 
easement's execution, written documentation sufficient to accurately establish the 
condition of the real property as of the date of execution. The holder and 3rd party shall 
retain any such documentation in their permanent records. 
3. Amendment and termination. Amendments and termination of a conservation 
easement may occur only pursuant to this subsection. 
A. A conservation easement executed on or after the effective date of this section 
must include a statement of the holder's power to agree to amendments to the teITD...§ 
of the conservation easement without resort to the procedures set forth in paragrap. B 
and limitations on any such power designed to protect the public interest or publicly 
beneficial conservation purposes intended to be served by the conservation easement, 
consistent with the limitations of paragraph B. 
B. A conservation easement may not be terminated or amended in such a manner as 
to materially detract from the conservation values intended for protection without the 
prior approval of the court in an action in which the Attorney General is made a 
party. Termination or amendment that materially detracts from the conservation 
values intended for protection may be approved only when it is found by the court 
that the conservation easement or the provision proposed to be amended, as the case 
may be, does not serve the public interest or publicly beneficial conservation purpose, 
taking into account, among other things, the purposes expressed by the parties in the 
easement. Any such approval may be sought only with the consent of the holder. If 
the value of the landowner's estate is increased by reason of the amendment or 
termination of a conservation easement, that increase must be paid over to the holder 
or to such nonprofit or governmental entity as the court may designate, to be used for 
the protection of conservation lands consistent, as nearly as possible, with the stated 
publicly beneficial conservation purposes of the easement. 
4. Monitoring. The holder of a conservation easement shall monitor the condition 
of the real property subject to the conservation easement at least every 3 years and shall 
prepare and retain a written monitoring report in its permanent records. 
5. Failure to comply. Failure to comply with the requirements of subsection 1 does 
not invalidate a conservation easement otherwise entitled to the protections of this 
subchapter. 
Sec. 6. 33 MRS A §478, as enacted by PL 1985, c. 395, §3, is amended to read: 
§478. Judicial actions 
1. Action or intervention. An action affecting a conservation easement may be 
brought or intervened in by: 
A. 
An owner of an interest in the real property burdened by the easement; 
B. 
A holder of the easement; ef 
C. 
A person having a 3rd-party right of enforcement,..;..QI 
D. The Attorney General. 
2. 
Intervention only. 
An action affecting a conservation easement may be 
intervened in by the State or a political subdivision of the State in which the real property 
burdened by the easement is located. 
3. Power of court. This sUgehapter does not affeet the power of a The court te may 
permit termination of a conservation easement or approve amendment to a conservation 
easement that materially detracts from the conservation values it serves, as provided in 
section 477-A, subsection 3, paragraph B, or to enforce a conservation easement by 
injunction or proceeding in equity or to modify or tenninate a conservation easement in 
accordance "'lith principles of law and equity. A court may deny equitable enforcement 
of a conservation easement only when it finds that change of circumstances has rendered 
that easement no longer in the public interest or no longer serving any publicly beneficial 
conservation purpose. If the court so finds, the court may allow damages as the only 
remedy in an action to enforce the easement. Laches does not apply as a defense in any 
action brought to enforce the terms of a conservation easement or the requirements of this 
subchapter. 
No comparative economic test may be used to determine under this subsection subchapter 
if a conservation easement is in the public interest or serves a publicly beneficial 
conservation purpose. 
Sec. 7. 33 MRS A §479, sub-§7, as enacted by PL 1985, c. 395, §3, is amended to 
read: 
7. No privity of estate or of contract. There is no privity of estate or of contract; er 
Sec. 8. 33 MRS A §479, sub-§8, as enacted by PL 1985, c. 395, §3, is amended to 
read: 
8. Does not run to successors or assigns. It does not run to the successor and 
assigns of the holder~~ 
Sec. 9. 33 MRSA §479, sub-§9 is enacted to read: 
9. Acquired for tax delinquency. A lien has been established for property tax 
delinquency under Title 36, section 552, or title to the real property subject to the 
conservation easement has been acquired by procedures for enforcement and foreclosure 
of delinquent taxes under Title 36, chapter 105, subchapter 9; or 
Sec. 10. 33 MRS A §479, sub-§10 is enacted to read: 
10. Merger. The title to the real property subject to the conservation easement has 
been acquired by the holder, unless the holder, with the consent of any 3rd party with 
rights of enforcement, replaces the conservation easement with legally binding 
restrictions under a conservation easement or declaration of trust at least as protective of 
the conservation values of the protected property as provided by the replaced easement. 
Sec. 11. 33 MRSA §479-C is enacted to read: 
§479-C. Conservation easement registry and transfer tax form checkoff 
1. Conservation easement registration. A holder of a conservation easement that 
is organized or doing business in the State shall annually report to the Secretary of State 
the book and page number at the registry of deeds for each conservation easement that it 
holds, the municipality and approximate number of acres protected under each easement 
and a statement of its compliance with section 477-A, subsections 2 and 4. The filing 
must be made by a date and on forms established by the Secretary of State to avoid 
duplicative filings when possible and otherwise reduce administrative burdens. Each 
annual filing must be accompanied by a $10 fee in addition to any other fees prescribed 
by law. The Secretary of State shall forward the fee and the registration infornlation to 
the Executive Department, State Planning Office, which shall maintain a permanent 
record of the registration and report to the Attorney General any failure of a holder 
disclosed by the filing or otherwise known to the State Planning Office. The fees 
established under this subsection must be held by the State Planning Office in a 
nonlapsing, special account to defray the costs of maintaining the registry. Government 
holders shall make such declaration and forward such conservation easement data directly 
to the State Planning Office by April 1 st of each year. 
2. Transfer tax form. The transfer tax form required under Title 36, section 4641-D 
must include a statement disclosing whether the real property is subject to a conservation 
easement and, if so, that the holder has been notified of the transfer of title to the real 
estate. This notification to the holder is required. 
SUMMARY 
This bill enacts changes to the laws governing the creation, alteration and termination 
of conservation easements. Under the bill, a court must find that a change of 
circumstances makes the conservation easement no longer in the public interest before the 
conservation easement may be terminated or amended in a manner that diminishes its 
conservation purposes. The bill also requires that future conservation easements must 
clearly recite the conservation purposes and public benefits of the easement. The bill 
further requires that future conservation easements include a statement of the power of 
the holder to amend the easement and be accompanied by documentation of the condition 
of the property. As necessary to future enforcement of conservation easements, holders 
are required to periodically monitor the condition of the property subject to the easement. 
This bill also allows the Attorney General to be a party in any action affecting a 
conservation easement, as the Attorney General may with any charitable trust. The bill 
also provides that conservation easements will not be destroyed by reason of merger of 
the fee and easement holder's interests nor by tax foreclosure. 
Finally, this bill establishes a conservation easement registration system administered 
by the Secretary of State and Executive Department, State Planning Office with a modest 
annual filing fee, and requires that the transfer tax form for property subject to a 
conservation easement disclose that notice of the property's transfer has been given to the 
holder of the easement.