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September 18, 2020

Case Report
Alessandra W. Wingerter, Lisa C. Goodheart, William L. Boesch

In win for conservation trusts, including Sugarman Rogers amicus clients, Appeals Court confirms that power to enforce conservation restrictions includes right to money damages

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The Massachusetts Appeals Court has ruled in a significant land-use case that had been closely watched by the conservation community here and elsewhere, involving the power of land trusts to remedy violations of conservation restrictions.

Residential property owners in Wellesley Conservation Council v. Pereira, seeking to construct a sports court behind their house, clear-cut 23 large red oak and white pine trees, between 40 and 190 years old, on what the residents knew was land protected by a conservation restriction (in some places known as a conservation easement), a resource-protection legal tool recognized since the 1960’s by Massachusetts statute. A superior court judge ordered the residents to plant saplings in place of the mature trees, but held that the holder of the conservation restriction, the Wellesley Conservation Council, was not entitled to damages for the destruction of the original trees.

The WCC appealed, and two organizations closely involved with land conservation in Massachusetts—The Trustees of Reservations and the Massachusetts Land Trust Coalition—retained Sugarman Rogers and appeared as amicus curiae, filing a brief in support of the WCC’s position. In an August 10, 2020 decision, the Appeals Court reversed the decision below, agreeing with the WCC and amici that the statute granting land trusts the power to enforce conservation restrictions should be understood to encompass, where appropriate, the right to recover money damages to remedy a violation. In this case, the Court observed, the WCC’s request for money damages reflects the fact that planting saplings “will not actually restore the locus to its former condition—at least not until after many years of growth.” The Court elsewhere remarked, “Not only is enforcement by monetary damages a recognized option” for enforcing rights such as those conferred by a conservation restriction, “in some circumstances, it is the only equitable method of enforcing a restriction.”

The decision is expected to have a major impact as conservation restrictions increasingly become a method of choice for protecting natural resources: today, a leading organization in the field estimates, conservation restrictions across the United States protect as much as 40 million acres—about the size of Washington state, and half as much area as the entire U.S. National Park system. Jocelyn Forbush, Executive Vice President of The Trustees of Reservations, commented that the organization was “particularly gratified with the outcome of the appeal, and feel that this ruling, as supported by the Sugarman Rogers amicus brief, contributes significantly to the building body of law on the strength of conservation restrictions in Massachusetts.”

The Sugarman Rogers team on the amicus brief for The Trustees of Reservations and the Massachusetts Land Trust Coalition included William Boesch, Lisa Goodheart, and Alessandra Wingerter. Boesch expressed the firm’s thanks “for the chance to help in clarifying the law on this important and previously contested point of conservation law—that land trusts must have available a full range of remedies so that holders and users of protected land take the rules seriously.”