Appeals Court Rules Conservation Restrictions are Enforceable Against Violators for Monetary Damages, Not Just Equitable Relief Like Restoration and Replanting Featured

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In its August 10, 2020, decision in the case of Wellesley Conservation Council, Inc. v. Pereira (AC 19-P-753), the Massachusetts Appeals Court addressed the scope of enforcement options available to the holder of a Conservation Restriction (CR), in particular whether injunctive relief (like restoration and replanting) is the holder’s sole remedy for violations of the CR’s terms, or does it include money damages, too. The answer is yes to damages.

The Norfolk County Superior Court, on cross motions for summary judgment, had ruled that Section 32 of the state’s Conservation Restriction Act, G. L. c. 184, §§ 31-33 (Act) does not authorize CR enforcement by way of the payment of damages or attorney’s fees. The Appeals Court reversed that decision of the Superior Court, ruling in favor of the Council on the central point in contention.

According to Section 32 of the Act, a Conservation Restriction is “a right, either in perpetuity or for a specified number of years . . . executed by or on behalf of the owner of land or in any order of taking, appropriate to retaining land or water areas predominantly in their natural, scenic or open condition or in agricultural, farming or forest use.” Harmful uses are prohibited.

CRs may be donated or purchased. As a matter of negotiation in voluntary acquisitions, a CR may or may not also allow public access for recreation or other uses, although they are usually passive and not active in nature. CRs may be acquired by qualifying non-profit organization, municipalities, and various other agencies of government.

On that last score, CRs may be negotiated in governmental permits or even required by some grant programs. In those situations, they are not gifts.

And CRs may be taken by eminent domain. In those instances, the taking authority decides what are the purposes and uses.

Across this spectrum of the origins of CRs, the purposes range from strict natural resources preservation with no public access (such as endangered species protection or scientific research), specific natural resources management with limited public access (such as wilderness preservation, old growth forests, wildlife habitat, or water supply), or mixed conservation purposes with compatible public access (such as hiking, swimming, picnicking, canoeing or education on).

Regardless, the overarching purpose and management of a CR must be retaining the land or water area predominantly in its natural, scenic or open condition (or agriculture, forestry or farming) as per the Act. Needless to say, activities and actions otherwise can lead to enforcement. Enforcement may be had by the Massachusetts Executive Office of Energy and Environmental Affairs (EOEEA), the Attorney General, the municipality, the recipient/holder of the CR, and maybe other parties using the Citizen Suit Act, G.L.c. 214, section 7A.

Previously, in 2004, the Appeals Court had decided on the basic enforceability of the Act, interpreted the meaning of a CR on private property in Weston, MA, and upheld an injunction forcing removal of an illegal barn. Weston Forest and Trail Association, Inc. v. Beth Ellen Fishman. 66 Mass. App. Ct. 654. There, the CR banned construction or placing of any buildings or structures on or above the ground.

In this case, brought by the Council as CR holder, the Appeals Court gave us this new precedent under the Act as to remedies available for proven (or conceded) violations:

“The plain language of § 32 provides that “[t]he restriction may be enforced by injunction or other proceeding, ….  If the court in any judicial enforcement proceeding . . . finds there has been a violation of the restriction . . . then, in addition to any other relief ordered, the petitioner bringing the action or proceeding may be awarded reasonable attorneys’ fees and costs incurred in the action…Thus, § 32 by its own terms does not limit enforcement measures to injunctive relief alone.” 

The Council holds the "perpetual right to enforce" a CR on Wellesley property owned by the Pereiras. They did not dispute that they violated the CR by cutting and removing mature trees and other vegetation to construct a sports court.

The Council is a long-standing non-profit organization (now known as the Wellesley Conservation Land Trust) which acquired many conservation properties by gifts and otherwise, in the 1960s and since. This CR had been gifted to the Council in the 1970s by the Haffenreffer family.

Today’s owners, the Pereiras, admitted they knew about the CR when they violated it by their land clearing and construction. They agreed to restore the property to its natural state.  They also agreed to pay the Council's reasonable attorney's fees and costs and to entry of declaratory and injunctive relief. But they did not agree to pay damages. 

In the Superior Court summary judgment entered in favor of the Council on most of its claims, but in favor of the Pereiras on damages for the permanent loss of the trees. 

Concluding that the right to enforce the CR encompasses a right to recover money damages in an appropriate case, though, the Appeals Court reversed in part, giving us a new, short and clear exposition of remedies under the Act. 

Lost in the shadow of the main point, however, is a second ruling on who has standing to enforce the Trespass to Trees Statute and seek the available single or treble damages under it, G. L. c. 242, § 7. Relying on the wording of that statute, the Appeals Court ruled that the holder of a mere CR does not have that right to sue.

Here are more particulars. The Pereiras were aware of the CR and its terms and requirements and yet, within a year of purchasing the property next to their residence, they had violated it by destroying over 23 mature red oak and white pine trees, excavating and grading a portion of the land, and installing a facility with fencing and lighting.

The Council in court sought monetary damages in addition to a restoration order because the restoration plan will take years to restore the locus to its prior condition. The restoration required the planting of new saplings to replace the mature trees.  The saplings were to be smaller both in height and trunk width than the mature trees which had been destroyed.

The Superior Court judge encouraged and approved an Agreement for Judgment.  It resolved the attorney's fees and costs issue and the scope of the restoration order, consistent with the summary judgment decision, and ruled against damages. Judgment entered on all counts on August 16, 2018.

The Council appealed from the judgment, over the objections of the Pereiras, and then the Pereiras appealed, too (a post- trial procedural ruling on whether the Agreement for Judgment waived a right of appeal was resolved in favor of the Council).

On the principal issue before it, the Appeals Court ruled, “We disagree that the right to "enforce" the conservation restriction does not include a right, in appropriate circumstances, to recover a monetary damage award.”

We share here the close legal reasoning which relied on provisions within the Act and other laws concerning various kinds of restrictions:

“Our conclusion is supported by the language of § 30 of the same statute, G. L. c. 184.  That section addresses general restrictions on property, and provides that it may be inequitable to "enforce" restrictions in certain circumstances "except by award of money damages."  In other words, not only is enforcement by monetary damages a recognized option -- in some circumstances it is the only equitable method of enforcing a restriction.  See Blakeley v. Gorin, 365 Mass. 590, 607 (1974).  The same may be true for some conservation restrictions.  The concept that enforcing a conservation restriction may not include, where appropriate, an award of damages is belied by § 32.  While we recognize that § 30 and § 32 address different types of restrictions, "when similar words are used in different parts of a statute, the meaning is presumed to be the same throughout."…Thus, where one section of the same statute permits enforcement in some instances only by an award of money damages, it is unlikely the use of the term "enforced" in another section reasonably may be interpreted to exclude the award of money damages without expressly so providing.”

Then, relying on the authoritative legal treatise, Restatement of Property, the Appeals Court added:

“We discern nothing in § 32 that prevents a holder of a conservation restriction from enforcing it by seeking an award of monetary damages where appropriate.  See Restatement (Third) of Property:  Servitudes § 8.5 (2000), which states that "[a] conservation servitude held by . . . a conservation organization is enforceable by coercive remedies and other relief designed to give full effect to the purpose of the servitude."  Although comment a of § 8.5 indicates that equitable remedies designed to preserve the important public benefits of conservation restrictions are often warranted, it states that "[i]n appropriate cases, additional remedies may be needed to compensate the public for irreplaceable losses in the value of the property protected by the servitude and other damages flowing from violation of the servitude." 

Turning to the interesting facts of this case, the Appeals Court concluded:

“Particularly where full restoration would be unreasonably expensive or ‘technically feasible but practically unlikely given the size of the trees and survivability concerns,’ including an award of monetary damages may achieve a fairer and more adequate remedy.” Id. at ___ (quoting Glavin v. Eckman, 71 Mass. App. Ct. 313, 321 (2008)).

“Here, the Council does not seek to enforce the restriction by an award of money damages, alone, but rather seeks an award of damages to reflect the fact that the restoration plan will not actually restore the locus to its former condition -- at least not until after many years of growth.” 

In the Glavin case, at 321, the Appeals Court had ruled, in determining the value of the trees unlawfully removed from a party's property, there was no error in allowing an expert arborist to "testify regarding the formula used to arrive at a replacement cost for the wrongfully cut trees," where there was "unrebutted testimony that the replacement cost method was accepted within the community of professional arborists." 

In the case at bar, because the Superior Court had concluded that in no instance may an entity enforcing a CR recover monetary damages, the Appeals Court observed that the judge did not consider “whether in these circumstances, an award of money damages is warranted or whether the restoration order if including an award of money damages, would be reasonable.  The case must be remanded for consideration of those issues.”

On the secondary Trespass to Trees issue, the Council had sought treble damages pursuant to G. L. c. 242, § 7, which was amended a few years ago to provide a serious set of remedies:

"A person who without license willfully cuts down, carries away, girdles or otherwise destroys trees, timber, wood or underwood on the land of another shall be liable to the owner in tort for three times the amount of the damages assessed therefor; but if it is found that the defendant had good reason to believe that the land on which the trespass was committed was his own or that he was otherwise lawfully authorized to do the acts complained of, he shall be liable for single damages only."

On this score, the Appeals Court tracked closely the wording of these various laws, upholding the trial judge:

“Here, the Pereiras removed trees from their own property -- property to which the Council has no right of possession or physical use.  While G. L. c. 184, § 32, characterizes a conservation easement as an interest in land, its unique bundle of rights does not equate to that of ‘owner’ as that term is used in G. L. c. 242, § 7….We agree with the judge that the Council has no standing to bring a claim as an ‘owner’ against the Pereiras under G. L. c. 242, § 7.”

Except on that one standing issue, denying it access to multiple damages under the Trespass to Trees statute, the Wellesley Conservation Council prevailed on all issues and secured its remand to the Superior Court, presumably to calculate and award damages.

Successful amici curiae briefs were filed by The Trustees of Reservations and the Massachusetts Land Trust Association.

After the victory, according to local press reports, lead attorney Andrew Phelan of Morgan, Lewis & Bockius commented, “The Wellesley Conservation Land Trust plans to return to Superior Court to seek reasonable monetary damages beyond the mitigation work the landowners have already performed.  The Trust will use any recovery to further the conservation goals of its charter.”   



Council President Frederick Fortmiller added, “There are many good reasons for a landowner to establish a Conservation Restriction on property to preserve it from development.  The benefits that generous landowners confer on property are significant and well known. In return, the landowner benefits from lower property taxes on the land, so in this case, seeking monetary damages for a violation seems appropriate.”

With this Appeals Court decision, the sparse jurisprudence under the Conservation Restriction Act is advanced measurably.

For an introduction to the CR program (and related state laws, programs, procedures, forms, and guidelines for Agricultural Preservation Restrictions (HPRS), Historic Preservation Restrictions (HPRs), Watershed Preservation Restrictions (WPRs), and Open Space Preservation Restrictions (OSPRs), you may consult the website Conservation Restriction Review Program | Mass.gov

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Gregor I. McGregor, Esq.

GREGOR I. McGREGOR, Esq. is the founder of New England’s oldest environmental law firm McGregor & Associates, PC in Boston, formed in 1975 and now McGregor & Legere, PC. The firm handles all aspects of environmental law, land use, real estate, and related litigation. The firm is a founding member of the Environmental Law Network (ELN), an alliance of specialty law firms, in the United States and abroad, sharing their legal expertise and practical experience for the benefit of their clients. Mr. McGregor enjoys Martindale-Hubbell’s highest rating for attorneys (AV).

In 45 years of environmental practice, Mr. McGregor's cases in court broke new ground in the law of Environmental Impact Statements under the National Environmental Policy Act (NEPA) and Massachusetts Environmental Policy Act (MEPA), wetland and floodplain protection under the Massachusetts Wetlands Protection Act, hazardous waste cleanup liability and cost-recovery under the Massachusetts Superfund, reduced taxes and tax exemptions for qualified land conservation transactions, constitutional protections for open space and parkland, Home Rule environmental ordinances and bylaws of cities and towns, law enforcement and contempt remedies, and the constitutional doctrine of Regulatory Takings.

Before 1975, Mr. McGregor was an Assistant Attorney General of Massachusetts and the first chief of the Attorney General’s Division of Environmental Protection. In that capacity he advised and represented the Commonwealth during the formative years of Massachusetts environmental statutes, agencies, regulations, enforcement and cases in court.

Mr. McGregor is editor of the two-volume treatise on Massachusetts Environmental Law, published by Massachusetts Continuing Legal Education, Inc.(MCLE). He is co-chair of MCLE’s annual Environmental, Land Use, and Energy Law Conference and MCLE’s Real Estate and Environmental Law Curriculum Advisory Committee. He received from MCLE in 2013 its Scholar-Mentor Award recognizing his dedication to legal scholarship and leadership.

Mr. McGregor chairs the Environmental Committee of the Real Estate Bar Association for Massachusetts (REBA) and serves as a member of the REBA Board of Directors. He is an active member of the Massachusetts Municipal Lawyers Association (MMLA), which honored him for his career contributions to legal education and effective advocacy on the Home Rule Doctrine. At the National CLE Conference in Vail, CO, Mr. McGregor co-chairs an annual seminar on Environmental Law, Land Use, Energy & Litigation for attorneys from across the United States.

Mr. McGregor is a long time member of the board of directors of the Massachusetts Association of Conservation Commissions (MACC) having served as Board President twice. He has handled several cases for MACC as amicus and is a regular presenter at their annual meeting.

Mr. McGregor is a graduate of Dartmouth College and Harvard Law School.

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