Enforcement of Conservation Restrictions

Enforcement of Conservation Restrictions

A conservation restriction (CR) is an established and popular method of preserving land.  Throughout Massachusetts, municipalities, private land owners, and non-profit organizations use CRs to protect natural resources from development.  A recent superior court case, Wellesley Conservation Council, Inc. v. Pereira, addressed CR violations and corresponding demands for relief.  According to the Court, the holder of a CR is entitled to enforcement and restoration but may not collect monetary damages. 

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.” MGL ch. 184 § 31. A CR may also authorize special public recreational use of property.  Additionally, a CR may prohibit or curtail activities including: construction, dumping, removal of trees and vegetation, and other acts harmful to land and water resources.

In Wellesley, the defendant landowners purchased property subject to a CR held by the Wellesley Conservation Council (Council).   The CR included a prohibition on the removal of trees, vegetation, and soil.  Subsequently, the defendants violated the CR by cutting trees and vegetation, excavating soil, and constructing a sports court at the property.

The Council soon filed an action in superior court alleging breach of the CR, wrongful cutting of trees under M.G.L. ch. 242, §7 (the Tree Cutting Law), and unjust enrichment. The parties agreed to entry of summary judgement in favor of the Council’s demands for a permanent injunction ordering restoration of the property, an order preventing additional violations of the CR, and attorneys’ fees.  This case involved the Council’s only remaining demand: monetary damages pursuant to the Tree Cutting Law and MGL ch. 184 § 32.

The Tree Cutting Law provides in part the following: “[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 damages assessed therefor.” Relying on the ordinary meaning of this language, the Court held that only an owner of property can recover monetary damages under this statute. The Court recognized that a CR is only a limited right in property, and confirmed that the defendants, and not the Council, have legal title to the property.  As a result, the Court determined that the Council was not entitled to monetary damages under the Tree Cutting Law.

The Court then analyzed the scope of relief available under MGL ch. 184 § 32.  Reviewing the language of this statute and the CR, the Court found no authority for financial awards and again denied the Council’s request for monetary damages.  Nevertheless, this limited ruling does affirm the right to enforce restrictions through demands for enforcement and restoration.


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