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Real estate, land use and zoning attorney. I use my twenty-five years of experience and bar licenses in CA, NV, OR and WA to assist landowners and land trusts in large-scale conservation easement projects.

New Conservation Easement Scholarship by Professor Jessica Owley

Professor of Law at SUNY Buffalo School of Law Jessica Owley has recently published two important new pieces of scholarship pertaining to conservation easements.  The following abstracts and links to the articles were recently distributed on the SSRN eJournal “Protected Lands Law & Policy.”

“Property Constructs and Nature’s Challenge to Perpetuity”
Environmental Law and Contrasting Ideas of Nature: A Constructivist Approach (Keith Hirokawa ed.) Cambridge University Press, 2013, Forthcoming

JESSICA OWLEY, SUNY Buffalo Law School
Email: jol@buffalo.edu

Conservation biology and ecology (as well as our eyes and ears) tell us that nature is in a constant state of flux. Yet, models of land conservation focus on preserving the present state of land in perpetuity. Legal concepts that center on the status quo turn a blind eye to the fact that nature is ever-changing. This conflict is illustrated by examining both traditional property servitudes and conservation easements. These restrictions on private land often explicitly state that they are preserving today’s landscape in perpetuity. This chapter explores the inherent conflict between the changing natural world and rigid legal structures, detailing the struggles of applying principles like resiliency thinking and adaptive management to property tools for conservation. It also explores why this disconnect occurs including some discussion of environmental psychology.

“What Exactly are Exactions?”

New York Environmental Lawyer (Spring 2013)

JESSICA OWLEY, SUNY Buffalo Law School
Email: jol@buffalo.edu

This brief piece for the publication of the Environmental Law Section of the New York Bar Association discusses the potential implications of Koontz v. St. John’s River Water Management District (pending before the U.S. Supreme Court) and its implications for New York law. While all exactions must undergo a Nollan/Dolan level of scrutiny, New York courts have limited the reach of this analysis by narrowly defining what constitutes an exaction. In Smith v. Town of Mendon, the New York Court of Appeals defined exactions strangely. First, it held that conservation restrictions did not qualify as exactions unless they required public access. Second, bound by precedent, the court recognized that in lieu fees are exactions requiring Nollan/Dolan analysis. These holdings seem out of step with Supreme Court jurisprudence and likely to require revisitation after the Court issues its opinion in Koontz. At oral argument, the justices appeared to interpret exactions much more broadly than the New York courts.

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