I just stumbled across an interesting case from New Jersey. A church wanted to sell off some lots but need a variance to do so from the local planning department. In part of its proposal, the Church suggested placing a conservation easement over the steep slopes on the property to "protect them." The Church suggested that this slope protection was providing a public benefit and should help justify a variance. As one planning board member noted, it is hard to see the public benefit here particularly because local laws already prevented building on steep slopes. (The local development ordinance instructs on calculating developable areas taking into account features like steep slopes.) This case is interesting because it demonstrates the odd (often overly broad) view of conservation easements that many people have a trend toward folks using (or as here, trying to use) conservation easements to duplicate restrictions already embodied in other laws. Although the court did not sude with the Church, there could arguably still be some public benefit to using conservation easement here because as a perpetual restriction it will remain in place even as local ordinances change or variances are granted. That does not mean, however, that they should necessarily qualify as a public benefit in meeting standards for determining when to grant a variance. Perhaps some of you see this differently?
RECTOR, WARDENS & VESTRYMEN OF ST. BERNARD’S PROTESTANT EPISCOPAL CHURCH v. BERNARDS TOWNSHIP PLANNING BOARD, (Superior Court of New Jersey, Appellate Division, April 30, 2014 – 2014 WL 7596809)