Opinion

Tennessee Environmental Council, Inc., et at. v. Bright Par 3 Associates, L.P.

Court
Court of Appeals of Tennessee
Filed
Mar 8, 2004
Status
Published
On the bench
Sr. Judge William H. Inman
Cited by
0 cases
Authority
More cited than 29.5%

The opinion

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 6, 2004 Session

TENNESSEE ENVIRONMENTAL COUNCIL, INC., ET AL. v. BRIGHT

PAR 3 ASSOCIATES, L.P., ET AL.

Appeal from the Chancery Court for Hamilton County

No. 03-0775 (Part II) Howell Peoples, Chancellor

FILED MARCH 8, 2004

No. E2003-01982-COA-R3-CV

A conservation easement affecting property adjoining South Chickamauga Creek in Chattanooga was

created in 1996. Property zoned for business and owned and developed by some of the Defendants

is adjacent to the easement. The Plaintiffs allege that the development and construction activities

of the Defendants adversely and unlawfully affect the easement. The complaint was dismissed upon

a ruling that the Plaintiffs had no standing to enforce the easement, notwithstanding the language of

the Conservation Easement Act, Tennessee Code Annotated § 66-9-301, et. seq., that it may be

enforced by the “holder and/or beneficiaries” of the easement. The controversy centers on the

meaning of the word “beneficiaries.” We hold that any resident of Tennessee is a beneficiary of the

easement, and thus has standing to enforce it.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and

Remanded

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and

CHARLES D. SUSANO , JR., JJ., joined.

John P. Konvalinka, Charles G. Fisher and Jim K. Petty, Chattanooga, Tennessee, Attorneys for

Appellants, Tennessee Environmental Council, Inc., Coalition for Responsible Progress and Sandy

Kurtz.

Roger W. Dickson, W. Scott Parrish, Philip A. Langford and Alison Bales Martin, Chattanooga,

Tennessee, Attorneys for Appellees, Bright Par 3 Associates, L.P.; Corker Group, Inc; Osborne

Building Corporation and DBS Corporation.

Russell W. Gray and Robert M. Steele, Chattanooga, Tennessee, Attorneys for Appellee, Wal-Mart

Real Estate Business Trust.

OPINION

I.

On May 1, 1996, the East Ridge Development Co., conveyed to the City of Chattanooga a

conservation easement affecting 40 acres of land adjacent to Chickamauga Creek.1

A conservation easement is a negotiated agreement between a landowner and certain

nonprofit or governmental entities that are qualified to monitor and enforce the land use restrictions

of the easement, all pursuant to certain federal and state regulations. There are several qualified

organizations in Tennessee, most notably The Land Trust for Tennessee. The types and severity of

the restrictions in conservation easements vary from agreement to agreement. If negotiations and

research are carefully conducted, the restrictions should be tailored to fit both the long-term use plans

of the landowner and the resource preservation goals of the qualified grantee.

The restrictions in a conservation easement generally prohibit use of the land that may

adversely affect those resources that the easement intends to protect. For example, subdivision,

development, significant commercial use (other than agriculture), clear-cutting of timber, strip

mining, and billboard advertisements are commonly prohibited. Landowners are routinely able,

however, to negotiate terms that will allow them to own, occupy, and perform a variety of activities

on the property. These permitted activities may include, without limitation, residential occupancy,

construction of new residential structures, construction of new agricultural structures, farming,

hunting, camping, private airstrips, and equestrian activities.

Conservation easements are recorded in the public land records so as to be binding upon the

then-current landowner and its successors in interest to the subject real property. That is, once a

landowner has placed a conservation easement on its property, anyone purchasing or inheriting the

land from that landowner will also be bound by the restrictions contained in the easement. The term

of the easement is typically perpetual in nature, and the qualified grantee has no obligation to amend

the restrictions should a landowner’s desired use of the property be prohibited by the restrictions.2

The creation of a conservation easement is authorized by Tennessee Code Annotated § 66-9-

307 which provides, inter alia, and as pertinent here, that

1

The “Grant Deed of Conservation Easement” is unclear in various instances, one of which is the quantum of

land to which the easement attaches. The body of the deed recites that “Grantor intends . . . to convey to Grantee the

right to preserve the Conservation Values [of 40 acres lying along South Chickamauga Creek] in perpetuity.” An Exhibit

to the deed describes the conservation easement as consisting of 7.79 acres. Presumably, the 7.79 acres are a portion

of the 40 acres. W e do not know. The point, however, is not crucial to a resolution of this case. Another instance is the

predicate for this action, although statutory language is utilized.

2

Tennessee Real Estate Law Letter, Vol. 21, No. 5, February 2004, the Prefatory Note of the Commissioners

on Uniform State Laws.

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(c)onservation easements may be enforced by injunction or

proceedings in equity by the holders and/or beneficiaries of the

easement, or their bona fide representatives, heirs, or assigns.

II.

The complaint, as amended, alleges that the “Property”3 is owned and is being developed by

the Defendants. The “Property” is alleged to be commercially zoned, and that it contains or has

adjoining it wetland and conservation easement areas, protected under state and federal law, which

drain directly into South Chickamauga Creek, a waterway subject to contaminant and discharge

limitations under state and federal law. Further allegations are that a Wal-Mart Supercenter and

adjoining strip mall are being constructed on the “Property” which would result in an illegal

discharge of pollutants into South Chickamauga Creek and/or illegal alteration of the protected areas,

and that site preparation has already resulted in damage to the protected areas. Irreparable harm is

forecast unless the Defendants are restrained from further construction.

A temporary restraining order was issued on July 7, 2003, in accordance with the demand

for relief, and scheduled for hearing on July 15, 2003. The Defendants filed motions to dissolve the

temporary restraining order, alleging that the Plaintiffs cannot succeed on the merits, that there is no

imminent threat of irreparable injury to the Plaintiffs or to the protected areas, and that the proposed

injunction is contrary to the public interest.

At the July 15, 2003 hearing, the sole issue for resolution was whether the individual

plaintiff, Ms. Kurtz, had the requisite standing to maintain this action. The Chancellor stated “. . .

we need to find out whether Ms. Kurtz has any injury separate and apart from that of the member

of the public.” Ms. Kurtz thereupon testified at length about her environmental concerns, her

dedication and devotion to the preservation of the flora and fauna of the property described in the

easement, that she was an independent, environment education consultant, that she serves on the

Board of the Tennessee Environmental Council and related organizations. She conducts nature

walks through the easement property, and generally enjoys its solace and solitude.

The Chancellor made a finding of fact that Ms. Kurtz suffered no injury “separate or

different” from an injury that the public at large has sustained, and that under settled law in

Tennessee she had no standing to file the action. The Chancellor further found that only the grantee,

the City of Chattanooga, has standing to enforce the easement and accordingly dismissed the

complaint.

The Plaintiffs appeal and present for review the issue of whether Ms. Kurtz or the

organizational Plaintiffs have standing to enforce the conservation easement. We review the record

3

Described only as “certain real property generally located southeast of the Brainerd Road intersection with

South Chickamauga Creek in Chattanooga.”

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de novo. Because the dispositive issue is one of law, there is no presumption of correctness.4 Our

concern is focused on the dismissal of the complaint, which necessarily dissolved the temporary

restraining order, in light of the language of the Conservation Easement Act, Tenn. Code Ann. § 66-

9-307, that conservation easements may be enforced by the “holders and/or beneficiaries of the

easement.”

III.

The Chancellor held

Paragraph 5 [of the easement] . . . . sets out the grantee’s remedies.

It says this easement may be enforced by its holder or beneficiary.

Grantee may bring an action for any remedies provided by Tennessee

law. So the deed . . .that creates the easement says the grantee, the

City of Chattanooga, is the one who has the right to pursue for a

remedy provided by law. The easement is created for the benefit of

the citizens of Chattanooga, but they are not designated as

beneficiaries. They are not the grantee of the easement. The City of

Chattanooga is.

We stress the language of the Act which provides that the conservation easement may be

enforced by injunction or proceedings in equity by the holder and/or beneficiaries of the easement.

The City of Chattanooga is the grantee, and thus the holder of the easement and obviously entitled

to enforce the easement. Who are the beneficiaries?

We are bound to ascertain and give effect to the Legislative intent with no undue restriction

or expansion of the statutory language. Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000). We think

it evident that the phrase “by the holder and/or beneficiaries” means someone in addition to the

grantee; otherwise, the words “and/or beneficiaries” would be utterly meaningless, and we are not

at liberty to ignore this language. The word “beneficiaries” has a commonly accepted dictionary

meaning: “those who benefit from the act of another.” Who benefits from the act of the grantor in

creating this easement? A conservation easement is “held for the benefit of the people of

Tennessee.” Tenn. Code Ann. § 66-9-303. We hold that any resident of Tennessee has standing to

enforce it. This interpretation is consistent with the terms of the deed and the Act, both of which

require a liberal construction of the word “beneficiaries.” Superimposed is that the Act is a remedial

one, and must be liberally construed to further and give effect to its purpose. See, Loftin v.

Langsdon, 813 S.W.2d 475 (Tenn. Ct. App. 1991). Further superimposed is the fact that the

Legislature chose not to adopt the verbiage of the Uniform Act which precludes the enforcement of

4

The Chancellor evaluated the testimony of Ms. Kurtz from recognized perspectives not within our

prerogatives to review and therefore we cannot find that the evidence preponderates against his factual findings. Rule

13(d) Tenn. R. App. P. See, Metro. Air Research Testing Auth. Inc. v. M etro Gov’t., 842 S.W .2d 611 (Tenn. Ct. App.

1992) holding that a party must demonstrate that [she] has suffered an injury which is distinct and severable. See, State

v. Johnson, 79 S.W.3d 522 (Tenn. 2002).

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a conservation easement by any entity other than a governmental body, charitable corporation or

association with the specific right granted in the document.5

As stated, we have focused on the legal issue of standing, and express no opinion and make

no findings respecting the merits of the case. The judgment of dismissal is reversed and the case is

remanded for further proceedings.

We take note of the brief filed by Wal-Mart Real Estate Business Trust requesting that we

consider the issue of whether the dismissal of the complaint against it was proper even if the

Plaintiffs had the requisite standing. We are unable to respond for two reasons: First, the Chancellor

did not rule on the specific issue, and secondly, it would be meaningless dictum for us to do so.

Costs are assessed to the Appellees.

___________________________________

WILLIAM H. INMAN, SENIOR JUDGE

5

A number of states have enacted a form of the Uniform Conservation Easement Act. Research indicates that

in each instance third parties cannot enforce the easement unless the right is expressly granted. Tennessee appears, thus

far, to be the only state to grant enforcement power to “beneficiaries” of the easement. See, e.g., Ala. Code § 35-18-1:

Ky. Rev. Stat. 382.800; La. Rev. Stat. 9:1272; Miss. Code Ann. § 89-19-3; Va. Code Ann. § 10.1-1009.

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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