# Estate of Merrill P. Robbins v. Chebeague & Cumberland Land Trust

> Supreme Judicial Court of Maine · January 26, 2017 · 154 A.3d 1185

URL: https://www.frixlaw.com/law-library/cases/4118805

## Case

- **Full name:** ESTATE OF Merrill P. ROBBINS v. CHEBEAGUE & CUMBERLAND LAND TRUST Et Al.
- **Court:** Supreme Judicial Court of Maine
- **Decided:** January 26, 2017
- **Citations:** 154 A.3d 1185; 2017 ME 17; 2017 Me. LEXIS 20; 2017 WL 370891
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Saufley, Alexander, Mead, Gorman, Jabar
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4118805

## How later opinions describe it (automated extraction)

- holding that the identical statutory language of Maine’s UCEA does not include owners of other unrelated property that happen to be burdened by the same easement
- recognizing that state statutes may confer standing on individuals to advance the public interest
- noting that the deed of the conservation easement at issue could be considered on a motion to dismiss

## Opinion text

MAINE	SUPREME	JUDICIAL	COURT Reporter	of	Decisions
Decision: 2017	ME	17
Docket: Cum-15-256
Argued: March	1,	2016
Decided: January	26,	2017

Panel: SAUFLEY,	C.J.,	and	ALEXANDER,	MEAD,	GORMAN,	and	JABAR,	JJ.
Majority: SAUFLEY,	C.J.,	and	MEAD	and	GORMAN,	JJ.
Dissent: ALEXANDER	and	JABAR,	JJ.

ESTATE	OF	MERRILL	P.	ROBBINS

v.

CHEBEAGUE	&	CUMBERLAND	LAND	TRUST	et	al.

SAUFLEY,	C.J.

[¶1] The appeal in this matter requires us to determine whether a

private owner of land encumbered by a conservation easement may bring a

lawsuit seeking the enforcement of the easement on other land that is not

owned by that landowner and in which the landowner has no other legal

interest. Here,	the	Estate	of	Merrill	P.	Robbins	appeals	from	a	judgment	of	the

Superior	Court	(Cumberland	County,	Mills,	J.)	dismissing	for	lack	of	standing1

the	Estate’s	complaint	seeking	declaratory	and	injunctive	relief	and	damages

1 The	court’s	judgment	was	alternatively	based	on	its	conclusion	that	the	matter	was	not	ripe	for

judicial	determination. Because	the	Estate’s	claims	are	ripe	now	that	the	Land	Trust	has	formally
stated its approval of the proposed use, we need not review the court’s determination on that
matter. See	Reg’l	Rail	Reorganization	Act	Cases,	419	U.S.	102,	140	(1974)	(holding	that,	because	the
issue	of	ripeness	“is	peculiarly	a	question	of	timing,	it	is	the	situation	now	rather	than	the	situation
at	the	time	of	the	[trial	court’s]	decision	that	must	govern”).
2

based on the decision of the Chebeague & Cumberland Land Trust—the

holder	of	a	conservation	easement—to	allow	the	Town	of	Cumberland,	which

also owns land subject to the easement, to develop its land for public

recreational	use. Except	with	respect	to	the	Estate’s	breach	of	contract	claim,

we	agree	with	the	Superior	Court	that	the	Estate	lacks	standing,	and	we	affirm

the	dismissal.

I. BACKGROUND

[¶2] The	following	facts	derive	from	the	Estate’s	complaint,	the	deed	of

the	conservation	easement	at	issue,	and	other	public	documents	presented	on

appeal, the authenticity of which was not challenged on appeal.2 In 1997,

Marion B. Payson, acting by and through her attorney-in-fact Merrill P.

Robbins, created a conservation easement by deed. The Chebeague

&	Cumberland Land Trust is the current holder of the easement as the

successor	to	the	original	grantee,	Cumberland	Mainland	and	Islands	Trust,	Inc.

The land impressed with the easement comprises roughly 100 acres of land

on	the	coast	in	Cumberland,	referred	to	as	“the	Property”	throughout	the	deed

2 As	an	exception	to	the	general	rule	that	a	court	may	consider	only	the	pleadings	on	a	motion	to

dismiss, see	Moody	v.	State	Liquor	&	Lottery	Comm’n, 2004	ME	20, ¶¶	8-9, 843	A.2d 43, courts may
consider “official public documents, documents that are central to the plaintiff’s claim, and
documents referred to in the complaint” in ruling on a motion to dismiss “without converting a
motion	to	dismiss	into	a	motion	for	a	summary	judgment	when	the	authenticity	of	such	documents
is	not	challenged,”	id.	¶	10.
3

of	the	easement. The	conservation	easement’s	stated	purpose	is	to	retain	the

Property “predominantly in its scenic, natural, and open space condition for

conservation purposes and to prevent any use of the Property that will

significantly	impair	or	interfere	with	the	conservation	values	of	the	Property

and the Property’s natural resources and associated ecosystems.” This

statement of purpose is consistent with the statutory requirement that “[a]

conservation	easement	.	.	.	include	a	statement	of	the	conservation	purposes	of

the easement, the conservation attributes associated with the real property

and	the	benefit	to	the	general	public	intended	to	be	served	by	the	restriction

on	uses	of	the	real	property	subject	to	the	conservation	easement.” 33	M.R.S.

§	477-A(1)	(2016).

[¶3] The deed also specifically noted the importance of the easement

holder’s	primary	purpose	to	“promot[e]	for	the	benefit	of	the	general	public	the

preservation of natural resources in the Town of Cumberland and County of

Cumberland, including land and water resources, the plant and animal life

thereon, and unique scenic, natural, and historic sites.” (Emphasis added.)

Again, this purpose comports with the requirements of Maine law that a

conservation	easement	must	inure	to	“the	benefit	[of]	the	general	public.” Id.
4

[¶4] Following several conveyances of sections of the original parcel,

the	Estate	now	owns	only	a	portion	of	the	original	100	acres	of	land	subject	to

the	conservation	easement. The	Town	of	Cumberland	has	purchased	another

part	of	the	100	acres,	which	it	acquired	after	the	easement	was	created,	and	a

real	estate	developer	has	acquired	other	land	subject	to	the	easement.

[¶5] The	Town	has	received	conditional	approval	from	the	Cumberland

Planning	Board	to	allow	the	use	of	its	property	for	a	public	beach. The	Town

plans to construct a parking lot, resurface the existing access road with

reclaimed	asphalt,	relocate	an	existing	bath	house,	and	add	portable	toilets.

[¶6] As holder of the conservation easement and successor to the

grantee named in the deed, the Land Trust is, by the easement’s terms,

primarily responsible for enforcing the terms of the easement. See	also	33

M.R.S.	§	478(1)(B)	(2016). The	Land	Trust	has	determined,	and	has	informed

the Town, that the Town’s plans are permitted under the terms of the

conservation	easement. Although	the	Land	Trust	concluded	that	the	proposed

changes	would	expand	public	use	of	the	Property,	which	would	have	“impacts

on	the	land,	the	shore	and	the	water,”	the	Land	Trust	stated	that	its	goal	was

to achieve balance between resource protection and increased public access

to	the	land.
5

[¶7] The Estate, although not an owner of the land at issue,

communicated to the Land Trust and the Town its concerns that the Town’s

plan	did	not	comply	with	the	terms	of	the	conservation	easement	and	that	the

Land Trust was violating its obligations as holder of the easement. On

December	18,	2014,	the	Estate	filed	a	complaint	in	the	Superior	Court	naming

the	Land	Trust	and	the	Town	as	defendants. The	four-count	complaint	sought

a	declaratory	judgment,	injunctive	relief,	and	damages	and	costs,	and	included

a	breach	of	contract	claim	against	the	Land	Trust.

[¶8] Upon	the	Town’s	and	the	Land	Trust’s	motions	to	dismiss	pursuant

to M.R. Civ. P. 12(b)(6), the court dismissed the Estate’s complaint in its

entirety, concluding that the Estate lacked standing to initiate an action to

enforce	the	conservation	easement	as	it	relates	to	the	Town’s	property. The

court	interpreted	the	statutorily	provided	grant	of	standing,	which	applies	to

“[a]n owner of an interest in the real property burdened by the easement,”

33	M.R.S.	§	478(1)(A)	(2016)	(emphasis	added),	to	be	limited	to	the	owner	of

an	interest	in	the	real	property	that	may	actually	be	subject	to	development	or

another use allegedly inconsistent with the terms of the conservation

easement. The court concluded that, in this context, the statutory language

does not include owners of other unrelated property that happens to be
6

burdened	by	the	same	easement. The	court	further	concluded	that	the	Estate

was	not	authorized	to	sue	by	virtue	of	any	“special	interest”	standing	and	that

the	deed	of	the	conservation	easement	did	not	authorize	enforcement	by	one

property	holder	against	another. The	Estate	timely	appealed.3

II. DISCUSSION

[¶9] The	question	presented	is	whether	landowners	with	no	ownership

or other rights to land on which a use is proposed may seek a judicial

determination of whether the proposed use on that land is permitted by the

terms	of	a	conservation	easement. The	Estate	contends	that	it	has	standing	to

bring a claim to enforce the terms of the conservation easement as to the

Town’s land pursuant to the plain language of section 478(1) because the

Estate owns an interest in real property that is also burdened by the

easement,	even	if	the	dispute	does	not	concern	a	use	proposed	on	the	Estate’s

property. See	33	M.R.S.	§	478(1)(A).

[¶10] Unless a party has standing to sue, that party’s complaint is

properly	dismissed. See,	e.g.,	Nevin	v.	Union	Tr.	Co.,	1999	ME	47,	¶¶	41-42,	726

A.2d	694. Standing,	in	this	context,	is	fully	addressed	by	the	statute. The	laws

3 Maine	Farmland	Trust,	Inc.,	filed	an	amicus	brief,	and	although	the	Attorney	General	also	filed

an	amicus	brief	with	our	leave,	see	M.R.	App.	P.	9(e)(1),	she	has	not	intervened	in	the	action	and	is
not	a	party,	see	33	M.R.S.	§	478(1)(D)	(2016).
7

codified at 33 M.R.S. §§ 476 to 479-C (2016) apply to the conservation

easement,	see	33	M.R.S.	§	479-A(1);	P.L.	1985,	ch.	395,	§	3	(effective	Sept.	19,

1985), and we look to section 478(1) to determine standing. That statute

specifies who may initiate or intervene in an action affecting a conservation

easement:

1. Action or intervention. An action affecting a
conservation	easement	may	be	brought	or	intervened	in	by:

A. An	owner	of	an	interest	in	the	real	property	burdened	by
the	easement;

B. A	holder	of	the	easement;

C. A	person	having	a	3rd-party	right	of	enforcement;	or

D. The	Attorney	General;	except	that	the	Attorney	General
may initiate action seeking enforcement of a conservation
easement only when the parties designated as having the
right to do so under the terms of the conservation
easement:

(1) Are	no	longer	in	legal	existence;

(2) Are	bankrupt	or	insolvent;

(3) Cannot	be	contacted	after	reasonable	diligence	to
do	so;	or

(4) After 90 days’ prior written notice by the
Attorney	General	of	the	nature	of	the	asserted	failure,
have failed to take reasonable actions to bring about
compliance	with	the	conservation	easement.

33	M.R.S.	§	478(1).
8

[¶11] We review de novo the interpretation of a statute. See	Strout	v.

Cent.	Me.	Med.	Ctr., 2014 ME 77, ¶ 10, 94 A.3d 786. “In construing a statute

our duty is to give effect to the intent of the Legislature as evidenced by the

language of the statute.” Concord	Gen.	Mut.	Ins.	Co.	v.	Patrons-Oxford	Mut.	Ins.

Co.,	411	A.2d	1017,	1020	(Me.	1980). “We	will	construe	a	statute	based	on	its

plain	meaning	in	the	context	of	the	statutory	scheme,	and	only	if	the	statute	is

ambiguous will we look to extrinsic indicia of legislative intent such as

relevant	legislative	history.” Strout,	2014	ME	77,	¶	10,	94	A.3d	786	(quotation

marks	omitted).

A. “An	Action	Affecting	a	Conservation	Easement”

[¶12] We	begin	with	the	question	of	whether	each	count	of	the	Estate’s

complaint is “[a]n action affecting a conservation easement.” 33 M.R.S.

§	478(1). The	Estate	alleged	causes	of	action	against	the	Town	and	the	Land

Trust for declaratory relief, statutory enforcement, and injunctive relief. It

further	alleged	a	breach	of	contract	by	the	Land	Trust. Based	on	these	claims,

the Estate sought the following remedies in its complaint: declaratory and

injunctive	relief,	damages,	and	costs.

[¶13] Based on the plain meaning of “[a]n action affecting a

conservation easement,” id., we conclude that all causes of action, except
9

potentially	the	breach	of	contract	claim	asserted	against	the	Land	Trust,	affect

the Land Trust’s conservation easement. Any injunctive, declaratory, or

enforcement relief would directly affect the scope, meaning, and

administration	of	the	easement	deed’s	terms. Accordingly,	33	M.R.S.	§	478(1)

applies	to	these	claims.

[¶14] With respect to the breach of contract claim, however, it is not

clear from the complaint whether the contract allegedly breached was the

easement	contract	itself. See	Windham	Land	Tr.	v.	Jeffords,	2009	ME	29,	¶	16,

967 A.2d 690 (stating that a conservation easement is a contract between a

landowner and the easement holder). The complaint and record materials

available	at	this	early	stage	in	the	proceedings	indicate	that	the	Estate	is	the

successor in title to Marion B. Payson; that Payson entered into a contract

with	Cumberland	Mainland	and	Islands	Trust,	Inc.	(CMIT);	that	the	Land	Trust

is the successor to CMIT; and that the Land Trust, “[i]n agreeing to hold the

Conservation	Easement	.	.	.	represented	that	it	would	enforce	the	restrictions

contained	therein.”

[¶15] On this record, we cannot say that the Estate, claiming to be a

successor	in	interest	to	the	contract,	has	no	standing	to	sue	the	Trust,	which	is

also	a	successor. The	record	at	this	stage	is	insufficient	for	us	to	identify	with
10

precision	what	agreement	the	Estate	alleges	has	been	breached. Any	remedy

in	the	nature	of	specific	performance	related	to	enforcement	of	the	easement

would be precluded, however, because it would be “[a]n action affecting a

conservation	easement”	as	discussed	below. See	33	M.R.S.	§	478(1).

[¶16] Accordingly, although all other counts of the Estate’s complaint

are unambiguously “action[s] affecting a conservation easement,” for which

the statute governs standing,	see	id., we cannot determine that the contract

claim—which may be based on one or more agreements not yet clarified at

this	stage—is	an	action	affecting	the	easement. Based	on	the	broad	language

of the complaint, and given that Maine is a notice-pleading state, see M.R.

Civ.	P.	8(a);	Marshall	v.	Town	of	Dexter,	2015	ME	135,	¶	1	n.1,	125	A.3d	1141,

dismissal	of	the	contract	claim	is	not	appropriate	at	this	time. The	remaining

question is whether section	478(1)	confers	standing	on the Estate to pursue

the	other	claims.

B. Authorization	to	Sue	Pursuant	to	Section	478(1)

[¶17] Proceeding then to the statutory list of potential plaintiffs in

actions affecting a conservation easement, there are four classifications of

parties	that	have	standing. It	is	evident	that	the	Estate	does	not	have	standing

as the holder of the easement because the Trust is the holder, see 33 M.R.S.
11

§§	476(2), 478(1)(B); as the Attorney General, see id. §	478(1)(D);4	or as a

third	party	that	has,	by	contract	or	otherwise,	obtained	a	right	of	enforcement,

see	id.	§	478(1)(C).5

[¶18] Thus,	the	question	on	appeal	is	limited	to	whether	“[a]n	owner	of

an interest in the real property burdened by the easement,” id.	§ 478(1)(A)

(emphasis	added),	includes	the	Estate,	which	does	not	own	an	interest	in	the

Town-owned	parcel	on	which	enforcement	is	sought	but	does	own	an	interest

in	land	that	is	also	burdened	by	the	conservation	easement.

[¶19] Because	section	478(1)(A)	can	be	interpreted	in	different	ways,	it

is ambiguous regarding whether “[a]n owner of an interest in the real

property	burdened	by	the	easement,”	id.	(emphasis	added),	means	an	owner

of	any	real	property	burdened	by	the	easement	or	instead	means	an	owner	of

the real property, burdened by the easement, upon which an enforcement

4 The	Attorney	General	would	have	standing	to	sue	if	the	Land	Trust,	as	the	party	designated	as

having the right to sue under the terms of the conservation easement, became unable to do so
because	it	(1)	was	no	longer	in	legal	existence,	(2)	became	bankrupt	or	insolvent,	(3)	could	not	be
contacted with reasonable diligence, or (4) “failed to take reasonable actions to bring about
compliance with the conservation easement” within ninety days after “written notice by the
Attorney General of the nature of the asserted failure.” 33 M.R.S. § 478(1)(D). There is no
allegation	in	this	matter,	however,	that	any	of	these	circumstances	exist.

5
The complaint contains no allegation that any third party has, by contract or otherwise,
obtained	a	right	of	enforcement. See	id.	§	478(1)(C)	(2016).
12

issue has arisen.6 See Estate	of	Joyce	v.	Commercial	Welding	Co., 2012	ME	62,

¶	12, 55	A.3d 411 (“A statute is ambiguous if it is reasonably susceptible to

different	interpretations.”).

[¶20] The	ambiguity	of	the	statute	is	squarely	presented	in	this	appeal,

in which the Estate owns property “burdened by the easement,” 33 M.R.S.

§	478(1)(A), but asserts standing to enforce the conservation easement

against another landowner by bringing claims that would ordinarily be

asserted	by	a	person	or	entity	that	is	benefitted	by	the	easement. See	Peter	M.

Morrisette, Conservation Easements and the Public Good: Preserving the

Environment	on	Private	Lands, 41 Nat. Resources J. 373, 381 (2001) (“[T]he

benefit	is	not	tied	to	any	specific	piece	of	property;	rather,	the	benefit	accrues

to	the	land	trust	or	organization	that	holds	the	easement.”).

6
A leading treatise on property law states as follows about the Uniform Act’s language
concerning	landowner	standing,	which	the	Maine	Legislature	adopted:

The Uniform Act provides that an action affecting a conservation easement may be
brought	by	four	categories	of	plaintiffs. The	first	is	the	owner	of	an	interest	in	the	real
property	burdened	by	the	easement. While	an	owner	might	be	motivated	to	terminate
or	modify	the	restrictions,	in	most	circumstances	enforcement	would	be	against	the	fee
owner’s	interests. An	exception	might	be	the	possibility	of	litigation	between	tenants
in	common,	if	one	disapproved	of	activities	by	another	which	violated	the	conservation
easement. Similarly there might be a dispute between the owner of the fee and a
tenant,	or	between	a	life	tenant	and	the	holder	of	a	remainder.

4	Powell	on	Real	Property	§	34A.03[4]	(2015)	(footnote	omitted);	see	Unif.	Conservation	Easement
Act	§	3(a)(1)	(1981),	12	U.L.A.	165,	184	(2008);	33	M.R.S.	§	478(1)(A)	(2016). The	author	appears
to	assume	that	the	language	refers	only	to	the	real	property	upon	which	an	enforcement	issue	has
arisen.
13

[¶21] To	resolve	the	ambiguity	in	the	statutory	language,	the	Superior

Court	applied	the	rules	of	statutory	construction	and	reviewed	the	legislative

history	of	the	provision,	interpreting	the	statute	not	to	confer	blanket	standing

on owners of property subject to a conservation easement to enforce the

easement against each other. As the court correctly observed, to the extent

that “[a]n owner of an interest in the real property burdened by the

easement,”	33	M.R.S.	§	478(1)(A),	was	authorized	to	bring	suit	by	the	uniform

act that Maine’s Legislature adopted,7	see Unif. Conservation Easement Act

(1981), 12 U.L.A. 165 (2008 & Supp. 2016), such authorization was for the

purpose	of	allowing	the	landowner	to	“sue	in	cases	where	the	easements	also

impose duties upon holders and these duties are breached by the holders,”8

Unif.	Conservation	Easement	Act	§	3	cmt.,	12	U.L.A.	at	185	(2008). Regarding

the filing of suit to enforce restrictions on landowners’ use of burdened

properties,	the	comments	identified	“[h]olders	and	persons	having	third-party

7 The legislative committee that recommended adopting the Maine legislation considered the

1981	Uniform Conservation Easement Act and its accompanying comments from the National
Conference of Commissioners of Uniform State Laws. An Act to Adopt the Uniform Conservation
Easement Act: Hearing on L.D. 1737 Before the J. Standing Committee on Judiciary, 112th Legis.
(1985)	(Uniform	Conservation	Easement	Act:	Synopsis,	prepared	by	Davis	Hartwell,	Esq.).

8 For	example,	by	the	terms	of	the	deed	establishing	the	conservation	easement	at	issue	in	this

matter,	the	holder	“represents	that	it	will	manage	access	in	and	to”	a	trail	on	the	property,	which
would	be	used	by	the	public,	and	the	deed	sets	out	specific	management	requirements. An	owner	of
the	land	containing	that	trail	may	wish	to	bring	suit	if	the	Land	Trust	fails	to	manage	trail	access	as
required	by	the	deed. Conversely,	the	deed	grants	to	the	Land	Trust	the	“[a]ffirmative	[r]ight[]”	to
enforce	the	easement;	it	is	not	described	as	a	duty.
14

rights	of	enforcement”	as	the	entities	with	standing. Id. Thus,	the	Uniform	Act

would identify the Land Trust, as the holder of the easement, as having

standing to enforce the easement. The Uniform Act also recognizes that a

state might adopt language to confer standing on, for instance, the Attorney

General. Id.

[¶22] In 2007, the Maine Legislature did just that. See P.L. 2007,

ch.	412, §	5 (effective Sept. 20, 2007) (codified at 33 M.R.S. § 478(1)(D)).

Although originally proposed to simply add the Attorney General as a party

with	standing,	see	L.D.	1737,	§	6	(123d	Legis.	2007),	the	Legislature	ultimately

adopted	a	statute	that	authorizes	the	Attorney	General	to	enforce	the	terms	of

a	conservation	easement	only	in	limited	circumstances,	P.L.	2007,	ch.	412,	§	5

(codified	at	33	M.R.S.	§	478(1)(D)),	manifesting	an	intention	not	to	extensively

expand	the	scope	of	standing	to	litigate	over	conservation	easements,	see	Sen.

Amend. B to Comm. Amend. A to L.D. 1737, No. S-305 Summary at 3 (123d

Legis. 2007) (stating that the amendment “specifies under what

circumstances the Attorney General may initiate action seeking enforcement

of	a	conservation	easement”).

[¶23] Although Maine’s statute gives limited standing to the Attorney

General,	other	states’	statutes	may	confer	standing	upon	“private	attorney[s]
15

general,” Sierra Club v. Morton, 405 U.S. 727, 737-38 (1972), whereby

individuals are empowered to advance the public interest, see, e.g., 765 Ill.

Comp. Stat. Ann.	120/4(c) (LEXIS through P.A. 99-904) (authorizing

enforcement of a conservation right by “the owner of any real property

abutting or within 500 feet of the real property subject to the conservation

right” (emphasis added)). As the Superior Court stated: “Maine’s law

explicitly empowers the Attorney General, as a representative of the public,

with	the	backup	authority	to	enforce	the	terms	of	a	conservation	easement	in

the	event	that	the	holder	fails	to	fulfill	its	duties.”

[¶24] We	agree	with	the	court	that	the	limitations	on	enforcement	by

the Attorney General support the conclusion that the Legislature did not

intend to authorize actions by private attorneys general. In addition to the

legislative materials summarized and considered by the Superior Court,

extrinsic evidence of legislative intent properly includes “preenactment

history, including circumstances and events leading up to a bill’s

introduction.” 2A	Norman	J.	Singer	&	Shambie	Singer,	Statutes	and	Statutory

Construction §	48:1 at 548-50 (7th	ed.	2014); see generally id. § 48:3 at

561-73. In the instant matter, a review of the history of conservation

easements	and	their	intended	purposes	illuminates	the	issue	of	to	whom	the
16

Legislature intended to give standing to commence lawsuits to enforce the

terms	of	an	easement.

[¶25] “The conservation easement is a creature of statute, not the

common	law.” Morrisette	at	380;	see	also	4	Powell	on	Real	Property	§	34A.01

(2015). Before the advent of the conservation easement, common law

servitudes—including traditional easements—were used to secure rights in

land	for	the	public	interest. Morrisette	at	380. See	generally	4	Powell	on	Real

Property § 34A.02[1] (discussing federal highway and scenic easements

created	in	the	1930s,	1940s,	and	1950s);	William	H.	Whyte,	Jr.,	Securing	Open

Space for Urban America: Conservation Easements, Urban Land Inst.–Tech.

Bulletin, no. 36, Dec. 1959, at 11-14 (discussing scenic easements,

right-of-way	easements,	airport	easements,	and	easements	for	water	control).

These common law servitudes were not without limitations in the area of

conservation. See	Morrisette	at	380-84.

[¶26] In	1959,	the	Urban	Land	Institute	published	a	technical	bulletin

authored by William H. Whyte, who argued that “conservation easement[s],”

Whyte at 8, should be used to secure open spaces in an urbanizing America.

See	generally	Whyte. Because	conservation	easements	are	an	extension	of	the

law	of	eminent	domain,	id.	at	7,	“the	purpose	[of	the	easement]	must	be	public,”
17

id. at 15. Whyte argued that conservation easements would advance

numerous public benefits, including watershed protection, agricultural land

conservation, limited recreational use, control of urban sprawl, and the

reservation of future options for the use of those open spaces that are

protected. Id.	at	16-19.

[¶27] In 1981, the National Conference of Commissioners on Uniform

State Laws approved and recommended for widespread enactment the

Uniform Conservation Easement Act (UCEA). See Unif. Conservation

Easement Act, 12 U.L.A. 165 (2008). The UCEA did away with many

limitations	that	would	otherwise	be	present	pursuant	to	the	common	law. See

Unif.	Conservation	Easement	Act	§	4	&	cmt.,	12	U.L.A.	at	187-88. In	1985,	the

Maine Legislature adopted the UCEA, see P.L. 1985, ch. 395 § 3 (effective

Sept.	19, 1985), with modifications, compare,	e.g.,	33 M.R.S. §	476(1) (2016),

with	Unif.	Conservation	Easement	Act	§	1(1),	12	U.L.A.	at	174. Consistent	with

the national movement, Maine’s definition of a conservation easement

requires a conservation easement to advance public benefits. See 33 M.R.S.

§	477-A(1)	(“A	conservation	easement	executed	on	or	after	the	effective	date

of this section must include a statement of the conservation purposes of the

easement, the conservation attributes associated with the real property and
18

the benefit	to	the	general	public intended to be served by the restriction on

uses of the real property subject to the conservation easement.” (emphasis

added)); see also id. § 476(1) (“‘Conservation easement’ means a

nonpossessory interest of a holder in real property imposing limitations or

affirmative obligations the purposes of which include retaining or protecting

natural,	scenic	or	open	space	values	of	real	property;	assuring	its	availability	for

agricultural, forest, recreational or open space use; protecting natural

resources; or maintaining or enhancing air or water quality of real property.”

(emphasis	added)).

[¶28] Considering	this	history,	had	the	Legislature	intended,	in	enacting

section 478(1), for a broader group of private citizens to have standing to

enforce conservation easements upon land that they do not own, it would

have	said	so	much	more	clearly.9

[¶29] Here,	the	use	approved	by	the	Land	Trust	is	intended	to	provide

public access over municipal property to one of Maine’s most important

9 Such	broader	access	to	litigation	could	permit	individuals	to	thwart	the	public	purposes	of	a

conservation tool and instead use that tool to advance their own private interests.
Private-attorney-general	standing	“could	allow	neighbors	to	extract	a	private	benefit	(namely,	the
continuation	of	an	easement	arrangement	that	only	serves	the	personal	goals	of	neighbors),	when
the	purpose	of	the	easement,	the	overall	conservation	easement	authorization,	and	the	federal	and
state	tax	subsidies	is	to	benefit	the	public.” Gerald	Korngold,	Governmental	Conservation	Easements:
A Means to Advance Efficiency, Freedom from Coercion, Flexibility, and Democracy, 78 Brooklyn L.
Rev.	467,	500	(2013).
19

natural resources—the coastal waterfront. The Land Trust has determined

this	use	to	be	consistent	with	the	purposes	of	the	conservation	easement,	and

although other landowners may disagree with making the identified land

accessible	to	the	public,	the	Land	Trust—not	a	private	landowner	such	as	the

Estate—is	the	entity	identified	by	statute	to	enforce	the	easement’s	pertinent

terms. See 33 M.R.S. §	478(1)(B). If the Land Trust cannot, for identified

reasons, fulfill its obligations in reviewing and enforcing the easement, the

Attorney General—again, not a private landowner—has the authority to

enforce	the	easement. See	id.	§	478(1)(D).

[¶30] The pleadings disclose no impediment to the Land Trust’s

exercise of its authority, and we are not persuaded that the Legislature

intended to hinder a competent conservation easement holder’s ability to

carry out its responsibilities by authorizing expensive and complicated

enforcement	lawsuits	to	be	prosecuted	by	any	party	who	happens	to	own	land

that is also subject to the conservation easement. See Gerald Korngold,

Governmental	Conservation	Easements:	A	Means	to	Advance	Efficiency,	Freedom

from Coercion, Flexibility, and Democracy, 78 Brooklyn L. Rev. 467, 500-01

(2013) (observing, in a case where neighbors brought suit to enforce a

conservation easement and sued the owner of the burdened land and the
20

holder of the easement, Bjork	v.	Draper, 936 N.E.2d 763 (Ill. App. Ct. 2010),

that the “nonprofit organization was forced to spend [unknown sums of

money]	on	legal	fees	in	several	trials	and	appeals	in	this	matter,	rather	than	on

land	conservation	activities”).

[¶31] Although	abutting	or	nearby	landowners	may	have	the	capacity

to seek enforcement of local zoning regulations, which the Estate has also

done in a separate matter, see	Estate	of	Robbins	v.	Town	of	Cumberland, 2017

ME	16,	---	A.3d	---,	the	Legislature	has	specifically	limited	standing	to	enforce

the terms of a conservation easement against a landowner. There is no

suggestion in section 478(1) or in extrinsic sources that the Legislature

intended	to	expand	litigation	and	increase	costs	to	the	holders	of	conservation

easements,	especially	when	such	standing	would	allow	suit	even	by	an	owner

of	land	that,	although	subject	to	the	easement,	is	distant	from	the	property	on

which compliance has been questioned. Rather, by enacting a statute that

narrowly defined the entities that may bring legal action and the

circumstances in which the Attorney General may step in for an easement

holder to enforce an easement’s terms, the Legislature acted to constrain

individual	challenges	to	a	conservation	easement	holder’s	decision-making.
21

III. CONCLUSION

[¶32] Marion	B.	Payson granted to CMIT, which was replaced by the

Land Trust, a conservation easement over a significant piece of coastal

property. Payson’s family has since sold part of the burdened land for

development. The	Town	of	Cumberland	has	purchased	a	portion	of	that	land

and intends to develop it so that the public may access a valued natural

resource: namely, a beach on the Town’s property. The Town has received

conditional approval from the Planning Board to undertake limited

development,	an	action	which	is	under	review	in	a	separate	appeal,	with	the

Land	Trust’s	permission	and	continued	supervision.

[¶33] The	Estate	now	seeks	to	litigate	the	details	of	enforcement	of	the

conservation easement upon land that it has no legal right to control. In

essence, the Estate seeks to enforce the easement for its own benefit.10 The

easement’s benefit, however, runs to the Land Trust, see Morrisette at 381,

10 Notably, for a conservation easement to be a valid charitable contribution for federal tax

purposes,	thus	permitting	the	owner	to	take	a	deduction	for	the	contribution,	the	contribution	must
be made “exclusively for conservation purposes.” 26 U.S.C.S. §	170(f)(3)(B)(iii), (h)(1)(C) (LEXIS
through	Pub.	L.	No.	114-262). This	is	in	response	to	Congress’s	concern	about	“the	property	owner
who	takes	an	income	tax	deduction,	then	sits	on	the	back	porch	looking	over	the	unspoiled	acreage
that	was	the	subject	of	the	deduction.” 4	Powell	on	Real	Property	§	34A.04[4][b]	(quotation	marks
omitted). Thus,	the	tax	laws	are	“‘designed	to	ensure	that	the	payor’s	primary	purpose	is	to	assist
the charity and not to secure some benefit personal to the payor.’” Id. §	34A.04[4][a] (quoting
Christiansen	v.	Comm’r,	843	F.2d	418,	420	(10th	Cir.	1988)). The	Maine	Legislature	could	not	have
intended	to	permit	a	landowner	to	donate	a	conservation	easement	for	the	public’s	benefit	with	the
expectation	that	the	landowner	may,	after	selling	a	portion	of	the	property,	enforce	the	easement
against	the	new	owner	in	order	to	advance	the	landowner’s	private	interests.
22

and the purpose of the easement is to benefit the public, see 33 M.R.S.

§	477-A(1).

[¶34] The Superior Court correctly concluded that the Legislature did

not	intend	to	authorize	a	proliferation	of	suits	among	neighbors	to	compel	the

enforcement	of	conservation	easements	against	each	other. Accordingly,	the

Estate lacks standing to bring an action to compel the Land Trust to bar the

proposed public access. We affirm the Superior Court’s well-reasoned

interpretation of the ambiguous statute and conclude that, applying that

interpretation of the statute, the Estate lacks standing to sue the Land Trust

and	the	Town	of	Cumberland	in	this	matter	to	obstruct	the	planned	use	of	the

land	to	benefit	the	public.11

[¶35] At this early point in the proceedings, however, we cannot

conclude as a matter of law that the claim for breach of contract was an

“action affecting a conservation easement.” 33	M.R.S. § 478(1). Thus, we

vacate	the	judgment	with	respect	to	that	count	of	the	complaint	but	affirm	the

judgment	dismissing	all	other	claims	for	lack	of	statutory	standing.

11 Although the dissenting opinion suggests that the result is “absurd or illogical,” Dissenting

Opinion ¶ 52, we simply hold that an owner of similarly encumbered property does not have
standing	to	assert	the	interests	of	the	holder	of	the	easement	(here,	the	Land	Trust)	as	to	another
owner’s	land. See	33	M.R.S.	§	478(1)	(2016).
23

The	entry	is:

Judgment	vacated	to	the	extent	that	it	dismissed
the breach of contract claim; in all other
respects, judgment affirmed. Remanded for
further proceedings on the breach of contract
claim.

ALEXANDER,	J.	and	JABAR,	J.,	dissenting.

[¶36] We	respectfully	dissent	from	the	Court’s	decision	that	the	explicit

language of 33 M.R.S. § 478(1)(A) (2016) giving standing in any action

affecting the conservation easement to “[a]n owner of an interest in the real

property burdened by the easement,” is somehow ambiguous. After holding

that section 478(1)(A) is ambiguous, the Court erroneously determines that

the	Estate	of	Merrill	P.	Robbins	lacked	standing	to	bring	this	action	affecting

its interest in its real property burdened by the easement and affirms the

Superior Court’s order dismissing the Estate’s complaint seeking to enforce

the conservation easement. The Court does remand for the trial court to

explore	whether	or	not	there	might	be	some	contractual	obligation	that	might

give	the	Estate	standing.
24

I. EASEMENT	HISTORY

[¶37] In	1997,	Marion	B.	Payson	executed	a	conservation	easement	by

deed. The Chebeague & Cumberland Land Trust (the Land Trust) is the

current grantee of the deed and “holder” of the easement. The easement

covers	a	roughly	100-acre	parcel	of	land	on	the	coast	in	Cumberland,	referred

to	as	“the	Property”	throughout	the	deed. The	conservation	easement’s	stated

purpose is to retain the Property “predominantly in its scenic, natural, and

open	space	condition	for	conservation	purposes	and	to	prevent	any	use	of	the

Property that will significantly impair or interfere with the conservation

values of the Property and the Property’s natural resources and associated

ecosystems.” This stated purpose generally follows the definition of

“conservation easement” in 33 M.R.S. § 476(1) (2016). Neither the stated

purpose	of	the	conservation	easement	nor	the	statutory	definition	make	any

particular mention of public access, though many of the uses listed would

involve use by some individuals, though not necessarily the public at large.

See	id.

[¶38] The Estate owns only a small portion of the 100-acre parcel

subject to the conservation easement. Since the 1997 creation of the

easement,	(1)	the	Town	of	Cumberland	has	acquired	another	part	of	the	100
25

acres to develop a beach, a sixty-car parking lot, a bath house and related

amenities,	and	(2)	a	real	estate	developer	has	acquired	the	remainder	of	the

protected land that has been divided into ten house lots. 12 Although

conservation easements are required by law to be “unlimited in duration”

subject to certain exceptions, 33 M.R.S. §	477(3) (2016), limitations on uses

consistent with the original stated purposes of the easement apparently are

being	abandoned,	except	on	the	Estate’s	property.13

[¶39] The Land Trust, as holder of the conservation easement and

grantee of the deed, is primarily responsible for enforcing the terms of the

easement. See	33	M.R.S.	§§	476(2),	478(1)(B). The	Land	Trust	supports	the

planned	development	of	the	land.

[¶40] The Estate, after communicating its concerns to the Land Trust

and the Town, brought this action naming the Land Trust and the Town as

defendants. Upon the Town’s and the Land Trust’s motions to dismiss

pursuant to M.R. Civ. P. 12(b)(6), the trial court dismissed the Estate’s

complaint	in	its	entirety,	concluding	that	the	Estate	lacked	standing	to	initiate

12
Three houses have already been built in this area, and seven lots remain available for
development.

13 This easement was created in 1997. Conservation easements created after 2007 may be

terminated or amended only with court approval in an action in which the Attorney General is
made	a	party. See	33	M.R.S.	§§	477(3)(B),	477-A(2)(B),	478	(2016).
26

an action to enforce the conservation easement as it relates to the Town’s

property.

[¶41] The	trial	court	interpreted	33	M.R.S.	§	478(1)(A)	and	concluded

that the statutory language “[a]n owner of an interest in the real property

burdened by the easement” is limited to an owner of an interest in the real

property that may actually be subject to development or other use allegedly

inconsistent with the limitations of the conservation easement—here, the

Town property. By that reasoning, accepted by the Court, only an owner of

land	being	developed	in	violation	of	a	conservation	easement	has	standing,	as

an	owner,	to	challenge	its	own	violation	of	the	easement.

II. LEGAL	ANALYSIS

[¶42] Every	plaintiff	who	commences	a	lawsuit	must	demonstrate	that

it has standing to do so. Bank of Am., N.A. v. Greenleaf, 2014	ME 89, ¶ 7,

96	A.3d 700. “Standing” is a term that “refers to the minimum interest or

injury suffered that is likely to be redressed by judicial relief,” and what is

required to demonstrate standing may be set out by the common law or by

statute,	depending	upon	the	type	of	claim. Id.

[¶43] The	conservation	easement	laws	codified	at	33	M.R.S.	§§	476	to

479-C (2016) apply to the conservation easement at issue in this matter,
27

because the easement was created after September 19, 1985. See 33 M.R.S.

§	479-A(1); P.L. 1985, ch.	395, § 3 (effective Sept. 19, 1985). Section 478(1)

specifies who may initiate or intervene in an action affecting a conservation

easement. It	provides,	in	pertinent	part:

1. Action or intervention. An action affecting a
conservation	easement	may	be	brought	or	intervened	in	by:

A. An	owner	of	an	interest	in	the	real	property	burdened	by
the	easement;

B. A	holder	of	the	easement;

C. A	person	having	a	3rd-party	right	of	enforcement;	or

D. The Attorney General [provided certain conditions are
met	first].

[¶44] The statute identifies four different entities that may enforce a

conservation easement. This case deals with only one of those alternatives,

section	478(1)(A). There	is	no	reason	to	discuss	the	possible	role	of	the	Land

Trust	that	is	a	holder	of	the	easement,	section	478(1)(B);	the	Attorney	General

pursuant to section 478(1)(D); or other parties, including abutting

landowners, that may have third party rights of enforcement pursuant to

section	478(1)(C).

[¶45] The Estate’s complaint is “[a]n action affecting a conservation

easement.” 33 M.R.S. § 478(1). To establish standing, pursuant to section
28

478(1)(A),	therefore,	the	Estate	must	demonstrate	only	that	it	is	“[a]n	owner

of an interest in the real property burdened by the easement.” 33	M.R.S.

§	478(1)(A). There is no dispute that the Estate owns property that is

“burdened	by	the	easement.”

[¶46] “In	construing	a	statute	our	duty	is	to	give	effect	to	the	intent	of

the	Legislature	as	evidenced	by	the	language	of	the	statute.” Concord	Gen.	Mut.

Ins.	Co.	v.	Patrons-Oxford	Mut.	Ins.	Co., 411	A.2d	1017, 1020 (Me. 1980). “We

will construe a statute based on its plain meaning in the context of the

statutory	scheme,	and	only	if	the	statute	is	ambiguous	will	we	look	to	extrinsic

indicia	of	legislative	intent	such	as	relevant	legislative	history.” Strout	v.	Cent.

Me.	Med.	Ctr.,	2014	ME	77,	¶	10,	94	A.3d	786. “If	the	meaning	of	the	language

is	plain,	we	must	interpret	the	statute	to	mean	exactly	what	it	says.” Concord

Gen.	Mut.	Ins.	Co.,	411	A.2d	at	1020.

[¶47] As indicated in the quote from section 478(1)(A) above,

“[a]n	action	affecting	a	conservation	easement	may	be	brought	or	intervened

in by . . . [a]n owner of an interest in the real property burdened by the

easement.” The plain meaning of this language confers standing to bring an

action affecting a conservation easement upon any person who owns an

interest in the land burdened by the easement. Section 478’s specific
29

reference	to	“the	real	property	burdened	by	the	easement”	refers	back	to	all	of

the real property so burdened, not just the property that may be used in

violation	of	the	easement.

[¶48] “The”	is	a	definite	article	and	it	points	to	a	definite	object. “[T]he

real property burdened by the easement” is a specific reference, and it is a

reference	to	the	property	described	in	a	conservation	easement	that	is	being

burdened	by	that	conservation	easement. To	conclude	that	“the	real	property

burdened by the easement” refers only to the parcel being altered would

require	this	Court	to	add	to	the	language	of	478(1)(A). Although	the	holder	of

the easement has certain duties that other property owners within the “real

property burdened by the easement” may enforce, this does not limit the

enforcement	capacity	given	to	any	property	owner	who	owns	land	within	the

overall	conservation	easement.

[¶49] Under basic property law, a landowner who owns property

subject to an easement holds that property subject to all of the restrictions

within	the	easement. A	conservation	easement	is	one	form	of	easement	and

carries	the	same	duties	and	burdens	of	any	easement.

A	conservation	easement	is	usually	not	an	easement	in	the	sense
of an affirmative right to use or traverse the burdened
property	.	.	.	. Since the landowner agrees to restrict activity on
30

the	land,	a	conservation	easement	may	be	more	accurately	viewed
as	a	restrictive	covenant	or	negative	easement.

4-34A Richard R. Powell, Powell on Real Property § 34A.01 (Michael Allan

Wolf	ed.,	2005).

[¶50] The	Land	Trust	and	the	Town	argue	that	applying	section	478’s

plain language would lead to illogical or absurd results contrary to public

interest. They speculate that landowners subject to conservation easements

spanning thousands of acres may commence lawsuits to prevent other

landowners living miles away from making small improvements to their

property. That	hypothetical	is	not	the	situation	before	us. Here	the	easement

covers	only	100	acres,	and	the	use,	quiet	enjoyment,	and	value	of	the	Estate’s

property	may	be	directly	affected	by	the	development	of	the	Town	property	as

a	public	beach.

[¶51] Even considering the Land Trust and the Town’s hypothetical,

though, such a result would not be absurd or illogical. In an analogous case

involving	a	31,000-acre	subdivision	property,	we	concluded	that	owners	of	a

leasehold	interest	in	a	developed	lot	in	a	subdivision	had	standing	to	challenge

proposed changes in use of a few undeveloped lots not contiguous to the

leaseholder’s lot. Nelson v. Bayroot, LLC, 2008 ME 91, ¶¶ 3-7, 9-14,

953	A.2d	378 (noting that courts in other states have held that “those with
31

interests in property contained in a subdivision have interests in other

subdivision property”). Furthermore, courts and defendants have tools to

dispatch litigation that is frivolous or otherwise fails to state a claim

appropriate	for	judicial	determination. See,	e.g.,	M.R.	Civ.	P.	11,	12(b)(6),	56.

[¶52] The	truly	absurd	or	illogical	application	of	section	478(1)	would

be	to	hold	that	only	the	developer	of	land	violating	the	easement,	or	the	holder

of the easement who supports the development, have standing to challenge

the resulting violation of the easement. The plain meaning of section

478(1)(A)	is	that	any	owner	of	an	interest	in	the	real	property	burdened	by	a

conservation easement has standing to commence an action affecting that

easement.

[¶53] Because the Estate, as an owner of an interest in the land

benefitted and burdened by the conservation easement, has standing to

challenge an alleged violation of the conservation easement on another lot

that may adversely affect the Estate’s quiet enjoyment of its land, we would

vacate	and	allow	the	action	to	proceed	on	the	merits	of	the	Estate’s	claim.

32

Scott D. Anderson, Esq. (orally) and Juliet T. Browne, Verrill Dana, LLP,
Portland,	for	appellant	Estate	of	Merrill	P.	Robbins

Natalie L. Burns, Esq. (orally) and Alyssa C. Tibbetts, Esq., Jensen Baird
Gardner	&	Henry,	Portland,	for	appellee	Town	of	Cumberland

Paul	F.	Driscoll,	Esq.,	and	Russell	B.	Pierce,	Jr.,	Esq.	(orally),	Norman,	Hanson	&
DeTroy,	LLC,	Portland,	for	appellee	Chebeague	&	Cumberland	Land	Trust

R.	Reeve	Wood	III,	Esq.,	Maine	Farmland	Trust,	Inc.,	Belfast,	for	amicus	curiae
Maine	Farmland	Trust,	Inc.

Lauren	E.	Parker,	Asst.	Atty	Gen.,	Office	of	the	Attorney	General,	Augusta,	for
amicus	curiae	Office	of	the	Attorney	General

Cumberland	Superior	Court	docket	number	CV-2014-523
FOR	CLERK	REFERENCE	ONLY

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4118805. Public record. Not legal advice.