How are conservation restrictions enforced?

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.” G.L. c. 184, § 31. Conservation restrictions come with many benefits to a landowner, including advantageous tax benefits, but the catch is, of course, that, in most instances the landowner is “restricted” from developing the protected land.

So, what happens when a building is suddenly erected in a protected area, or a stand of old growth trees is cut down without notice? Generally, conservation restrictions are enforced by one of two ways: an injunction or monetary damages. Most violations of conservation restrictions take the form of an improper building or structure on the area the restriction protects. Accordingly, an injunctive remedy ordering removal follows. For example, a court may order the removal of a building or structure, as was the case in Weston Forest and Trail Ass’n v. Fishman, 66 Mass. App. Ct. 654, 661-662 (2006), or a swimming pool, as in Goldmuntz v. Town of Chilmark, 38 Mass. App. Ct. 696, 698-699 (1995), that has been built over the conservation restriction.

More unusually, but not unheard of, monetary damages can be sought by the holder of a conservation restriction. Wellesley Conservation Council, Inc. v. Pereira, 98 Mass. App. Ct. 194, 201 (2020). Monetary damages may be appropriate when the damage is an irreplicable loss or restoration is technically infeasible or unreasonable expensive. In Wellesley v. Pereira, the land trust sought monetary damages to compensate for the difference between the removed, old growth trees and the newer, smaller trees that were included in the restoration plan. The Appeals Court recognized that, even though new trees were being planted to replace the old trees, the new, much younger, trees would not and could not replace the full value of the old trees that had been removed.


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