Using the Public Trust Doctrine to Protect Municipal Conservation Land

Table of Contents

Overview

This page lays out the steps in order to protect land held by municipal land trusts by dedicating it as “public trust land.” If you have questions, please reach out to anyone listed in the Contacts section. The RI Land Trust Council is here to help with this process!

The Risk

Municipal Land Trusts generally acquire properties in two ways:

  1. They may be purchased by a combination of federal or state funds from a variety of programs. In these cases, the properties will likely be protected by a 3rd party conservation easement held by RI Department of Environmental Management.
  2. They may also be acquired through a local bond referendum for open space or may be donated to the Town as conservation property. In these cases, the property is likely not protected by conservation easement.

Or said another way: Without an existing 3rd party conservation easement, a town-owned conservation property may be only three town council votes away from disaster.

And since there are 19 municipal land trusts in Rhode Island, this is a major focus of the RI Land Trust Council.

The risk to unprotected town-owned conservation property is real. In 2018, legislation was submitted in the General Assembly to dissolve the Smithfield Land Trust and pass the property to the Town, presumably for sale. Fortunately, the proposed legislation was defeated, but the risk remains.

The Solution

Town Councils now have the means to perpetually protect conservation land by approving a resolution which is then recorded in the Town’s land evidence records. This protection should not be added on top of existing a conservation easement, as we don’t want to create conflicting documents and existing conservation easements offer the same level of protection.

Public Trust Doctrine

Public trust doctrine is rooted in English common law, the colony’s 1663 charter, and the Rhode Island Constitution. This doctrine considers that some resources are so important that we entrust them to the government to maintain for the people. The doctrine is typically related to coastal and estuarine resources, but after the 2021 General Assembly legislation (R.I.G.L. 45-36), Rhode Island became only the second state in the country to provide this protection to conservation land. RILTC encouraged this legislation over several years.

Conservation Restrictions

Conservation restrictions require that the property be kept “…predominantly in its natural, scenic, or open condition, or in agricultural, farming, open space, wildlife, or forest use, or in other use or condition consistent with the protection of environmental quality” (R.I.G.L. 34-39). The restriction is not subject to the 30-year limitation on restrictive covenants; the RI Attorney General is provided standing in any litigation; and the law has been successfully litigated. Through the efforts of attorneys working with RILTC, this means was identified.

On March 21, 2022, the Narragansett Town Council passed Resolution 2022-04 which protected 40 parcels comprising 135 acres in perpetuity.

In the resolution, the Town Council declares that “these conservation properties … to be held in the public trust for the preservation, regeneration and restoration of the natural environment of the Town of Narragansett [under R.I.G.L. 45-36.1-3] and the Town Council hereby deems these properties as having Conservation Restrictions as defined by R.I.G.L. 34-39-2 (a).”

In summary:

  • Many parcels acquired by town as conservation properties are not protected — unless by a 3rd party conservation easement
  • Town Councils may protect conservation property by a Resolution
    • By deeming them as having “conservation restrictions,” and
    • By dedicating them a “public trust land”
  • The experience of Narragansett provides a model for how other municipal land trusts can protect their land with this method

The Process

There are two specific examples provided which draw from Narragansett’s experience following the steps outlined below. Example A is for a parcel for which there was no third-party conservation easement to protect it, and Example B is for a parcel which was already protected by an existing third party conservation easement.

Step 1:

Compile the list of Municipal Land Trust parcels to protect.

Step 2:

Discuss the goals and direction of the project with Town staff, Town solicitor, and the land trust.

Step 3:

Edit the list.

  • Research parcels in the Town’s Land Evidence Records.
  • Check with the Town Planner for identify any property not acquired for conservation properties as these properties may have another use, such as for affordable housing.
  • Remove those parcels with existing 3rd party conservation easements, as they are already protected.

Step 4:

Compile the legal descriptions for those parcels to protect.

It is unwise to use only the plat and lot numbers as these may change over time. Therefore, it is important to copy the actual description (“metes and bounds”) from an existing deed document. There is software which can convert text from a scan pdf into an editable Word document. It is recommended, however, to include the plat and lot numbers for reference only.

Step 5:

Prepare the Town Council Resolution with attached legal descriptions working the Town solicitor.

Step 6:

Obtain Town Council approval of the Resolution with exhibits of the legal descriptions of each parcel.

Step 7:

Record the Resolution in the Land Evidence Records.

Ensure that the property record cards for each parcel reflect the book and page of the recorded Resolution.

For an example of how this process worked in Narragansett, please consult this presentation from the 19th Annual Land and Water Conservation Summit in July 2022.

Successes

  • On March 21, 2022, the Narragansett Town Council passed Resolution 2022-04 which protected 40 parcels comprising 135 acres in perpetuity.
  • Warwick dedicated Dawley Farm as public trust land in December 2022. Learn more.

Useful Links

There are a few sources of information which may be of use:

Contacts

If you have any questions about the risk, the solution, or the process, please feel free to contact the following people: