(Note: There is copious language deception within the bounds of this article, appealing to the reader's emotions but not to his/her intellect. Please, read very carefully, noticing how often words like 'could' are used to sway.)

December 23, 2003

By Bob Montgomery

Environmental Writer

bmontgom@greenvillenews.com  or 864-298-4295

http://www.greenvillenews.com

To submit a Letter to the Editor: letters@greenvillenews.com

In the high country of northern Greenville County, near the North Carolina line, a fight is being waged that some legal experts say could be precedent-setting.

At the heart of the issue is a legal document called a conservation easement, which protects the mountainous 26,000-acre Greenville watershed to ensure the city's water remains pure. At issue is the Greenville Water Commission's change of the easement to allow a 12-mile hiking trail through the watershed.

If a plan to allow the trail goes through, it could damage the integrity not only of the easement but also of conservation easements across the state, according to a lawyer suing the commission.

Experts come down on both sides of that argument.

Trip Pollard, senior land attorney with the Southern Environmental Law Center in Virginia, said a hiking amendment would typically be found consistent with the purpose of the easement, but if a court decides otherwise, it could have an impact on the validity of other easements involving large tracts of land.

"If successful, yes, it certainly might call into question other easements that have been adopted," Pollard said. "For a court to overturn this amendment, yes, I think that would raise concern about similar easements."

Harvard law professor David Barron, who specializes in land issues, says he is not aware of any easements being overturned because hiking trails were allowed. But he says if that were to happen, that could cause courts to look at the legality of other easements and their restrictions.

Unless there is a disagreement between the land holder and easement holder, though, he says he doesn't see such a legal challenge being successful.

"The holder of the property has the right to determine who uses the property and how and what limits they'll approve and reject," Barron said.

Sandy Stern, a Greenville lawyer representing the plaintiffs in the case, said he believes the easement with any changes can be viewed as flawed. If so, it could open the gate to all types of uses that also weren't written into the original easement.

"This is really troubling because, by the same logic, they could put a Wendy's in there and not violate terms of the restrictive covenant. Then that easement means nothing," Stern said.

Kim Connolly, an environmental law professor at the University of South Carolina, said a court ruling against the use of a hiking trail "definitely could have an impact on the interpretation of existing agreements and the question of whether the amendment is valid.

"It can raise important concerns. In this case, it's likely to start some interesting debate."

Conservation easements

A conservation easement is a legal agreement between the landowner and a land trust or government agency that permanently limits uses of the land to protect its conservation values, according to The Land Trust Alliance, which promotes voluntary land conservation.

The easement allows the owner to continue owning and using the land and to pass the land on to future generations for such use and protection.

Uses and restrictions are spelled out in the legal document.

Any changes must be agreed to by both parties.

The 1993 conservation easement between the Greenville Commission of Public Works and the Nature Conservancy sets forth these restrictions:

. The land will remain pristine and natural forever.

. No commercial structures may be built. Only buildings for storage of equipment related to water system activities are allowed.

. No mining or quarrying is permitted.

. No trees will be cut for commercial sale or use, but trees may be cut for protection against fire or disease.

. Roads may be built for access to fire protection, removal of diseased trees, inspection and security.

In the lawsuit against the water commission, Columbia lawyer Jim Bruner says the intentions are to protect the watershed and reservoir, with no mention of hiking trails -- either permitted or forbidden.

But land easements have been used successfully and amended for decades in both laying out allowable uses and forbidden uses, says Dana Beach, executive director of the South Carolina Coastal Conservation League, a nonprofit group that has successfully protected several environmentally sensitive marshes and wetlands along the coast.

"Easements have been upheld throughout the country," Beach says. "There are occasional easements that individually may be flawed, but easements as a general tool have been upheld."

She added, "It is clearly possible to have a trail system in that large an area and not disturb the ecology."

One of Beach's colleagues, Michelle Loy, says easements are just like any contract -- they can be modified on a case-by-case basis.

Greenville environmental lawyer Gene McCall said it is not uncommon to have a use such as a hiking trail associated with a conservation easement. "Traditionally, that has been acceptable as a consistent use," he said.

Clemson land use professor Grant Cunningham says the water commission was wise to maintain the right to close the trail if it is abused.

"If a determination has been made that this trail will not pose any threat to the watershed, then what is the argument against having it there?" he said.

Furman environmental sciences professor Bill Ranson, who helped compile a 1992 watershed report, says he believes the trail will be harmless.

"I'm all for saving land, but I think putting a hiking trail is not going to deteriorate that lake," he says.

http://greenvilleonline.com/news/2002/12/23/2002122333462.htm