Crain v. Hardin County Water District No. 2

Court of Appeals of Kentucky, No. 2015-CA-000499-MR, June 17, 2016: Ag conservation easement does not create public use protected from taking.

The issues in this case are (1) whether a taking of an easement on private land for a sewer line by the Water District is prohibited because of an agricultural conservation easement which the landowner previously [...]

Register v. The Nature Conservancy

US Dist. Court, ED Kentucky, Civil Action No. 5:13-77-DCR, December 9, 2014: Charitable gift restricted by oral contract but claimed restriction violation goes to jury

At issue were whether a contribution to a charity was restricted, what the law required if the gift was restricted, and whether the gift was ultimately used contrary to the restriction.

Register, the donor, contributed appreciated stock to The Nature Conservancy (TNC). The trial record produced evidence about what Register and TNC personnel thought the donation was for at the time of donation and leading up to it.  Register alleged the gift of about $1 million to TNC was intended to be permanently restricted for the purchase and management of a parcel of land known as Griffith Woods. Register alleged he made the gift intending to obligate TNC to use the proceeds from a sale of Griffith Woods for management of that property if Griffith Woods were ever sold. Using the gift and other funds, TNC bought Griffith Woods and then sold it. Part of the land was sold to the University of Kentucky (which Register evidently expected) and TNC sold the rest to the Kentucky Department of Fish and Wildlife Resources (“KDFWR”), without a conservation restriction.

Among the evidence relevant to the court’s decision was that TNC placed Register’s original donation in an account classified by TNC internally as “temporarily restricted” to fund the purchase of Griffith Woods. After Griffith Woods was sold, TNC deposited the funds back into that account and then transferred money out of the account. TNC used some of the proceeds from the sale to pay-off a land debt on another project and the rest were deposited into TNC’s general operating fund. TNC admitted that no portion of Register’s gift is currently being used to benefit Griffith Woods. The court’s opinion recites much additional evidence specific to the knowledge and intent of the parties at various times.

The court first held that as a matter of law Register’s donation was restricted as a “conditional gift” and as such TNC was bound by Register’s intention when it accepted the donation. The court cited an Arizona Supreme Court decision (Dunaway v. First Presbyterian Church of Wickenburg, 442 P.2d 93, 95 (1968)) for the proposition that a charity’s acceptance of a gift creates an implied contract with a promise “agreeing to the purposes for which it is offered.” The court cited a Seventh Circuit decision (Kentucky is in the 6th Circuit) for the proposition that a promise of a gift is a promise subject to contract law.

The court found that although there was no written contract in one integrated document, the evidence supported the conclusion that the parties entered into an oral contract and Register’s donation was “restricted to Griffith Woods” as a matter of law. [Digest readers are urged to read the opinion if they are interested in the specific statements, writings and circumstances that gave rise to the court’s conclusion in this and other aspects of its decision.]

The court then turned to the “parameters and duration” of the conditions, if any, of the contract. One letter from Register to the Director of the Kentucky TNC chapter at the time included, “I’d like to make now a gift …  I would prefer that the … proceeds go toward the establishment and management of a nature preserve in the Bluegrass region, e.g. Griffith Woods. If the Griffith Woods project falls through, I trust that KNC will put to use the funds in a manner that will further help protect areas in Kentucky with unique and diverse plants and animals.” The actual transmittal letters from Register’s investment clearinghouse to TNC memorializing the transfer of stock stated “[t]his represents a gift from [Register] to the Nature Conservancy-Kentucky Chapter, Griffith Woods project” or “[t]his represents a gift from [Register] to the Kentucky Chapter Griffith Woods project.”

TNC’s arguments focused on Register’s letter’s use of “precatory language” (“prefer” and “e.g.”) and the general nature of how he wanted the gift used if the Griffith Woods “project falls through.”   The court, however, concluded that Register’s intent for the funds to be used for Griffith Woods was meant by him as a limiting restriction and created an enforceable obligation because the next sentence points out what is to happen if the Griffith Woods preference is not fulfilled. The court also found the evidence lead to the conclusion that, “At the time the donation was made, no one appeared to believe that the funds were not restricted to Griffith Woods.” Continue reading Register v. The Nature Conservancy

Norton v. Perry

KY Court of Appeals, Nos. 2009-CA-002343-MR, 2009-CA-002394-MR, October 12, 2012: Nominating process for National Register fundamentally flawed and subject to review in state court.

This appeal turns on state court jurisdiction and process. The appeal arose in response to the process of nominating a property to the National Register of Historic Places, specifically the way the state [...]

The Nature Conservancy, Inc. v. Sims

US Court of Appeals, 6th Circuit, Nos. 09-5634/6070, May 21, 2012: Filling a sinkhole violated “unambiguous” conservation easement despite reserved rights; upholds attorneys’ fee award to easement holder. A 2-1 split decision.

The Nature Conservancy (“Conservancy”) and the Sims entered into a conservation easement on land the Conservancy sold Sims. The Conservancy subsequently asserted that the Sims [...]

The Iron Quarter, LLC, v Mims II

US Dist Ct, W.D. KY, Louisville Div., No. 3:10-CV-539-H, April 8, 2011: Allows neighboring property owner and historic preservation groups to intervene to challenge an agreement between the County and Iron Quarter to demolish landmark buildings.

Property owner Iron Quarter LLC (“Iron Quarter”) sought to demolish landmark buildings (“landmarks”) in Louisville. The County denied a demolition order. [...]

The Iron Quarter, LLC, v Mims

US Dist Ct, W.D. KY, Louisville Div., No. 3:10-CV-539-H, Jan. 12, 2011: Holds a suit to allow demolition of landmark buildings may proceed because owner either (1) properly appealed the denial of its demolition request under County ordinance or (2) was not required to exhaust administrative remedies. Denies the County’s motion to dismiss. “At some point [...]

USDA: $175M in Funding for Wetlands Reserve Program

USDA announced May 14, 2010, that $175 million in funding is available for the Natural Resources Conservation Service’s Wetlands Reserve Program. USDA says that funding will add 75,000 additional acres to the approximately 2.2 million acres currently enrolled in the program. The funding will go to wetland conservation projects in Alabama, Arkansas, California, Florida, Georgia, Indiana, [...]