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Tennessee Law Review

Jess R. Phelps

Document Type

Article

Abstract

Limiting subdivision of conserved farmland is often a critical component of an agricultural conservation easement project's design. These restrictions are critical for ensuring that a protected farm remains of sufficient size and scale to continue to be viable for agricultural use. This form of restriction, however, is often undervalued by courts reviewing agricultural conservation easements as being secondary or incidental to the agricultural conservation easement's stated goal of preventing this land from being developed or converted to non-agricultural use. The purpose of this Article is to place subdivision restrictions in their appropriate context and to consider options for increasing their enforceability in light of recent judicial scrutiny.

To this end, Part I will provide an overview of agricultural conservation easements and the common law barriers that have historically and, in some cases, continue to apply to subdivision restrictions. Part H will explore subdivision restrictions generally and the challenges of drafting appropriately tailored restrictions that balance farm viability and economic considerations. Part III will review three recent decisions involving subdivision restrictions which each demonstrate a specific consideration courts grapple with in addressing their enforceability. Last, Part IV will consider a few options for improving state enabling legislation and conservation holder drafting, acquisition and ultimately stewardship of conserved lands to better ensure these lands remain protected as an integrated whole. Ultimately, subdivision limitations or restrictions have a critical role in enabling agricultural conservation easements to achieve their goals of ensuring farmer and farmland viability and the future health of the working landscape, which merits additional attention to this important function.

"Our course led right across the grounds, in an out among the trenches and pits with which they were scored and intersected. The whole place, with its scattered dirt heaps and ill-grown shrubs, had a blighted, ill-omened look which harmonized with the black tragedy which hung over it.'"

Publication Date

2019

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