## Facts

- Owners of real property in Lake Forest, Illinois granted a conservation right and easement to a land-trust organization under the Illinois Real Property Conservation Rights Act.
- The easement was intended to keep the property “in perpetuity” predominantly in a scenic and open-space condition and restricted placement or construction of buildings and other improvements on protected portions.
- The easement contemplated alteration or variation by agreement of the parties or successors, while providing that termination or extinguishment could occur only through judicial proceedings.
- The property was later sold to the Drapers, who sought changes that conflicted with the easement’s development restrictions.
- The easement holder approved three amendments: (1) and (2) permitting a circular driveway/turnaround with an encroachment and related landscaping changes; and (3) permitting a large home addition and further plantings/trees.
- Neighboring landowners sued, challenging the validity of the amendments and arguing the easement could not be amended.
- The trial court ruled the easement was amendable; after a bench trial it upheld the first two amendments but invalidated the third.
- On appeal and cross-appeal, the appellate court reviewed whether amendments were permitted and, if so, whether these amendments were valid given the easement’s perpetual conservation purpose and the federal tax framework the easement was drafted to satisfy.

## Issues

1. Whether a conservation easement granted under the Illinois Real Property Conservation Rights Act may be amended by agreement of the holder and the landowner despite “perpetuity” language and related federal tax requirements.
2. Whether the three amendments authorizing added development and landscaping changes were valid under the Act, the easement’s terms, and the federal “perpetuity” and “conservation purpose” requirements incorporated into the easement’s design.

## Decision

- The appellate court affirmed the legal conclusion that the conservation easement was amendable in principle.
- The court reversed the trial court’s ruling upholding the first and second amendments and agreed the third amendment was invalid.
- The court held that all three amendments failed to comply with governing constraints because they materially impaired the conservation restrictions rather than making permissible adjustments consistent with the conservation purpose and perpetual character.
- The court affirmed in part, reversed in part, and remanded for equitable relief to determine what alterations, if any, must be removed or may be retained.

## Legal Principles

- Conservation easements under the Illinois Real Property Conservation Rights Act may be amended only if amendments remain consistent with the Act’s conservation purposes and the easement’s perpetual conservation character.
- Where an easement is drafted to qualify under 26 U.S.C. § 170(h), amendments must preserve the “restriction granted in perpetuity” and must not undermine the exclusive dedication to a conservation purpose.
- An amendment that materially impairs or substantially diminishes conservation value functions as a de facto partial extinguishment and is not permissible absent judicial action consistent with the easement’s extinguishment clause.
- When invalid amendments have already been implemented physically, equitable remedies may be required to address completed alterations while enforcing conservation restrictions.

## Conclusion

The court held that conservation easements can be amended, but only within strict limits that preserve conservation purpose and perpetuity; because the driveway and home-addition amendments materially eroded the protected open-space restrictions, all three amendments were invalid and the case was remanded for equitable relief regarding removal or retention of existing alterations.


Bjork v. Draper, 886 N.E.2d 563 (Ill. App. Ct. 2008)