                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                                   February 6, 2004 Session

   TENNESSEE ENVIRONMENTAL COUNCIL, INC., ET AL. v. BRIGHT
                PAR 3 ASSOCIATES, L.P., ET AL.

                    Appeal from the Chancery Court for Hamilton County
                     No. 03-0775 (Part II) Howell Peoples, Chancellor

                                     FILED MARCH 8, 2004

                                 No. E2003-01982-COA-R3-CV



A conservation easement affecting property adjoining South Chickamauga Creek in Chattanooga was
created in 1996. Property zoned for business and owned and developed by some of the Defendants
is adjacent to the easement. The Plaintiffs allege that the development and construction activities
of the Defendants adversely and unlawfully affect the easement. The complaint was dismissed upon
a ruling that the Plaintiffs had no standing to enforce the easement, notwithstanding the language of
the Conservation Easement Act, Tennessee Code Annotated § 66-9-301, et. seq., that it may be
enforced by the “holder and/or beneficiaries” of the easement. The controversy centers on the
meaning of the word “beneficiaries.” We hold that any resident of Tennessee is a beneficiary of the
easement, and thus has standing to enforce it.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Reversed and
                                       Remanded

WILLIAM H. INMAN , SR. J., delivered the opinion of the court, in which HERSCHEL P. FRANKS and
CHARLES D. SUSANO , JR., JJ., joined.

John P. Konvalinka, Charles G. Fisher and Jim K. Petty, Chattanooga, Tennessee, Attorneys for
Appellants, Tennessee Environmental Council, Inc., Coalition for Responsible Progress and Sandy
Kurtz.

Roger W. Dickson, W. Scott Parrish, Philip A. Langford and Alison Bales Martin, Chattanooga,
Tennessee, Attorneys for Appellees, Bright Par 3 Associates, L.P.; Corker Group, Inc; Osborne
Building Corporation and DBS Corporation.

Russell W. Gray and Robert M. Steele, Chattanooga, Tennessee, Attorneys for Appellee, Wal-Mart
Real Estate Business Trust.
                                                      OPINION

                                                            I.

       On May 1, 1996, the East Ridge Development Co., conveyed to the City of Chattanooga a
conservation easement affecting 40 acres of land adjacent to Chickamauga Creek.1

        A conservation easement is a negotiated agreement between a landowner and certain
nonprofit or governmental entities that are qualified to monitor and enforce the land use restrictions
of the easement, all pursuant to certain federal and state regulations. There are several qualified
organizations in Tennessee, most notably The Land Trust for Tennessee. The types and severity of
the restrictions in conservation easements vary from agreement to agreement. If negotiations and
research are carefully conducted, the restrictions should be tailored to fit both the long-term use plans
of the landowner and the resource preservation goals of the qualified grantee.

        The restrictions in a conservation easement generally prohibit use of the land that may
adversely affect those resources that the easement intends to protect. For example, subdivision,
development, significant commercial use (other than agriculture), clear-cutting of timber, strip
mining, and billboard advertisements are commonly prohibited. Landowners are routinely able,
however, to negotiate terms that will allow them to own, occupy, and perform a variety of activities
on the property. These permitted activities may include, without limitation, residential occupancy,
construction of new residential structures, construction of new agricultural structures, farming,
hunting, camping, private airstrips, and equestrian activities.

        Conservation easements are recorded in the public land records so as to be binding upon the
then-current landowner and its successors in interest to the subject real property. That is, once a
landowner has placed a conservation easement on its property, anyone purchasing or inheriting the
land from that landowner will also be bound by the restrictions contained in the easement. The term
of the easement is typically perpetual in nature, and the qualified grantee has no obligation to amend
the restrictions should a landowner’s desired use of the property be prohibited by the restrictions.2

      The creation of a conservation easement is authorized by Tennessee Code Annotated § 66-9-
307 which provides, inter alia, and as pertinent here, that



         1
            The “Grant Deed of Conservation Easement” is unclear in various instances, one of which is the quantum of
land to which the easement attaches. The body of the deed recites that “Grantor intends . . . to convey to Grantee the
right to preserve the Conservation Values [of 40 acres lying along South Chickamauga Creek] in perpetuity.” An Exhibit
to the deed describes the conservation easement as consisting of 7.79 acres. Presumably, the 7.79 acres are a portion
of the 40 acres. W e do not know. The point, however, is not crucial to a resolution of this case. Another instance is the
predicate for this action, although statutory language is utilized.

         2
          Tennessee Real Estate Law Letter, Vol. 21, No. 5, February 2004, the Prefatory Note of the Commissioners
on Uniform State Laws.

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                  (c)onservation easements may be enforced by injunction or
                  proceedings in equity by the holders and/or beneficiaries of the
                  easement, or their bona fide representatives, heirs, or assigns.

                                                         II.

        The complaint, as amended, alleges that the “Property”3 is owned and is being developed by
the Defendants. The “Property” is alleged to be commercially zoned, and that it contains or has
adjoining it wetland and conservation easement areas, protected under state and federal law, which
drain directly into South Chickamauga Creek, a waterway subject to contaminant and discharge
limitations under state and federal law. Further allegations are that a Wal-Mart Supercenter and
adjoining strip mall are being constructed on the “Property” which would result in an illegal
discharge of pollutants into South Chickamauga Creek and/or illegal alteration of the protected areas,
and that site preparation has already resulted in damage to the protected areas. Irreparable harm is
forecast unless the Defendants are restrained from further construction.

         A temporary restraining order was issued on July 7, 2003, in accordance with the demand
for relief, and scheduled for hearing on July 15, 2003. The Defendants filed motions to dissolve the
temporary restraining order, alleging that the Plaintiffs cannot succeed on the merits, that there is no
imminent threat of irreparable injury to the Plaintiffs or to the protected areas, and that the proposed
injunction is contrary to the public interest.

        At the July 15, 2003 hearing, the sole issue for resolution was whether the individual
plaintiff, Ms. Kurtz, had the requisite standing to maintain this action. The Chancellor stated “. . .
we need to find out whether Ms. Kurtz has any injury separate and apart from that of the member
of the public.” Ms. Kurtz thereupon testified at length about her environmental concerns, her
dedication and devotion to the preservation of the flora and fauna of the property described in the
easement, that she was an independent, environment education consultant, that she serves on the
Board of the Tennessee Environmental Council and related organizations. She conducts nature
walks through the easement property, and generally enjoys its solace and solitude.

        The Chancellor made a finding of fact that Ms. Kurtz suffered no injury “separate or
different” from an injury that the public at large has sustained, and that under settled law in
Tennessee she had no standing to file the action. The Chancellor further found that only the grantee,
the City of Chattanooga, has standing to enforce the easement and accordingly dismissed the
complaint.

       The Plaintiffs appeal and present for review the issue of whether Ms. Kurtz or the
organizational Plaintiffs have standing to enforce the conservation easement. We review the record



         3
          Described only as “certain real property generally located southeast of the Brainerd Road intersection with
South Chickamauga Creek in Chattanooga.”

                                                        -3-
de novo. Because the dispositive issue is one of law, there is no presumption of correctness.4 Our
concern is focused on the dismissal of the complaint, which necessarily dissolved the temporary
restraining order, in light of the language of the Conservation Easement Act, Tenn. Code Ann. § 66-
9-307, that conservation easements may be enforced by the “holders and/or beneficiaries of the
easement.”

                                                          III.

         The Chancellor held

                  Paragraph 5 [of the easement] . . . . sets out the grantee’s remedies.
                  It says this easement may be enforced by its holder or beneficiary.
                  Grantee may bring an action for any remedies provided by Tennessee
                  law. So the deed . . .that creates the easement says the grantee, the
                  City of Chattanooga, is the one who has the right to pursue for a
                  remedy provided by law. The easement is created for the benefit of
                  the citizens of Chattanooga, but they are not designated as
                  beneficiaries. They are not the grantee of the easement. The City of
                  Chattanooga is.

        We stress the language of the Act which provides that the conservation easement may be
enforced by injunction or proceedings in equity by the holder and/or beneficiaries of the easement.
The City of Chattanooga is the grantee, and thus the holder of the easement and obviously entitled
to enforce the easement. Who are the beneficiaries?

         We are bound to ascertain and give effect to the Legislative intent with no undue restriction
or expansion of the statutory language. Lavin v. Jordon, 16 S.W.3d 362 (Tenn. 2000). We think
it evident that the phrase “by the holder and/or beneficiaries” means someone in addition to the
grantee; otherwise, the words “and/or beneficiaries” would be utterly meaningless, and we are not
at liberty to ignore this language. The word “beneficiaries” has a commonly accepted dictionary
meaning: “those who benefit from the act of another.” Who benefits from the act of the grantor in
creating this easement? A conservation easement is “held for the benefit of the people of
Tennessee.” Tenn. Code Ann. § 66-9-303. We hold that any resident of Tennessee has standing to
enforce it. This interpretation is consistent with the terms of the deed and the Act, both of which
require a liberal construction of the word “beneficiaries.” Superimposed is that the Act is a remedial
one, and must be liberally construed to further and give effect to its purpose. See, Loftin v.
Langsdon, 813 S.W.2d 475 (Tenn. Ct. App. 1991). Further superimposed is the fact that the
Legislature chose not to adopt the verbiage of the Uniform Act which precludes the enforcement of

         4
            The Chancellor evaluated the testimony of Ms. Kurtz from recognized perspectives not within our
prerogatives to review and therefore we cannot find that the evidence preponderates against his factual findings. Rule
13(d) Tenn. R. App. P. See, Metro. Air Research Testing Auth. Inc. v. M etro Gov’t., 842 S.W .2d 611 (Tenn. Ct. App.
1992) holding that a party must demonstrate that [she] has suffered an injury which is distinct and severable. See, State
v. Johnson, 79 S.W.3d 522 (Tenn. 2002).

                                                          -4-
a conservation easement by any entity other than a governmental body, charitable corporation or
association with the specific right granted in the document.5

        As stated, we have focused on the legal issue of standing, and express no opinion and make
no findings respecting the merits of the case. The judgment of dismissal is reversed and the case is
remanded for further proceedings.

        We take note of the brief filed by Wal-Mart Real Estate Business Trust requesting that we
consider the issue of whether the dismissal of the complaint against it was proper even if the
Plaintiffs had the requisite standing. We are unable to respond for two reasons: First, the Chancellor
did not rule on the specific issue, and secondly, it would be meaningless dictum for us to do so.

         Costs are assessed to the Appellees.


                                                                 ___________________________________
                                                                 WILLIAM H. INMAN, SENIOR JUDGE




         5
             A number of states have enacted a form of the Uniform Conservation Easement Act. Research indicates that
in each instance third parties cannot enforce the easement unless the right is expressly granted. Tennessee appears, thus
far, to be the only state to grant enforcement power to “beneficiaries” of the easement. See, e.g., Ala. Code § 35-18-1:
Ky. Rev. Stat. 382.800; La. Rev. Stat. 9:1272; Miss. Code Ann. § 89-19-3; Va. Code Ann. § 10.1-1009.

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