Is there a need for “temporary” conservation easements?

Generally speaking residents of cites and urbanized areas applaud the efforts of rural landowners to preserve working farms and an agricultural, open space landscape in the adjoining countryside. Conservation easements carefully targeted can even begin to have some of the same growth management effects that more formal urban growth boundaries do. However, in Colorado, we have an example of two municipalities (Loveland and Johnstown arguing against a proposed conservation easement outside their jurisdiction because the land in question because it might be needed for urban development 15-20 years in the future.

Davis Conservation Project, Larimer County, Colorado

The landowner in question filed a subdivision application for a 46+ acre lot. In order to take advantage of an expedited review process option, he agreed to impose a conservation easement on half of the property thereby assuring it remains in agriculture indefinitely. Both cities point to possible infrastructure projects that might make use of the land and the possibility that a future owner might wish to develop the land for more intensive urban uses that would generate significantly greater tax revenues for the cities.

This somewhat novel dispute raises all sorts of fascinating questions. If the cities see a need for the land, have they considered acquiring it? If they don’t want to purchase it that far in advance of actual development perhaps they could lease development rights in the interim there giving the farmer an additional cash “crop”. [Note: I authored a rather elaborate leasing of development rights proposal for Loudoun County, Virginia, back in the early days of my career. The idea was to manage a more orderly transition of agricultural land on the urban fringe into more dense development.]

If landowners like this one are deprived of the right to use their land for low density rural uses that are admittedly allowed by current zoning but are told their land will eventually be converted to urban uses, what are they to do in the meantime? Does this consign a belt of land around cities and towns to some kind of twilight zone status that makes continued investment in farming activities infeasible?

I am a strong advocate of a more managed approach to how cities grow along their boundaries and to preserving a distinctive boundary between urban and rural areas, but in this case I believe urban interests are trying to have their cake and eat it too. Perhaps this suggests we should create a new category of conservation easements – ones that sunset after 15-30 years. They could be authorized by state law and limited to belts of land around municipalities that go through a comprehensive planning process identifying areas likely to be needed for future urban growth during that 15-30 year period. Funding for the acquisition of such growth management easements could come from the municipalities and non-profits working to preserve farming activities and open space.

 

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Moosehead Lake conservation easement – who wins?

After years of negotiations, the Plum Creek timber company, The Nature Conservancy and the Forest Society of Maine announced the completion of a $30 million transaction that will create a 363,000 acre conservation easement aimed at protecting the area surrounding Moosehead Lake. The easement will allow continued logging operations and should provide a boon to the local tourism-based economy. The easement represents about 40% of Plum Creek’s holding in the area.

Moosehead Lake conservation easement and Plum Creek development

Concerns remain about the massive development project that Plum Creek won approval for several years ago after a lengthy regulatory process and court battle. That project rezoned nearly 17,000 acres for development including 821 residential units and two resorts with over 1200 rooms.

A local realtor points out that with land prices falling by up to 70% during the Great Recession development is likely years away as infrastructure costs cannot be recouped at current land value levels.

Among the benefits the Forest Society of Maine lists:

  • About 12% of the conserved lands will be managed as ecological reserves
  • The remainder (more than 365,000 acres) will be managed under third party-certification for a sustainable harvest of forest products to the benefit of the state and local economies
  • The newly conserved lands connect to already-conserved properties including 20 existing state parks, resulting in a network of conserved lands totaling nearly 2.25 million acres – three times the size of Rhode Island.

Moosehead Lake, Maine

This does appear on the surface at least to be a “win” for the public though one wonder whether Plum Creek would have been able to secure approvals for any development beyond that it had already obtained. I am curious why Plum Creek and the environmental groups did not negotiate the conservation easement concurrently with the development approval process. That would presumably have given the environmental groups more leverage in the negotiations. With the easement now in hand, will the Forest Society of Maine and The Nature Conservancy feel obligated to support Plum Creek’s future development efforts when the time comes for permitting specific projects?

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When a conservation easement may not be enough

Five years ago The Nature Conservancy purchased 161,000 acres of land in the Adirondack Park. Subsequently New York State acquired conservation easements that will protect 92,000 of those acres but allow continued commercial logging. Another 65,000 acres is slated to be purchased by the state and added to the Park which is protected by the “forever wild” article in the state’s constitution and would preclude any commercial logging.

The final step in this complex preservation transaction is now being challenged by an on-line petition that urges the state to use a conservation easement rather than a fee purchase. From a preservation standpoint this would mean the lands would remain in private ownership and could be used for commercial logging and various hunting and fishing camps would not be displaced. The petition alleges that the cost of acquiring a conservation easement would be $18 million with no ongoing costs as opposed to a first year cost of $60 million and a total cost of $400 million over ten years taking into account lost taxes, management expenses and lost opportunity costs.

The petition is supported by the Local Government Review Board and the Adirondack Association of Towns and Villages. One argument that proponents of the petition make is that “forever wild” status could make dealing with invasive species more difficult if not impossible and put the private forest lands at risk as well.

 

Boreas Ponds

The tension between those living in the park and relying on its lands to make a living and those who seek to have it protected and preserved is a longstanding challenge to those responsible for making and implementing environmental and economic development policy in the state. The Adirondack Park is the largest park in the lower 48 states and is unique in having 130,000 permanent residents living within its boundaries. In many ways it is an ongoing experiment in what it means for humans to live in a fragile ecosystem on a sustainable basis.

 

 

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Development and conservation easements

After a seven year struggle, the Supreme Judicial Court of Maine has paved the way for Plum Creek which calls itself the largest and most geographically diverse private landowner in the nation to proceed with a rezoning of 400,000 acres of Northern Forest land. Ultimately 16,000 of those acres will be developed for 975 residential lots and two large resorts.

A variety of environmental groups found themselves on both sides of this battle depending on whether or not they were purchasing conservation easements from Plum Creek. The Nature Conservancy and The Appalachian Mountain Club purchased conservation easements over 307,500 acres in order to complete a 2 million acre “preserved” corridor that is the size of Yellowstone National Park.

Despite this, other environmental groups including the National Resources Council of Maine, RESTORE: The North Woods, and the Forest Ecology Network waged a lengthy and costly campaign against the project.

One wonders if conservation easements have eroded the public’s right to strictly regulate development on wild lands. Is it realistic to think that Plum Creek or any other landowner would be able to develop large portions of this land? Could a similar outcome have been achieved with an exclusively regulatory approach? By being willing to pay private landowners to preserve their land, are environmental groups establishing an expectation that similarly situated landowners are entitled to be paid if the public wishes to limit or even prohibit development of wild lands?

Note: You can access a full copy of the Court’s opinion at Leagle.com.

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