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.


Sagebrush Rebellion redux

Updated: May 15, 2012

Brewer vetoes AZ bill.

As if battles with the federal government over immigration and health care weren’t enough, several western states have embarked on a campaign to wrest control of tens of millions of acres of federal lands in the West. Utah is furthest along with the governor there having just signed into law a measure asking the federal government to give back more than 20 million acres of public lands. Not to be outdone, the Arizona Senate just passed SB1332 which would require the federal government to transfer nearly 30 million acres (or roughly 40% of the state) to the state by 2015 or face the imposition of property taxes. Governor Brewer somewhat unexpectedly vetoed the measure acknowledging that it was unconstitutional and would have imposed a huge budget liability on the state if the federal lands were actually put under state control. Measures are expected to be introduced in Colorado, Nevada, Idaho and New Mexico.

Coupled with these legislative efforts are a new raft of lawsuits alleging that the federal government reneged promises made at the time these states entered the Union that federal ownership would be temporary. While most legal commentators agree that this issue has been resolved in the federal government’s favor repeatedly over the years, that doesn’t address the very different public-private land ownership patterns between states in the Mountain West and the rest of the country.

Its clear from comments being made by sponsors of the bills that if they are successful they believe state ownership will pave (literally and perhaps figuratively as well) the way for more aggressive resource extraction and development. The issue has even reared its head in the Republican primary where Senator Santorum has said if elected he would work to transfer much of the federal lands to the states and sell them to private interests. The Cato Institute, a libertarian think tank, has recently issued a lengthy study discussing possible reforms to federal land management including the transfer of such lands to the states.

Environmentalists have been quick to  raise the alarm of what such a transfer would likely mean for treasured wilderness areas such the red rock lands surrounding Moab, Utah. As this issue evolves it is almost a certainty the public trust doctrine will be invoked by those seeking to insure continued management of such lands in a manner that promotes the interest of the general public rather than a small group of private parties interested only in economic development. A recent Nevada Supreme Court decision did just that in applying the public trust doctrine to a dispute about whether the state had to transfer some land recently acquired from the federal government to a county.

While the takeover is supported by many in the Tea Party, in this case it is environmentalists who are raising the disastrous impact such a transfer of land could have on state budgets.