The Summit Daily characterizes the current dispute over the county condemning an easement on its own 6.13-acre Fiester Preserve as a “tempest in a High-Country teapot.” For those in the conservation easement/land trust business, who tout of “protecting land forever” this undoing would mark a very serious precedent as noted by a recent letter in the Colorado Sun penned by Melissa Daruna, Executive Director of Keep It Colorado.
Too often using a conservation easement to protect lands already in the public domain adjacent to or within population centers, lands that are often heavily disturbed and only partially reclaimed—often primarily as a vehicle to block future development from quite developable land of dubious natural value has diminished the value of the easement as a tool. Frankly, a legal tool designed to allow private owners of large tracts of land a tax break to keep that land in a historic use or highly-prized non-use has been overused for the wrong reasons.
So whatever the outcome, good on Summit County government for taking the heat on this one.
For leaders in Summit County government who must weigh a variety of pressing public needs against scarce assets and dollars, Fiester Preserve today is a hot potato passed on by their colleagues. The land appears to have a more obvious public benefit than just vacant, deforested land. Adjacent to a state highway, beside a multi-use county campus with utilities, it appears perfect for public housing. Unlike many open spaces and other protected parcels, Fiester is an urban in-holding, owned by the county. County leaders in this same position in their eternal wisdom hastily conserved it “forever” with a conservation easement not so long ago. This has been a trend for land trusts, short on cash and high on a single-minded purpose to assume and push local governments to preserve any land which it acquires. I see it manifest across our mountain communities all the time which are facing similar challenges.
To be clear, I highly value the conservation easement as a tool. I’ve voted to protect many thousands of acres and allocated over $20M in public dollars to set aside lands through open space funding, negotiation with developers, land exchanges and other tools. Once “protected” many lands cannot “learn,” that is to say respond as parks would to more intensive uses, have key utilities cross them for adjacent development, or as with Fiester with some consideration have an alternative public use.
When an entity purchases an easement, it invites a single-minded partner to oversee and dramatically limit those uses. I know a number of properties in Eagle County protected by conservation easements which, with additional initial consideration could have been lightly developed along the fringes, met multiple needs, perhaps even paid for themselves. If these lands were purchased with Open Space dollars that would have been a difficult lift anyhow. But the drafting of an easement prevents nearly all future possible needs right from the beginning-often before the public may have set foot on the land which was purchased for public use. The conservation community has earned this problem by pressing for nearly every public property to be protected forever, pressing hard of properties to quickly be protected. The easement is often used to block development rather than to preserve existing high-value natural features. In the upshot, the public is stuck with few options and has paid a third party to oppose such consideration.
There are many properties of overwhelming natural community value that should be protected. Many other lands, not so much. For public lands being pressed for a conservation easement, I pose that instead of the current shotgun wedding treatments so many easements get that there should be a one year waiting period with a community process considering alternative uses before the easements may be adopted. Maybe longer. The public interest is broad and evolving. The restrictions of a conservation easement are extraordinarily narrow. Most development proposals take 6 months to a year to go through the land use process. With lands owned by the public, why do we need to rush to protect our current interests from future public interests? I would posit that we simply do not need to rush to protect “forever.” Any element of the built environment has a 50 year or less lifespan. Communities adapt to evolving needs. All policy is an experiment. Unless we take more time to consider on the front end, and in a public setting and take time to do so the more communities will face situations like Fiester.
—-
The conservation easement is a powerful tool for private lands which are often protected by willing landowners protecting private property in perpetuity, like working ranches who accept public dollars to purchase development rights so they may afford to remain on the land without development pressure, those owners should be allowed to protect and preserve as a part of the deal from the get-go. I speak more narrowly of a more judicious process for public land deals purchased with public dollars.
Most high-country counties in Colorado have Open Space programs funded through property taxes. They funnel millions of dollars into a much-appreciated use—Open Space. Each ballot measure has its own language. The State of Colorado has one too funded with gambling dollars—GOCO. With the expenditure of public dollars, the public usually expects some sort of public benefit—like access or amenities. The public is usually agog over any improvements. At the same time, the public doesn’t know why it is locked out of other properties and deals. I found this while knocking on doors in 2008. Many citizens didn’t understand why millions of their tax dollars were being spent to block them from accessing lands and rivers. We were successful in Eagle County in adding hundreds of open space acres while also allowing legal access across what was once private property to adjacent federal public lands, and to rivers while I was a commissioner. That was a result of listening and adapting policy shaped around public input rather shaped by those who think they understand nails because they have a hammer, like the open space committee and local land trust. In truth, if it was a stated priority upfront to seek out a direct public benefit as a part of the deal, it often just wasn’t that big of a negotiating chip to get some portion of the deal for public access. It was much appreciated by the taxpaying public. The land trust seemed to hate having those discussions. Still, some deals don’t allow public use of any sort, and that is OK.
Providing access to landlocked public lands is a big deal to a broad cross-section of the public. A working ranch shouldn’t have to provide general public access that would impede its operation. It isn’t usually an all or nothing proposition. I would argue that a working ranch also shouldn’t get hundreds of thousands of public dollars through a conservation easement, and then turn around and sell “private” access to public lands to which it has “exclusive” access either. In the West private property effectively blocks public use of tens of thousands of acres of public lands. If public dollars are spent, is there not a way to allow some form of public access benefit when using public dollars? In our experience in Eagle County it often was, either in river access points which are prized, as well as to trailheads.
Properties purchased with open space dollars are already restricted voter-approved terms. To then place a conservation easement on top of that is another restriction which attorneys at Eagle County when I was there argued was often unnecessary, and expensive, just to “forever” protect the public from what may become obvious and important evolving future public interest. I called it shooting fish in a barrel. And at additional public cost to protect the current public interest from a future public interest. Such interests may be minor or may be minor changes to the property. With an easement, they are usually all prohibited and put a public agency in a legal battle with the land trust. I’ve seen this happen within weeks of a conservation easement being adopted. That is another story.
Many properties should be improved in ways that a conservation easement prevents. One of my architecture/urban design favorite books is How Buildings Learn, What happens after they are built by Stewart Brand. The title tells the story. Places, buildings, properties evolve in wonderful ways when in the public domain. Why handcuff the future? Though used on working ranches which are some of the landscapes most thoroughly effected by the hand of mankind, many open space conservation easements have an implicit bias of existing natural perfection, making the assumption that the hand of man could not make the land better over time. This denies another important heritage of ours—parks.
On properties in Edwards, Eagle, Minturn, and Dotsero, while I was a County Commissioner, I saw unattractive properties that could have “learned” and grown into beloved and multi-useful public spaces with some time, money and thought which were instead “locked up” quickly, unnecessarily and without much consideration of broader possible public benefits. In cases like the Edwards preserve, it would have been easy to carve out a corridor along the edges properties which could have housed thousands of workers along Highway 6, while allowing public boating access and more intensive park improvements without disturbing most of the reclaimed gravel pit. Instead, $12M was spent to block development in a vote one evening, and nearby developed properties are forever prevented from much-needed development because not even stormwater drainage or sewer easements can cross the property. The engineers were not even invited to comment on the conservation easement. To the delight of the local land trust, it will always pretty much look like a gravel pit going to seed. I see what could have been—which is all of that, and a tremendous public win on all fronts—housing, parkland, access, open space, and a restored gravel pit. Most of that is “forever” prevented by a hastily adopted conservation easement with a huge investment of public dollars. Ouch!
I am also a huge fan of Frederic Law Olmstead, who designed Central Park in New York among many other parks across the nation. Where I went to school in Walla Walla, I enjoyed Pioneer Park which he designed with a bandstand, an aviary, and wonderfully developed ponds and pedestrian ways. In our limited government sensibilities since the 1980s, we seem to have forgotten the ability of public spaces, especially developed parklands to provide joy, intense recreation, and use. My favorite book about Olmstead is titled A Clearing In the Distance by Witold Rybczynski which is a tribute to Olmstead’s ability to shape the land with knolls, paths, plantings, and paths in a way that the conservation easement would clearly have prohibited. The conservation easement movement should be recognized for its’ adherence to wilderness principles—not touched by man and should not be touched by man– and should be treated very cautiously when utilized in an urban or suburban setting. Of course, there are examples all over Colorado of easement protected preserves that connect neighborhoods to parklands. These are great successes. I am only saying that such protections should be exercised judiciously and more cautiously than what I’ve observed.
Parks can adapt to human pressures by adding amenities that most conservation easements prohibit, like bathrooms, larger parking areas, paved trails, even visitor centers, perhaps water/sewer utilities and some park employee housing. We have exceptional properties here in the high country that has overwhelming natural value and are worth protecting in (what we perceive as) their existing un-improved state. From what I have seen, less than half of what is demanded to be conserved rises to this standard. Many are purchased in a bold attempt to block private development from a very developable property. In such cases, especially leaders should be cautious of placing an easement since they are already in the driver’s seat with regard to future uses. Some of my favorite open space purchases were just lots scraped of past development, hurriedly cleaned of trash. We bought some of those for visual corridors when I was at Eagle County. Many of them could have “learned” to be of greater public benefit over time, but after I left office, the local land trust pressured the next group of commissioners to use public dollars to protect the public from its future self. As a result, these reclaimed places which could have become beloved in time with some improvements, and put to a more imaginative public use will likely remain half-reclaimed weed gardens. That is not what the conservation easement was intended to do.
