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Open Space Preservation

Citizens are banding together throughout the nation to become stewards of the country’s national resources, forming local land trusts and other conservation-oriented, nonprofit organizations. These groups share the view that whoever holds title to the land has a responsibility to protect it out of respect for the past and for the benefit of future generations.

Individual land trusts usually have several factors in common: they are committed to long-term management of land and water r; resources; committed to educating the public about natural resources and the need for stewardship; largely self supporting and locally based; ran mainly by volunteers; broadly representative of their communities; acceptable to landowners; likely to stay away from controversy and adversarial positions; and cooperative with and helpful to public agencies.

Such land trusts and local, nonprofit organizations enable people who own land to provide for its well being in perpetuity. They enable citizens to develop personal bonds with natural areas and to participate more directly in land-use decisions that affect them.

But why land trusts? Critics ask, “If land is to be preserved for the public, why then isn’t it being acquired by public agencies, which can then be held accountable to the public?”

Nonprofit groups and land trusts have advantages over public agencies when it comes to efforts to protect land for the common good. First, they can obtain land more quickly and at a lower cost than public agencies through their more intimate knowledge of local real estate markets and personal relationships within the community. Second, many local land owners will not deal with government departments, but will talk to a group of neighbors. For this reason alone, some land might never be acquired for the public except by the non-profit method. In addition, although costs have risen, public funds for natural resource conservation have declined, thereby spurring more nonprofit activity.

Nonprofit groups also canachieve land protection goals more economically than many government agencies because they can call on knowledgeable volunteers. They can gain land more cheaply by using their growing skills with various acquisition instruments. Nonprofit groups also are better able to crystallize action on local concerns.

Further, these local conservation organizations often can monitor and manage property for the public good better than a government agency because of greater knowledge of the land, and ‘greater energy and commitment to their cause.

Board members of the Foundation. From left, George Ambrose, Bob Berman, Bob Leland, Art Tooby and Hulet Hombeck Four others were camera shy. Photo by Neil Havilk

In reality, the stewardship group’s function often is carried out in cooperation with public agencies. Nonprofit groups frequently contract with public agencies to manage public lands and conduct education programs for schools and the general public. Moreover, nonprofit groups tend to transfer the land they acquire to government agencies while maintaining a guardianship role. Many nonprofit groups have carved out a niche for themselves as advance acquirers and temporary holders of the land until public agencies are able to take it over. The Trust for Public Land is an example of this type of organization. Another, the Sempervirens Fund in California, transfers all the land it acquires to the state’s parks department.

One of today’s most challenging land-use issues is agricultural land preservation. This is a particularly difficult function for public agencies to carry out because farmers are skeptical of state acquisitions, or anything else that restricts their ability to use the land as they prefer. Therefore, land trusts have developed a unique and important role in this area; they generally have the contacts and credibility in the local community that are vital to farmland preservation programs.

In Marin County, California, where development pressures are severe, the California Coastal Conservancy approved a $1 million grant to the Marin Agricultural Land Trust (MALT) in 1984 to develop model projects for conserving the land base and the agricultural economy in the coastal area of the county. Conservancy funds were matched by another $1 million from local sources. The land trust, whose members are primarily from the agricultural community, soon found themselves in an advantageous position to negotiate for the acquisition of local parcels of land. In the first Conservancy-funded project, MALT negotiated a bargain sale for a conservation easement on 320 acres of scenic grazing land. Appraised at $360,000, MALT paid $144,000 fro the land.

Now, the wisdom of this initial grant has become apparent. MALT has carried out several other acquisitions not involving Conservancy funding, acquisitions that have resulted in protective easements on more than 3,000 acres, all of which were completed with full and willing agreement from the land’s owners. Bob Berner, MALT’s executive director, believes that the shift in local perceptions is more important than the acreage of the acquisitions. Local farming families, particularly dairy farmers, now believe that agriculture’s future in the community will continue, and they are more willing to invest in farm improvements.

Young people also are more anxious to buy land in the area for farming. In Marin County, as well as neighboring Sonoma County, where the Sonoma Land Trust has received similar Conservancy assistance, local nonprofit groups find that farmers are beginning to approach them with new ideas for projects.

The Solano County Foundation's first acquisition In its pursuit of stewardship of the land consists of a 2,000-arce ranch with extensive marshes and rolling hills. Photo by NellHavlik.

A growing pressure on California’s land conservancies comes from the area south of San Francisco known as Silicon Valley, the sprawling heart of America’s computer technology research. The surrounding countryside, especially the rolling hills and wooded coastal mountains of San Mateo, Santa Clara and northern Santa Cruz counties is looked upon as prime development acreage for expansion. This same pressure for development has prompted a vigorous effort for open space conservation, not the least of which is the Peninsula Open Space Trust (POST). In the past 10 years, the trust has managed to protect more than 13,000 acres valued at more than $12 million for open-spaces use, such as agriculture, forestry, recreation, wildlife habitat, resource conservation and scenic preservation. POST utilizes an annual operating budget of $350,000 and a staff of four to acquire land, place deed restrictions or easements on the land and resell it to public agencies or private landowners.

Interest in these types of acquisitions has grown tremendously in recent years, due to high land prices, which have caused public agencies to examine ways of making the most of limited funding, and because the reasons that public entities acquire land have changed. Traditionally, public agencies purchased land mainly to provide services, such as streets, parks, canals, office sites and housing. These services usually require active public occupation of the land. More recently, however, these agencies have acquired land for conservation purposes, such as protecting scenic or environmental values. In these cases, absolute ownership of the land may not be needed. Control over the land’s usage may be enough.

One method to reach these ends is the acquisition of only the necessary interests in the land. In other words, out of a bundle of property rights, only the rights that could harm the resource are acquired. The rest of the rights stay with the original landowner, along with title to the land.

Whatever the method, land or interest in the land can be acquired through purchase or donation. In addition, land development regulations can require that a landowner donate land or interest in land before being permitted to alter his or her property in some way. In California, for example, public access to land must be granted as a condition of development within the coastal zone.

Creatively used, alternative acquisition techniques resolve conflicts between development and resource protection objectives in a mutually beneficial way, taking the sharp edge off of land regulations so that landowners options are increased and land protection preserved.

A second property includes farmland and a perrenial stream. Here, beavers have moved upstream, cutting down cottonwoods an the way. Photo by Neil Havlik.

The chief technique for acquisition of interest is the easement. This is especially tailored document that either grants rights to others (a positive easement) or restricts the landowners’ realm of actions (a negative easement). An easement can be granted for a specific time period or in perpetuity, although “in perpetuity” does not necessarily mean forever. Most easements have a reverter clause so that the purpose of the easement is abandoned, the easement goes back to the fee title holder or to another party. Easements acquired through grants with the California State Coastal Conservancy typically state that the easement reverts to the conservancy in such cases.

Positive easements can provide access, hunting and fishing rights or hiking trails. Negative easements can prevent activities such as erecting billboards, filling wetlands, cutting trees or developing property. One of the principal benefits of an easement is that the document is crafted specifically to meet resource protection (or other) goals on a particular piece of property. Easements are flexible, often cost-effective tool. When an easement is purchased, the cost is equal to the value of the property rights acquired, not the full value of the property.

The most common type of easement allows access, as when a property owner can reach his land only by traveling over property belonging to someone else. Access easements also can be used to open land in the public domain to public use, such as the wet sand portion of ocean beaches.

Conservation easements (negative easements that landowners place on their land to conserve important recreational, environmental or historic values) are of particular interest in resource protection programs. By acquiring the easement, the holder is able to control the property rights that the landowner potentially could use to degrade the property’s resource value. The landowner retains title and all property rights not specified in the easement.

Public agencies have used easements in an on-again, off-again fashion for the past 50 years. A 1985 survey showed that approximately 500 nonprofit and government agencies held conservation easements on 1.8 million acres nationwide. The list of easement holders found in the survey includes a host of federal, state and local government agencies, as well as national conservation groups such as the Nature Conservancy.

The Suisun Ranch in Solano County is being restored to agricultural production under the Foundation's management. Photo by Neil Havlik.

Easements often serve more than one purpose. The survey results showed that 80% of the respondents used easements to protect scenery visible from public roads and/or open space characteristics of the community; 73% used easements to protect natural habitat; 52% used them for protecting freshwater resource areas; 37% of the respondents used easements to protect farm or hay land; 33% protected timberland; 26% for historic/archaeological sites; and 25% used easements to protect grazing land.

Purchase of development rights (PDR) is an acquisition of interest program rather than a tool. The landowner retains the PDR programs are designed to protect agriculture. At least six states have established and funded PDR programs, including Maryland, Massachusetts and New Jersey. In at least eight states, local governments operate farmland PDR programs. The future use of the land is limited through easements or deed restrictions.

Another type of alternative land acquisition requires the initial fee purchase of land to be followed by some innovative disposition of property rights. For example, through the use of leases, selective resales or other techniques, some or all of the property rights are transferred to another party, either temporarily or permanently. Through post-acquisition disposition, the management costs are recouped and the ability to acquire a particular tract is enhanced.

Purchase and lease arrangements allow the agency to retain title to the land but the land is leased for other use under restrictions that dovetail with the agency’s land management objectives. The lease can spell out restrictions (timber harvesting or thinning) or mandate certain actions (providing public access) that assure the agency’s needs for the resources are met. The land can be leased back to the original owner, often as part of a negotiated purchase. The ability to lease back often enhances the ability to acquire a particular tract, an especially important consideration in land acquisition programs without general eminent domain authority. The ability to lease land back to the original owners allows them time to adjust their activities to the sale. Many leases are for resource-based uses, such as timber harvesting, farming and grazing.

Another approach is to purchase land, limit its development by easement or deed restriction and resell either part or all of it. The restrictions could require that the land remain in a resource-based use but need not prohibit development. Some land trusts have combined resale with “controlled development,” often clustering development on less environmentally sensitive portions of the land while restricting or prohibiting activities on other portions. Controlled development works best when the site is large enough to allow development while buffering important natural areas from its effects. Of course, this method of resource preservation only works on sites both economically and environmentally desirable for development.

There are approximately 600 land trusts active in at least 46 states. This represents a 12-fold increase since 1950. The California State Coastal Conservancy presently works with more than 45 nonprofit organizations along that state’s coast alone.

The proliferation of community based trusts and other conservation-oriented organizations in recent years is remarkable. Nonprofit groups continue to play an increasingly important role in the preservation of natural land and providing appropriate access to it.

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June 18, 2019, 9:05 pm PDT

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