Options for Land Preservation

Keep the sweet land away from developers, and in its natural state for all to enjoy. A look at different methods of land conservation.
by Molly Miller
August/September 1995
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Preserving open stretches of land in its natural state benefits not just this generation, but future generations too.
PHOTO: FOTOLIA/EVGENYATAMANENKO


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One afternoon last summer, I drove 150 miles from Steamboat Springs, Colorado, to Sunnybrook Cattle Company, my family's ranch along the front range of the Rockies. I drove through the southern tip of Wyoming because it's a way of going around the mountains rather than through them, and because there's something about all the emptiness of a Wyoming landscape that fills me, stops up the holes in me with space. Hundreds of miles of nothing. Save for the traversing lines of this highway and a fence line or freight train, it seems the land here has always been this way. But I wonder if it will always stay this way, or if it should.

When I top the hill on the red dirt road that goes by our ranch, I see three large homes that weren't there when I was a kid, and when my dad decides he has to go into town-a task he deplores to get some baling twine or a part for his tractor, I ride along. As we approach the sprawling ticky-tacky housing developments pushing north from Fort Collins toward our place, my dad begins to worry. "This used to be the old Maxwell farm," he says. In fact, there's an old barn standing in the middle of the identical homes. He remembers all the old farms that have been swallowed up by prefab construction as the population along the Front Range has exploded in the last few years.

The West is big, and we think that gives us the right to sprawl across it. More than 30,000 people moved into our rural county in the last five years. The small college town of Fort Collins has gone from 87,511 people in 1990 to 97,589 at the end of 1994.

Ten thousand people moved in, in just four years, and planners project 7,792 people will move into Larimer County this year alone. What used to be a very livable country town has more megashopping malls than I can count, cul-de-saced in every direction by some of the most astonishingly ugly housing developments imaginable. The only justice I can conceive of is if all the urban planners who are proposing those developments were forced to live in them and listen to their neighbor's plumbing through the prefab walls that are going up overnight and selling for $100,000 as real estate prices ride the population boon. Reaching mountain or rural recreation now involves traveling through a maddening snarl of cars, fast-food chains, ugly houses, highways, and parking lots; and people are beginning to wonder and worry about all that "quality of life" that brought them into the county in the first place.

Colorado, Oregon, Washington, Montana, and Idaho have all recently faced the question of how to deal with an influx of people seeking a higher quality of life. It's the great challenge of policy makers to deal with this growth efficiently so that it may be a boon to the economy without destroying all the reasons-like open space that people came there in the first place. It's the challenge of individuals, not only to influence those policy makers, but to do our individual part for the stewardship of our own land where we can.

There's a lot you can do to stop the strip-mall sprawl aside from writing your local congressman. Of course you can vote smart and lobby, but you may have never realized that you control the development rights to your land, and you can give up those rights to conservation or in some cases sell them to guarantee conservation. In any case, you need not be the defenseless victim of suburban encroachment.

America has lost more than 40 million acres of farmland to development since the first Earth Day in 1970, according to statistics compiled by the American Farmland Trust, the nation's largest farmland conservation organization. Naturally, it's not just farmland that gets developed, but wilderness, forests, and wetlands as well. Lots of "open land" programs have been born in Washington, Oregon, and Colorado, the three Western states experiencing the fastest growth in recent years. Some areas have taken strict measures, like Boulder County's no-growth policies, to preserve quality of life. However, increasing regulations and restrictions in high-growth areas inevitably increases the exclusive nature of living there, making them protected refuges for the chosen. This is one of the dangers and probably the greatest source of people's resistance, especially farmers's, to government- or agency-regulated programs for protecting open space. The Western state with the largest program for protection of open space, after California and Utah, is Montana, possibly because Montana has become the fashionable spot for the rich and famous to spend their leisure time. Private land preservation programs as they currently exist are more feasible to implement if you're wealthy.

When it comes to preservation of open space, farmland has taken a backseat to wilderness. Land trusts devote most attention to protecting wildlife habitat, open space, wetlands, and green ways. Forests and watersheds follow closely behind. Recreational areas are also a high priority. According to an October survey done by the Land Trust Alliance, 54 percent of land trusts participate in farmland protection, while 80 percent work to protect wildlife habitats. Ideally, the preservation of farmland should not be in competition with the preservation of other types of open space. However, policy makers are in the delicate position of balancing finance and space in the quality-of-life equation. Who can blame them if they want to bring money into an area? That's their job. But conservationists are having some success convincing politicians and business people, who tend to think bigger is better and that growth is a sign of progress, that preserving farmland can be as economically beneficial to a community as development. All that sweet productive land daily being paved over at alarming rates has been sold out by rural landowners who, like the politicians and developers, want to take the money off the hands of those rich Californians fleeing Silicon Valley. And why not? But there are a lot of us who just want to keep our rural lifestyle, and keep our land for our kids, and keep the ticky-tacky houses and Burger Kings and parking lots at bay. There's so many of us who feel this way that local governments have begun to offer us more and more incentives to keep our land the way it is. The developers may come calling with lots of cash, but you have options. And I have hope that these options will become more and more attractive as the rural lifestyle becomes more and more threatened by the urban sprawl.

Does Farmland Protection Pay?

An acre of developed land generates more money than an acre of agricultural land. This is hard to refute, but it's a simplistic justification for sprawling tract housing across productive land. Not only does it ignore the intangible costs of destroying open space, wildlife, nature, and recreational space, but it ignores the costs of providing services to developments. Several AFT studies have refuted the conclusion that developing farmland necessarily leads to higher revenues than if the land were preserved. Residential development undoubtedly increases the tax base, but what is overlooked is the cost of the accompanying public services which have been found in several cases to exceed the revenue generated by development. On the other hand, while privately owned farm and open lands do not raise as much revenue, the cost of public services for farmland is so minimal, AFT studies conclude, that in many cases it pays more not to develop them. The studies, conducted in the Northeast, challenge the idea that development is always the best way to create a solid economic base for a community.

Of course, AFT is not advocating that all open land be preserved or arguing that development is always bad, but that we strike a guided balance between the two. Obviously, California has different needs than Massachusetts. Simply because of the density of the population, the East has taken more steps toward preservation programs and mixing rural and urban living with a little more balance. Cities began to encroach on open lands more and earlier in the East. New England has protected nearly 1.5 million acres, more land than any other region in the nation.

Private Options for Preserving Land

You will not want to take steps to preserve your land from development if you are unwilling to forfeit the potential for substantial profits when the developers come calling to put in a subdivision. You will not want to take steps to preserve your land if you are 100 percent opposed to regulations of any kind, though preservation regulations are more flexible and amendable than you might imagine. Here are some things you can do privately, without passing laws or restructuring zoning. You still do have to work with a land trust or some kind of conservation agency. Land trusts operate in all 50 states as well as Puerto Rico, and are nonprofit organizations that protect land for its natural, recreational, scenic, historical, or productive value. Trusts simply work with landowners who want to prevent their land from being developed.

Conservation Easements are the fastest growing method for protecting land. Private property owners voluntarily donate or sell conservation easements, also called development rights, to a conservation organization (usually a land trust) or government agency that has been established in a particular region for this purpose. If you take out a conservation easement on your land, or on a portion of your land, you still own your land and you may use it, sell it, bequeath it, etc. With a conservation easement you simply give up your option to subdivide the land and develop it, and you give up the option to sell to anyone with that intention. The rights to development are held or sold by the conservation organization.

In some areas where citizens pass tax bonds and government programs exist, landowners are compensated financially for the loss of these development rights. If a government program for purchasing development rights has not been established in your area, the only way you can obtain a guarantee that your land will not be developed is to donate your development rights. Whenever you give up your development rights, you are granted income and estate tax deductions equal to the value of the development rights retired.

A conservation easement doesn't cost you anything, but there is loss of potential profits because you rule out ever selling to a developer. Many landowners are understandably reluctant to forfeit this option. The tax break usually doesn't quite make up for what you would get if you sold off your place to a developer.

Conservation easements can contain specific restrictions about changing the land or building on it. You may write in exceptions to the restrictions to meet your needs and you may later amend the restrictions if unanticipated needs arise. In other words, the restrictions are negotiable. They are meant to keep subdivisions and strip malls off the land; they are not meant to make your life difficult or endanger your livelihood.

If you're going to sell your land, you can sell it to a conservationist, like a land trust. If you sell to a conservation agency, you guarantee the land will not be developed, but of course you get substantially less money for it than if you were to sell your land to a developer. And once again, you get some form of tax break. Public agencies or nonprofit land conservation organizations buy farms at prices sometimes up to 60 percent below appraised market value and the difference between the appraised market price and the bargain sale price is considered a charitable gift for your tax purposes. AFT refers to this conservation method as a bargain sale. It's clear a "bargain sale" is no bargain for the landowner. This option is for a limited number of landowners whose main financial concern is finding a good tax break.

If you want to control what happens to the land after you're gone, you may want to consider leaving your land, or your development rights, to a conservation organization in your will. You can also transfer the deed to a conservation organization while you're alive, with a special clause that you retain full use of the property during your lifetime. Lawyers call this agreement a Reserved Life Estate.  

Public Options for Preserving Land

Most public options for preserving land involve passing legislation. In areas where government preservation programs exist, incentives to conserve land include financial compensation for development rights, property and inheritance tax breaks, grants, and low-interest loans. Public options may seem more complicated or more restricting, but there's also a lot more money available to you through them. The purchase of conservation easements program, or PACE, is one of the most economically viable option for land conservation.

PACE is also called Purchase of Development Rights, or PDR. Owners sell development rights-to a government agency or conservation organization-like a land trust. The easement restricts or limits the type of development that can occur on the land. Participants retain ownership and control over the land.

For example, in 1979, Seattle voters passed a $50 million bond issue to preserve farmland. The program offered the owners of agricultural land the opportunity to sell development rights to King County. The land remains private, but the owners must keep the land in agricultural or open-space use. There are 187 properties totaling 12,600 acres in the program. According to the Seattle Times, the county paid a range from as low as $480 per acre to as high as $18,975 per acre to buy the development rights. Restrictions state that at least 95 percent of the land must remain open and viable for cultivation. The number of residential units is permanently restricted, generally to one dwelling per 35 acres. The restrictions are on the property deed, and remain in effect even if the property changes hands. PACE is the kind of program that might save some of the Front Range farmland from the tract housing that gives my dad an ulcer as it edges toward our place. But first, Colorado needs some farsighted politicians to write up legislation and get a PACE program funded. PACE has become a popular conservation program in the Northeast, with nine state-funded programs from Maryland to Maine.

A variation on the PACE idea is the TDR Program, or Transfer of Development Rights, TDR programs create protection areas (sending areas) and development areas (receiving areas). Developers in the receiving areas bud development rights from landowners in the sending areas. Developers then may use these "transferred rights" to build at higher densities in receiving areas than existing zoning laws allow, while the land in the sending area is preserved. TDR banks are established to hold development rights so landowners can sell their rights without waiting for a builder. But, again, landowners can't take advantage of this great idea until a full-scale program is crafted via local government.

If getting rid of all your development options makes you nervous, think about limiting rather than prohibiting development. Basically, limited development means placing easements on some land to preserve it, while reserving the right to sell the rest. It's a good economic solution for some fast-growing areas, and it's more profitable than most other options because you get some of that developer money without throwing out all the land. But, you do throw out some; limited development is a realistic compromise between growth and conservation.

Local governments sometimes designate zones of land for agricultural use, and this can provide a temporary protection from development. But, zoning is changed every few years as part of a regular governmental planning process. It may be unpopular with some landowners because it, once again, takes away their potential economic gain from selling to a developer, and in this situation there are no tax breaks or compensation. Zoning definitely means your options for development or preservation, for good or ill, are in the hands of your local politicians.

A more profitable variation on zoning are agricultural districts. Participants in an agricultural district agree to keep the property in agriculture for a finite period ranging from 5 to 20 years, and in return they are granted breaks on property taxes and nuisance complaints. (Nuisance complaints are usually filed by suburbanites offended by the smells or sounds of bordering agricultural properties.) Participants may also have access to cost-sharing for compliance with environmental regulations, grants for soil and water conservation, low-interest loans, and exemption on state inheritance taxes. The district must be established by the state or county. Landowners must petition local government to establish these districts.

It you're interested in lobbying local government for preservation programs, contact American Farmland Trust, 1920 N Street, NW, Suite 400, Washington, DC 20036, (202) 659-5170. AFT also has office in Chicago, Illinois; Northampton, Massachusetts; and Davis, California. Mainly a policy organization, AFT is a good general resource for conservation information. They offer a number of guides, video, and publications about conservation.

Historic Preservation

Many people take the historically significant aspects of their property for granted. Wagon trains took the Overland 'Frail through our neighbor's ranch, and pioneers carved names and dates still visible in the windswept red sandstone cliffs there. Native American tepee rings, arrowheads, and ceremonial rings scatter about our community, and cattle and horses and people step through them as a matter of course, hardly noticing them. But your property doesn't need an archeological dig or artifacts dating back hundreds of year to be considered historically significant. Buildings, equipment, cultivation-any traces of a former way of life, even one that existed in this century-may be worth preserving for future generations to see.

Rural landscapes that make it onto the National Register for Historic Places are protected from development. These places may reflect the day-to-day activities of people engaged in traditional work such as mining, fishing, and various types of agriculture. In order to be considered historically significant, a rural property needs to have some links with important historic trends or themes. Recent changes that have altered historic characteristics may make ,r property ineligible. So, if you knocked down that old dock or shed, or redesigned the orchard, you may have lessened the historic significance of your property.

The identification of a historic landscape involves working with federal agencies, state historic preservation offices, and local government to prepare a nomination to the National Register. Since the idea behind historic preservation is to maintain .r place as closely to its original form as possible, this not only protects the area from development but also requires that no changes to the land, road, buildings, or air\, historically relevant aspect of the property be made without permission from regulatory agencies. If your land makes the National Register, you're going to need to get permission before you go ahead and extend that driveway.

Often, however, preservation agencies compromise with landowners in determining restrictions so that landowners find they can live with them. The requirements may also match the property owner's sense of aesthetics. For example, if the National Register gives the approval to build a new building, you might be required to build out of the same or a similar material as the rest of the buildings on the land in order to maintain the integrity of the landscape. And though you can never sell to a developer, the value of the property may be quite a bit larger than strictly agricultural land. Anyone you sell to will have to maintain the same integrity of the property under the same restrictions, but you may get a good price. The National Register of Historic Places can put you in touch with local agencies that can help you determine if your property is eligible for historic preservation. For more information, contact the National Register, U.S. Department of the Interior, National Park Service, PO Box 37127, Washington, DC 20013-7127, (202)343-9536.

Recent Trends in Preservation

There have been considerable obstacles to overcome for individuals who are concerned about rampant development. There is the policy maker's myth that development always indicates progress. People in rural communities are often suspicious of government, and preservation of private land necessitates limitations on that land's use and often requires forfeiting potential income in order to insure against development.

Despite these obstacles, programs for the preservation of open space are growing at a considerable rate. Above all, people in rural communities are not afraid to show the door to land-hungry developers with lots of cash. If money were their priority, they probably wouldn't be trying to make a living off the land in the first place, and more and more rural communities have been able to take advantage of financial incentives to show developers the door. According to Dennis Bidwell, AFT's director of land protection, voters in Florida and

Pennsylvania recently passed large bond issues to protect farmland. Bidwell says, "Urban and suburban folks that ultimately control votes and tax dollars that it's going to take to save the farmland are showing their concern, and they realize that the food, the water, the tourism industry depends on this land being kept open." Even conservative organizations like the Colorado Cattlemen's Association, normally distrustful of preservationists, have spoken with AFT about starting their own land trusts, Bidwell says.

Most land trusts are started and run by individual members of communities who want to take measures to curb development in their area. Land trusts depend overwhelmingly on individuals in their community for support and assistance. According to the Land Trust Alliance, some 50,000 people volunteer their time to land trusts, and 50 percent of land trusts have a budget of less than $10,000. A Land Trust Alliance survey shows that half of all land trusts have been formed in the last 10 years. If you're interested in starting a land trust in your area, or finding out how to get in touch with the land trust nearest you, contact the Land Trust Alliance, 1319 F St. VIA% Suite 501, Washington, DC 20004-1 106, (202) 638-4725.

How To Get Involved

The movement to preserve open space is becoming more organized as people negotiate conservation easements and conservation bequests, and the like, but even many land trusts are still operating on grassroots principles. Constraining development can't help but be political. One of the most basic ways to protect land from development is to vote, and be careful who you vote for. Often it's your local politicians who will be making the deal with developers, mining companies, and other people who may end up taking over the land. You can talk to your neighbors; plan and organize and lobby. Don't just write off preservation as excessive regulation and bureaucratic government meddling. Instead, insist that government and preservation groups make concessions to you and to your community so that you can work to make the money you need, keep the freedom to control your own property and preserve the land.


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