Summit County is in the process of rescinding a 25-year-old conservation easement to pave the way for a housing development, a move opposed by land trusts across the State. Technically, that means the county will condemn the easement, just as it might condemn a piece of property needed for a road. The commissioners claim this easement stands in the way of public progress, so they will simply take it, presumably with the constitutionally required “just compensation” to the easement’s owner, Colorado Open Lands
Keep It Colorado is a coalition of more than 30 state land trusts in Colorado. Its executive director, Melissa Daruna, was quoted saying her members “never want to see condemnation.” Perhaps they fear the snowball might become an avalanche, since there are roughly 4,000 conservation easements in Colorado.
The details of this easement are not especially unique. Residents of a development called Bill’s Ranch worked in the early 1990s to preserve a 6-acre parcel, situated between the County Commons and Bill’s Ranch. Summit County has owned the land since 1992; it was part of a 96 acre land exchange with Arapahoe National Forest. Some of that land was developed for the Community and Senior Center, St. Anthony Summit Medical Center, and Ophir Mountain Village, intended as affordable workforce housing.
Residents wanted this 6-acre “buffer” to remain undeveloped. They named it Fiester Preserve (in honor of the people who lived on the ranch at the time), and asked the County to designate it as open space. The County did so, but continued to identify the property as potential future housing. So, residents raised the money to purchase a perpetual conservation easement, to protect it from development. The County promised to preserve it, and the easement was purchased in 1998 through the Continental Divide Land Trust, now part of Colorado Open Lands.
Summit County, still facing affordable housing shortages, say they have looked everywhere for senior housing sites, and determined that Fiester Preserve is the best option. The County Manager argues that the easement was done before the County open space program existed, which is incorrect – voters there approved an open space property tax five years earlier. Anyway, the easement was purchased with private funds, not local taxes. He says the parcel would not qualify for such protection the way county rules are now written. Maybe so, but there remains an ethical issue with that argument. The perfectly legal easement was purchased, like almost all others, “in perpetuity.”
There is little doubt where the public stands on this. Summit County voters renewed the tax in 2008, and made it permanent in 2019. The program has preserved 17,300 acres countywide, including over 200 conservation easements on private land.
Coincidentally, about the same time Summit County negotiated that easement, several Western Slope leaders, led by T.Wright Dickinson, were questioning the wisdom of “perpetual” easements. Club 20 argued that permanent easements foreclose any ability for future generations to use the same tool on the same land. Generations later, if agriculture still has difficulty surviving, for example, it is unclear what might happen to a farm that can neither be sold nor farmed. The idea of “term easements,” however, was terribly controversial, and even today tax credits are available for conservation easements only if they are perpetual.
If Summit County officials in 1998 had offered the conservation easement for half the price, but only for 20 years, the land trust might have agreed to that. We’ll never know, because that was not the deal offered, not what was promised to donors, not what was purchased.
What tools might be available in the future, for conservationists who want to preserve open space and agriculture, if these agreements do not last? I have no crystal ball and cannot see into the future, nor can county commissioners or land trust managers. That’s another reason it might make sense to more seriously consider easements that are less than permanent (say 25 years or 50 years). Obviously, they would be less valuable to the public, so would be cheaper, but in many instances that could still solve a crucial problem for our generation, while still leaving future generations with alternatives for maintaining agriculture, or for building affordable housing.
Should Summit County be locked “forever” into the deal it made? Probably so. But was it a wise deal? Clearly not. Within 25 years, leaders there already think it was a mistake and want out, because the easement was sold “forever.” And already the county is asking, “How long is forever?”
This column originally appeared in the Grand Junction Daily Sentinel May 22, 2020.
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