Sunday, November 15, 2009
The public's land is already protected
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Steven Higgs
Higgs is a local practicing attorney in Roanoke.
Conservation easements are a poor choice for public land management and preservation.
They are wonderful tools for private landowners, because people can limit the development of their land long after they are gone, and state and federal governments offer economic incentives for donating easements. Governments, though, can actively manage and preserve their own lands forever, and because cities and counties do not pay state or federal taxes, there is usually no economic incentive for them to donate easements.
Municipal donations of conservation easements occur rarely, and usually because the donor government gets some economic benefit. For example, an easement on 4,232 acres of the Rappahannock River watershed was the result of the Nature Conservancy granting $1.6 million to the city of Fredericksburg. Roanoke City Council has already acted to donate easements affecting 11,336 acres within the Carvins Cove Natural Reserve. Much of the acreage already donated was not suitable for prospective development because of accessibility and homeland security issues, but despite the obvious good motives of the governor and city council, what's in it for the citizens of Roanoke?
An easement does not just passively protect land. It permanently gives away rights in land to another entity, usually the Virginia Outdoors Foundation. The foundation is a quasi-state agency with a staff of approximately 40 people in seven offices, and an annual budget of approximately $2.5 million (about $2.25 million coming from the state's general fund). The foundation holds more than 2,250 easements affecting more than 480,000 acres, and owns another 3,500 acres outright. The foundation conducted about 1,000 "stewardship visits" last year to police the easements that it holds. There is a real and ongoing cost to taxpayers in defining, maintaining and enforcing conservation easements.
"Easement" has no intrinsic meaning -- a restriction limiting buildings to 10 stories is as much of an easement as one prohibiting development at all. While the foundation placed 62,468 acres under easement in fiscal year 2008, the purpose and impact of those easements vary widely because conservation easements must serve one of four purposes: recreation/education, protection of ecosystems, historic property and open space. Within those purposes, easements may be as broad or as narrow as the owners wish. The only thing that every conservation easement has in common is that they are perpetual -- that means forever.
Who can see far enough into the future to be sure that we include, or exclude, vital future uses of our public property? Roanoke itself has only existed for about 125 years. No one then could have imagined Roanoke today, nor the kinds of inventions that benefit us while imposing a burden on our public lands, like towers for airplanes (invented 106 years ago), televisions (less than 70 years ago) and cellphones (25 years ago).
Using conservation easements to manage public lands essentially means one government deeding property rights to another government agency to protect its land from itself. Are we collectively unable to keep our hands out of the cookie jar of our parks? I think not -- there has not been a suggestion for commercial development within Carvins Cove, and the suggestions for development in Mill Mountain Park have been generally limited to the approximately 20 acres at the summit. Why go to the trouble and taxpayer expense of crafting an easement, and incurring the ongoing expense of periodically monitoring and possibly enforcing the easement restrictions against ourselves?
Both Carvins Cove and Mill Mountain Park are zoned Recreation and Open Space. ROS zoning permits only 10 uses: botanical garden or arboretum; community center; golf course; park or playground; indoor and outdoor recreation; zoo, commercial stable and wildlife rescue shelter or refuge area; cemetery; community garden; utility distribution or collection; and wireless telecommunications facilities. Most of Mill Mountain Park is also under land use restrictions from the original Fishburn grant and its listing on the National Register of Historic Places; its use is further restricted by the Mill Mountain Management Plan that was adopted by city council as part of the comprehensive plan for Roanoke.
If additional protection is needed, it would be simple enough to create a zoning overlay that would further limit land uses within iconic and sensitive spaces such as Mill Mountain Park and Carvins Cove. Requiring that any modification of the zoning or use of such spaces must be approved by city council twice within a five-year period would guarantee that any such change would have to survive not only the existing bureaucratic gantlet, but a municipal election -- not a referendum, but as close as permitted under Virginia law.
Roanoke is land-locked, and land for both development and preservation will become ever-more precious as time passes. Let's actively manage and preserve our own land, and not give it away or put others in control of our future.
