APPENDIX A
Appendix A describes the techniques and
strategies for acquiring and preserving open space and includes management and
funding strategies and sources, regulatory techniques, and description of
associated long-term costs and responsibilities. Information in this appendix
is drawn from publications by the Land Trust Alliance, the Trust for Public
Land and the Planning and Conservation League.109
OPEN SPACE ACQUISITION & MANAGEMENT
TECHNIQUES AND STRAGETIES
In most land aquisisition projects, open
space is protected through one or a combination of two basic methods: ownership
of the land by a conservation-minded individual, organization, or agency, or a
conservation easement, a legal agreement protecting a property's conservation
resources. Below is a description of the various techniques typically used by
land trusts and public agencies seeking to acquire, manage and preserve
parkland and open space through these two basic methods.
OPTIONS FOR THE ACQUISITION OF RIGHTS
AND INTERESTS
Fee-Simple Ownership
When a land trust or agency owns all the
rights to a piece of land and holds title to it, this is called fee simple or
fee title ownership or owning land in fee. Complete ownership provides full
control over the land and thus the most certain ability to protect the
conservation resources on the property while allowing some level of public
access. However, owning land is usually costly and requires the owner to assume
liability for accidents or injury on the property and the maintenance and
protection of its resources.
Conservation Easement/Development
Rights
A legal agreement between the property
owner and land trust or government agency in which the owner maintains
ownership, but agrees to restrict future development on all or a portion of the
property to protect significant natural resource or open space values. If
transferred in perpetuity, the land covered by the conservation easement
remains subject to the easement restrictions as ownership changes. Conservation
easements can be donated or sold; when donated, the donor may qualify for a
federal income tax deduction. Conservation easements are less expensive than
fee simple ownership and can serve to protect a property's natural resource and
open space values while, in some cases, providing public access.
Fee Simple/Leaseback
Land trust or government agency purchases
full title to property and then leases property back to previous owner or
other. Natural resource and open space values are protected through restrictive
easements or covenants limiting future development, income is received through
leaseback while liability and management responsibilities are assigned to
lessee. However, the land must be appropriate for leaseback (e.g.
agricultural).
Lease
Provides temporary control over land in
cases where the landowner or the land trust either cannot or does not want to
make a more permanent arrangement. Lease typically gives land trust exclusive
access rights to the property thereby ensuring protection of on-site resources
on an annual or term basis.
Management Agreements
Specifies a plan under which the property
will be managed, either by the landowner (with the advice or assistance of the
land trust) or by the trust itself. Such agreements are usually recorded and
remain in force for their full term even if the land changes hand. Used
extensively by the Nature Conservancy, among others.
METHODS THAT BUY TIME
Option to Buy
A written agreement purchased from or
donated by the landowner giving the land trust or agency the exclusive right to
purchase a property under certain terms and condition- and at a specified
price- by a certain date. To strengthen the land trust's claim, these
agreements should be recorded with the appropriate local government agency and
at least a token sum paid. Acquiring an option gives the land trust time to
raise funds when a property is put on the market and threatened with imminent
development. Land trust may also acquire a series of options that expire
sequentially to allow it to acquire an expensive property over a period of time
and thus avoid an all-or-nothing proposition: if the trust fails to obtain
adequate funds to exercise one of the options, it still retains ownership of
those parcels it had already purchased.
Right of First Refusal
An agreement between the landowner and the
land trust that gives the trust the right to match any bona fide purchase offer
made on the property acceptable to the landowner within a specified time period
after the offer is made. The trust is under no obligation to make an offer on
the property.
Methods to Acquire Title
The method of acquisition determines how
much the land trust or agency pays to acquire the property rights and when
those rights accrue to the trust.
Purchase at Fair Market Value
Purchasing land or interests in land such
as conservation easements at fair market value is the most expensive
acquisition method.
Bargain Sales
A sale of land or an interest in land
below fair market value. The difference between the sale price and the
appraised fair market value may qualify as a tax deductible, charitable
donation for the seller thereby reducing or eliminating the disparity and
creating a valuable negotiating opportunity for the trust.
Donations
The first choice by a land trust is to
acquire land by donation. Landowners can donate almost any property right or
interest in their land, including the entire parcel in fee or a conservation
easement which then qualifies the donor for certain tax benefits.
While most transactions involve the land
trust taking full ownership of a property or conservation easement when the
terms are finalized and the necessary documents are signed, other agreements
including bequests and remainder interests result in the trust taking ownership
at some future date.
Bequests
When donating by bequest the landowner
leaves rights to a property including fee ownership, an easement or other asset
to the land trust in his or her will. While the donor does not receive any
income tax benefits since the gift does not take place until the donor dies,
estate taxes are significantly reduced for the donor's heirs by removing the
value of the donation from the taxable estate. When dealing with the donation
of a conservation easement, land trusts are advised to negotiate the exact
terms of the donation during the donor's lifetime to ensure that the
conservation resources are protected, that the trust is given sufficient
management flexibility and, where possible, that adequate management and
monitoring funds are donated as well. For the land trust, the downside of
donations by bequest include the uncertain date of acquisition and the
possibility that a landowner will change his or her will.
Remainder Interests/Life Estate
A landowner may give their property to the
trust, but reserves the right to live on or use the property for his or her
lifetime. The donor qualifies for an income tax deduction based on the value of
the property but taking into account the life expectancy of the donor.
Management and Ownership Options
Land trusts often work in cooperation with
other land trusts and conservation groups, government agencies and private
sector interests to acquire and manage open space. Their roles can range from
jointly financing acquisition to simply facilitating the transaction.
Preacquisition and Conveyance to Public
Agency
Preacquisition involves the acquisition by
the land trust of property threatened with development with the intention of
later selling it to a government agency. Because nonprofit land trusts are
often able to acquire land at below market rate value, the agency may be able
to acquire the land from the trust at a reduced cost or at least save staff
time and related costs associated with negotiating the transaction directly
with the land owner. The trust usually benefits by having its transaction costs
paid for by the agency and does not have the burden of long-term management of
the property. The essential ingredient is the presence of a public agency
willing and able to purchase the property within a reasonable time frame. The
Peninsula Open Space Trust (POST) relies on this method for most of its
acquisition projects.
Assisting Government Acquisition
In addition to preacquisition, land trusts
assist government open space acquisition in many other ways. Trusts undertake
preliminary negotiations with landowners, identify threatened properties with
high conservation and open space values, conduct appraisals and title work,
raise local matching funds, manage and monitor local parcels and other related
activities. Today, cooperative acquisition efforts are increasingly popular
throughout the country as well as within the coast subregion as government
agencies and land trusts discover the benefits of working together.
Preacquisition and Conveyance to
Another Land Trust
Similar to the preacquisition technique
described above, the land trust acquires and holds onto a property until
another land trust has been identified to finance the acquisition. The
necessary ingredient here is the existence of a willing land trust with the
financial and management resources to eventually acquire and manage the
property.
Management by Local Land Trust
In this scenario, the local land trust
retains ownership of the acquired property and assumes management
responsibilities and associated costs. A local trust with the required
financial resources allows ownership of the property to remain within the
community with local citizens providing the responsible care and management of
the land's conservation resources.
Saleback or Leaseback
The land trust purchases the property,
limits future development through restrictive easements or covenants, and then
resells or leases back part or all of the property to finance the acquisition.
With the restrictions on future development, the resale at less than fair
market value makes the land affordable for the buyer while preserving the most
important conservation resources of the site. This arrangement entails complex
negotiations. When land is leasebacked to a lessee the trust retains ultimate
responsibility for that land.
Partnerships with Other Land Trusts,
Conservation Groups, Government Agencies
Land trusts often join with other other
land trusts, a national conservation organization like the Trust for Public
Land or the Nature Conservancy or a government agency to jointly finance or
share responsibility for the acquisition and/or management of open space and
parkland. Participation in a joint venture with a more experienced or
better-financed partner is particularly beneficial to a land trust pursuing its
first acquisition project. As land prices rise and the number of land trusts
and their pursuit of large open space parcels increases, the cooperation of
multiple parties-local and national, public and private- will be essential.
Financing Open Space Acquisition
Land and easement purchases can be
financed through three basic methods: fundraising from the private sector
(individuals, foundations, and corporations); government funding; and using
market forces to finance the acquisition. On average, land trusts finance more
than two-thirds of their acquisition costs by fundraising from the private
sector with most new trusts relying almost solely on this source. For a more
established land trust with some sophistication and credibility, government
funding may provide an essential element of the trust's acquisition program
when such funding is available. While historically less common, today's rising
land values have motivated trusts to more aggressively pursue use of private
real estate market forces to finance land purchases.
Land trusts can access government funds in
a variety of ways. They can acquire land and resell it to government agencies.
They can nominate and advocate particular properties to be purchased with
public funds, and help raise local matching funds required by government
programs. Public agencies such as the state Coastal Conservancy will often loan
funds or make grants directly to land trusts for land purchases and to develop
access and restore wildlife habitats.
FEDERAL FUNDING SOURCES
Federal Land and Water Conservation
Fund
Government funds can come from the
federal, state and local level. At the federal level, the major source of
acquisition funding is the Land and Water Conservation Fund (LWCF). Each year,
Congress appropriates funds from revenue received from offshore oil development
to various federal projects such as national parks, forests, and wildlife
refuges. In addition, a specific portion of the funding is usually allocated
among the states for state and local projects that meet certain criteria. The
LWCF is authorized to provide up to $1 billion a year for the federal
acquisition of open space lands, and federal grants to states and localities
for recreation land purchases and facility development. More recently however,
less than $150 million a year has been allocated nationwide with $5 million or
less available annually to California counties, cities and special districts.
While none of this funding can be allocated directly to them, land trusts may
seek to have the state use LWCF money to purchase lands the trust has
reacquired or pursue the political process to have the state directly acquire a
targeted property. LWCF funds provided to state or local government for the
acquisition and development of open space and recreational areas require a
50-50 match in state or local funds which the land trust can help raise.
Intermodal Surface Transportation
Efficiency Act
Federal transportation funds for
recreational facility development can be obtained through several ISTEA
programs including the Environmental Enhancement and Mitigation Program (EEMP)
which in recent years has provided up to $30 million annually to California for
bicycle and pedestrian facilities and the acquisition of scenic easements.
While renewal of ISTEA by Congress has not yet occurred, previous congressional
approval for extending associated enhancement program funding ensures that at
least some EEMP funds will be available in the future.
STATE/LOCAL OPEN SPACE AND RECREATIONAL
FACILITY FUNDING
General Funds/Bonds
State and local government fund the
purchase of open space lands and the development of associated recreational
facilities through a combination of general fund or general obligation bond
appropriations and taxes at the state and local level. However, there are two
fundamental differences between state and local bonds that present added
challenges to local government. First, while the principal and interest on
state bonds are paid for from the State General Fund, local bonds are generally
tied to an increase in property taxes. Second, the issuance of local bonds
requires a two-thirds vote within the local jurisdiction whereas approval to
issue state bonds requires a simple majority vote.
At the state level almost all funds for
land conservation are appropriated by the Legislature to state agencies.
Although funds are almost never appropriated to private land conservation
groups, and only rarely to local agencies, state agencies can authorize a grant
to a local agency or private land trust to carry out the intent of the
appropriation. Below are descriptions of the government agencies and their
funding sources that local agencies and nonprofits can approach to obtain
funding for local open space and recreational facility development projects.
The State Department of Parks and
Recreation
The State Department of Parks and
Recreation has two land acquisition functions: acquiring and preserving
property for the state park system, and making grants to local agencies. The
Department will evaluate any proposed addition to the State Park System and,
while wary of new additions due to associated increases in maintenance costs,
is nonetheless interested in certain properties. The Department also has a
division of local assistance which runs the grant programs that distribute
funds to local agencies. Such funds usually come from state bond acts, although
the division also oversees funding made available to local agencies through the
federal Land and Water Conservation Fund and the Proposition 117 Habitat
Conservation Fund described below.
Unfortunately, government funding for park
and open space acquisitions at the state and local level has steadily
diminished over the past fifteen years. Since 1981-82, annual acquisition
expenditures by the State Department of Parks and Recreation have dropped over
90% from $40 million to less than $4 million while State Park grants for local
park projects have declined 95% from $107 million to $5 million during the same
period. At the same time, to address shortfalls in local revenues, many cities
and counties have made deep cuts in their local budgets. In many cases, local
park budgets have taken a disproportionate share of the cuts, making it more
difficult to fund local park projects and maintain existing facilities. As a
result, purchases of new parkland by local government have been very limited.
The State Coastal Conservancy
The State Coastal Conservancy makes grants
to nonprofit agencies, land trusts, and local governments for the acquisition,
protection and restoration of lands in the Coastal Zone and to develop public
access. It also restores urban waterfronts emphasizing coastal-dependent
activities and public use. The Conservancy may purchase property directly
before eventually transferring ownership to another state or local agency or
land trust and is one of the few state agencies that will fund the acquisition
of development rights or other interests in coastal farmland. While the
Conservancy has traditionally obtained most of its funds through a series of
state park and coastal bond acts, with no successful bond act since 1988, the
agency's annual allocations have dropped by nearly 90% over the past decade.
Today, the Conservancy obtains funding
from a variety of sources, with the bulk of funds coming from the Habitat
Conservation Fund (described below). In addition, recent state legislation has
established a new coastal access fund for the development of access-related
facilities which is estimated to provide the Conservancy with $600,000 each
year beginning this year. These funds are raised through impact fees assessed
by the state Coastal Commission as a condition of permit approval for impacts
on shoreline access stemming from private coastal development. Recent state
legislation has also created a new program within the Coastal Conservancy
establishing another distinct source of funding for coast and bay open space
and access development projects within the nine county Bay Area. Initial
funding levels for the Bay Area Conservancy Program will be determined later
this year when the state budget is finalized. Conservancy staff can help land
trusts determine which of the various funding sources are appropriate to pursue
for a given project with the subregion.
Habitat Conservation Fund
Today, the Habitat Conservation Fund (HCF)
represents the state's single most important funding source for acquiring and
protecting open space and wildlife habitat. Established in 1990 when voters
approved Proposition 117, the California Wildlife Protection Act requires the
state to allocate at least $30 million each year through the year 2020 to the
HCF to purchase wildlife habitat lands. In implementing Proposition 117, the
Legislature can use a wide variety of funding sources to achieve the required
$30 million annual goal including a new bond act, any of the state funding
sources described above, or any new source created by the Legislature. The one
fixed source of annual funds comes from the Tobacco Tax Fund that contributes
roughly $10 million each year.
Because only state and local public
agencies can apply for HCF funds, a nonprofit group or land trust must convince
a state or local agency to apply for funds on their behalf. Within the project
area, the Coastal Conservancy represents the best agency to approach for this
purpose because they must receive a specific amount of HCF money each year
within their geographic area. If a project is located in or near a state park
or recreation area, the superintendent of that park should also be contacted.
State Parks receive at least $1 million per year for habitat acquisition and
restoration in and near state parks.
One of the most flexible sources of
funding created by Proposition 117 is the requirement that at least $2 million
a year must be granted to local park, recreation and open space agencies on a
matching grant basis by the Department of Parks and Recreation. A land trust
needs to first generate interest in their project by their local parks
department, identify public and/or private sources of matching funds, and
convince the local agency to apply to the State Department of Parks and
Recreation for a grant to undertake the project. The Department has prepared a
handbook for local agencies and land trusts to use in understanding the
Proposition 117 HCF Program. See Appendix D for address information.
Wildlife Conservation Board
The Wildlife Conservation Board (WCB)
oversees the expenditures under Proposition 117 Habitat Conservation Funds, and
has direct control of the Wildlife Restoration Fund (described below). The WCB
purchases fish and wildlife areas for the state Department of Fish and Game and
also makes grants directly to land trusts and local governments. Like the other
state resource agencies the annual appropriations that allow WCB to purchase
and protect important open space lands have declined by 80% over the past
decade to less than $8 million today
The Wildlife Conservation Board, which
receives most of the funds from Proposition 117, evaluates grant proposals
based on input from the Department of Fish and Game (DFG). DFG is divided into
five regions and each has a biologist on staff who can work with local agencies
or land trusts to review proposed land acquisition projects to help determine
if it meets the minimum requirements of Proposition 117. Because there are a
wide variety of funds available to the Department both within and outside the
scope of Proposition 117, local agencies and land trusts should investigate all
possible funding sources, including those outside the scope of Proposition 117,
to ensure that every funding source is examined as a possibility either by the
Department or the Legislature.
State Grants/Low Interest Loans
The state can provide matching grants or
low interest loans to local government for land acquisition. However, as
discussed above, such funds will remain very limited until a significant new
source is created through passage of a statewide park bond act and/or
legislative approval of a State General Fund appropriation. At present, the
Legislature is work with the Governor to place a major coast and park bond act
on November ballot which, if approved by voters, will provide a new source of
funds for the acquisition and development of open space and recreational land
both statewide and within project area.
Payment In Lieu of Dedication
In addition to, or rather than requiring a
land developer to dedicate an easement to mitigate a project's impact on open
space, scenic views, or public access, local government may require payment of
an impact fee to a municipal trust fund for open space acquisition,
recreational facility development or related projects. A Coast Access
Development Fund has been established for by San Mateo County for projects in
the Midcoast but neither Pacifica nor Half Moon Bay maintains this type of
fund.
Special Assessment District
A special tax district is another method
for funding the acquisition and development of open space and parkland. While
its boundaries do not currently include land within the project area, local
land trusts and open space advocates are now considering options for expanding
the boundaries of the Midpeninsula Regional Open Space District into the
subregion.
Tax Return Checkoff
California's Endangered Species income tax
checkoff offers filers the option to direct a small amount of taxes owed toward
revenues for the acquisition of habitat lands for threatened or endangered
species. Presently contributions amount to approximately $1 million annually.
The Department of Fish and Game controls expenditure of the funds through their
Natural Heritage Division. To qualify for funding projects must demonstrate how
a listed threatened or endangered plant or animal species will be protected.
Other Funds/Taxes
In California there are several potential
funding sources available to government and nonprofit agencies for open space
acquisition including taxes on cigarettes, gasoline, horseracing and fees from
personalized 'vanity' license plates.
Tobacco Tax
In 1988 voters approved Proposition 99,
the Tobacco Tax Initiative which allocates five percent - roughly $25 million a
year - of the new revenue generated to park and wildlife projects. The funds
are part of the Governor's budget, and must be approved by the Legislature
before they are placed in the Public Resources Account for expenditure. The
funds are evenly split between park and wildlife projects. The park funds are
evenly split between state and local projects while the wildlife funds get
divided between wetlands, fisheries and other wildlife projects. There is no
restriction on the use of the funds: they can be used for acquisition of land,
restoration, maintenance of habitat or parks, and related activities.
Environmental License Plate Fund
Established in 1991, the Environmental
License Plate Fund (which appears in the annual Budget as the Environmental
Protection Program) was originally intended to fund specific projects including
the purchase of land or easements for environmental protection purposes.
However, in recent years tight budgets have forced the roughly $30 million in
annual funds to be redirected to pay for operations of the Department of Fish
and Game. The Fund is one of the few that can actually be used to make direct
grants to nonprofit agencies although most of the money has traditionally gone
to public agencies. More recently, the 'Whale Tail' license plate fund was
established in 1997 to specifically fund programs related to coastal protection
and related activities including coastal access. However, today these funds are
directed to public outreach programs and education of school children rather
than to specific coastal access activities.
Gas Tax-Environmental Enhancement and
Mitigation Program
Similar to the federal transportation
enhancement program described above, the state Environmental Enhancement and
Mitigation Program (EEMP) was established by the passage of Proposition 111 by
voters in 1990 and requires that $10 million a year of gas tax revenue be spent
to mitigate the effects of transportation development. The Resources Agency
sends out and receives grant applications which are then evaluated based on
certain criteria before a list of qualified projects is forwarded to the
California Transportation Commission, which makes the final selection from that
list. While an elaborate system is used to evaluate proposed projects, the
criteria for grants is quite liberal and includes land acquisition projects.
However, unlike many other state funding sources, this program is not part of
the budget process meaning that Administration support is virtually the only
determining factor in which project proposals get funded. The program is
scheduled to run through the year 2000, so just two years remain for local
groups to take advantage of it.
Wildlife Restoration Fund
Generated by a small tax on horseracing
revenue, this program produces about $750,000 a year that goes to the Wildlife
Conservation Board for habitat protection projects and wildlife-oriented public
access projects to rivers, streams, and coastal waters for hunters, anglers and
boaters. The Department of Fish and Game determines how these funds are spent,
so obtaining their support for a local project is essential.
Real Estate Transfer Tax
Real estate transfer taxes, also called
documentary transfer taxes, are levied in all counties in California. While
imposing such a tax to fund open space acquisition is done in other states, to
do so here would first require an amendment to the state constitution.
OTHER FUNDING STRATEGIES
Project Campaigns A project campaign is a
fundraising strategy aimed at raising money for a specific project, rather than
for a trust's general operations. This strategy is especially useful when
attempting to fund the purchase of a property valued by a community that is
threatened by private development. While most funds in a project campaign
typically come from individuals in the community, foundations or corporations
may contribute as well.
Trade Lands
Land with no significant resource value
can still be donated to a trust for its monetary value and then either sold to
finance other land purchases or traded in exchange for a property with
conservation resources. In this case, the trust must be sure to make its plans
to dispose of the property absolutely clear to the donor at the time of the
donation or bargain sale. The trust should also be sure that a market exists
for the sale of the property and that there are no unusual problems that would
make it difficult or impossible to sell.
GOVERNMENT FINANCIAL INCENTIVES FOR
PRESERVING OPEN SPACE
Preferential Assessment
Under state laws, agricultural and forest
districts can be established to assess land as farmland or forestland rather
than at its 'highest and best use.' Promotes resource conservation and
management while benefiting landowners in areas with development pressure.
Locally, the Williamson Act is commonly applied to protect agricultural lands
through a reduced tax assessment.
Purchase of Development Rights
Local or state government purchases
development rights to maintain land in agricultural use. Landowner maintains
ownership and derives income from selling rights while having property taxes
reduced due to lower property values.
Land Conservation Grants
State programs pay or otherwise enable
landowners to preserve land, enhance wildlife, and provide public access
without selling interests in land. Since the passage of Proposition 13, such
grant funds have been extremely limited.
REAL ESTATE MARKET STRATEGIES
Limited Development
Limited development involves the
development of the less sensitive portions of a property in order to finance
the protection of the more valuable resource conservation areas. The
undeveloped areas are usually placed under the protection of a conservation
easement or held in fee by the land trust or other conservation organization or
agency while limited development is clustered on another portion of the
property. This approach is generally regarded as a tool of last resort when the
trust cannot afford to purchase the entire property or the landowner prefers to
develop portions of the property. Nonetheless, rising land prices and increased
competition for open land have made limited development an increasingly
necessary tool that, in some cases, may be the only practical way to acquire
and preserve environmentally sensitive lands.
Conservation Buyers
Land trusts can facilitate the linking of
potential buyers interested in owning property with exceptional conservation
characteristics with sellers of such property and through the process protect
sensitive lands with no direct financial support when the new buyer donates a
conservation easement to the trust. While most trusts might have an occasional,
individual project suitable for a conservation buyer, several regional land
trusts including the Big Sur Land Trust have organized formal programs to
identify conservation properties and locate conservation buyers for them. Such
a program generally requires large and scenic properties in a rural setting and
wealthy buyers with an interest in conservation.
Interim Financing
Land trusts often need to buy a property
before they have raised the money to acquire it, or even before they have been
able to determine how they might ultimately finance the project. One of the
cornerstones of any successful land trust is their ability to act fast. This
requires access to quick financing which can be obtained in a variety of ways.
Loans
When a land trust needs time to raise
money for a project, or interim financing for a property it plans to resell to
a government agency or other entity, a loan may be the answer. Land trusts can
take out loans from a variety of sources including private individuals, local
businesses, banks and corporations, and established nonprofits. Low interest
loans may come from a foundation interested in the work of a community-based
nonprofit or an adjacent landowner standing to benefit from a parcel's
protection. Yet land trusts should not rule out market rate loans when
necessary to finance a purchase. With techniques such as limited development
and preacquisition, and with solid fundraising capabilities, land trusts should
be able to pay off their loans. Newer land trusts with minimal equity have
secured bank loans by having several board members co-sign.
Revolving Funds
A revolving fund is a fund the land trust
maintains at or above a certain level so that it always has acquisition money
available. While money from the fund can be spent frequently, it is replaced
through fundraising or income from property transactions. To raise the initial
funding for revolving funds, the trust could set aside a portion of its annual
income, conduct a special capital campaign, solicit bequests or develop planned
giving programs.
Charitable Creditors
In a crisis situation, a land trust might
opt to purchase a parcel or other property interest without knowing in advance
how it will recover its costs. With the original money coming from a loan or
the trust's revolving fund, these sources have to be repaid. Charitable
creditors, who can be individuals or organizations, back up the trust's loan or
expenditure with legal agreements or pledges to pay a specified amount if the
trust is for some reason unable to repay the source of the original funds. A
pledge campaign can be conducted much like a donation campaign but is most
appropriate for trusts with at least some prior fundraising and project
campaign experience.
Long-term Costs and
Responsibilities
Owning and managing land or conservation
easements is a major responsibility. Acquisition is just the first- and often
not the most expensive or difficult- step in protecting land and, where
appropriate, providing recreational access to it. When evaluating potential
acquisitions, land trusts must give serious consideration to the long-term
management needs of a property or interest in a property and be prepared to
pass up desirable projects when lack of funding, management difficulties or
related problems prevent the trust from ensuring the property's long-term
protection.
Maintaining and Managing Open Space
A land trust is responsible for
maintaining and managing property that it owns. Unless ownership and management
responsibilities are transferred to another land trust, government agency or
other entity, a land trust must be prepared to assume full responsibility for
the property's long-term care. The trust must comply with any deed restrictions
on property donated to it, maintain trails and structures to ensure their
safety and, in some cases, actively manage a property's resources including
regular plantings and repairs in order to adequately preserve the land's
fragile resources. For lands open to the public, proper maintenance is
especially important to prevent liability problems and to enhance the trust's
image.
Monitoring Open Space
A land trust needs to monitor property it
owns and easements at least once a year to ensure that management goals are
being met, safety hazards are identified and any trespass or vandalism is
detected and addressed. Failure to halt trespassing can lead to the loss of
some of the trust's property rights. When a trust holds conservation easements,
it is responsible for ensuring that the owner complies with the easement's
terms; failure to do so will diminish public confidence in the trust's easement
program and could eventually lead to the termination of the easement if
violations are not effectively addressed.
How frequently and intensively the trust
monitors its properties will depend on several factors, including a property's
location, the fragility of its resources, the degree of threat to those
resources, and possibly the ownership of the property. While monitoring
requires time, trained personnel and money, the process can be simplified when
parcels are close to the trust's home base, close to one another, in a highly
visible location like a roadside, or when the trust has the cooperation of
someone near the parcel.
Enforcement
A land trust has an obligation to enforce
the terms of conservation easements and to protect the properties it holds
either through negotiation if possible, but ultimately by going to court if
necessary. Threats can originate form a variety of sources, and defending
against them can be time consuming and expensive. While protracted legal
conflicts are rare, the land trust must be financially able to deal with them
should they occur.
Management Funding
Prior to acquiring or accepting a property
or conservation easement, a land trust should take the appropriate steps to
ensure that it can cover associated long-term costs. Oftentimes, land trusts
will set aside funds for the care of their properties and easements, usually
through monitoring funds, endowments, stewardship funds, or legal defense funds
which are typically obtained at the time of acquisition from the donor of the
land or easement. Management funds can also be raised through special
fundraising campaigns or by setting aside a portion of the trust's annual
income. While setting aside management funds is often difficult for a new land
trust, doing so is critical to ensuring that the trust can successfully meet
its obligation to protect property over the long-term.
REGULATORY TECHNIQUES
Transfer of development rights
Owner of property with resource
conservation values sells development rights to other landowners whose property
can support increased density. While a property owner who purchases development
rights absorbs the cost of preservation, the identification of sending and
receiving sites can be difficult.
Performance Zoning
A zone is defined by a list of permitted
impacts as opposed to permitted uses based on natural resource data and design
guidelines. Development is directed to appropriate places based on a
comprehensive, environmentally sensitive plan often implemented through cluster
development.
Carrying Capacity Zoning
Often called Current Planning Capacity,
this approach is based on the ability of an area to accommodate growth and
development within the limits defined by existing infrastructure and natural
resource capabilities and allows localities to establish new and more
resource-conscious development guidelines. The challenge here lies in
determining carrying capacity which can be a difficult process, subject to
political considerations, quality of life assumptions and changing
technologies.
Cluster Zoning/Planned Unit
Development
Local zoning ordinances preserving
agricultural land in the project area require clustering of development.
However, while a PUD provision allows clustering for a large mixed-use
development and preservation of open space within the project area, the open
space is typically in small separate pieces which complicates linkages to a
larger open space system.
Preservation Overlay Zoning
Overlay zones with development
restrictions can be established by local government to protect agricultural and
natural areas, scenic views, and historic neighborhoods. Special zones have
regulations specific to the needs of a unique area and may be subject to
mandatory clustering, performance standards, special permits, and site plan and
architectural review.
Exaction/Dedication
As a condition of obtaining permit
approval, local government requires developers to pay a fee or dedicate land to
a municipal trust fund for open space. While new construction pays for its
impacts on open space, funds are dependent on development and can be difficult
to calculate based on a project's estimated fair share of costs.
Other Resources
The California State Coastal Conservancy
has published a workbook to guide land trusts and individuals seeking grants
for coastal conservation projects from the public agencies and funds described
above. Titled "Conserving Coastal Resources in California,"
the workbook was published in June 1997 and can be obtained by contacting Marc
Beyeler, Program Manager at the Conservancy at: 510-286-4172.
Also available from the Coastal
Conservancy are two new booklets to assist land trusts seeking to develop
pathways to and along the Coastal Trail. Happy Trails to You: How to Accept
and Manage Offers to Dedicate Access Easements and Limitations on Liability for
Nonprofit Land Managers were both published in December 1997. Happy
Trails details how a nonprofit organization or public agency can acquire
and manage Offers to Dedicate (OTD) easements. Limitations on Liability
clarifies potential liability risks and explains immunities that apply to
nonprofits and public agencies. To request a copy, contact Brenda Buxton at:
510-286-0753.
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