Preserving town lands the right way

In my last blog I mentioned briefly my concern about giving away town property in order to save it. I think we are capable of preserving our town's public lands ourselves without giving away our rights to this property to non-public entities as being proposed by some on our Town Council. In a recent Community News Wed. supplement, Jeff Duncan outlined his concerns in greater detail than I could even begin to approach. Jeff is not only a town resident and member of our Parks Board, but is a PhD biologist/ecologist, employee of the National Park Service (and he obviously expresses his own views and doesn't speak for the Park Service) and a member of the Tennessee River Gorge Trust Board. I don't think you can get much better credentials than that on this issue. I would like to repeat his admittedly long, but quite well considered essay here on my blog (with his permission). I urge you to take a few minutes to read it, then pass along your views to the Town Council. Thank you.

Signal Mountain Town Conservation Easements: Good Idea or Public Policy Gone Awry?


An Open Letter to the Signal Mountain Town Council

By Dr. Jeffrey R. Duncan

October, 2011

Dear Signal Mountain Town Council Members:

Recent interest in donating conservation easements to the Tennessee River Gorge Trust is an example of good intentions meeting unintended consequences, and is simply poor public policy. Although I’ll be the first to lead the charge when it comes to protecting the Commons—that which belongs to all of us—it is quite simply not the role of a town government to give away landownership rights to an outside entity. There are in fact other ways to achieve the same end, that of protecting our beloved parklands, without sacrificing the will of the citizenry now and in the future.

First, allow me to provide a little background on a concept that is often new to many, or otherwise not fully understood. Land ownership comes in different forms. The most common form is ”fee-simple.” In this case, the landowner owns all rights to the land and is free to do anything on the land he or she wishes, subject to zoning regulations and various other laws. But, land ownership can also be seen as layers, where different parties own different rights to the land. Mineral rights are a prime example where one party may own the rights to the surface of the land allowing them to build, live, farm, etc, while a second party owns the underlying mineral rights giving them the ability to extract various minerals out from under the primary land owner. Other entities can own water rights, timber rights, hunting rights, etc. You get the picture.

The concept of a conservation easement was devised to help landowners protect their private property from various forms of development in perpetuity. In essence, the creation of a conservation easement grants partial ownership (one of the layers) of a piece of land to an outside entity—typically a land trust or government entity—which is responsible for ensuring that certain activities do not occur on the property subject to terms of the easement. In other words, the holder of the easement treats the easement as their own property and is even obligated to defend any encroachments upon their interest in the land. The value of the development rights that are encumbered within a conservation easement varies based on the terms of the easement and other factors, but a good rule of thumb is that value given away by the primary landowner to the land trust is approximately 80% of the original value. The reason a private landowner would want to give a portion of their land rights to a land trust is typically to protect the land from development by future landowners, typically their heirs, and in some cases for tax benefits. The concept was established as a means of land protection for private landowners.

Few cases exist where a municipality donates its development rights (i.e., a conservation easement) to a third party. Where these cases do exist, typically the conservation easement was placed on the land prior to it being donated from a private owner to a municipality. This is the case with a town-owned parcel behind St. Timothy’s Episcopal, where a conservation easement was placed on the land prior to the land being donated to the town. Similarly, Stringers Ridge in Chattanooga was recently donated to the City of Chattanooga to create a park. A conservation easement was placed on the land prior to the tract being transferred into city ownership.

So what’s motivating the Town’s recent interest in handing over partial ownership of its parklands to the Tennessee River Gorge Trust? There are no tax advantages associated with the action since the town does not pay property tax (in fact there are potential disadvantages I will get to later), and the only heirs in this case are the future residents of the town. The motivation and sole benefit of the Town giving away the development rights for Town-owned lands is to protect them in perpetuity from development. A noble ambition, right? Not so fast.

As is all too often the case with actions taken by government, even a government with good intentions, there exist unintended consequences. Such is the case with the idea of giving a share of Town land rights to the Tennessee River Gorge Trust.

The first unintended consequence is the cost to taxpayers of Signal Mountain. While not hugely expensive on a government scale, entering into a conservation easement is not free. As with any real estate transaction, there’s the cost of due diligence, closing costs if you will. The Town is not exempt from these, and the River Gorge Trust has no interest in picking up the tab. My back of the envelope calculation, an educated guess really given that I have yet to see any hard figures from the Town, is that between title searches, land surveying, recording fees, legal prep fee, etc., the Town will need to lay out somewhere between $10,000 and $25,000 to close the deal. Of particular note is the survey that would be required to delineate parklands from the Signal Mountain Country Club (an ironic example of the Town sharing landownership, or more precisely land management with an outside entity). On one hand, $10-$25K may not seem like a lot of money. On the other, this is the same cash-strapped town that recently considered a wheel tax, garbage collection fees, and other assorted cutbacks just to make ends meet. Strictly within the Town’s Parks and Recreation Program is a unfunded backlog of maintenance and other projects that exceed well over $300,000, and this is just scratching the surface! I suspect $25K could go a long way toward these various unfunded Parks and Recreation needs, not least of which is replacing the Shoal Creek swinging bridge that was recently destroyed by severe weather and repairing the bridge on the Rainbow Lake Trail.

Another unintended consequence is litigation. Yes, litigation. By donating conservation easements to the Tennessee River Gorge Trust (or any outside party), the Town would essentially be entering into a partnership with a separate entity over which it has absolutely no control. The Town would have restricted abilities to make any land management decisions on its own lands other than those that would be stipulated in the easement. Even something as simple and relevant as a Management Plan for parklands would need to be reviewed by and agreed to by the River Gorge Trust. Conversely, the River Gorge Trust has a moral and legal obligation to protect the conservation easement against all threats, including potentially the Town. How might this occur?

Consider, for example, the rules that Town Council recently passed into law governing what types of activities are and are not allowed to occur within our parklands. One of these rules is “no camping.” Another is “no open fires.” Unfortunately, the Town has neither the will nor the resources to enforce its own park rules, evidenced by the frequently smoldering campfire rings, empty beer bottles, and of other signs of camping in the area below Rainbow Lake Dam. If the Town has rules on the books to prevent environmental degradation and/or natural resource management, but is complacent in enforcing the rules, we are arguably in violation of our obligation to manage the lands appropriately under the easement (before the easement even exists) and therefore at risk of litigation brought on by the holder of the easement. Another example is the recently expanded parking lot at the Rainbow Lake Trailhead. Had an easement been placed on this property prior to the project, the Town could have been liable for grading and paving the area. For the record, I could list other examples where litigation could be brought against the Town by an easement holder, but for the sake of brevity, I will resist.

A third unintended consequence is permanence in the face of an uncertain future. In the context of a conservation easement, the Devil’s always in the details. Because a conservation easement is intended to protect land, it must be restrictive enough to allow the easement holder the ability to protect the land (in court if necessary). Therefore, the language that makes up the easement, the terms of the easement, require placing bounds on any future use. While this may appear straight forward, it is implicitly complicated when it comes to allowing certain types of recreation and not others, especially for lands that are by definition public lands. For example, it was recently stated by a member of Council that zip lines might be a desirable use in some areas of Town-owned lands. While I’ll leave the merits of this idea for a separate discussion, it brings up the fact that we, today, cannot possibly comprehend what recreational desires may be in the future. Zip lines, as recreational activity, were virtually unheard of 10 years ago. Twenty years ago saw the advent of disk golf. Thirty years ago, mountain bikes had yet to be invented. Who knows what outdoor recreational pursuits future generations will conger up? Regardless, the establishment of conservation easements over Town parklands would leave future generations of Town citizens out in the cold when it comes to making decisions about what they can and cannot do with their public lands. Remember, we don’t own these lands; we’re simply borrowing them from future generations.

My final point, rather than being an example of an unintended consequence, is simply to point out that the use of conservation easements as a silver bullet, one-size-fits-all approach for land protection is a misguided concept. As a staunch advocate for conservation, and as a natural resource management professional, I applaud Town leaders for their willingness and desire to protect our collective park lands. But, there are more appropriate means of protecting our public lands from development. In a recent article in the Signal Mountain insert of the Times Free Press, the establishment of our National Park System was metaphorically referenced with respect to our Town parklands. It’s worth noting here that all of our National Parks were established through Congressional legislation as opposed to conservation easements (not withstanding some National Monuments that were created by Executive Order in accordance with the Antiquities Act). This is, in fact, the way public lands should be preserved—by law rather than by donating ownership rights to an outside entity over which we have no control.

To some extent, our parklands are already protected by local, state, and federal laws. The Town currently recognizes these areas as parks with the primary use as recreation (e.g., see Signal Mountain Town Charter, Signal Mountain Land Use Plan, Signal Mountain Park Rules and Regulations). This is arguably a pretty strong administrative record toward preserving and managing these areas as parks. Although I will admit that some future rogue Town Council could vote to change this designation, I must remind you that this is the same Town that just a few years ago recalled virtually an entire Council for not being restrictive enough on private lands! I have absolutely no doubt what the outcome would be if a Town Council of the future voted to develop all or part of our beloved parklands. Outrage! Please don’t let the pendulum swing too far, from not being environmentally protective enough on private lands, to being overly protective of public lands.

In addition to the Town’s existing regulations, our parks are already protected in perpetuity by virtue of the fact that state and federal funds have been spent to create and improve our trail system (e.g., a federal Transportation Equity Act of the 21st Century (TEA-21) Recreational Trails Program grant provided to the Town in 2000). Along with this funding came the stipulation that the trails and their adjoining lands must remain intact as recreational resources forever. It’s called, “Notices of Limitation of Use,” and it offers yet another layer of protection, albeit a little-known layer. Specifically, the condition attached to this funding states that the “property may not be converted to other than public outdoor recreations uses…” (http://www.tn.gov/environment/recreation/pdf/2010/nlu.pdf).

Current protections aside, I believe there is room for improvement. In fact, there are a number of ways to protect land from development without donating a stake in the land’s ownership to a separate entity. For example, the Town could establish higher standards for protecting our parks, much like has been done through the establishment of our National Park System. This could be done at no cost to the taxpayers and without controversy, simply by revising and strengthening existing Town laws as they relate to parks. Some have suggested the creation of a Town Wilderness designation (Rainbow Lake Wilderness is currently wilderness in name only). Provisions could include explicit language relating to ground disturbance, removal of native vegetation, control of exotics species, protecting riparian corridors and aquatic habitats, restrictions of motorized vehicle assess, and by establishing the requirement for developing and periodically updated management plans. These are all things the Town should be doing anyway.

In summary, conservation easements were not designed to protect public lands. It is the role of government, that is “We, The People,” to protect what is ours, not a land trust. Further, in a democracy the rights of all should be preserved, including (some may argue especially) those of future generations. By donating land rights and the underlying value to create a set of conservation easements over Town-owned parklands, we would in essences be taking rights away from future generations of Signal Mountain residents and sending a message that we don’t trust them to appropriately manage that which we all value so highly. We would in essence be acting like parents who cannot trust their children—in perpetuity. I urge you not to relinquish ownership and control over Town-owned lands to any outside entity. Instead, let’s work creatively to develop mechanisms to better manage and protect our fabulous natural areas, on loan to use from future generations.

Respectfully,

Jeffrey R. Duncan, Ph.D.

Biographical Information: Jeff Duncan has a doctorate in Ecology from the University of Tennessee with a minor in Environmental Policy. In addition to serving on the Signal Mountain Park’s Board for the last 7 years, he is a former member of the Signal Mountain Town Planning Commission, a Board Member of the Tennessee River Gorge Trust, and is employed as an ecologist by a major federal land management agency. He resides with his wife Laura on Ravine Road, adjacent to Green Gorge Park where together they are raising their two children. He can be reached at drjefe@epbfi.com.