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V. CRAFTING AN EFFECTIVE IMPLEMENTATION PROGRAM |
This chapter discusses several wildlife habitat protection techniques in greater detail. Because each Colorado community has its own topography, ecology, political climate, and goals for wildlife, it is unlikely that one community's wildlife protection program can simply be transplanted to a new location. In addition, the process of debating which alternative goals and tools may be appropriate for a city or county makes it much more likely that the resulting program will be successful. Finally, it is important to remember that wildlife does not respect jurisdictional boundaries. Because of the interjurisdictional nature of wildlife and natural resource projects, it is also important to coordinate activities with other local governments on the basis of biological or geographical boundaries rather than on purely political ones.
Within each community, a committee or task force should be established to create workable systems out of the policy directives created in ordinances and intergovernmental agreements. However, local governments should generally try to avoid establishing new administrative structures simply to deal with wildlife, since this will be a source of criticism that distracts attention from wildlife issues. Local committees implementing habitat protection programs should strive to get representation from the top levels of relevant boards -- since that is where many decisions are made. At the same time, every effort should be made to design public outreach programs and citizen participation efforts to ensure that genuine community values are reflected in the program. This is particularly true in considering new regulations and acquisition programs.
Although a variety of different tools are available to protect wildlife habitat, all of them must
conform to basic principles of constitutional law and to requirements of Colorado statutes. Those
restrictions are discussed in Chapter VI, which should be read in conjunction with this chapter.
America's local communities have engaged in land use regulation and growth management since the early 1900s -- when comprehensive planning first became popular. In the 1920s, the United States Department of Commerce began encouraging the individual states to adopt a standard zoning enabling act. In 1927, the United States Supreme Court ruled in Village of Euclid v. Ambler Realty Company(115) that zoning was a valid exercise of the police power inherent in local governments. Since that time thousands of cities, towns, and counties throughout the country have adopted comprehensive land use plans and have zoned their communities based on those plans. While comprehensive planning and zoning have become the basic tools of development and growth management in most places, there is increasing recognition that these traditional approaches have shortcomings and may need to be supplemented with other tools.
In Colorado, the state government has placed the primary responsibility for land use regulation with local governments. Counties, cities, and towns have a duty to prepare and adopt comprehensive plans for physical developments within their borders(116), although the General Assembly has set no deadline to adopt such plans and has provided no monitoring or enforcement mechanism. According to a survey conducted by the Colorado Division of Local Government in the early 1990s, 38% of municipalities and 20% of counties in the state had neither adopted a comprehensive land use plan nor had one under consideration.
Modernizing land-use regulations is the most direct method of providing wildlife habitat
protection. This can be accomplished by incorporating and combining wildlife habitat needs with
traditional land use controls. In a planning analysis, areas of conflict between human and wildlife
needs will arise. For example, a desired recreational trail along a river could be found to disturb
sensitive riparian habitat. By moving most of the trail out of the floodplain area and including rest
stops near the river, both objectives can be met. Another example might be utilizing wetland areas
for stormwater control and enhancing wildlife habitat. Although many regulatory tools are available
to promote wildlife habitat conservation, existing regulations need to be evaluated before any new
regulations are adopted. This section describes some of the more common regulatory methods of
protecting and enhancing wildlife habitat.
As early as 1980, some Colorado counties -- including Park, Saguache, Weld, and Pitkin --
were adopting general resolutions requiring that applicants for development approvals submit
information about the potential affects of the development on wildlife in the area. In their simplest
form, these local regulations simply provide that (1) the applicant would be provided with wildlife
information and maps that the county had on hand and/or a checklist of standards that the county
would use in reviewing applications, (2) the applicant had to submit its own analysis of the impacts
on wildlife (but did not have to hire a biologist or consultant), and (3) the application materials would
be referred to the Colorado Division of Wildlife for comment. In some cases, the regulations were
vague as to whether proposed developments could be denied because of unacceptable impacts on
wildlife or habitat -- they merely reiterated the fact that approvals and denials were within the powers
of the county commissioners. However, unless county zoning ordinances were themselves amended
to include the standards or checklists as explicit requirements of development, these application
systems probably did not create defensible wildlife habitat protection systems that could be used to
deny developments with unacceptable impacts.
The Colorado General Assembly has provided broad enabling authority allowing counties and cities to zone their communities, but zoning is not mandatory. According to the Department of Local Government survey noted above, 26% of municipalities in Colorado and 14% of counties had no zoning in 1992. Enacting new zoning regulations or revising existing regulations is often one of the most effective ways of using local powers to protect important habitat. Those communities that have not yet enacted zoning controls are forfeiting a highly effective and versatile method of protecting wildlife habitat.(117) Because each ordinance is tailored to the circumstances of the local government, zoning can address extremely localized issues that may be important for wildlife habitat protection.
In general, zoning ordinances are implemented through the use of both regulatory text and
maps. Zoning regulations can therefore often be updated or amended by addressing the specific
requirements in the ordinance text, or by adopting new maps that apply regulations to new areas, or
a combination of both. For example, if a Colorado community wanted to protect existing trees
because of their wildlife value:
Map amendments and broad text amendments are landscape level tools, while text amendments related to only as few districts or small areas are considered to be site level tools.
As the fourth option suggests, many of the protections described in this section as "specialized
zoning controls" could also be imposed through the use of the "special overlay districts" described
in subsection 3, and vice versa. In each case, the key question is whether the regulation is intended
to apply across an area that does not conform to existing zone district boundaries. If it does, then
an overlay map district should probably be used. Regardless of whether a text, map, or overlay
district approach is used, it is usually wise to consider whether variances or exceptions should be
available where strict application of the regulations would create an unusual hardship or where unique
circumstances make it unlikely that the regulation will in fact produce habitat protection benefits.
Use Restrictions
Often, the most dramatic way to protect wildlife habitat is to control the permitted uses on
habitat lands and surrounding areas. Through its listing of uses-by-right, conditional uses, and the
criteria for approval of conditional uses, a zoning ordinance can prevent traffic-intensive or people-intensity activities from occurring close to prime habitat areas, migration corridors, calving areas, and
similar lands. In some cases, it may be wise to amend existing zoning ordinances to convert current
uses-by-right into conditional uses subject to criteria designed to measure the impact of the activity
on wildlife. This approach would allow applicants for those uses to move forward with their projects
if they could design the site and manage their operations in wildlife-sensitive ways.
Density Restrictions
A second effective way to reduce impacts on wildlife is to control the density of development
in and around habitat areas. At the landscape level, minimum lot size requirements or maximum
residential densities can be amended to reduce the number of people on sensitive land and the
frequency of human-animal interaction. At the site level, projects can be designed with a gradient of
density away from the habitat sites. Areas near the habitat could have very low densities, and
development further back could have correspondingly higher densities. Through the use of gradients
and clustering of development away from prime habitat, wildlife impacts can be dramatically reduced
while maintaining the overall number of residential units on the land.
Tree Protection and Vegetation Management
One effective way to protect wildlife habitat is to regulate the cutting of trees or vegetation that the target species use for cover or food, and the use of this tool has been increasing dramatically. In 1984, a national study published by the University of Pennsylvania identified less than 100 tree protection ordinances in use in the U.S. -- with most of the ordinances coming from Florida or California.(118) By 1989, however, a survey of all incorporated cities in California showed 159 city tree ordinances, and more than 50% of those contained protections against removal of trees. Perhaps more importantly, tree protection laws are no longer confined to densely populated and rapidly growing states like Florida and California, they are being adopted everywhere. Some communities, such as Austin, Texas, and Thousand Oaks, California, prohibit the removal of any trees larger than a specified size.
Another important form of special regulation is vegetation management. Controlling the types of vegetation planted in, or removed from, an area is an effective way to attract desired species or discourage unwanted ones. Many approaches are available, but the more comprehensive and integrated ones will be more effective. For example, local regulations can specify the types of vegetation that must be maintained in designated greenways and wildlife corridors. Often, the vegetation requirements will differ from those in standard landscaping ordinances. Vegetation management can also be used to create a transition from undeveloped land to developed areas. In general, woodland and riparian areas are critically important for wildlife habitat, and such vegetation should be protected if possible. Wetlands should also be preserved to add biological diversity, filter runoff, and recharge groundwater systems.(119) Some communities like Lake County, Illinois, and Fairfax County, Virginia, require that a certain percentage of tree or vegetation cover remain on a site.
Whenever tree preservation or vegetation protection management ordinances are adopted, regulations should also clarify that trees and vegetation adequately protected by the developer will count towards the satisfaction of applicable minimum landscaping requirements in the zoning code. The effectiveness of vegetation protection programs often depends on the identification of what specific species of trees or vegetation will actually benefit a given species of wildlife in a given location -- and tree and vegetation protections are therefore generally considered as site level tools.
River Corridor Protection Standards
Zoning can also promote healthy wildlife populations by protecting river corridors. Several
good examples of river corridor protection are available. Park City, Utah, and several other
communities have adopted standards requiring that development be set back at least 100 feet from
rivers and streams and be buffered from view. Near Atlanta, Georgia, Fulton County has passed the
Chattahoochee River Corridor Tributary Act that creates a 35-foot buffer zone along all banks of
tributaries of the Chattahoochee, a National Wild and Scenic River. Similar regulations were upheld
by the Montana Supreme Court in a recent case. In the Denver Gateway area, development must be
set back from First Creek a minimum of 200 feet, and other buffering controls apply.
Requirements for Vegetative Barriers or Buffer Areas
Vegetative barriers can be used to increased the perceived separation between developed and
natural areas. They can also be used to either attract or repel different species of wildlife. For
example, in areas where big game is not wanted, zoning and landscaping standards can require the
planting of vegetation that large game animals to not like. On the other hand, the same code might
require the planting of species that attract songbirds. Similarly, buffer zones can be used to decrease
"line of site" distances for wildlife and humans, reduce noise disturbances of wildlife, protect critical
habitat, and protect bodies of water. In many cases, careful research will be required to determine
exactly how much buffer will be required in order to adequately protect the target species.(120) Barrier
and buffer requirements are usually site level tools.
Controls on Fencing
Where local wildlife goals call for keeping humans and large animals apart, zoning regulations
might require perimeter fencing that is impassable to certain species. On the other hand, if a new
development threatens to cut off a historic migration route or to separate related feeding areas, the
code might put a limit on the heights of fencing to ensure that the fences are passable to wildlife. In
still other cases, the goal may be to make sure that wildlife see the fences as they approach them, so
that they can avoid entanglement. In general, fences lower than 40 inches tall will not be a barrier
or a source of entanglement to large game animals. Fencing controls are usually site level tools,
because their effectiveness often depends on the specific location and layout of the land.
Controls on Public or Vehicular Access
Another important category of zoning control is access. In Colorado's cities, towns, and
counties, the issue of access is often an area of shared responsibility between the planning department
and the public works or transportation department, and effective controls will require the joint efforts
of both groups. In order to protect wildlife, it is often necessary to restrict human or vehicular access
to areas that wildlife use or routes along which animals migrate. Access restrictions could include
permanent road closures, locked or manned gates, or signs. In some cases, merely requiring that the
point of access be hidden from the public may be adequate, and may still leave a road or trail open
for use by emergency vehicles and others. Where vehicular access is the problem and pedestrian
access is acceptable, the zoning code or public works standards might require that minor roads be
converted into trails.(121) Again, because the appropriate level of access depends on the location and
layout of development, it is usually a site level tool.
Other Development Standards
In addition, specialized zoning regulations can be drafted to address numerous other development factors that affect wildlife. For example, window well covers might be required at ground level in order to prevent small animals from falling into areas from which they cannot escape.
Developments in rural areas might be required to implement garbage management standards so that the introduction of people into an area does not result in added opportunities for wildlife to scavenge for the food that humans throw away. Examples of garbage management techniques include requirements that no garbage be placed a outside primary or accessory structure, or that all garbage be disposed of in a single, well secured and odor-proof building serving an entire development and located far from habitat areas.
Finally, it may be necessary to adopt special standards restricting noise -- or nighttime noise --
in sensitive habitat areas. Sage grouse, which are periodically considered for listing as a threatened
species, are particularly sensitive to noise. Noise standards can be adopted as a performance standard
(such as "no more than X decibels as measured at the edge of the habitat area) or by explicitly
prohibiting the activities that create unacceptable levels of noise (such as all-terrain vehicle use,
hunting, or wood cutting).
Phasing of Development
In some cases significant wildlife benefits can be gained by requiring new development to be
constructed in specific phases. If the species to be protected can adjust to the presence of humans
nearby, a phasing strategy might require that the first stages of development occur far from the prime
habitat area, so that the animals are not presented with a dramatic disruption of their habitat. Instead,
construction can begin far away and proceed towards the habitat area, with development densities
declining as construction gets nearer to the buffer area or habitat. If the species to be protected is
unable to adjust to nearby development, it may still make sense to require construction to begin far
away from the prime habitat and corridor areas in order to allow the animals time to find alternative
habitat areas on their own.
Controls on Construction Activity
Any zoning regulation that involves the need to treat sensitive areas carefully should address
not only the desired outcome, but also the rules that must be followed during construction activity.
Even when carefully crafted standards are being implemented by a cooperative landowner or
developer, a few careless activities during the construction phase can destroy all the habitat that was
intended to be protected. Construction controls may need to address (1) prevention of accidental
cutting of trees or vegetation, (2) restrictions on excavation near roots or root masses, (3) limitations
on severe grade changes near the vegetation or in mating or calving areas, (4) restrictions on dumping
of construction materials or toxic materials near important vegetation or other cover, (5) limitations
on the use of fires to clear vegetation prior to construction, (6) limitations on the duration or hours
of construction, (7) limitations on timing of construction to avoid critical times for the wildlife, such
as calving periods, (8) limiting the number of project personnel or construction vehicles on site at
any one time, through the use of transportation pools or staggered shifts, (9) restrictions on
construction personnel access to wildlife areas, and/or (10) speed restrictions on access roads.(122)
Integrated Approaches
When considering a zoning approach to habitat issues, it is useful to use an integrated approach and to ensure that other regulations reinforce the new zoning provisions. For example, design standards for development need to be modified to include wildlife considerations. Stormwater management ordinances may need to reflect water quality controls in natural areas that support wildlife. Other sensitive lands regulations may be needed to implement or reinforce a wildlife protection plan, such as scenic highway controls, river corridor protection, and steep slope protection.
In addition, when drafting new zoning regulations, it is always important to keep in mind the
ability of the community to enforce the regulation and the cost and complexity of doing so. A
sophisticated ordinance carefully targeted to achieve subtle goals is meaningless if the city or county
does not have personnel who can and will enforce it or the budget to pay for the extra effort involved.
Often, a simple zoning requirement can be as effective as a complicated clause with much less effort.
Overlay zones are specialized zone districts that supplement -- but do not replace -- the basic zoning regulations applicable to a property. They are a useful tool when an area containing hazards, sensitive lands, or unique opportunities crosses several different standard zoning districts. Overlay zones are becoming a popular and effective method of protecting wildlife habitat and natural resource features for larger areas that include several underlying zoning districts. An overlay zone effectively eliminates the need to revise the regulations for each zoning district. Instead, it superimposes additional regulations specifically targeted to protect important physical characteristics of the land.
The most common example of overlay zones involves floodplains. Many local governments
adopt floodplain overlay zones that map those areas of the community subject to flooding and require
that development in such areas meet certain standards over and above the standards imposed by the
basic commercial, industrial, or residential zone district that already applies to the property. Overlay
zones that have particular importance for habitat protection are those that include provisions
regulating:
As a wildlife habitat tool, overlay districts have several advantages. They allow local
governments to tailor regulations to specific issues that are relevant to a discrete, mapable area. Since
they do not affect the underlying zoning governing permissible densities and uses, they avoid the need
to reopen old debates in those areas. The can also be drafted to reflect a balance of different goals,
such as environmentally compatible development and open space protection. At the same time,
overlay zoning has some drawbacks. If the terms of the zone are complicated, then it may require
skilled staff to implement and enforce them. Some residents will see them as adding a layer of
complexity to development approval processes. In general, overlay zones are used to address land
characteristics that extend across a wide area or a variety of properties, and they are therefore often
considered a landscape level tool.
Sensitive Lands
An increasing number of cities and counties in the Rocky Mountain West are adopting special overlay regulations to protect sensitive environmental areas. For example, Park City, Utah, recently adopted overlay regulations to protect a broad range of environmentally sensitive features including wetlands, stream corridors, steep slopes, ridge lines, and view corridors. In 1994, Summit County, Colorado, adopted a special overlay district and regulations stating that the county "seeks to fully protect wildlife habitats within the wildlife overlay zone from the significant adverse affects of development". The ordinance includes detailed definitions of what constitutes "significant adverse effects" of development and contains detailed provisions allowing the county to require a wildlife impact report from the developer either at the start of the application process or later if available information is not adequate to make a decision. The Summit County ordinance is comprehensive, flexible, and relatively short, all of which increase its usability and understandability.
Wildlife Corridors
A second popular use of overlay districts is to designate and protect corridors that serve as migration routes and provide continuous strips of habitat. They can also provide important aesthetic and recreational benefits to the community.(123) Because of this important overlap of wildlife and human benefits, the community may be able to support wildlife corridors without understanding the full ecological importance of open space preservation. Care should be taken not to plan for recreational access or trails, however, in areas where that will compromise wildlife goals. Not every corridor needs to be a hiking or biking trail. Because wildlife corridors need to be relatively continuous between patches of habitat in order to be effective, they are a good landscape scale protection tool.
Voters often think of greenways and corridors as parks and trails, but for wildlife a corridor can also be an undeveloped parcel, a drainageway, or a utility right-of-way. A carefully designed overlay can protect existing and natural features that promote species richness and diversity. They can also facilitate cooperative planning with other local government functions such as designing drainage and flood control systems. The important underlying objective is to minimize habitat fragmentation by creating or enhancing ecological connections between larger wildlife habitat areas. The protection of wildlife corridors and greenways can produce measurable results in a short time with a minimum of inventory and other staff-intensive procedures. Those initial positive results may also encourage local officials to pursue additional protection measures.
Often, the overlay zone requires minimum setbacks from known wildlife movement areas or riparian areas. Wildlife corridors can also be accomplished in conjunction with other projects. For example, a utility corridor through a forest area could be cut to provide a transition ecosystem and be more aesthetically pleasing than the traditional clear-cut swath. Flood and drainage control projects can utilize existing vegetation instead of replacing it with concrete. Stormwater management can be planned to support wetlands and riparian vegetation. Many other overlapping objectives exist within any local government system, and can be developed through interagency communication. In addition, certain uses can be prohibited or converted into conditional uses in an overlay area.
A greenway overlay district needs to be tailored to prioritize wildlife habitat needs while
accomplishing other purposes.(124) The more general objective underlying greenway and corridor
development is creating species diversity. While this is usually a positive goal, under certain
circumstances it may not be totally desirable. For example, an ecosystem for a disturbed specie could
be further harmed by a corridor that would allow natural predators to have ready access to the area.
Special considerations need to be made in some instances to protect species richness rather than
diversity. These and other potential issues can be resolved through the principles outlined in Chapters
II and III.
An Example from Tucson
One good example of the effective use of overlay districts for wildlife corridors comes from Tucson, Arizona, where natural resources are both limited and fragile because of the arid climate.(125) The Tucson area has lost 90% of its riparian vegetation through grading, bank protection, channelization of washes, and other flood control measures. Natural drainage corridors provide wildlife migration corridors between the Tucson area and the nearby Saguaro National Monument. In drought periods, wildlife wanders up the drainages in search of food and water and encounters problems because of interactions with the urban environment. Problems stem from direct human impact such as noise and pets, and from the loss of biodiversity and gene pool interaction due to cut-off migration routes. Tucson recognized the need to protect the wildlife, and in 1979 created the Tucson Mountain Plan that established a buffer area around a portion of the national monument even though the city boundaries did not reach the monument.
The City of Tucson adopted an environmental resource overlay zone ordinance in 1990 that was designed to protect the natural vegetation along washes originating in the national monument and mountain park areas. An important element was to maintain the natural vegetation in place because revegetation does not compensate for the ecosystem loss, especially in the arid desert climate. The ordinance includes tough restrictions but is geared to allow development that is compatible with the presence of wildlife, such as the strict protection of areas near washes. It allows revegetation if temporary encroachments are necessary. The approach is generally to encourage working with the natural resources so that wildlife is not driven away as development occurs in sensitive areas. The ordinance applies to all lot sizes and all types of construction permit applications.
Another feature that makes the ordinance effective is an option for developers that eliminates the requirement of a study of riparian resources if all development is outside of the 100-year floodplain. In Arizona, the 100-year contour can be quite wide, but simply leaving it alone substantially complies with the objectives of the ordinance. The ordinance has also been effective because it applies to both public and private projects. The city has also discontinued drilling wells for groundwater near the designated washes. The overall success of the ordinance can also be attributed to the project size, because the protected washes represent an area large enough to effectively function as wildlife habitat. The Tucson resource overlay zone ordinance provides a good example of a landscape scale protection tool.
4. AGRICULTURAL AND OPEN SPACE ZONING
Zoning and subdivision ordinances commonly require minimum lot sizes. In suburban single-family residential areas, minimum lot sizes typically range from one-quarter to two acres. To preserve agricultural areas, forests, wetlands, floodplains, and other types of wildlife habitat, Colorado communities have adopted a variety of special agricultural land and large-lot zoning programs that require larger minimum lot sizes. In addition, many of these ordinances increase the requirement that a specific percentage of each parcel must remain in open space. Lot size controls are generally considered to be site level controls.
A few communities have adopted exclusive agricultural zoning, which has proven to be quite effective in protecting farmland. To the degree that the community wants to protect types of wildlife habitat that are found in and around farming operations, this can be an effective wildlife tool. Generally, such zoning includes a large minimum parcel size -- often 160 acres or greater -- the exclusion of all non-farm land uses, and other restrictions such as limits on the number of building permits in the zone. Again, because they are usually aimed at large areas of farm or ranchland, agricultural zoning is a landscape scale tool.
In many cases, however, wildlife habitat does not overlap with agricultural areas, and agricultural zoning will not be appropriate. In such cases, large lot zoning may be a more direct tool for protecting habitat. In this approach, communities establish a large minimum lot size. For example, many Midwestern jurisdictions in Illinois, Michigan, Minnesota, and Wisconsin have required minimum lot sizes of 160 acres and more. In Weld County, agricultural districts require minimum lot sizes of 80 acres per dwelling unit.
Large-lot zoning provisions may come in a variety of forms. So-called "quarter-quarter" zoning allows each landowner one buildable lot per 40 acres of farmland. Once the allowable number of lots have been developed anywhere on the property, no more construction is allowed. This approach works best in rural areas with only moderate growth pressure and larger farms, and is used extensively in the rural areas around Minneapolis/St. Paul.
In contrast, sliding-scale zoning decreases the number of residences allowed per acre as the parcel size increases. Thus a 10-acre parcel may be allowed one residence, a 40 acre-parcel only two, and a 160-acre tract only three units. Sliding-scale zoning has shown to be effective in agricultural areas that are under development pressure. It allows some development to occur, but still preserves some farmland, particularly larger parcels. Adequate buffers must be established between agricultural and residential uses.
Large lot zoning has several features that work well to protect habitat. It prevents the
development of large tracts of open spaces and agricultural areas. In addition, it may reduce
inflationary land speculation by reducing the prospects for easy conversions to higher intensity, non-agricultural uses. It is also relatively simple to administer and involves little cost to government. On
the other hand, large lot zoning can be harmful to wildlife habitat protection if it encourages valley
floors or watersheds to be broken up into checkerboards of individual lots that ignore habitat values.
Communities that use large lot zoning techniques to reduce overall densities should generally offer
the alternative of clustering the same number of homesites in portions of the area without high habitat
value -- and should consider offering a density bonus for such clustering. It will often be more
economical and marketable for a large landowner to create ten smaller homesites near existing roads
and utility systems than to create ten large lots scattered across a valley -- and will also have less
impact on wildlife. In addition, communities that pursue large lot zoning should ensure that the
standards they adopt allow for some economic use of each parcel of land.
One alternative to traditional zoning is performance zoning, which regulates development primarily by limiting development impacts rather than densities or uses. Such ordinances may target either a single type of impact or a broad range of impacts -- such as traffic generation, pollutant emissions, stormwater runoff, and open space preservation. Developments that meet these standards are allowed regardless of the whether they are residential, commercial, industrial, or institutional, but even low density developments that fail to meet the standards are prohibited. While performance zoning regulations have been used since the 1950s, they have become increasingly popular as local governments have realized that the impacts of development are relatively unrelated to the category of land use in question.
In the area of wildlife protection, performance standards may be expressed in terms of minimum open space ratios, maximum vegetation disturbance limits, maximum noise or glare limits, minimum contiguous landscaping standards, or similar standards. Since habitat protection focuses on the impact of development on critical areas, performance zoning is basically well suited to wildlife protection.
Sophisticated performance zoning ordinances targeting multiple impacts may incorporate point systems. Development proposals are assigned point values for their ability to minimize a variety of impacts, and all development proposals must achieve specified minimum scores. Breckenridge and Boulder, Colorado, are examples of communities that have embraced point systems, with emphasis on protection of environmentally sensitive areas and promotion of high-quality development. Performance zoning may either supplement or replace traditional zoning regulations. Thus, an overlay zone district might incorporate performance standards rather than specific development requirements. Communities that chose the performance approach, however, should make a commitment to careful measurement of individual impacts of development.
Performance standards have several distinct advantages over traditional zoning in some circumstances. They provide opportunities for developers to design innovative development layouts that can accommodate development while attaining wildlife goals. It does not presume that the solution contained in a set of physical zoning regulations is the only way to achieve the community's goal.
In other circumstances, however, performance zoning can have disadvantages. It cannot
prevent improper location of development when the problem is caused by a subjective factor that
cannot be measured. Moreover, performance zoning systems often require sophisticated skills to
measure different impacts on wildlife protection and may require additional staffing or consulting
services in order to work properly. In addition, the impacts of development on wildlife are often
incremental. Under detailed performance zoning ordinances, planners must be able to understand and
evaluate complex studies containing technical analyses and projected impacts, so as to exercise
informed discretion in allocating points and requiring impact mitigation measures. Often, local staff
need to know as much about a technical field of planning as the consultants who prepare the studies
measuring anticipated impacts. In cases where the incremental impact of each development is small,
but the collective impact of all developments is large, performance zoning may be poorly suited to
wildlife protection. Instead, it may be simpler for the community to adopt an objective development
standard -- such as a setback or spacing requirement -- to minimize the incremental impacts of each
construction project. Since the philosophy and results of performance zoning emphasize impacts on
a specific species on a specific site, it can be considered as a site level control.
An Example from Fort Collins
One good example of performance zoning in Colorado is the Fort Collins Land Development
Guidance System ("LDGS"). Created in 1979 in response to an unsuccessful ballot initiative that
would have placed a limit on housing starts, the LDGS has won several national awards.
Conventional zoning is also used in Fort Collins, but developers have the option of working under
the LDGS in many areas of the city. The LDGS does not specify a particular use or uses for any
parcel of land outside the core of the city -- it grants substantial latitude to the developer to propose
a wide variety of land uses. The LDGS regulations focus on the quality of development and
insulating adjoining uses from any adverse impacts through the use of a variety of performance
standards, particularly relating to buffering and landscaping.
6. SUBDIVISION REVIEW STANDARDS
In contrast to zoning regulations, subdivision approval standards address primarily the size and shape of lots that can be made available for development and the amount of infrastructure that must be installed before development can proceed. Although originally designed to protect consumers from the sale of substandard or undevelopable lots and to protect the public from low quality development, subdivision standards have expanded to include many restrictions aimed at controlling the impacts of development. Under Colorado law, many controls that could be included in zoning regulations can also be addressed in subdivision controls, and vice versa. While Colorado cities and towns may appoint a planning commission and adopt subdivision regulations if they wish, Colorado counties are required to do both. Counties do not currently have the power to directly regulate the subdivision of land into parcels larger than 35 acres.
In order to protect wildlife habitat, for example, subdivision standards could require the use of large lots to limit the number of people living in the area, or could prohibit the creation of lots in sensitive areas. In addition many modern subdivision ordinances impose strict buffering requirements in an attempt to protect undeveloped areas. Subdivision regulations could also include standards requiring that storm drainage be managed to promote riparian vegetation where that is desired or to avoid disturbing desert vegetation when that is important to the species. Similarly, lot size and shape regulations could be structured so as to minimize the number of different lots that are laid out along an important drainage or migration corridor, because human activity is often proportionate to the number of houses in the area.
While a public policy to restrict land subdivisions in an entire valley or watershed would be
a landscape level tool, the drafting of specific subdivision standards to protect habitat values is a site
level control.
Land Dedication Requirements
Colorado statutes explicitly authorize county governments to require landowners to dedicate
a portion of their land as future school and park sites as a condition of development. The Colorado
and U.S. Supreme Courts have required that the required dedications be roughly proportional to the
impacts of the proposed development. Local governments have considerable latitude to designate
which land should be designated for future parks, and to decide whether the appropriate park for that
area should be an active or passive area. Accordingly, cities, towns, and counties can use their
subdivision powers to require the dedication of habitat areas as open space to be used for passive
activities. This topic -- and the landmark case of Dolan v. City of Tigard(126), which sets constitutional
standards for land dedications -- are discussed in more detail in Chapter VI.
In addition to zoning and subdivision-type controls, many local governments have discovered new and unique tools that will help to protect wildlife habitat. Although most of these solutions could be included in a zoning or subdivision ordinance, they are sometime adopted as a special permit requirement or a general policy of the government.
One increasingly popular tool is the creation of legislatively adopted "sanctuaries" for existing types of land use. Many agricultural areas encounter difficulties when new development locates nearby. The problems begin when relatively low land values attract residential or commercial development. After construction, new residents find that the pre-existing agricultural uses emit odors and stir up dust. These issues lead to conflict, often involving expensive litigation, and in many cases the initial users leave the area to seek new locations to avoid such conflicts and expenses. When the original agricultural area served as wildlife habitat, this leaves the habitat open to development. Where local governments wish to retain agricultural and wildlife uses, they can create sanctuaries that prevent the encroachment of incompatible uses. "Right to operate" provisions in such sanctuary zones immunize local farmers or ranchers against nuisance claims, rezonings, or other pressures to require changes in operations that would be detrimental to the farm or ranch and might lead it to stop operations.
The Colorado General Assembly has adopted a variation of this protection against nuisance claims by specifying that an agricultural operation cannot be defined as a nuisance. More specifically, "an agricultural operation is not, nor shall it become, a private or public nuisance by any changed conditions in or about the locality of such operation after it has been in operation for more than one year." Local ordinances that define agricultural operations a nuisance or provide for their abatement as a nuisance are void.(127)
Care should be taken in drafting sanctuary protections, however, to avoid making them so
tight that they exclude all other uses. If alternative uses are prohibited, then when market forces
render the farming or ranching operation unfeasible there may be increased pressure to rezone for
development rather than move to an alternative -- less intensive -- permitted use. Because they are
generally adopted as a policy applicable to an entire county or a large area, sanctuary regulations are
a good example of a landscape level tool.
8. AN OVERALL GROWTH MANAGEMENT SYSTEM
Protections for wildlife habitat can also be integrated into overall growth management systems
through the use of urban growth boundaries, targeted growth strategies, and capital improvement
programs. Again, because these tools generally address growth patterns in an entire jurisdiction, they
are good examples of landscape scale protection tools.
Urban Growth Boundaries
The use of growth boundaries allow cities to guide new development patterns by directing urban services to such areas and withholding them from others. In particular, communities with urban growth boundaries can ensure that those boundaries do not include sensitive habitat areas. If they do, then the city or town may want to re-think where it wants to install infrastructure so as to avoid habitat areas that it wants to protect.
The regional government for the Portland, Oregon, metropolitan area has delineated an urban growth boundary administered by local governments in compliance with state legislation. This program has proven generally successful in confining growth to the areas within the boundary. Within the boundary, development has often bypassed previously "urbanized" areas and located in outlying "urbanizable" areas (defined as available and suitable for urban development upon the extension of urban services), but the program has been generally successful at containing leapfrog development, preserving more outlying areas for agricultural and other less intensive uses, and maintaining order in metropolitan growth patterns.
Some communities have established urban growth boundaries even without a statewide
mandate. The best known example in Colorado is the City of Boulder, which has delineated
boundaries for the extension of urban services and has worked with Boulder County to channel
growth to areas adjacent to already developed areas, thus precluding development and costly service
extensions in the mountainous areas bordering the city. A number of cities in Larimer County
including Loveland and Fort Collins have drawn urban growth area boundaries.
Targeted Growth Strategies
Another similar approach is that of designating development areas to which new growth is targeted within a region. Again, a targeted growth system could reduce development in large areas of a county or region where sensitive habitat areas exist. One recent example comes out of the MetroVision 2020 Task Force of the Denver Regional Council of Governments. As an alternative to dispersed development patterns that may result as the region adds a predicted 900,000 people over the next 25 years, the MetroVision 2020 Task Force has recommended consideration of development of satellite cities where growth would be channeled. These satellite cities -- which could be existing communities or new planned communities -- would be physically separated from the central urban area by open space or undeveloped land. Most of the new growth would be directed to existing satellite communities with the capacity for growth, including Castle Rock, Bennett, Evergreen, Brighton, Erie, Longmont, and Idaho Springs. Other urban growth would be limited to existing cities and already approved master planned communities. In some cases, this would tend to preserve contiguous areas of habitat and/or wildlife corridors between the settlement centers.
Several Colorado counties have adopted the targeted development approach as part of their overall land use management system. For example, Larimer County has entered into several intergovernmental agreements with some of its constituent cities that target new development to already built-up areas such as Fort Collins and Loveland. However, not all municipalities in the county have signed such agreements, and thus some growth has occurred in several smaller, outlying communities with limited infrastructure and services. Even where targeted growth agreements have been signed, they often do not take into account wildlife concerns.
In general, targeted growth arrangements cannot be effective as habitat protection tools unless
they involve the cooperation of at least the county government or a regional planning area. Although
individual cities and towns can protect limited areas within their borders, efforts to protect nearby
areas will always be subject to development permitted by the county or an adjacent city or town.
Capital Improvements Programming
In addition to urban growth boundaries and targeted growth schemes, Colorado's local governments can incorporate wildlife protection goals into their capital improvements programs and budgets. In many jurisdictions around the country, a strong relationship has been shown between the presence of infrastructure and development of the land. Local governments can effectively discourage the development of habitat areas by not planning for or budgeting for water or sewer lines or roads in the area, and by discouraging the creation of special districts to finance those elements of infrastructure. Since the creation of all water, wastewater, and metropolitan districts is subject to the approval of either the county or city government in which it is located, local governments can prevent the creation of infrastructure financing districts by withholding that approval.
9. COORDINATION WITH OTHER LAND DEVELOPMENT CODES
Wildlife habitat protection does not exist in a vacuum. It must be consistent with, and
reflected in, the other local government land use control systems. In addition to the types of zoning,
subdivision, and growth management controls described above, wildlife protection standards must
be coordinated with street and access codes, annexation policies, and environmental control systems.
Street design codes should be drafted to allow smaller and less disruptive streets near wildlife areas,
and to allow alternative access patterns directing traffic movements to less sensitive areas. Local
annexation policies should reinforce habitat protection by providing that annexation or development
agreements must be consistent with wildlife protection plans and regulations, and to discourage the
extension of utilities into sensitive areas. Unless all of a city's or county's land use controls work
together to treat habitat areas in a consistent way, they will probably not be effective.
A second important category of tools for implementing habitat protection is incentives. Many
local governments that are reluctant to adopt land use regulations are more willing to adopt
incentives. With careful attention, incentives can sometimes be as effective -- or even more effective
-- than regulations. When crafting an incentive approach to wildlife habitat, however, it is important
to ensure that the incentives offered to enhance wildlife do not undermine other important community
goals. Once again, habitat protection does not exist in a vacuum, and local government incentive
programs need to be integrated as carefully as its regulatory programs.
Perhaps the most common form of incentive is development density bonuses. In these programs, the local government offers landowners a chance to construct more residential or commercial development on their land if they will take certain actions to promote wildlife. The required actions can include locating development outside of prime habitat areas, implementing groundwater runoff controls to avoid erosions into streams used by wildlife, planting specific types of vegetative cover that attract (or repel) wildlife, or avoiding glare and traffic movements near wildlife areas or corridors. The amount of additional development density allowed should vary depending on the importance and difficulty of the landowner's actions to promote wildlife, but are commonly in the range of a 25 to 50% bonus. Larger bonuses may create fairly significant development impacts and may raise questions about the rationale behind the base zoning density. Care should be taken to avoid granting incentives that result in additional wildlife impacts that are greater than the benefit gained by the landowner's habitat protection measures.
An Example from Routt County
In 1995, Routt County, Colorado enacted a density bonus intended to encourage landowners
to submit their property to the county's subdivision procedures instead of opting for an exempt 35
acre tract division. After extended negotiations between county staff, environmental interests, and
ranchers, a compromise was reached in which the county created an expedited review procedure for
large tract subdivisions. Under the Land Preservation Subdivision process, a landowner voluntarily
agrees to submit a proposed subdivision to the county government for review on six issues:
preservation of agricultural lands, visual resources, setbacks from natural features, infrastructure,
geological hazards, and wildlife habitat. Areas not designated for development must be preserved
as open space through development agreements or other techniques, and the landowner is offered an
incentive of one additional buildable lot per 100 acres of land preserved from development. In
addition, the procedure calls for the county government to complete its review within 12 weeks. The
procedures remains optional, however, and those landowners who still wish to pursue 35 acre
subdivisions may do so without county involvement.
A second form of incentive is cluster zoning, which provides flexibility for developers to construct buildings in clusters while remaining within the constraints of overall average density restrictions. Under cluster zoning, maximum densities are calculated not for individual lots, but for overall development areas. Rather than requiring uniform intervals between building sites, such ordinances often waive minimum lot size and dimension requirements to allow tight clusters of buildings in some areas, with other portions of the parcel set aside for open space or habitat uses. Often, the local government imposes a requirement that clustering cannot occur unless most or all of the land that is left undeveloped is protected from future development through the use of a conservation easement or deed restriction. In other cases, the government reserves site plan review authority over the clustered development to ensure that the layout, visibility, and design do not create negative impacts on the area. Cluster zoning concepts are widely used to permit development while setting aside areas for the preservation of sensitive areas, such as forested areas, wildlife habitat, wetlands, agricultural areas, and other such resources. While some cities and counties allow clustering throughout their jurisdiction, others target the tool where it is particularly important to protect sensitive land or habitat.
Cluster provisions have several advantages to both wildlife planners and the public. They
provide flexibility for planners and developers to design innovative development layouts that can
accommodate development as well as environmental or land preservation objectives. They can also
preserve significant tracts of wildlife habitat while still protecting land values. On the down side, the
successful administration of cluster ordinances requires a sophisticated planning staff that is able to
exercise discretion in determining appropriate and feasible development layouts. In addition,
clustering may not be an appropriate tool if all of the parcel is in a sensitive habitat area or if the
community needs to encourage shifts of development density between different ownerships, rather
than within an ownership. In such cases, a transferrable development rights system may be a better
approach. Finally, if a substantial number of cluster developments are approved in close proximity
to one another, the resulting development may have the same impacts as suburban sprawl and may
significantly change the character of an area.
An Example from Pennsylvania
One good example of cluster development comes from Montgomery County, Pennsylvania. The intent of the Land Preservation District in Montgomery County is to preserve open space and natural lands on development parcels of 10 acres or more. The regulations permit development of compact residential areas that are carefully located, designed to reduce their perceived intensity, and which preserve agricultural lands, so long as a minimum of 75% of the site is protected as private open space.
3. TRANSFERRABLE DEVELOPMENT RIGHTS
A third form of development incentive for habitat protection is density transfers, which are usually implemented through a transferrable development rights ("TDR") program. Density transfers involve the shifting of permissible development densities from unsuitable development areas to more appropriate sites -- in this case from important habitat areas to less important areas. Under this concept, the local government studies and designates appropriate "sending" and "receiving" areas on a map. A participating landowner in a sending area transfers development rights to another landowner in a receiving area, who increases his or her development rights in that area beyond what would otherwise be possible. In general, the price of development rights being transferred is left to the private market, and the local government does not try to affect that price one way or another.
TDR programs can be designed to be voluntary in the sending and receiving areas, mandatory in both areas, or voluntary in one area and mandatory in the other. The effects of the tool will depend greatly on which option is chosen. In addition, the success of the program in protecting wildlife habitat will depend in large part in the careful balancing of opportunities in sending and receiving areas, so that excessive sending areas do not flood the market and restrictive receiving areas do not limit the usability of the credits for sale. Importantly, TDR programs seldom work if the underlying zoning is too generous with development density, because neither potential buyers nor potential buyers of transferrable rights have any incentive to participate.
TDR systems have several important advantages as land regulation tools to promote wildlife.
They help alleviate pressures and incentives to subdivide or develop land by offering some means for
landowners to recoup property values while maintaining low-density land uses. In addition, where
land use regulations impose low-density restrictions on development rights, TDRs restore the value
of those rights to the landowners, thus providing a shield against takings claims. Because TDR
programs usually aim to move densities from one large area of the community to another, they are
best considered as a landscape scale tool.
An Example from Maryland
The TDR concept has been applied in a number of jurisdictions. Montgomery County,
Maryland, has used a TDR program to protect agricultural lands against strong urban growth
pressures. The Montgomery program involves three elements: (1) the identification of a "sending
area" that includes the county's best agricultural lands; (2) downzoning in the sending area from 5-acre minimum lots to 25-acre minimum lots, with landowners retaining transferable development
rights equal to their original 5-acre lot development rights; and (3) the identification of a "receiving
area", in which landowners may augment their development rights with additional rights purchased
from the sending area.
An Example from New Jersey
One of the most successful TDR programs for natural area protection has been employed in the Pinelands National Reserve in New Jersey. To date, over 10,000 acres have been preserved, and the TDR market provided by the program was recently held to be an important consideration in rejecting a takings challenge to the Pinelands' strong system of regulatory controls designed to protect existing agricultural lands and open space.
A fourth form of local government incentive to promote the protection of important habitat is the use of grants and loans. Local governments can make grants or loans to support the acquisition or management of important wildlife areas, to promote wildlife education, and complete wildlife inventories. In the alternative, the local government can apply to the state and federal governments or to non-profit foundations and associations for money to fund such grants.
In addition, grant and loan programs can sometimes be used to supplement regulatory tools. At the same time they change their regulations regarding land development, some communities make financial resources available to help landowners cover the added cost of complying with those regulations.
Grants and loans have several advantages as a habitat protection tool. Their effect can be direct and immediate. Development proposals can be changed, information can be collected, and education efforts can begin. In addition, public loans and grants can often be used as matching funds to obtain additional private investment or financing. A little seed money can go a long way towards a long-term financing solution. They can also make the adoption of new regulations more politically acceptable by giving the public an easy means to comply with them. Revolving loan funds can go further by allowing a fixed amount of government seed money to be used over and over again as the recipients repay the loans.
But there are disadvantages, too. Grant programs can be expensive, and must compete for attention with other local government priorities. Loan funds can be less expensive in the long run, but take staff time to administer and enforce. In addition, if they are not defined carefully, grant and loan funds can encourage dependency. Worthy programs can begin to expect regular financial help from the local government, rather than working on a more sustainable system of long term financing.
A fifth form of incentives to preserve habitat is preferential tax treatment. Although Colorado's system of property assessment and taxation is regulated by the General Assembly and by constitutional provisions such as the TABOR and Gallagher amendments, there are still some opportunities for local governments to craft incentives for preservation of important lands.
Use Assessments
Where potential profits motivate landowners to convert low-density land uses to higher intensities, or to convert important habitat areas into intensive development areas, preferential tax programs can counter these motives by providing incentives to maintain existing low intensity uses. One of the most important forms of preferential taxation is current use assessments. Local governments levy real property taxes against the assessed value of property. Under standard practice, tax assessors determine value based upon the "highest and best use" of a property, which reflects the highest potential use of such property. Current use assessments alter assessment practices by requiring assessments to reflect actual current uses rather than prospective potential uses. Where development pressures create higher property values and tax burdens, current use assessments provide tax relief to landowners who choose to continue agricultural, forestry, rangeland, or other low-density uses that are consistent with continued habitat value.
The Colorado Constitution provides a preferential tax system to encourage continued agricultural land uses. While other properties are valued by standard practices considering various potential uses, assessors must value agricultural land "solely by consideration of the earning or productive capacity of such lands . . . ". Thus, despite the potential highest and best uses that may be available, where a landowner wishes to keep land in continued agricultural use, tax assessments will reflect such continued use, rather than the value of land under more intense uses.(128) On the other hand, Colorado taxes nonagricultural open space at twice the residential rate, increasing pressures to develop such property, even if the landowner and local government would like to preserve the property as open space for other public purposes. Where agricultural land functions effectively as wildlife habitat, agricultural use assessments can serve a dual purpose.
Another application of the current use assessment concept allows private landowners to contract with government agencies to restrict the use of their properties. Such agreements limit the range of potential highest and best uses, thereby decreasing the assessed value of the properties and providing tax relief to landowners who agree to such restrictions. Often, this can be done through a conservation easement or deed restriction as well as through a development agreement. Because use assessments are granted based on the use of a specific parcel of land, they work as a site level habitat protection.
Tax Credits
Another tax incentive approach that has proven to be successful in preserving open space involves offering income tax credits for the value of approved conservation easements. Federal tax deductions are available for donations of qualifying open space or open space easements to non-profit organizations. This tool is frequently used by private land trusts and is discussed in more detail below. In general, preferential tax systems present an equitable way to encourage open space or low density uses by requiring tax assessments to reflect current rather than prospective values. They also help accomplish land conservation goals without the use of regulations. On the other hand, most preferential tax systems cannot delay development pressure indefinitely. Potential profits from the development of habitat land can easily outweigh the benefits of a property tax break. Where there is no recapture provision, as in Colorado, preferential taxes may reward land speculators and developers by lowering holding costs until the development market creates sufficient profit incentives for conversion to nonagricultural uses. Finally, such tax systems do create indirect public costs in the form of foregone tax revenues.
Since tax credits for easements depend on the specific parcel of land involved, they are primarily a site level tool.
One of the most effective ways of preserving wildlife habitat is to buy it. Local ownership often simplifies management decisions and provides a relatively permanent way to protect the habitat. Government acquisition strategies can be used effectively as a supplement to regulations, especially where control of the land is necessary to prohibit essentially all development in sensitive environmental areas or to prohibit general public access for recreational and other purposes. While regulatory protection programs must leave an economic use of the land for the owner, government ownership removes that obstacle, because the government is essentially agreeing to use the land for non-economic purposes. Thus, when communities believe that the only way to protect habitat is to prevent virtually all use of the area, they should seriously consider fee or development rights acquisition programs.
Ownership programs generally fall into two categories. First, some programs seek to buy the land itself, which are often called "fee ownership" programs. The second type of program seeks to buy the rights to develop the land into uses inconsistent with its role as wildlife habitat, and are often called "sellback", "leaseback", or "development rights" programs. Local communities interested in obtaining land or development rights for habitat preservation should also think about incentives that may be available to induce the landowner to donate the land to the community or to a third party who will manage it. Often, such donations can be a way for wealthy landowners to obtain a valuable tax deduction. Among other things, the local government can also agree to name the protected habitat area in honor of the landowner making the donation.
Because acquisition programs focus on the need to acquire specific areas of land and the value
of that land, they are often thought of as site level tools. However, if the community pursues a
consistent strategy to acquire lots of land or development rights in a defined habitat area, the result
can be a very effective landscape level protection.
Ownership of land includes rights of possession, access, exclusion, disposition, and rights to specified uses such as mining, hunting, or development. Where one party owns the entire bundle of these rights, that party owns the land "in fee simple." Acquisition of land in fee simple gives the purchaser full title to and possession of all rights associated with the purchased property, subject only to the constraints imposed by nuisance laws and valid public regulations -- including zoning and subdivision. Fee simple ownership provides the simplest and most effective means of implementing habitat control -- where the government owns the land, the government controls its development, redevelopment, preservation, and access. Once the government entity assumes fee simple ownership, it has a broad range of options: The government may reconvey selected interests in the land, restrict future uses of the land, lease the land, or otherwise control the bundle of property rights in a manner consistent with its habitat objectives.
The late 1980s and early 1990s were good times for local governments to be purchasing open space, because the downturn in the Colorado economy led to a buyer's market for undeveloped and partially developed land. The Federal Deposit Insurance Corporation and the Resolution Trust Corporation were actively selling inventories of land obtained through savings and loan foreclosures and collapses. In addition, those banks and saving and loan associations that remained in business were often very interested in selling their inventory of "real estate owned" properties obtained through foreclosures. Although the current upswing in the state's economy has dramatically reduced the number of below market sellers, local governments should continue to monitor the activities of banks and the federal government as land sellers, and should be ready to take advantage of opportunities to acquire prime habitat parcels.
One drawback of fee purchase programs is that they tend to be expensive. Land itself is often expensive to buy. In addition, the city or county needs to take into account interest on any debt that was issued for the purchase, foregone interest on alternative investments, foregone taxes, and maintenance costs for the land. Managing, maintaining, securing, and enforcing public access restrictions on fee ownership land can be a very expensive proposition. Over a period of years, management costs may actually exceed the original purchase cost of the land. For that reason alone, many jurisdictions decide not to purchase land in fee simple, and instead concentrate on controlling the development potential of the land.
A second drawback of fee simple purchase is that it may make it more difficult to prevent public access to the land. Once land is owned by the local government, many citizens assume that it is available for their use as needed. Since public use may seriously compromise the value of wildlife habitat areas, the right of the public to use some areas must be restricted if the land is to serve its purpose. If the nature of the species and habitat involved are such that human presence must be kept to a minimum, it may be more useful to consider the acquisition of easements or development rights to achieve wildlife goals. Such techniques can help control the owner's use of the land in order to protect its habitat value while leaving the basic ownership of the land in the hands of a private party who can exclude the public from the land.
A number of state and local sources may be able to fund acquisitions of land to be used for
park or other open space purposes. The Great Outdoors Colorado Trust Fund is the biggest and
most popular example. The creation, operations, and funding available through Great Outdoors
Colorado are described in more detail in Chapter VII. A second source of purchase capital is local
tax revenues.
Examples from Boulder and Boulder County, Colorado
The City of Boulder has the oldest open space program in the state, and has used a specially earmarked .73 percent sales tax to raise $100 million and buy 25,500 acres of dedicated open space in a greenbelt around the city. The sales tax revenue stream now produces about $15 million each year. Another 8,000 acres of mountain parks in the Boulder foothills have been separately set aside through the parks and recreation department. Some of the Boulder open space land is leased to farmers to maintain the agricultural uses. Other parcels are maintained as natural areas, allowing passive recreational uses such as walking, bicycling, and horseback riding.
Boulder County has implemented a land purchase program since 1975. The program was originally funded through the county general fund and the state lottery funds, and has now resulted in the purchase of 16,000 acres of land. Beginning with a budget of about $1 million, the appropriated funds grew to a $2.5 million acquisition budget and a $1 million operating budget in 1993. A new .25 cent sales tax was approved in 1993 and has been used to fund a $34 million dollar bond issue, two-thirds of which is already committed. Approximately 30,000 acres have been purchased through the Boulder County program. The current strategy is to purchase as many of the identified priority parcels as possible with the bond funds, then gradually move into more of a stewardship and maintenance role.
An Example from Jefferson County, Colorado
Jefferson County, Colorado, has had an open space acquisition program in place since 1972.
Funded by a one-half of one percent sales tax that generates $22 million in annual revenue, the county
has spent approximately $123 million to acquire 29,500 acres of land. The lands are used for a
variety of purposes, including natural areas, buffers, and trail corridors. Open space funds are also
distributed to eight cities in the county, with Lakewood receiving over $13 million and Arvada
receiving over $11 million to date.
An Example from Douglas County, Colorado
Douglas County, Colorado, initiated its open space program in November 1994, by approving
a one-sixth percent sales and use tax, part of which is shared back to the municipalities within the
county. During its first full year of operation, the program raised about $2 million. A nine member
Douglas County Open Space Advisory Committee makes recommendations on expenditures of the
open space funds to the County Commissioners. Recommendations to date have included a wide
variety of projects including both fee purchases and easement purchases, and have resulted in eight
separate transactions protecting about 780 acres of prime open space. Half of the tax revenues are
spent on administration, about 12% on parks and recreation facilities, and the remainder for open
space and trails.
An Example from Larimer County, Colorado
In November 1995, Larimer County voters approved an eight year, one quarter percent sales tax for open space, and designated that 55% of the resulting revenues go to the cities and the remainder to the county. The sales tax is expected to produce about $6 million per year.
2. INTEGRATION INTO PARK AND OPEN SPACE PURCHASE PROGRAMS
Many Colorado communities already have a program in place for the acquisition of open
space for parks and trails. Most often, such programs are included in the city, town, or county's
regular capital improvements programming, where they must compete with other pressing needs for
public investment. In other cases -- notably Boulder, Jefferson, and Douglas Counties -- the voters
of the county have approved a separate tax to fund a free-standing open space acquisition program
that does not need to compete for scarce public monies. Where such programs exist, it may be
possible to expand them to include the acquisition of important habitat lands merely by amending the
list of eligible types of land and criteria for the selection of habitat lands. In many cases, this
expansion would be consistent with the intent of the existing program, and would not require the
creation and funding of an open space program specifically designed for wildlife. In cases where open
space purchase programs have been approved through voter referendums, however, great care should
be taken to ensure that an expansion of the program is clearly consistent with the referendum
approved by the voters.
Once the government owns the land, however, it does not need to retain ownership of all of the bundle of sticks in order to protect wildlife habitat. It can use its position as the owner of the land to facilitate the rezoning of the land or to impose negative easements, deed restrictions, or development agreements, and then resell the land to a third party. This is known as a "purchase and sellback" transaction. Alternatively, a city or county government could purchase the property and then lease it to a third party subject to conditions and restrictions as provided in the lease. This is known as a "purchase and leaseback".
Negative easements impose restrictions upon the landowner's property rights, but do not grant affirmative rights. The "purchaser" of a negative easement simply imposes a restriction on the land. For example, in the area of wildlife habitat protection, a negative easement retained by a local government when it resells the land might state that the new owner may not develop property, disturb vegetation, or increase or change stormwater flows in any way within a specified distance of a riparian corridor. The government must still monitor the land use, however, to make sure that the restrictions are being observed, or those restrictions could conceivably lose their legal enforceability through neglect. One way to help enforce the terms of a sellback transaction is to include a reverter clause in the deed providing that title will revert to the government in the event significant provisions are violated.
Boulder County, for example, owns over 1,000 acres of land that is leased back to farmers.
Several of the landowners with whom Boulder County is currently negotiating purchases are
requesting purchase and leaseback arrangements. Denver has leased much of the land purchased for
Denver International Airport back to farmers to keep it in agricultural uses until it is needed for
runway or airfield expansions. To the degree that continued agricultural usage is compatible with
protection of the desired wildlife species, sellbacks and leasebacks can be effective site level tools to
reduce the costs of habitat acquisition programs.
Examples from California
The California Coastal Conservancy is charged to assist in the protection of undeveloped coastal lands, and has a successful program that provides grants to land trust organizations to purchase agricultural and other land and then resell the land with conservation restrictions. Funded by the state, the experience of the program is that agricultural lands purchased at full market value can be resold with conservation restrictions that allow for agricultural and other open space uses at nearly the original purchase price. The cost of the program is thus minimized, and land is kept in productive use.
The California State Parks Department also has a successful purchase and leaseback program
for agricultural lands in various areas of the state. In Santa Cruz County, an area with stringent land
use controls, the 2,300-acre Wilder Ranch was purchased by the state. Of the total ranch, 635 acres
are leased to eleven farmers for agricultural purposes. The state maintains the remainder of the ranch
for a variety of open space and recreational uses. The state parks department believes that the
success of this and other similar projects helps dispel the myth of incompatible agricultural and
recreational uses.
4. PURCHASE "TRIGGERS": OPTIONS AND RIGHTS OF FIRST REFUSAL
Just as the local government may not need to keep ownership of the entire fee interest in land to achieve its goals, it may not need to purchase the property at all until an alternative use or sale of the land is contemplated. Purchase "triggers" apply the basic concept of purchase options in real estate transactions -- they provide a means for a potential purchaser to "tie up" a property without actually buying it. By purchasing an option on property, a potential purchaser reserves the exclusive right to purchase the property within a specified time period, or in the event that certain events happen. A related tool is a "right of first refusal", under which the local government entity pays for a first right to purchase a property if the property is to be sold. The buyer of a right of first refusal often does not need to negotiate a price in advance, but is obligated to match a bone fide offer submitted by another potential purchaser. This avoids the difficulty of valuing habitat land now, but does protect the seller against having to sell at a bargain price when there is a better offer from another potential buyer. Because right of first refusal programs leave the potential purchase price for the land to be determined by a third party, they may create problems for local governments that need predictable costs in order to meet their budget constraints and funding cycles. To avoid this problem, local governments that want to tie down the price of a future purchase now should instead buy an option or execute a right of first refusal with a clear statement of the agreed upon price.
A third variation has been employed to protect federal reserve areas and national recreation areas from adverse development on private property inholdings, and is sometimes called a "Sword of Damocles" provisions. This system has been used in Idaho's Sawtooth National Recreation Area, where regulations and design controls were imposed on private properties to preserve the natural setting of the area. Under this approach, the government agency devises a comprehensive land use plan for the area and designates various zones for different uses and developments. As long as the landowner voluntarily agrees to comply with the plan and restrictions, the government's power to condemn is suspended. In Sawtooth, both the local government and U.S. Forest Service are involved in making the system work. However, if a use that is inconsistent with the plan is proposed or undertaken, the power to condemn is triggered, and the land can be brought into public ownership to prevent the incompatible development.
A Sword of Damocles provision could also be implemented under a local government's power to condemn land. If the proposed use of lands for habitat or buffer zones is a 'public purpose", then the local government has the power to purchase the land through the eminent domain process. If that is true, then the government also has authority to agree not to use those powers as long as certain conditions are maintained.
One drawback with purchase triggers involves cost. While purchase in fee simple is costly
by itself, the option or right of first refusal adds an additional cost. A local government could wind
up paying first for the cost of the option and then again for the full purchase price of the land.
Another drawback involves the cost of delay. The triggering events may not occur until development
pressures increase, and by then land costs will also have increased commensurately. Sword of
Damocles provisions have similar advantages and drawbacks. They may also lower the market value
of a property by discouraging purchasers and create opposition from present property owners. In
addition, Sword of Damocles provisions are only as effective as the resolve of the relevant agency
to exercise its condemnation powers and the availability of money to pay compensation awards --
both of which may waiver or fall short under political or fiscal pressures.
In some cases, a Colorado town, city, or county may be able to achieve its wildlife habitat goals through the acquisition of life estates in important lands. Not infrequently, the owners of agricultural or ranch lands would prefer not to develop their lands and would like to see the farm or ranch remain intact as long as possible. However, many of these same owners would like to be able to pass their land on to their children for them to do with as they wish. For that reason, they are unwilling to grant easements or impose deed restrictions or covenants that would bind their children in their use and disposition of the land. In those circumstances, and if prime habitat areas or corridors are involved, the local government may want to purchase a life estate in the land and lease the property back to the current owner at roughly the same cost. The terms of the transaction allow the government to control the use of the land during the owner's lifetime, but terminate that control at the time of the owner's death. Even though the land could be put to incompatible uses some time in the future, the purchase of a life estate can buy time for the local community to consider follow-up steps and/or to raise money for the eventual purchase of the property. Again, since life estates are negotiated for specific parcels of land, the purchase of a life estate is considered a site level protection tool.
6. EASEMENTS AND PURCHASES OF DEVELOPMENT RIGHTS
Easements can be viewed as just a few of the bundle of rights that are included in fee simple ownership. They constitute severable interests in land. The severable nature of easements allows a landowner to convey or reserve specific rights associated with a property apart from the right to posses and use the land in general. By applying the law of easements, local governments can control land development without buying the fee simple interest in the habitat land itself. Easements and development rights programs are essentially programs enabling the local governments to pay landowners to forgo certain land development rights, and documenting the transfer of those development rights to the government.
There are two distinct types of easements. Positive easements grant someone else an affirmative right to use property in a specific manner or to interfere with the owner's otherwise enforceable property rights. A right of access across a neighboring property is a common example of a positive easement. In contrast, negative easements create restrictions upon the landowner's property rights. Negative easements do not grant affirmative rights to someone else, they merely restrict the actions of the owner. Particular restrictions vary according to their objective. In the field of wildlife habitat protection, they generally prevent the owner from doing those things that would disturb the wildlife or their environment. Whenever possible, easement donors should recite clear habitat goals, so that they will be easier to enforce if the landowner begins using his remaining rights in ways that undermine the intent of the easement.
Timing plays a key role in the success of an easement or development rights program. Such programs should begin when development pressures are not so strong as to inflate the values of development rights and when the residual uses of the land remain profitable Essentially, government should "buy low" so as to maximize its cost savings. Since the governments that purchase development rights usually have no plan to resell them in the future, most of these programs do not create development rights "banks" or TDR programs. The government simply retires the rights to prevent their future use.
In spite of their strong logic, however, efforts to purchase easements or development rights face several obstacles that demand careful thought. First, development rights acquisition programs only work when the local government can identify which particular rights need to be purchased to protect the habitat value of the area. When the true need is to prevent all use of the land, or to purchase virtually all of the rights to the land, the government should instead consider a fee simple purchase. Purchase of development rights will only be less expensive than a fee simple purchase if the landowner retains a meaningful economic use of the property. A second complication involves the effect of zoning upon valuation. The local government needs to decide whether they are willing to pay for the potential development value of the land even if the property is zoned for agriculture. To refuse to acknowledge the development potential of the land may result in government offer prices too low to interest sellers. To acknowledge development potential invites criticism that the government should not be paying for speculative values that could only be realized if the government was willing to change its current zoning.
In spite of these drawbacks, however, easements and development rights purchase programs are popular because the land remains in private ownership and subject to local property taxes, and because the costs of the program may be lower than fee purchase programs.
Colorado has adopted a statute governing how land is to be valued for tax purposes after a
conservation easement has been granted.(129) The statute requires the owner of the easement to
maintain the land, water, or open space:
"predominantly in a natural, scenic or open condition, or for wildlife habitat, or for
agricultural, horticultural, recreational, forest, or other use or condition consistent
with the protection of open land having wholesome environmental quality or life-sustaining ecological diversity, or appropriate to the conservation or preservation of
buildings, sites, or structures having historical, architectural, or cultural interest or
value."
Common terms of conservation easements include bans on subdivision of the land, timbering,
destroying vegetation, limitations on human access, bans on grazing, construction roads, mining,
using insecticides or herbicides, excavation, or altering specific features.(130)
An Example from Washington State
In the Seattle metropolitan area, King County, Washington, has administered a successful purchase of development rights program to preserve agricultural land in the face of metropolitan growth pressures. Drawing upon a $50 million bond issue, the program funds the county's purchase of development rights for properties facing development pressures, with priority rankings determined in accordance with the intensity of such pressures. Participation in the program is voluntary for eligible landowners. Purchase prices are calculated as the difference between appraised value at the land's "highest and best use" and the appraised values as farmland. That formula reflects the development potential of the land, regardless of its current zoning. After purchasing the development rights, the county records restrictive covenants on the properties in the land records and limits development rights to five percent of the property's nontillable area.
7. LAND DEDICATIONS AND IMPACT FEES
Land dedications are conveyances of land from a private owner to a local government -- either voluntarily or to offset the anticipated impacts of a proposed development. An increasing number of Colorado local governments are imposing land dedication requirements or fees-in-lieu of dedication as conditions for permit approvals. State statutes explicitly authorize Colorado's county governments to impose land dedication requirements or fees-in-lieu for parks and schools, and a large number of home rule municipalities impose similar requirements.
Where new development creates needs for increased public services and infrastructure (schools, roads, recreational facilities, etc.) this practice is intended to ensure that new development "pays its own way" by assuming these costs. Thus, where new development threatens to strain a community's recreational facilities, developers might be required to dedicate a specified number of acres for every 1000 residents of a residential project. Since increasing development may put increasing pressure on existing habitat in the vicinity, it may also be appropriate to create a land dedication requirement to protect those areas. In the alternative, developers might pay a fee into a dedicated open space fund that would be used to purchase passive open space land and habitat open space land in the general vicinity of the project. Colorado's land subdivision statutes also give county governments the ability to approve the location of required park land dedications, and many home rule cities have similar provisions.
Taken together, these two powers may allow some communities to implement the acquisition of important habitat areas through dedications or fees-in-lieu of dedication at the time that land is subdivided or building permits are issued. While Colorado courts have generally been sympathetic towards exactions, these programs raise legal issues that are discussed in detail in Chapter VI.
On the other hand, dedication requirements and fees-in-lieu often engender strong opposition from the development community, which prefers the use of general property taxes, public bond issues, and traditional sources to fund infrastructure. Opposition may be particularly strong when the purpose of the requirement is to mitigate an impact on wildlife rather than to construct physical infrastructure to be used by people. The crafting and implementation of these types of exaction programs also requires substantial staff resources. In the initial development of the program, the government entity will have to address potential legal issues by devoting substantial resources to background studies so as to establish a firm legal basis for its program. Even when carefully calculated, impact fees may not cover costs of needed improvements unless set at very high levels that may have adverse impacts on the competitiveness of the community, and may not be as cost-effective as tax-exempt forms of financing such as municipal bonds.
Recently, the U.S. Supreme Court's ruling in Dolan v. City of Tigard(131) indicated that courts will look carefully at land dedication programs for fairness to the landowner. Communities interested in adopting land dedication requirements to promote habitat protection should read the discussion of this important case in Chapter VI.
Instead of imposing a requirement to dedicate land per se, some communities have created impact fee programs. These programs collect pro rata fees from different landowners, pool them, and then use them to purchase open space or habitat lands. Even though a Colorado county government may not have authority to require land dedications for purposes other than schools or parks at the subdivision stage, it may have authority to impose a carefully calibrated impact fee to collect funds to be used to purchase areas of habitat directly threatened by the new development. Impact fees are a broader tool than land dedications because they can address development impacts that cannot be addressed through land itself. In addition, since the use of impact fees reduces the need for tax increases to pay for similar services, they are often popular with citizens of the community. Great care should be taken to calculate impact fees so as to be proportional to the anticipated impacts of the development on wildlife habitat in particular.
Where impact fees are used, however, new issues arise. Most importantly, impact fees must
be spent so as to benefit the payor within a reasonable period of time after the payment. In general,
governments that collect impact fees are expected to use those fees to build facilities that provide
some type of service or benefit to the payor. In the context of wildlife habitat protection, this raises
some interesting issues, since the "users" of protected wildlife are largely the public who enjoy the
many benefits of living in an area where the species is preserved. Although the nearby landowners
may enjoy a special benefit by virtue of the fact that buyers will pay more for land near wildlife, it may
be hard to show that the benefit is qualitatively different than that enjoyed by the public at large. In
addition, impact fees are usually paid at the time the land is developed -- and often at a late stage in
that process. By the time the fees are collected, nearby habitat areas will also be under development
pressure, and the price of acquiring the habitat may be very high. For all of these reasons, Colorado
cities and counties that want to adopt impact fees to pay for wildlife habitat acquisitions should be
careful to lay a strong factual and legal foundation for their actions and should be very careful to meet
the constitutional standards described in Chapter VI.
9. LAND TRADES
Finally, local governments should always consider whether the most cost effective way to
acquire habitat lands may be to trade other lands owned by the government and no longer needed for
their original purposes. In the course of time, many towns and counties discover that they have an
inventory of land parcels in or near developed areas that the government no longer needs. Instead
of selling those parcels on the open market, the government may want to consider a trade for habitat
lands further away. In cases where the current owner of the habitat lands is holding it for future
development, a potential trade for land nearer to water and sewer lines and market demands may be
very attractive.
Often, Colorado's local governments may find opportunities to protect quality wildlife habitat through negotiations with individual landowners at the time when specific development proposals are brought forward. The most flexible technique for doing so is a development agreement. Colorado statutes specifically allow cities and counties within the state to enter into development agreements obligating both the government and the landowner to carry out certain actions in order to "vest" a preferred development plan for a period of time.(132) Development agreements can give the landowner more certainty that the government will not act to delay or deny the development activity for a period longer than the statutory period of three years. In return, the local government can ask the landowner to design and operate the proposed development in ways that will protect or even enhance the existing wildlife habitat on the property. Because they are negotiated on a project-by-project basis, development agreements can be an effective site scale tool for habitat protection.
For example, a development agreement might include provisions requiring the landowner to:
The strength of development agreements is that they can be tailored to the exact needs of the
specific land and proposed development. In addition, since they are negotiated contracts, they are
not subject to some of the strict constitutional requirements that limit the local government's power
to adopt general regulations.
F. CONTROL OF PUBLIC INVESTMENTS AND PROJECTS
A sixth way in which Colorado's local governments can promote wildlife habitat protection is through careful direction, design, and control of public projects and investments. Local governments spend hundreds of millions of dollars each year on projects like parks, water lines, and highways that have a profound effect on land development and use patterns. Since the 1970s, there has been an increasing realization that the impacts of the governments' own projects on land must be thoroughly analyzed and coordinated with governmental priorities. In order to avoid unintended impacts on wildlife habitat areas, Colorado's local governments must ensure that information about habitat areas is included in all decisions to construct roads, storm drainage facilities, water facilities, wastewater facilities, public buildings, and public storage yards. In general, the local government should follow the same principles that it imposes on private developers related to design and construction to minimize habitat impacts.
On the positive side, cities and counties should ensure that any available inventory of prime
habitat areas is integrated into the decision making process to purchase land for parks or for other
public facilities. Buying a site for a public facility that includes important habitat and then designing,
siting, and buffering the public facility to protect that habitat may be a very effective way to achieve
two public goals at once. In addition to considering the impacts of its own infrastructure construction
on habitat goals, local governments should ensure that special metropolitan districts and other
districts within their boundaries are also acting consistently with those goals. In particular, in areas
where the local government decides not to extend infrastructure in order to reduce development
pressures, it should have clear policies in place prohibiting the creation or continuation of special
district activities that would circumvent that goal.
G. TAXING AND ASSESSMENT DISTRICTS
In cases where the habitat to be protected -- and the benefits from that protection -- are limited to a specific area in the city or county, it may be appropriate to consider the use of a special taxing district to raise additional funds to buy land or development rights in that area. The state of Iowa has adopted legislation permitting the creation of special conservation districts to levy taxes to acquire land for wildlife reserves and parks. While Colorado does not have a similar specific statute, it may be possible to use existing legislation to achieve the same result.
In particular, Colorado's legislation permits the creation of park and recreation districts to acquire and manage parks and open spaces. Park and recreation districts do, however, have some significant drawbacks as a habitat protection tool. They are subject to significant reporting and control requirements from both state and local governments, and are controlled by a board of directors of property owners within their boundaries. In addition, unless they are carefully designed, they may inadvertently encourage land development within their boundaries. For both reasons, Colorado's local governments should proceed cautiously when examining the alternative of tax districts for wildlife purposes. In many cases, it may be preferable to create a government controlled district such as a General Improvement District or a Local Improvement District to achieve the same result.
Increasingly, the private sector is playing a very important role in the preservation of quality
wildlife habitat, and local governments would be well advised to work with the private sector in order
to increase effectiveness and leverage resources. Frequently, private sector partners are not subject
to some of the time-consuming procedural requirements that slow down local government. In other
cases, they are able to mobilize resources faster than local government. Those factors can make the
difference between a successful or unsuccessful project to protect threatened areas.(133) In addition, an
increasing number of land developers have found that they can realize more profit by including a
strong conservation element than with a development project that disregards the importance of the
natural environment.(134) This attitude also creates the possibility of effective conservation partnerships.
Private land trusts are non-profit land-owning and managing organizations, and they are playing an increasingly important role in land conservation throughout the United States. While land trusts have no powers to regulate land, they use a broad array of other preservation strategies and can be valuable partners. For example, where government budgets do not have enough money to acquire critical tracts in a given time frame, land trusts may be able to purchase and hold the property for future government acquisition. In addition, private land trusts can sometimes be good partners in wildlife habitat protection because they can work effectively with private landowners. This is true in part because the involvement of a land trust often creates possibilities for tax incentives, and in part because landowners may be wary of working with the government itself.
Often, the pairing of governmental regulatory powers and land trust financial resources can be beneficial to both groups. Land trusts can also provide significant cost savings in land acquisition efforts. As tax-exempt charitable organizations, land trusts may acquire lands through charitable donations or bargain sales, which may prove advantageous to the selling landowners because they obtain tax deductions. Landowners can reduce their income and estate tax burdens and keep their property intact to pass on to the next generation for agricultural and other open space purposes. If a land trust then resells such low-cost acquisitions to the government, the trust may be able to recoup its own costs while still helping the government realize considerable savings. In addition to purchases in fee simple, land trusts can also use the development rights acquisition or easement programs and the sellback and leaseback techniques discussed above.
There are now over 1,000 different land trusts spread out across the country and they control nearly one million acres under conservation easements. A 1993 survey by the Colorado Coalition of Land Trusts showed that Colorado land trusts have directly protected over 140,000 acres of land, and that number has increased substantially since the survey. There are currently 29 established private land trusts in Colorado with IRS tax-exempt status and several more in various stages of organization. The annual operating budgets of Colorado land trusts total over $1.75 million, and the trusts maintain $4.2 million in restricted funds which are dedicated to the stewardship of the protected lands.
In 1993, the acreage protected by private land trusts in Colorado included the following:
Relying on private land trusts to help achieve public habitat objectives does have some potential disadvantages, however. The objectives of the land trust may change over time, and may come to differ from the city or county objectives before the government has had time to purchase the land in question. Some land trusts may not have adequate staff and resources to administer significant land holdings, or may not manage them as the local government might wish. Finally, some land trusts may permit or deny public access to properties they own or manage when the local government would have preferred just the opposite for wildlife habitat reasons.
2. LIMITED CONSERVATION DEVELOPMENT
The outright purchase of habitat land or development rights is not the only way in which
landowners and private entities can promote habitat protection. Increasingly, private sector
developers and non-profit conservation organizations are promoting the limited development of land
in ways that can still protect extensive tracts of open space and wildlife resources. Some of these
limited developments have been undertaken by conservation organizations that recoup the cost of
sensitive lands and open space they have purchased by allowing limited, carefully sited development
on a small portion of a parcel.
An Example from Pennsylvania
One of the first and most successful efforts at limited conservation development was
undertaken by the Philadelphia Natural Lands Trust, a non-profit conservation organization based in
Pennsylvania. The owner of a 70 acre property known as Mill Hollow approached the Trust to assist
with the conservation of his property. The land was a large estate with an historic home in an area
subject to development pressure near Philadelphia. It contained 40 acres of undisturbed woodland
in addition to the main home, several smaller houses, and a barn. The owner wished to preserve the
property, remain on the land, and meet certain financial goals. Working with the owner, the
Philadelphia Natural Land Trust came up with a conservation development plan calling for spinning
off the 40-acre woodland and conveying it to the Trust. The remainder of property was then
subdivided into six parcels ranging from 1.5 to 15.7 acres. The original plan called for the owner to
retain the main residence and the 15.7 acre parcel. The rest of the land was offered as single parcel
for $1.4 million or individual lots with a total price exceeding the $1.4 million figure. In addition to
the land donation, the stream valley on the property was subject to a conservation easement and
architectural controls were placed on home/building construction. The donated parcel would be
managed by the Trust with a percentage of each sale donated to the nonprofit to support property
management. One parcel was sold early on to cover expenses, and the remainder were then sold to
a single buyer for $980,000.
The Evans Ranch Example in Colorado
The Evans Ranch project undertaken by Colorado Open Lands represents Colorado's home grown example of a successful limited conservation development effort. The Evans Ranch is a scenic 3,243 acre parcel located nine miles west of Evergreen, Colorado, at the base of Mount Evans. The property is bordered on three sides by the Arapahoe National Forest, Mount Evans Wilderness Area, and the Colorado Elk Management Preserve. The ranch property was assembled in the 1860s by John Evans, the second Territorial Governor of Colorado. The Evans Ranch provides a natural habitat for a large elk herd, mountain lion, mountain goat, black bear and cougar, as well as for many smaller wildlife species including mule deer, red fox, and wild turkey. Large areas of the ranch are forested with Colorado blue spruce, Engleman spruce, Douglas fir, ponderosa pine, lodgepole pine, quaking aspen, cottonwood and willow. The property contains five valleys, each with meadows and a trout stream, surrounded by forested, rocky slopes and ridge lines.
The Evans family heirs wanted to sell the property, which was zoned for two-acre residential lots under the county master plan, but wanted to preserve the ranch through limited development. Colorado Open Lands, a non-profit conservation organization, purchased the ranch in 1984 for $4.5 million. To recoup the purchase price and preserve the property, the organization divided the ranch into five parcels ranging from 532 to 594 acres, each defined by a valley and the surrounding mountain slopes. A central parcel of 131 acres containing the original homestead was reserved for common use by all five property owners. Each ranch parcel has several restrictions including a 40-acre homesite envelope and a one unit development limitation. Each owner has a recreational easement over the other four ranches. In addition, the purchase of a parcel gave each owner a 20% interest in the 131 acre parcel (the ranch headquarters) that is organized as a corporation and used as the management entity and security checkpoint for the entire ranch. An annual assessment paid to the ranch headquarters corporation provides continuing operating capital for the ranch operation and management.
The five ranch parcels were priced at $1.6 million each. Three were sold within the first year for $1.5 million, and the other two parcels were sold shortly afterward.
An Example from the Upper Elk River Valley in Colorado
One of the most interesting and promising private conservation initiatives is being played out in the scenic Upper Elk River Valley, about 18 miles north of Steamboat Springs. Here, a group of ranchers who own most of the valley have joined together with the assistance of the American Farmland Trust and have developed a compact setting forth principles to protect the valley and its ranching way of life. The major goal of the compact is to protect the special rural character of this remarkable landscape while maintaining a viable agricultural economy. Rather than traditional patterns of suburban or large-lot 35 acre subdivisions, the compact envisions a very small amount of "protective development" that guides new growth away from the best of the valley's agricultural and forest lands. It allows for limited residential development which has minimal agricultural or visual impact and offers landowners the ability to sell some land for homes for their families or vacation residences without adversely affecting agricultural and low-impact recreational opportunities.
To implement the plan, several of the valley's ranchers have donated conservation easements
to the American Farmland Trust, taking income tax deductions in the process and reducing
inheritance taxes in the future. These easements ensure that the ranches will forever stay in
agricultural use. Instead of giving up all their rights to develop, they have reserved a few homesites
that will be very valuable. When the landowner needs to send a child to college or pay for new
equipment, he or she has homesite assets to sell instead of having to break up productive agricultural
land.
An example from Phantom Canyon Ranch
Private cluster development initiatives are also showing promising results in several areas. One interesting project is the Phantom Canyon Ranches on highway 287 near the Wyoming border. This is a joint project with the Nature Conservancy to preserve the Phantom Canyon and provide homesite and working ranches surrounding the canyon with covenants and restrictions designed to preserve the unique values of the area. The project includes over 16,000 acres, of which 2,715 acres are in the Phantom Canyon Conservation Area. The original project design included four working ranches ranging from 800 to 1,200 acres and 11 sub-parcels that each include several homesites. The plan designated homesites according to specific criteria relating to privacy, physical characteristics such as ridge lines, hills and woodlands, wildlife habitat, and other elements. Each designated building site consists of a 100,000 square foot building envelope that is purchased in fee simple. Purchase of a homesite also includes an undivided acreage equivalent interest in the larger sub-parcel.
The Phantom Canyon Conservation Area consists of four separate parcels. The central canyon area is a Nature Conservancy Preserve including 1,120 acres. In addition, there is a Nature Conservancy easement on 480 acres preserved as private wild and scenic open space for the exclusive use of the owners of Phantom Canyon Ranches. This parcel provides superb trout fishing and natural beauty. The Canyon Common Land greenbelt area consists of 840 acres, and the Halligan Reservoir common area includes 275 acres.
Limited conservation development projects have several advantages as habitat protection
tools. They can protect land without direct government regulatory involvement, although tax
incentives are sometimes necessary. In addition, private land conservation organizations can
sometimes react to growth pressures more quickly than governments, since there is no need to follow
statutory procedures, hold hearings, or hold elections to raise acquisition funds. One disadvantage
is that private cluster development initiatives may tend to protect land on a fragmented basis with no
regional vision. For example, the land protected may be the most beautiful, but not the most
important wildlife habitat, or it may be located so that it is not contiguous with an adjacent habitat
area. By working with the sponsoring land trust or nonprofit to include wildlife goals, however, this
problem can often be solved.
3. INDUSTRIAL RESTORATION SHOWCASE PROJECTS
The rise in environmental litigation backed by serious penalties under federal environmental protection laws has caught the attention of many large industrial companies and utilities. Some of those organizations are now implementing expensive reclamation and restoration projects and are using large advertising budgets to let the public know about their efforts. They want America to know that they have restored former hazardous waste sites and other environmental disaster areas to the status of a healthy natural environment. In some cases, habitat protection or restoration has been explicitly emphasized. The creation of new, high quality habitat is a win-win solution to a clean up problem, since it also allows the industry to create a reuse that does not require cleanup of the land to standards acceptable for human occupation. The reuse plan for the Rocky Mountain Arsenal near Denver took advantage of just such an opportunity. By agreeing to a habitat use, the state government and those responsible for the pollution were able to move forward with cleanup efforts faster and enhance what is clearly a premier habitat area.
These industry efforts should be applauded by the public, and Colorado's towns, cities, and counties should be aware of them and should look for opportunities to work with local industries on restoration of former sites into significant habitat areas. The companies that are participating in restoration projects are providing the technology and resources that help to correct the environmental damage of past decades. Because these efforts are being achieved with today's dollars, advertising is often needed to convince America that there is a justification for the significantly increased costs in utilities, services, and retail products. Local government assistance in spreading the word about these projects can be very valuable to the industries involved.
Projects that restore or enhance environmentally damaged areas enjoy widespread public
support, whether they are court-imposed or are a voluntary effort to prevent fines or litigation. Many
efforts focus on entire ecosystems and some projects have been instrumental in developing
advancements in wildlife biology that can be applied in other situations. Because of this important
role, the participation of industries and utility companies should not be overlooked in local and
regional wildlife habitat programs.(135)
An Example from Chesapeake Bay
A good illustration of a utility project that benefits wildlife is the use of heated water discharge from a power plant in the Baltimore area to raise striped bass for later stocking of the Chesapeake Bay.(136) The stripped bass was selected for a pilot aquaculture facility because it is well-adapted to the conditions of the Chesapeake Bay, is an important food and sport fish in the area, and was suffering a severe decline in population. The striped bass is also the Maryland state fish and is looked upon as a symbol of the quality of life in the bay region. The sponsoring utility company received recognition for its efforts to improve the striped bass population and the project emphasized the company's goals of utilizing waste resources and minimizing the impact of power production on the environment.
I. INTERGOVERNMENTAL AGREEMENTS
The boundaries of important wildlife habitat areas almost never coincide with the political boundaries of cities, counties, or towns. Effective protection of the habitat will therefore often require significant cooperation between more than one jurisdiction. The most effective way to formalize that cooperation is through the use of intergovernmental agreements ("IGAs"). Although they are often time-consuming to negotiate, execute, and manage, IGAs are often well worth the effort because they result in a shared value system and a shared control system. The discussion that goes into the creation of those systems helps emphasize the importance of wildlife issues, and the resulting IGAs are often more resistant to change than the policy of a single government. Because they often address an entire county, valley, or transportation cor