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WHEN FOREVER PROVES FLEETING:
THE CONDEMNATION AND
CONVERSION OF
CONSERVATION LAND
ROBERT H. LEVIN*
INTRODUCTION
The United States is currently in the midst of both an unprecedented land conservation boom and an even greater development boom. Never before has so much land been declared
permanently off limits to development, and never before has so
much land been developed. Citizens, foundations, and governments across the nation are committing substantial funds to protect land by acquiring conservation easements and fee simple
holdings. But the phenomenal growth of the economy throughout the 1990s has sustained a vastly accelerated rate of sprawl. In
short, the conservation movement is more active than ever
before, yet daily it is losing ground to the latest subdivision.
A simple comparison shows the relative rates of conservation and development activity. The Nature Conservancy, one of
the largest and most respected environmental organizations in
the world, has protected over twelve million acres in the United
States since its inception in 1951.1 On the other hand, a widely
respected report from the Natural Resources Conservation Service, an arm of the U.S. Department of Agriculture, indicates
that between 1992 and 1997, over eleven million acres of land
* Law Clerk to The Honorable John M. Facciola, United States District
Court for the District of Columbia, 2001-2002; J.D., 2001, New York University
School of Law; B.A., 1996, Haverford College. The author would like to thank
Professor Vicki Been and Elson Oshman Blunt for their editorial comments on
this Article. In addition, the author extends his appreciation to Russ Shay of
the Land Trust Alliance for his continuing support. The author assumes full
responsibility for assertions based on notes of personal interviews.
1 Ed Goldstein & Evan Johnson, Nature by the Numbers: 50 Little-known
Facts from the Nature Conservancy Archives, The Nature Conservancy, at http://
nature.org/aboutus/resources (last visited May 16, 2001). This does not mean
TNC itself administers all of this acreage, as many of its projects are turned
over to government entities or other conservation organizations.
592
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were developed for the first time, shattering any previous rates. 2
To put these figures in perspective, in five years alone almost as
much land was developed as has been protected by the Nature
Conservancy in its entire fifty-year history. So while land conservation is occurring on a greater scale than ever before, the astronomical spike in land development more than offsets the
conservation gains. This comparison should not come as a surprise. To take a drive down any road on the suburban fringe is to
witness mile after mile of construction activity. Indeed, the
growing popularity of conservation programs is in many ways a
response to the shocking pace of development.
These unprecedented dual trends of conservation and development suggest first and foremost that conservationists cannot
truly win what has been called the “open space race.” At the
same time, they can achieve many important conservation victories. This state of affairs demonstrates the heightened importance of those victories in ensuring that future generations still
enjoy a modicum of open space and parklands. Even amidst the
general proliferation of development, conservation acquisitions
protect a large amount of our most highly cherished landscapes
from development. To achieve this more limited goal, however,
the protections must endure. And durability, in turn, requires a
solid barrier that permanently shields conservation lands from
development. This Article examines the strength of that barrier
by asking whether conservation lands do, in fact, remain protected from development. In particular, the Article will focus on
two possible weaknesses: condemnation and conversion.
Land with conservation easement or park status is not magically shielded from all future development threats. In fact, government-owned parkland that citizens have used and appreciated
for years is not as protected as is commonly thought. After one
recent case in which a state sold a state-owned wildlife management area to a private developer, one angry citizen wrote to his
local newspaper: “There ought to be a law against such transfers.”3 Local and state governments may be able to sell or condemn conservation land with surprising ease. In the absence of
2
See NATURAL RES. CONSERVATION SERV., U.S. DEP’T OF AGRIC., SUMREPORT, 1997 NATIONAL RESOURCES INVENTORY 39 (revised Dec.
2000), available at http://www.nhq.nrcs.usda.gov/NRI/1997/summary_report/
report.pdf.
3 Brian Liszewski, Letter to the Editor, There Ought to Be a Law, RECORD
(Bergen County, N.J.), Aug. 30, 2000, at L8.
MARY
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adequate statutory restrictions, conservation lands may be unduly vulnerable to condemnation and conversion.
This Article examines whether governmental actions to reverse previously enacted conservation protections should be prohibited or limited. As such, this Article discusses “conservation
land,” defined here as land officially designated for conservation
purposes.4 Designation could be either an administrative or legislative function, in a governmental context, or through legal restrictions in the context of private land. Having said this, it is not
always clear when a property is in fact officially designated specifically for a conservation purpose. Clearly, a wildlife sanctuary
would seem to qualify. But what about a hunting preserve, or a
multiple use forest area? Although there are many fine distinctions that could be argued, for simplicity’s sake, this Article uses
a functional definition of conservation land, borrowed directly
from the Internal Revenue Code’s definition of “conservation
purpose” in the context of conservation easements. Conservation land is property that has been designated for outdoor recreation, preservation of wildlife and plant habitat, open space
(including agricultural), or scenic purposes.5 Private conservation land is therefore land owned in fee simple or subject to a
conservation easement owned by a not-for-profit organization
whose mission involves one or more of these purposes. Public
conservation land, in turn, includes government-owned parks,
wildlife management areas, and wilderness areas, to name a few.
Condemnation, or eminent domain, is the process by which
government or a government-empowered private entity appro4 While policy decisions about when to develop natural but as yet unprotected land comprise a signal issue of the conservation movement, they are not
the focus of this Article. By extension, use of this definition means that lands
which are used for such conservation purposes, but not officially designated as
such, are not “conservation lands.” Citizens may legitimately oppose the condemnation, development, or sale of these lands, but they cannot claim that the
government has backtracked on previously enacted protections. Likewise,
there are innumerable controversies over the kinds of uses that should be permitted within the boundaries of any given conservation property, such as
whether hunting should be allowed in state parks. Such disputes are unquestionably worthy of attention and are critical to a broader conservation strategy.
But this Article will focus more narrowly on conversion and condemnation per
se, i.e., the effectively permanent removal of land from its development and
related use restrictions. Also outside the scope of this Article are threats to
protected land posed by intense development of adjacent but unprotected
lands.
5 I.R.C. § 170(h)(4)(A) (1999).
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priates or “takes” property for public use without the owner’s
consent.6 Condemnation usually applies to private property, although occasionally a government seeks to condemn land owned
by a political co-equal or subordinate. The condemnation of conservation land occurs where the taking is of a nature preserve
owned in fee simple by a conservation organization, or of land
owned by an individual but subject to a conservation easement.7
A textbook example occurred recently in California, where the
City of Santa Rosa initiated a condemnation proceeding to route
an underground wastewater pipeline and above-ground pumping
stations across the California Audubon Society’s Mayacamas
Sanctuary.8 Some conservation properties, such as the Red Hills
area in northern Florida and southern Georgia, were targeted by
large oil companies that have been delegated federal condemnation power, only to be saved at the considerable expense of conservation organizations such as the Tall Timbers Research
Station.9 And even though eminent domain power is supposed
to be reserved for public purposes, it is possible for a government
to condemn conservation land and then transfer it to well-connected private developers for residential or commercial use. In
fact, many commentators point to the growing scandal of using
eminent domain power for such unabashedly private uses.10 Although these authors were writing about abuses in a more general context, such improprieties in the future could very well
involve conservation land.
Conversion, in contradistinction to condemnation, occurs
when government-owned conservation land is sold or used for
non-conservation purposes.11 Conversion can be intragovern6 1 JULIUS L. SACKMAN, NICHOLS ON EMINENT DOMAIN § 1.11 (3d. ed.
2000).
7 Notably, this Article addresses the condemnation of already established
conservation land, not the condemnation of land for conservation purposes.
8 Geysers Pipeline Threatens Sanctuary, MADRONE LEAVES (Madrone Audubon Soc’y, Sonoma County, Cal.), Oct. 1997 [hereinafter Geysers Pipeline],
available at http://audubon.sonoma.net/newsletter/v31n2/v31n2.html.
9 Telephone Interview with Kevin McGorty, Director, Red Hills Conservation Program at the Tall Timbers Research Station (June 19, 2000).
10 E.g., Todd A. Rogers, A Dubious Development: Tax Increment Financing
and Economically Motivated Condemnation, 17 REV. LITIG. 145 (1998);
Thomas Ross, Transferring Land to Private Entities by the Power of Eminent
Domain, 51 GEO. WASH. L. REV. 355 (1983).
11 Although a “condemnation” of conservation property is in a broader
sense also a “conversion” of that land to non-conservation purposes, the two
terms shall be considered distinctly to avoid confusion.
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mental (e.g., when a town converts a park to a public landfill),
intergovernmental (e.g., when a state conveys a park to a county
or municipality for a new road), or public to private (e.g., when a
government conveys parkland to a private owner). One example
of public to private conversion occurred when the New Jersey
Division of Fish and Wildlife sold a wildlife management area on
Hamburg Mountain to a private developer in 1986.12 In a
broader context, scores of conversions have occurred in Massachusetts, where the state legislature approved 150 out of 176
transfer requests of public conservation lands between 1989 and
1998.13 Although the definition of conversion varies slightly
from governmental program to program,14 in most cases there is
little doubt that the conservation purposes for which the land was
originally acquired have been irrevocably eliminated.
Although the federal government is the largest owner of
conservation lands, this Article focuses for the most part on state
and local activity. Given the crazy-quilt patchwork of federal
public land classifications, a thorough analysis of federal conversion and condemnation practices is beyond the scope of this analysis. Our national forests, national parks, wilderness areas,
national monuments, wildlife refuges, and marine sanctuaries are
all subject to varying degrees of conversion pressure, but these
lands are best reserved for a separate analysis. The issues at
stake in regard to federal lands usually involve natural resource
use such as mining or drilling, while this Article focuses more on
the everyday threats of commercial and residential development
and public works projects. Therefore, this Article discusses only
a few federal statutes that pertain to the conversion of state and
local lands.
To be sure, conversion and condemnation are not inherently
wrong processes that should be invariably opposed. Certain mi12 Matthew Brown, DEP Named in Suit to Block Ski Resort Plan, RECORD
(Bergen County, N.J.), Feb. 15, 2001, at L3.
13 OPEN SPACE SUBCOMM. OF THE JOINT COMM. ON LOCAL AFFAIRS, GEN.
COURT OF MASS., NEW SCHOOL CONSTRUCTION AND THE LOSS OF ARTICLE 97
LAND 13 (Mar. 2000) [hereinafter LOSS OF ARTICLE 97 LAND].
14 For example, in New Jersey, the construction of an underground pipeline
is deemed a conversion, while the same pipeline is not a conversion under the
Land and Water Conservation Fund program. In addition, leases of parkland
for a non-conservation purpose sometimes are considered conversions if they
extend beyond a certain period. In New Jersey, for example, use of parkland
for purposes other than recreation and conservation for more than two years is
considered a “diversion.” N.J. ADMIN. CODE tit. 7, § 7:36-20.11(b)(2) (2000).
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nor conversions, such as road widening for safety purposes, are
not the least bit controversial. Even major condemnation attempts, such as those for new schools, can be very pressing
projects that the conservation community, under certain conditions, has felt compelled to support.15 Indeed, the need for a
conversion or condemnation may be amply justified in some
cases. For this reason, blanket prohibitions on condemnation
and conversion would be inappropriate. Rather, a more nuanced
approach is needed.
Conversion and condemnation issues are particularly troublesome because they bring into conflict the competing principles
of land use flexibility and the perpetual conservation of land. Although it is unlikely that a government would purchase a property for conservation purposes in one year and turn around and
sell it for development in the next, the pressure to convert and
condemn land will inevitably grow over time. This Article calls
for legislation to impose procedural hurdles to and substantive
criteria for the condemnation and conversion of conservation
lands in order to ensure that these lands are a choice of last resort for development and other non-conservation uses. While
there is no bright line distinguishing an acceptable conversion or
condemnation from an abusive one, meaningful restrictions can
go a long way towards ensuring that conservation land is treated
prudently.
The sky is not falling; this Article is not intended to be
alarmist. Rather, it sounds a note of concern, based on evidence
of past and current events in certain states and localities. Moreover, in those areas where such threats may yet be a few years
away, the key is to address these issues before the damage is incurred. There are concrete and effective measures that state and
local governments can enact to protect conservation lands from
further encroachment. States with relatively recent acquisition
programs might draw insight from the abuses that have occurred
in other states with a longer track record. Hopefully, with proper
restrictions in place, the most flagrant abuses can be prevented
rather than lamented.
Although the processes of condemnation and conversion are
quite discrete both legally and politically, this Article links them
because both represent attempts by governmental entities to
15
See infra notes 41-45 and accompanying text.
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strip a property of its protected status. Moreover, restrictions on
either condemnation or conversion will only be effective if both
are equally burdened. Otherwise, condemnation would become
a loophole that undermines any restrictions on conversion, and
vice versa. This is especially true today, given the previously
noted abuse of eminent domain power for private purposes.16 A
jurisdiction that is considering ways to erode a property’s protected status will likely choose the easier route. The policies and
laws governing condemnation and conversion therefore are necessarily interrelated.
The Article begins in Part I by articulating the importance of
conversion and condemnation issues in a world that is increasingly focused on permanent protection. Part II then examines
how prevalent the respective condemnation and conversion
threats are by documenting instances of each process and offering statistical data. These data show that both condemnation and
conversion are increasing in various jurisdictions, especially in
developed areas. Part III focuses on different condemnation restrictions that are already in place in diverse jurisdictions. Privately held conservation easements, an increasingly popular
means of preserving land, offer surprisingly little protection from
condemnation. Publicly held easements, due to the prior purpose doctrine, offer somewhat greater protection. In addition,
Part III discusses other protection models such as agricultural
preservation districts and State Natural Area Programs. Part IV
turns to assorted federal, state, and local conversion restrictions.
In particular, New Jersey is highlighted as a state with a comprehensive set of conversion restrictions. Part V delineates the key
issues for local and state governments to consider in enacting effective conversion restrictions. Finally, the Article concludes
with a brief call to arms in defense of the goal of permanent
protection.
I
WHY CONVERSION MATTERS
Irreversibility looms large in the background of every conversion and condemnation question. Once land is developed, it
is nearly impossible, for economic and ecological reasons, for it
ever to return to its natural state. For this reason, conversion and
16
See supra note 10 and accompanying text.
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condemnation restrictions take on added importance in a world
where development is, for all intents and purposes, a one-way
process. In many areas, the day is not far off when the only remaining undeveloped land will be that which has been officially
protected, and when every developable property has been developed. Those in the planning and conservation fields refer to this
point as “full buildout.” It is not unrealistic to think that within
the next century, the entire eastern seaboard will reach such a
state. In these full buildout areas, conversion and condemnation
restrictions will be critical to ensuring that the amount of protected conservation land does not gradually erode.
In response to the inexorability of development, today’s
conservation mechanisms almost uniformly strive for permanent
protection. Perpetual conservation easements, for example, are
designed to run with the land and to bind all future landowners.
Of the forty-seven states that have conservation easement statutes, all allow, or even require, the easement to be perpetual.17
More importantly, a donated conservation easement must be
perpetual in order for the donor to receive federal income and
estate tax benefits for her charitable contribution.18
Most recent public land acquisition programs also focus on
permanence. In 1992, Alabama citizens approved the establishment of the Forever Wild Land Trust.19 The new Georgia Greenspace Program explicitly aims for permanent protection.20 In
addition, the acreage goals of certain conservation programs aim
for permanent protection. In 1998, former New Jersey Governor
Christine Todd Whitman announced a goal of permanently protecting one million out of the remaining two million acres of unprotected and undeveloped land in the state.21 Likewise, the
Chesapeake 2000 Agreement recently signed by five different
states and the Environmental Protection Agency sets a goal of
permanent protection for 20% of the total land area in the Ches-
17 Todd D. Mayo, A Holistic Examination of the Law of Conservation Easements, in PROTECTING THE LAND: CONSERVATION EASEMENTS PAST, PRESENT
AND FUTURE 40 (Julie Ann Gustanski & Roderick H. Squires eds., 2000).
18 I.R.C. § 170(h)(2)(C) (1999).
19 ALA. CONST. amend. 543 (1992).
20 GA. CODE ANN. § 36-22-6(1) (2000).
21 Carrie Budoff, In Our Backyard? No Way, They Say, Pulling Out Their
Wallets, N.Y. TIMES, Feb. 1, 1998, §14 (N.J.), at 8.
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apeake Bay watershed.22 These various goals of permanent protection compel us to consider just what sort of protection we are
establishing when we acquire such lands and easements. Quantitative conservation targets, and the considerable investment of
public dollars they require, may only make sense if the land that
is protected stays protected. Otherwise, the protections are more
akin to a land banking program that, while offering conservation
benefits in the short term, eventually becomes a source of inexpensive land for sundry public projects.
It is precisely because conservation efforts increasingly aim
towards permanent protection that the threats of conversion and
condemnation merit special attention. For it means little to call a
conservation easement “perpetual” if it can be readily extinguished through condemnation. And to call a property “forever
wild” is deceptive if the state or local government can easily reverse this designation. The goal of permanent protection reflects
a decision to remove certain properties from the vicissitudes of
land use politics. Protected conservation land accordingly needs
to enjoy heightened safeguards from government-directed
changes in the protected status. As our population grows and
undeveloped land becomes ever scarcer, governments will face
increasing pressure to use their conservation properties for other
purposes.
Conversion attempts are likely to be most common and most
controversial at the local level. This is chiefly because land use
decisions are generally local. In addition, the small total land
area of municipalities increases the likelihood of full or nearly
full buildout. The limited amount of land carries implications for
both how conversion attempts arise and how they are ultimately
resolved. For instance, at the heart of many conversion attempts
is the fiscal incentive to use conservation lands for other purposes. Protected conservation land will almost always be a less
expensive condemnation option than an already developed site.
The disparity is even more glaring if the government already
owns the protected property, for it need not go through condemnation proceedings or acquire right-of-way access.23 Such fiscal
22
CHESAPEAKE BAY PROGRAM: A WATERSHED PARTNERSHIP, CHESA2000 AGREEMENT 8 (June 28, 2000), available at http://
www.chesapeakebay.net/c2k.htm.
23 Roger Nober, Federal Highway and Environmental Litigation: Toward a
Theory of Public Choice and Administrative Reaction, 27 HARV. J. ON LEGIS.
229, 247 (1990).
PEAKE
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pressures are especially prevalent in full buildout areas, where
every acre takes on huge significance.24 As described later in this
Article, these pressures are proving irresistible in many Massachusetts locales.
Furthermore, the limited land base may preclude the possibility of supplying suitable replacement land, the most satisfactory resolution of a conversion dispute. Requiring the converter
or condemnor to provide suitable replacement conservation
lands significantly mitigates the harm from a condemnation or
conversion.25 But because the total land area of a municipality
may comprise only a few square miles (if that), the availability of
replacement lands is less probable, especially in highly developed
towns. Given these realities, the recent proliferation of municipal conservation acquisition programs seems destined to engender future conversion and condemnation conflicts at the local
level unless adequate protections are established in advance.
II
THE SCOPE
OF THE
PROBLEM
Before weighing solutions, it is necessary first to grasp the
extent and nature of the threat. The availability of hard data on
either conversion or condemnation is quite limited. As with
many issues, this lack of quantitative information often obscures
the true extent of the problem. Thus, one of the greatest contributions that land trusts and conservation agencies can make is to
begin to accurately track and record instances of conversion and
condemnation. Quantitative data will be crucial in marshalling
the requisite political will to take these issues seriously.
A. Frequency and Variety of Condemnation of Privately
Protected Conservation Land
Because governments and private condemnors have an incentive to look for the least expensive and least controversial
means of constructing a project, conservation properties are singularly vulnerable to condemnation. Eminent domain is most
expensive when people must be relocated. But because conservation properties usually host no (human) residents, there is a
tendency to view such lands as “vacant” and therefore politically
24
25
See LOSS OF ARTICLE 97 LAND, supra note 13, at 9.
See infra note 171 and accompanying text.
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easier to condemn. Furthermore, because condemning authorities do not have to pay for any improvements and relocation expenses, as with developed properties, conservation properties are
often less expensive options.26
It is difficult to quantify the frequency of condemnation proceedings on private conservation land, as there is no central repository for this information. Based on an informal survey of
major land trusts, the author has confirmed forty-five condemnation attempts involving eighteen different private organizations
throughout the United States since 1986.27 Of the forty-five attempts, forty resulted in a successful condemnation or a negotiated settlement.28 The most common purposes for which
conservation land was encroached upon were transportation-related, with new or widened roads being the most prevalent.29 In
cases where conservation easements were involved, the portion
of the easement on the condemned land was extinguished or
amended to allow action.
Although some condemnation attempts undoubtedly were
missed by this informal survey, the above numbers suggest that
eminent domain is not a daily threat to privately protected conservation lands. There are legitimate fears, however, that it will
become a growing problem as more land trusts protect more
property and as unprotected open space becomes ever harder to
find, particularly in suburban jurisdictions where the only remaining undeveloped land may be protected. Although the survey results are not definitive, the data do indicate a rise in the
number of condemnations in recent years.30 For those land trusts
that have opposed an eminent domain threat, considerable organizational resources have been expended.31 So even where the
26
Nober, supra note 23.
Robert H. Levin, When Eminent Domain Comes Knocking, EXCHANGE,
Spring 2001, at 5. “Condemnation attempts” include both fully completed proceedings and those in which a condemning authority has initiated plans to site a
project on conservation lands. Although there is no bright line that distinguishes an attempt from a mere possibility, any project plans that required a
response from the land trust is classified as an “attempt.”
28 Id.
29 Id.
30 Of the thirty-seven documented attempts, over half have occurred since
1995 and five occurred in 2000 alone.
31 For additional information on how land trusts can prevent and limit the
damage from condemnation of their conservation properties, see Levin, supra
note 27.
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condemnation attempt is ultimately defeated, opposition efforts
may be a costly drain on the resources of conservation groups
and citizens.
One of the most publicized condemnation examples occurred recently in Santa Rosa, California. In 1994, the Sonoma
County Agriculture and Open Space District purchased a “Forever Wild” conservation easement on a 3,100-acre ranch for
$750,000.32 Three years later, the National Audubon Society
(NAS) and its Madrone Chapter acquired a portion of the land
(named the Mayacamas Sanctuary) in fee simple. Shortly thereafter, the City of Santa Rosa proposed to run a treated wastewater pipeline through the property, threatening condemnation.33 NAS and the Madrone Chapter filed suit against the City
in 1998 to prevent the pipeline.34 The suit was settled in October
1998,35 providing for compensation, design improvements, a construction moratorium during the bird nesting season, a mitigation
monitor (to oversee the design improvements and the moratorium), and the City’s participation in a Task Force to figure out
how to make protected properties less susceptible to future encroachment by public bodies.36 Notably, the County, despite its
conservation easement interest, did not join the Audubon Society
in actively opposing the condemnation, which rejects the reality
that an easement will only be effective if its holder is willing to
defend it.
The Red Hills Conservation Program’s (RHCP) defeat of a
proposed oil pipeline is probably the biggest success any land
trust has enjoyed in the face of a condemnation threat. In 1990,
Colonial Pipeline Corporation, with the backing of a conglomeration of oil companies, proposed an oil pipeline across parts of
Florida and Georgia, through the heart of the Red Hills aquifer
and across more than a dozen properties with conservation ease32
Geysers Pipeline, supra note 8.
Id.
34 Legal Action on the Pipeline, MADRONE LEAVES (Madrone Audubon
Soc’y, Sonoma County, Cal.), Apr. 1998, available at http://audubon.sonoma.net/newsletter/v31n7/v31n7.html.
35 Joannie Dranginis, Sanctuary Suit is Settled, MADRONE LEAVES (Madrone
Audubon Soc’y, Sonoma County, Cal.), Oct. 1998, available at http://audubon.sonoma.net/newsletter/v32n2/v32n2.html.
36 The Mayacamas Sanctuary Settlement, MADRONE LEAVES (Madrone Audubon Soc’y, Sonoma County, Cal.), Oct. 1998, available at http://audubon.sonoma.net/newsletter/v32n2/v32n2.html.
33
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ments held by RHCP.37 Colonial had a track record of oil spills
and other environmentally damaging accidents. Along with
other organizations, RHCP mounted a strong opposition campaign, raising over $300,000 for legal expenses over two years.38
Eventually, after spending over $22 million in support of the project, Colonial abandoned its plans in the face of resistance by
RHCP and a Florida county.39 Significantly, the pipeline was defeated on growth management principles, as Florida’s eminent
domain law, like those of most states, extended no protection to
private conservation property.40 Stronger condemnation protections for RHCP’s conservation lands might have prevented this
attempted taking in the first place, sparing RHCP its enormous
legal costs.
One final condemnation example shows how local jurisdictions face unique pressures to consider conservation lands for
public purposes. In 1995, the City of San Juan Island, Washington, needed to build a new school.41 As a rapidly developing island of 35,000 acres, the City had limited location options from
which to choose.42 In addition, real estate values on the island
had soared, rendering the condemnation of developed property
an expensive proposition.43 After some deliberation, the council
turned to the San Juan Island Preservation Trust, a local land
trust, and requested that it accede to the friendly condemnation
of ten acres out of a twenty-acre conservation easement property.44 Seeking to retain the goodwill that it had established with
the community and the local government, and realizing the limited grounds on which it could oppose a formal condemnation,
the Trust agreed to the request.45 As will be demonstrated, this is
not the only example of conservation lands being turned into
schools.
37
Telephone Interview with Kevin McGorty, supra note 9.
Id.
39 E-mail from Kevin McGorty, Director, Red Hills Conservation Program
at the Tall Timbers Research Station (Feb. 19, 2001) (on file with N.Y.U. Environmental Law Journal).
40 Id.
41 Telephone Interview with Robert Myrh, Executive Director, San Juan Island Preservation Trust (June 6, 2000).
42 Id.
43 Id.
44 Id.
45 Id.
38
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B. Frequency and Nature of Conversion of Public
Conservation Land
As with condemnations, the conversion of conservation land
is not well-documented. Even where quantitative data on the
number of conversion requests has been compiled, it understates
the threat of conversion because many requests do not ever
reach a formal stage where an official decision must be rendered.
Similarly, the approval rate of formal requests is misleading because less meritorious requests are weeded out along the way.
Ideally, the most telling statistic would compare the total number
of requests, both informal and formal, to the ultimate number of
approvals. Nevertheless, useful quantitative data do exist from
scattered sources, most notably where conversion restrictions are
in place. These data show that conversion is far more than an
abstract or future threat.
Perhaps the most useful conversion statistics were compiled
in a report by a committee of the Massachusetts legislature on
the transfer of Article 97 conservation land.46 Article 97 land
refers to a provision of the Massachusetts Constitution, passed in
1972, which outlines basic environmental rights, including land
conservation rights.47 All public land acquired or held for conservation ends is designated Article 97 land and enjoys certain
protections from conversion. In order for a municipality’s Article 97 land to be converted, both the municipal council and the
state legislature must approve conversion bills by a two-thirds
majority.48 Despite these protections, between 1989 and 1998,
176 conversion requests for municipal-owned Article 97 land
were approved by municipal councils and reached the state legislature.49 Of these, 150 bills passed, allowing conversion of thirty
parcels for private and residential purposes, eighteen for water
supply and sewage purposes, sixteen for commercial and industrial purposes, fourteen for school construction, fourteen for public buildings, thirteen for roads and highways, thirteen for
recreational and “other municipal” use, five for public housing,
46
LOSS OF ARTICLE 97 LAND, supra note 13.
MASS. CONST. art. XCVII.
48 Id. (requiring two-thirds majority approval by both houses of the Massachusetts legislature); MASS. GEN. LAWS ANN. ch. 40, § 15A (West 2000) (requiring two-thirds majority approval of the municipal council and approval of the
municipal executive).
49 LOSS OF ARTICLE 97 LAND, supra note 13, at 13.
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and two for cemeteries.50 Only thirty-two of the 150 transfer bills
provided for replacement lands.51
The school construction transfers are seen as especially
harmful to open space goals because schools often require large
tracts of ten to twenty acres,52 which are often the main parklands in smaller, denser municipalities.53 Many of these school
transfers are particularly troubling. The Town of Malden built a
school on its last remaining park, designed by renowned landscape architect Frederick Law Olmstead.54 In some cases, procedural irregularities suggest that municipal legislators are trying to
avoid scrutiny in their treatment of Article 97 lands. In January
2000, the Council of the City of Everett attached an Article 97
transfer rider onto a completely unrelated bill.55
Huge economic incentives are the major driving force behind the high number of Massachusetts conversions, as the towns
need not pay to convert their open space land.56 In addition,
conservation and preservation groups have accused the state’s
School Building Assistance Bureau (SBAB) of encouraging municipalities to site new schools on open space land rather than
renovating existing structures.57 The SBAB reimburses school
districts for construction costs, but not for the cost of acquiring
land.58 Although a conversion for school construction involves
state funds, triggering the Massachusetts Environmental Policy
Act (MEPA), the MEPA review process is so disconnected from
the legislative approval process that it is ineffective in discouraging or mitigating such conversions. Because MEPA review often
takes place after the state legislature has voted on the conversion
bill, legislators are not even aware of the environmental impacts
of the transfers.59 The conversion of Article 97 land is a complex
issue that is still a source of conflict as of the date of this publication. In fact, the Massachusetts Audubon Society has declared
50
Id.
Id. at 14.
52 See id. at 10.
53 See id. at 9.
54 Telephone Interview with Chris Hardy, Legislative Liaison, Massachusetts
Audubon Society (Feb. 6, 2001).
55 Id.
56 See LOSS OF ARTICLE 97 LAND, supra note 13, at 3.
57 Id. at 1.
58 Id. at 9.
59 See id. at 15-16.
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the matter its number one priority on its policy agenda for the
2001 legislative session.60
Furthermore, the evidence suggests that Massachusetts is
not the only state where schools are being placed on conservation lands. The Town of Bow, New Hampshire recently converted town-held forestland for a new high school.61 As in the
San Juan Island example discussed above, towns also have used
private conservation land for school purposes.62 This phenomenon reflects the difficulties that municipalities face in keeping
conservation land undeveloped.
As will be discussed in Part IV, New Jersey has erected the
most comprehensive conversion restrictions of any state through
its Green Acres Program. Even so, the Green Acres Bureau of
Legal Services and Stewardship currently receives approximately
forty to fifty informal conversion requests per year from state,
county, and local government entities, an increase over past
years.63 Because of the Program’s conversion restrictions, most
of these requests never lead to conversions. But the increasing
volume of requests attests to the pressures to use conservation
land for other purposes.
Broader data are available on conversion of state and local
properties that were acquired with support from the federal
Land and Water Conservation Fund (LWCF). Since 1968, the
LWCF has distributed funds generated from offshore oil and gas
drilling leases to purchase conservation and recreation lands.64
Over the past thirty-five years, the program has supported over
38,000 state and local projects at approximately 30,000 sites
across the country.65 As of summer 2000, approximately 1000 requests to convert these sites have been approved by the National
60
Telephone Interview with Chris Hardy, supra note 54.
Telephone Interview with Peter Helm, Coordinator, Land Conservation
Investment Program (Jan. 23, 2001).
62 See supra notes 44-45 and accompanying text.
63 Telephone Interview with Mike Heenahan, Bureau of Legal Services and
Stewardship, Green Acres Program, New Jersey Department of Environmental
Protection (July 12, 2000).
64 The Land and Water Conservation Fund: An Overview, Americans for
Our Heritage and Recreation, at http://www.ahrinfo.org/lwcf_overview.html
(last visited May 21, 2001).
65 Telephone Interview with Wayne Strum, Director, Recreation Programs
Division, National Park Service (July 5, 2000).
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Park Service, which administers these requests under Section 6(f)
of the Land and Water Conservation Fund Act.66
It is no accident that conversion requests are more common
in relatively developed states such as New Jersey and Massachusetts. In contrast, it seems that conversion is not a major problem in states without as much growth pressure. In Maine, for
instance, the Land for Maine’s Future Program has acquired
roughly 68,000 acres since its inception in 1987.67 In this time,
only two conversions have occurred, with minimal conservation
degradation resulting from either.68 But if the number of conversion requests is in part a function of population density, as seems
likely, then we can expect an increasing number of conversion
requests in the coming years.
III
A SURVEY
OF
CONDEMNATION RESTRICTIONS
A. Condemnation of Privately Held Conservation Easements
Land conservation is the fastest growing branch of the environmental field, and conservation easements are an increasingly
popular tool to preserve land. The number of local and regional
land trusts—nonprofit organizations dedicated to land conservation—stood at 1,213 as of 1998, up from 743 a decade earlier.69
Together, these groups have placed conservation easements on
nearly 1.4 million acres.70 Moreover, the size of easements are
growing larger; a 1999 Nature Conservancy easement in California covers 36,000 acres of ranchland.71 The question remains
whether these properties are truly protected, for the conservation easement, despite being perpetual, provides surprisingly little protection from condemnation.
66
Id. Further analysis of these restrictions is presented infra Part IV.D.
Telephone Interview with Mark DesMeules, Coordinator, Land for
Maine’s Future Program (July 21, 2000).
68 Id.
69 1990s Bring Surge in Land Conservation as Regional, Local Land Trusts
Attract 1 Million Supporters, The Land Trust Alliance, at http://www.lta.org/
aboutlta/census.shtml (last visited May 21, 2001).
70 Id.
71 Press Release, The Nature Conservancy, The Nature Conservancy Announces Purchase of Largest Conservation Easement in California History
(Nov. 8, 1999), available at http://www.nature.org/press/press38.html.
67
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Private land trusts currently have limited grounds on which
to legally oppose condemnation.72 Federal and state governments, as sovereign entities, possess the inherent power of eminent domain, subject only to just compensation requirements and
the public purpose doctrine. County governments, municipal
governments, and special use districts are political subdivisions of
the state, and are usually granted eminent domain powers
through statute. Furthermore, utility companies have been empowered by various federal and state statutes to condemn property. Since land trusts are private organizations, their
conservation easement holdings are considered private property,
even though many of them are partially funded by the public
through charitable contribution tax deductions. And although
there is some case law suggesting that private conservation land
might be afforded added consideration in takings cases,73 as a
matter of course, private property owners are generally unsuccessful in challenging eminent domain actions.74
Legal opposition to the taking of a conservation easement is
especially futile in states where the conservation easement enabling statutes include a provision that expressly allows land subject to a conservation easement to be condemned.75 Legal action
is also unlikely to succeed in the remaining states, where the enabling legislation is silent on this issue. Currently, a land trust’s
best hope is to challenge a condemnation action through a public
72
1A SACKMAN, supra note 6, § 4.11[2], at 4-197 to 4-198.
See, e.g., Tex. E. Transmission Corp. v. Wildlife Pres., Inc., 225 A.2d 130,
134 (N.J. 1966) (“Defendant’s voluntary consecration of its lands as a wildlife
preserve, while not giving it the cloak of a public utility, does invest it with a
special and unique status [allowing] Wildlife Preserves. . .to have a plenary trial
of its claim that a satisfactory alternative route is available to plaintiff.”); Scenic
Hudson Pres. Conference v. Fed. Power Comm’n, 354 F.2d 608 (2d Cir. 1965)
(requiring a public utility to consider alternatives to overhead placement of
transmission lines).
74 One study, for example, showed a 20.7% success rate for eminent domain
plaintiffs. CAROL J. DEFRANCES ET AL., U.S. DEP’T OF JUSTICE, CIVIL JUSTICE
SURVEY OF STATE COURTS, 1992: CIVIL JURY CASES AND VERDICTS IN LARGE
COUNTIES 4 tbl.5 (July 1995), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/
cjcavilc.pdf. Of course, this figure only includes those cases where the plaintiff
or the plaintiff’s attorney thought there was a good enough argument to take it
to court.
75 See, e.g., ARIZ. REV. STAT. ANN. § 33-275 (West 2000); FLA. STAT. ANN.
§ 704.06 (West 2000); KY. REV. STAT. ANN. § 382.850 (Michie 2000); MASS.
GEN. LAWS ANN. ch. 184, § 32 (West 2000); N.Y. ENVTL. CONSERV. LAW § 490309 (Consol. 2000); N.C. GEN. STAT. § 106-744 (2000); VA. CODE ANN. § 10.11010(F) (Michie 2000); W. VA. CODE ANN. § 20-12-5 (Michie 2000).
73
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relations campaign or legal grounds distinct from eminent domain law. As seen with the Red Hills Conservation Program’s
opposition to the oil pipeline,76 a land trust may be able to stall
or defeat a project by claiming that the condemnor did not fulfill
its obligations under a state environmental policy act.77 It is
neither realistic nor advisable that conservation properties enjoy
blanket protection from condemnation. Instead, a more balanced approach, such as adding concrete procedural and substantive hurdles, will go a long way towards protecting these
properties from ill-considered condemnations, while still allowing necessary ones to occur.78
B. Condemnation of Publicly Held Conservation Easements
Public property generally enjoys greater protection from
condemnation than does private property. Property owned by a
government is considered devoted to a “prior public use” and
may be condemned only by express statutory authorization or by
necessary implication.79 Under the prior public use doctrine, a
publicly owned conservation easement cannot be condemned by
a “lower” government entity. A municipal government, for example, cannot condemn state land without specific authority
from the state legislature. A state government can condemn municipal property but not federal property. The state government’s property, in turn, can be condemned by the federal
government but not by a county or municipal government.
This hierarchy prompts some interesting strategic decisions
for the landowner or easement holder who is concerned about
condemnation. The added protections of publicly held easements may make them more attractive as a conservation tool.
For example, land trusts that are concerned about an imminent
or latent condemnation threat to one of their holdings may con76
See supra notes 37-40 and accompanying text.
E.g., North Carolina Environmental Policy Act, N.C. GEN. STAT. ANN.
§ 113A-1 et seq. (West 2000).
78 See infra Part V for a discussion of possible measures to achieve this goal.
79 1A SACKMAN, supra note 6, § 2.2, at 2-57 to 2-58. “Necessary implication” is a legal determination that refers to a court’s conclusion that the relevant statute shows the legislature’s intent to empower a condemnor to condemn
certain public property. A finding of necessary implication might be required
to resolve a dispute over the relative eminent domain powers of co-equal
branches of the same government, for example, if the state Department of
Transportation seeks to condemn land held by the state Department of Natural
Resources.
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vey the land or an interest therein to a government entity. Landowners and their attorneys often view a public conservation
easement as a way to protect their property from condemnation.
Some landowners in Virginia have been known to donate easements to the public Virginia Outdoors Foundation rather than to
a private land trust, in order to shield the property from condemnation.80 Similarly, in Maryland, where the Maryland Environmental Trust acts as a public land trust, protection from
condemnation has been a motivation for some conservation easement donors.81 Sometimes condemnation protection is a fortuitous byproduct of a deal’s structure. When the State of New
Hampshire purchased a particular conservation property in 1988,
it also granted a conservation easement to the United States Forest Service.82 Although it appears that the state granted the
easement for other reasons, this action also protected the land
from state condemnation. There are also examples of landowners granting historic preservation easements to state Historic
Preservation Programs solely to prevent condemnation.83
There are also ways in which private land trusts can capitalize on the relative immunity that public ownership provides.
Land trusts might consider co-holding easements with state agencies in order to preclude a municipal or county government from
condemning the interest. The New Jersey Conservation Foundation, a private land trust, has conveyed easements to the New
Jersey Natural Lands Trust, a public state entity. Although the
purpose of the conveyance was not to prevent condemnation,
this was an added advantage. A land trust might also look into
the possibility of dedicating property under a State Natural Area
Program (SNAP).84 Selected portions of larger parcels may be
dedicated, giving extra protection to the most important areas.
State historic preservation programs offer another way to protect
certain historic and archeological sites from condemnation. In
Texas, for instance, historic preservation easements are some80 Telephone Interview with Leslie D. Trew, Conservation Easement Specialist, Virginia Outdoors Foundation (June 6, 2000).
81 Interview with John Bernstein, Director, Maryland Environmental Trust,
in Washington, D.C. (June 13, 2000).
82 Sylvia Bates, How Protected is Protected?, FOREST NOTES (Soc’y for the
Prot. of N.H. Forests), Summer 1999, at 26, 27.
83 Telephone Interview with Tom Mayes, Attorney, National Trust for Historic Preservation (June 6, 2000).
84 See infra Part II.C. for further discussion of SNAPs.
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times granted in conjunction with designation as a State Archeological Landmark.85
Although publicly held easements do offer somewhat
stronger protections from condemnation, it must be stressed that
conveyance to a public entity is not the answer. Conveyance in
the face of an immediate condemnation threat is not a preferred
course of action. In general, the governmental acquisition programs are not created to protect property from imminent condemnation, but rather to protect it from an as-yet-unplanned
taking. Protecting a property at the eleventh hour by conveying
an interest to a state or federal agency could threaten the land
trust’s and the public agency’s credibility. In addition, thwarted
municipalities may pressure state legislators to weaken the state
agency’s condemnation protections or the land trust’s authority.
Although conveyance to a public entity might make sense on occasion, since many land trusts pride themselves on their independence from government, widespread conveyance is unrealistic.
Statutory restrictions on the ability to condemn easements would
be more realistic and effective.
At least one state has imposed special procedural and substantive hurdles to the condemnation of public conservation
easements. New Hampshire has taken such an approach with its
Land Conservation Investment Program (LCIP), which holds
easements on behalf of the State. LCIP is the sole holder of conservation easements on 30,000 acres and backup holders on another 25,000 acres held by municipalities.86 The original LCIP
enabling legislation required an act of the state legislature in order to condemn any easements acquired under the program. Because the New Hampshire Department of Transportation feared
this restriction was too broad and would prevent even minor incursions, the statute was amended in 1999 to allow a compromise
process by which the Department of Transportation may condemn minor slope and drainage easements after providing notice
to all interested parties and a declaration that there are no “reasonable and prudent alternatives.”87 All in all, the restrictions
have been so well-received that they are now being included in a
new state acquisition program for conservation and historic
85 Telephone Interview with Dan Potter, Regional Archaeologist, Texas Historical Commission (July 21, 2000).
86 Telephone Interview with Peter Helm, supra note 61.
87 N.H. REV. STAT. ANN. § 162-C:6(IV) (2000).
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properties.88 This legislation serves as a rare example of conservation easements that have been afforded specific protection
from condemnation actions.
C. State Natural Area Program Protections
Another model for protecting conservation lands arises
under various State Natural Areas Programs (SNAPs). Under a
typical SNAP, lands that host rare or significant wildlife habitat,
plant communities, or geologic formations may be dedicated as
“natural areas” or “nature preserves.” Although the legal
frameworks are very different, the dedication of land is similar to
the granting of an easement. Both are intended to establish perpetual usage restrictions in order to preserve the land’s conservation resources. The articles of dedication are akin to an
easement agreement, specifying what uses are permitted and prohibited. To date, twenty-eight states have some form of statutory
SNAPs,89 while at least one state operates an administrative
SNAP.90 In a few states, such as Indiana, the SNAP is the sole or
the major conservation land acquisition program, while in most it
is merely supplemental to larger acquisition programs and natural resource agencies.
88
Telephone Interview with Peter Helm, supra note 61.
These twenty-eight states are: Arkansas (ARK. CODE ANN. § 15-20-314
(Michie 2000)); California (CAL. FISH & GAME CODE § 1932 (West 2000)); Colorado (COL. REV. STAT. § 33-33-101 et seq. (2000)); Connecticut (CONN. GEN.
STAT. ANN. § 23-5a et seq. (West 2000)); Georgia (GA. CODE ANN. § 12-3-90 et
seq. (2000)); Hawaii (HAW. REV. STAT. § 195-1 et seq. (2000)); Illinois (525 ILL.
COMP. STAT. ANN. 30/14 (West 2000)); Indiana (IND. CODE ANN. § 14-31-1-1 et
seq. (West 2000)); Kentucky (KY. REV. STAT. ANN. § 146.475 (Michie 2000));
Louisiana (LA. REV. STAT. ANN. § 56:1861 et seq. (West 2000)); Maine (ME.
REV. STAT. ANN. tit. 12, § 541 et seq. (West 2000)); Maryland (MD. CODE ANN.,
FIN. INST. § 13-1109 et seq. (2000)); Michigan (MICH. COMP. LAWS ANN.
§ 324.35101 et seq. (West 2000)); Minnesota (MINN. STAT. ANN. § 86A.05 (West
2000)); Mississippi (MISS. CODE ANN. § 49-5-141 et seq. (2000)); Montana
(MONT. CODE ANN. § 76-12-101 et seq. (2000); Nebraska (NEB. REV. STAT.
§ 37-714 et seq. (2000)); New Jersey (N.J. STAT. ANN. § 13:1B-15.4 et seq. (West
2000)); North Carolina (N.C. GEN. STAT. § 113A-164.1 et seq. (2000)); North
Dakota (N.D. CENT. CODE § 55-11-01 et seq. (2000)); Ohio (OHIO REV. CODE
ANN. § 1517.05 et seq. (West 2000)); Oregon (OR. REV. STAT. § 273.586 (2000));
Rhode Island (R.I. GEN. LAWS § 42-122-1 et seq. (2000)); Tennessee (TENN.
CODE ANN. § 11-14-101 et seq. (2000)); Vermont (VT. STAT. ANN. tit. 10, § 2607
(2000)); Virginia (VA. CODE ANN. § 10.1-209 et seq. (Michie 2000)); Washington (WASH. REV. CODE ANN. § 79.70.010 et seq. (West 2000)); Wisconsin (WIS.
STAT. ANN. § 23.26 et seq. (West 2000)).
90 In Missouri, the Missouri Natural Areas System is an administrative
branch of the Department of Conservation.
89
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SNAPs present important yet overlooked precedents for
protecting conservation lands from both condemnation and conservation. In some states, properties dedicated to SNAPs cannot
be condemned or otherwise converted without overcoming significant procedural and substantive hurdles. The level of protection varies from state to state, according to the enabling
legislation and to administrative resolve. For some SNAPs, dedication of a property is mostly a symbolic act, without any extra
protection extended to dedicated properties.91 Others place substantial limits on condemnation, sale, exchange, or change in designation of dedicated properties. In Minnesota, for example, the
change of use or designation cannot be altered without a public
hearing.92 Further, the Minnesota Department of Natural Resources (DNR) has to approve any conversion request, and has
been very reluctant to do so.93 In the program’s twenty-six years,
it has dedicated 132 properties covering 179,000 acres.94 To date,
the Minnesota DNR has not approved a single conversion request.95 The likelihood of DNR rejection often discourages requests from even reaching the stage of a public hearing.
One key variation among the different SNAPs is whether
both public and private land may be dedicated. In Hawaii, for
example, only public land can be dedicated.96 In contrast, both
public and private land can be dedicated in most of the other
SNAPs. In these states, private land trusts and individuals can
dedicate their conservation lands (with the landowner’s participation, for easement properties) to a SNAP, providing what
amounts to an overlay protection from condemnation that is not
ordinarily available to conservation easement lands.97
91 E.g., Virginia Natural Areas Preserves Act, VA. CODE ANN. § 10.1-209 et
seq. (Michie 2000).
92 MINN. STAT. ANN. § 86A.05(5)(d) (West 2000).
93 Telephone Interview with Robert Djupstrom, State Natural Area Supervisor, Minnesota Department of Natural Resources (June 27, 2000).
94 Id.
95 Id.
96 See HAW. REV. STAT. § 195-4(1) (2000).
97 There is one caveat: Natural area dedication will not offer a broad protection tool for land trusts because a property usually must fit narrow scientific
criteria to qualify for the program. The exact qualifying criteria vary from state
to state. As a general rule, open space and farmland usually will not qualify
unless they also contain geologic, wildlife, and plant habitat or other significant
natural resources.
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In Indiana, private properties may be dedicated as nature
preserves, and private land trusts have developed a close cooperation with the SNAP.98 Of the 172 properties dedicated to the
SNAP, fifty-three are owned by private land trusts.99 Two private land trusts, the Nature Conservancy and ACRES, each have
dedicated over 1000 acres, while four other land trusts bring the
total land trust dedications to over 3000 acres.100 Often, the
SNAP works on joint acquisition projects with these land trusts
under the state’s Heritage Trust Program. Furthermore, Indiana
has not enacted any other statewide land acquisition program, so
land trusts looking for state funds have tailored their acquisition
criteria to meet the Nature Preserve Act’s qualifying criteria.101
One result of this arrangement is that a greater proportion of
land trust properties in Indiana are of high natural resource
value, while recreation and scenic properties are less
prevalent.102
Thus, land trusts in certain states may want to examine the
possibility of cooperating with SNAPs in order to add to the protection of significant conservation lands. In addition, SNAPs
serve as a model that may be adapted to other programs and
statutes. In states without SNAPs, the conservation community
may wish to advocate for programs that would provide their
properties with heightened levels of protection from condemnation and conversion.
D. Agricultural Preservation District Restrictions
In addition to the above protections, agricultural preservation programs in certain states serve as a model that may be
adapted to the broader category of conservation lands. As of
1998, sixteen states had adopted agricultural preservation programs to stem the loss of farmland to sprawl and other threats.103
Through these programs, farmers voluntarily enroll their lands in
98 Telephone Interview with Hank Huffner, Ecologist, Indiana Department
of Natural Resources, Division of Nature Preserves (July 10, 2000).
99 See Database Printout, Ind. Div. of Nature Preserves, Indiana State Dedicated Nature Preserves (July 11, 2000) (on file with N.Y.U. Environmental Law
Journal).
100 See id.
101 Telephone Interview with Hank Huffner, supra note 98.
102 Id.
103 Fact Sheet, Farmland Information Center, The Farmland Protection Toolbox (Sept. 1998), available at http://www.farmlandinfo.org/fic/tas/tafsfptool0299.pdf.
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an agricultural preservation district, thereby achieving various
benefits such as protection from nuisance laws and favorable
property tax treatment. Some states’ programs include procedural protections from condemnation for enrolled lands. In particular, New Hampshire, Ohio, and Rhode Island have established
agricultural preservation easement programs that provide some
level of protection. New Hampshire requires that condemning
authorities consider alternative land areas.104 In Rhode Island,
the condemnor must file a report, endorsed by the governor after
public hearings, that “demonstrate[s] extreme need and the lack
of any viable alternative.”105 In Ohio, properties enrolled in agricultural districts can only be condemned after passing similar
hurdles. Whenever the proposed condemnation would take
more than ten acres or ten percent of an individual’s property,
the condemning authority must notify the Ohio Department of
Agriculture at least thirty days before beginning condemnation
proceedings and must justify the taking and evaluate
alternatives.106
Despite these procedural hurdles, it is not clear that such
measures have made much of a difference. The Ohio Department of Agriculture typically reviews the proposed condemnation action, holds a hearing, and issues a report that either
recommends or objects to the action.107 But the report is entirely
advisory and carries no mandatory response.108 The condemnor
routinely receives the report and proceeds with the project in its
unaltered form.109 One employee of the Department of Agriculture referred to the process as simply “a moment for the conscience to shine,” rather than an effective way of protecting
agricultural land.110 As discussed later in this Article, effective
condemnation and conversion restrictions require more than adding a few more sheets of paper to the process.
104
N.H. REV. STAT. ANN. § 432:29 (2000).
R.I. GEN. LAWS § 42-82-6 (2000).
106 OHIO REV. CODE ANN. § 929.05(A)-(B) (West 2000).
107 Telephone Interview with Joe Daubenmire, Assistant Manager, Office of
Farmland Protection, Ohio Department of Agriculture (Feb. 26, 2001).
108 Id.
109 Id.
110 Id.
105
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IV
CONVERSION RESTRICTIONS
The issue of conversion is taking on increasing importance
with the astronomical growth in state and local conservation acquisition programs. Recent years have seen a burgeoning of
open space referenda on state and local ballots, with overwhelming approval rates. In the last three years, 390 out of 459 (85%)
referenda for the acquisition of open space were approved by
voters across the country.111 In the October 2000 elections alone,
over $7.4 billion was committed to conservation acquisitions.112
Most of these referenda establish or expand state or local acquisition programs. For example, in March 2000, California voters
approved Proposition 12, a $2.1 billion measure to fund rural and
urban open space acquisitions and improvements to already established parks.113 On a smaller scale, the City of Lake Oswego,
Oregon approved an open space bond act for $13 million for use
in refurbishing baseball fields, among other things.114 These are
just two of the hundreds of examples of states and communities
accepting higher taxes to preserve fast-disappearing open space.
All of this public land acquisition increases the odds that state
and local governments will face conversion disputes in the years
to come. To prepare for such an eventuality, they might do well
to explore some of the models used to date in different states.
Most states have surplus land statutes that govern the disposition of all real property held by the state. In addition, more
specific disposition statutes may govern land held by state conservation agencies. In Virginia, for example, any land owned or
111 See LAND TRUST ALLIANCE, VOTERS INVEST IN PARKS AND OPEN SPACE:
1998 REFERENDA RESULTS 5 (1999), available at http://www.lta.org/publicpolicy/refresults.pdf (noting the success of 124 of the 148 open space measures on ballots nationwide in the November 1998 elections); LAND TRUST
ALLIANCE, VOTERS INVEST IN OPEN SPACE: 1999 REFERENDA RESULTS 4
(2000), available at http://www.lta.org/publicpolicy/1999voters_inv.pdf (noting
the success of 92 of 102 open space measures on ballots nationwide in 1999
elections); Press Release, Land Trust Alliance, LTA Publishes Referenda Results: $7.5 Billion Committed to Open Space Protection (Mar. 2001) [hereinafter LTA Publishes Referenda Results], at http://www.lta.org/publicpolicy/
referenda2000.htm (noting the success of 174 of the 209 open space measures
on ballots nationwide in the 2000 elections).
112 LTA Publishes Referenda Results, supra note 111.
113 Voters Faced Longest List of Ballot Propositions in a Decade, SAN DIEGO
UNION-TRIB., Mar. 8, 2000, at A-10.
114 Lake Oswego Approves Bonds for Open Space and Ball Fields, OREGONIAN, Apr. 5, 2001, at B2.
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controlled by the Department of Conservation and Recreation
may be conveyed or leased only upon the approval of the governor and the General Assembly.115 This Part discusses state and
local conversion restrictions on such conservation land.
A. The New Jersey Model
The state with the most longstanding and comprehensive
conversion restrictions is New Jersey. Green Acres, a statewide
acquisition program, has funded conservation purchases since
1961 through a series of bond acts. Most recently, in 1998, New
Jersey voters approved a referendum that allocates nearly $2 billion over ten years to preserve roughly one million acres of farmland and open space.116 Because of Green Acres’ relatively long
history, the program has had the opportunity to learn from past
mistakes and has come to realize the importance of conversion
restrictions in its overall conservation plan. These restrictions,
which have evolved over time and will probably continue to do
so, nevertheless may serve as a model for other states to
consider.
The heart of the current conversion restrictions stems from
the Green Acres Land Acquisition and Recreation Opportunities Act of 1975, passed fourteen years after the program was
first established. In addition to this enabling statute, the New
Jersey Administrative Code spells out a set of administrative regulations to which the conversion process must adhere. The conversion application process is an intentionally cumbersome one,
meant to discourage applicants from the start. The process begins with an inquiry by a town, county, or state administrator to
the Green Acres Bureau of Legal Services and Stewardship.117
The Green Acres staff fields these inquiries by explaining the
conversion process and informally discouraging the parties from
submitting a formal request.118 Next, there is an informational
pre-application meeting between the applicant and Green Acres
staff, in which the staff runs through a checklist of the eleven
separate requirements that exist in the statute’s accompanying
115
VA. CODE ANN. § 10.1-109 (Michie 2000).
See Meeting the Challenge: Preserving One Million More Acres of New
Jersey’s Open Space, Green Acres Program, at http://www.state.nj.us/dep/
greenacres/challenge.htm (last modified Feb. 23, 2000).
117 Telephone Interview with Mike Heenahan, supra note 63.
118 Id.
116
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regulations.119 An on-site inspection of the property proposed
for conversion is included in this meeting. At this point, the
Green Acres staff holds a closed, in-house meeting at which it
either rejects the request outright, asks for additional information or amendment, or authorizes the applicant to submit a formal application.120
A final conversion approval requires a public hearing and
adherence to five specific criteria: First, the conversion must “fulfill[ ] a compelling public need or yield[ ] a significant public benefit. . . .”121 A compelling public need is a health or safety
hazard, while a significant public benefit is the improvement of
the delivery of essential services.122 The compelling public need
requirement is waived where the applicant government offers replacement land that will “substantially improve the quantity and
quality of parkland within the boundaries of the local unit where
the parkland proposed for disposal or diversion is located.”123
As a second requirement, there must be a determination that
there are no feasible alternatives to the proposed conversion.124
The alternatives analysis must look at the environmental impacts
of every alternative, including a no-build alternative, whereby
the purpose for which the conversion is proposed is not
fulfilled.125
Third, the applicant government must compensate for the
conversion with replacement land or, if none is available, with a
deposit into an account dedicated solely for new conservation
and recreation land purchases.126 The replacement property
must be of equal or greater market value and of reasonably
equivalent size, quality, location, and usefulness for conservation
and recreation purposes.127 The monetary deposit must be equal
to the appraised market value of the conversion property at the
time of the application.128 The applicant must also commission
appraisals of both the conversion property and replacement
property, although these appraisals are waived if the replacement
119
120
121
122
123
124
125
126
127
128
Id.
Id.
N.J. ADMIN. CODE tit. 7, § 7:36-21.1(c)(1) (2000).
Id. § 7:36-21.2(a)(i)-(ii).
Id. § 7:36-21.1(c)(1).
Id. § 7:36-21.1(c)(2).
Id. § 7:36-21.2(a)(2).
Id. § 7:36-21.1(c)(3).
Id. § 7:36-21.3(a).
Id. § 7:36-21.3(a)(1).
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property is at least twice as large as the conversion property and
of at least equal market value.129 In some cases, Green Acres
requests scientific data from the relevant state agency on the conservation resources on the conversion or replacement properties.130 Fourth, the applicant government must replace any
recreational facilities that are lost due to the conversion.131 Finally, the applicant government (or the land trust’s governing
board if the land is held by a land trust) must approve the conversion by resolution.132 Upon receiving a formal application,
Green Acres issues a recommendation to the Commission of the
Department of Environmental Protection to approve or deny the
application.133 The Commissioner’s approval is then forwarded
to the State House Commission, which is comprised of the Governor and other top cabinet officials, to approve or deny the request.134 In most cases, if a formal application is completed,
Green Acres recommends approval.135 Likewise, if Green Acres
recommends approval, the DEP Commissioner and the State
House Commission usually approve the request.136
The Green Acres Act includes a unique provision that extends the conversion review process to both Green Acres-funded
and non-funded properties owned by the applicant government
at the time of the Green Acres grant.137 Thus, when a municipality or county applies for Green Acres funding to acquire a property, all of its parkland becomes subject to the Green Acres
conversion review process. Since most municipal- and townowned parkland has not been funded by Green Acres, this provision significantly expands the scope of protection. Although
some municipalities objected to this provision, a state court upheld the expanded jurisdiction in 1977.138 This expanded scope
has ensured that a local government does not purchase parkland
with the Green Acres money and then sell other government129
Id. § 7:36-21.4(a).
Telephone Interview with Mike Heenahan supra note 63.
131 N.J. ADMIN. CODE tit. 7 § 7:36-21.1(c)(4) (2000).
132 Id. § 7:36-21.1(c)(5).
133 Telephone Interview with Mike Heenahan, supra note 63.
134 Id.
135 Id.
136 Id.
137 N.J. STAT. ANN. § 13:8A-47(b) (West 2000).
138 Borough of Demarest v. N.J. Dep’t of Envtl. Prot., 372 A.2d 656 (N.J.
Super. Ct. Ch. Div. 1977).
130
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owned parkland, in effect using the Green Acres money to fill its
coffers without any net gain in parkland.
Despite the strength of the Green Acres conversion restrictions, gaps did exist and were exploited. State lands acquired
without Green Acres funding, for instance, were not covered by
the restrictions. In 1986, the state legislature approved the sale
of over 1200 acres of state wildlife management area land on
Hamburg Mountain to a developer.139 Since the land was state
property, it was not subject to the Green Acres conversion process just described. Years of wrangling have left the ultimate fate
of the land unresolved, and the developer recently submitted
new development plans for a large golf resort complex.140
As a result of the Hamburg Mountain fiasco, a bill was
passed to apply the Green Acres conversion review process to all
state conservation lands.141 Any state-owned land acquired with
Green Acres funds or administered by the Department of Environmental Protection may not be conveyed without: (1) preparing a report that identifies the environmental, recreational, and
ecological impacts of the conveyance; (2) submitting the report
to several legislative committees; (3) making the report public at
least thirty days in advance of; (4) holding a public hearing on
the proposed conveyance.142 This process would have prevented
the Hamburg Mountain transfer.
Finally, a separate process governs the sale of county-owned
non-conservation land that the county desires to sell.143 Since
the land is not designated parkland, it does not fall under the
Green Acres restrictions. But the land may still be valuable for
open space purposes. A separate statute established a notice
provision, requiring the county to hold two public hearings
before it may convey these surplus lands.144 In addition, every
municipality within the county must be notified and provided
with an opportunity to purchase the property for its own open
space needs.145
Recently compiled data suggest that the strong conversion
restrictions have been successful in limiting the number of con139
140
141
142
143
144
145
See Brown, supra note 12, at L3.
Id.
N.J. STAT. ANN. § 13:1D-52 (West 2000).
Id. § 13:1D-52(a)(1)-(4).
N.J. STAT. ANN. § 40A:12-13.5 (West 2000).
Id. § 40A:12-13.5(a)(3).
Id. § 40A:12-13.6(a)(2).
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versions. As noted earlier, the Green Acres Bureau of Legal
Services and Stewardship receives between forty and fifty informal conversion requests per year.146 But due to the strong restrictions, most of these requests never make it to a formal level,
where an official decision must be made. For instance, in the
eighteen months from the beginning of 1999 through June 2000,
only twenty-two requests made it to an in-house meeting
stage.147 Of these, one was deemed not to be a conversion, two
were withdrawn, one was denied, and the remaining eighteen are
pending.148 Although the Green Acres office has only tracked
these requests since this time, the initial data suggest that the
restrictions are serving to limit the ultimate number of
conversions.
New Jersey’s conversion restrictions work because they are
comprehensive, extensive, and thorough. At the same time,
there is always pressure on municipal officials and the Green
Acres Program to support conversions by acquiescing in a premature determination that there are no feasible alternatives to
the proposed conversion.149 Most recently, some municipalities
have sought to exempt the construction of schools on protected
lands.150 Without its strong restrictions, New Jersey would be in
the same position as Massachusetts in opening up conservation
lands for school purposes.
B. The Florida Model
Florida has carried out one of the nation’s most ambitious
statewide acquisition programs over the last decade. In 1990, the
legislature committed $3 billion over ten years to conservation
land acquisition.151 In 2000, the legislature passed a successor
program, Florida Forever, which commits billions more. To date,
the program has protected over one million acres of land.152
A push for stronger and clearer conversion restrictions arose
out of a controversy regarding part of a property acquired for
146
Telephone Interview with Mike Heenahan, supra note 63.
Id.
148 Id.
149 Id..
150 Id.
151 Preservation 2000 Background: Stewards of Florida’s Land, Florida Department of Environmental Protection, at http://p2000.dep.state.fl.us/
backgrnd.htm (last visited May 21, 2001).
152 Id.
147
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conservation purposes but later proposed for sale and commercial development. In 1992, the state used Preservation 2000
funds to acquire an 18,000-acre parcel in Walton County.153 According to some accounts, the state acquired the entire parcel but
reached an informal understanding with the County that a portion containing marginal conservation resources would be turned
over for the proposed development.154 When the state tried to
convey 420 acres to the County, a coalition of environmental
groups, led by the Florida Wildlife Federation, filed a lawsuit opposing the disposition.155 Because there were no clear regulations on the conversion of conservation land, the lawsuit focused
on local planning and zoning statutes.
Partly as a result of this controversy, the State has tightened
its conversion restrictions in recent years. Voters overwhelmingly ratified a Conservation Amendment to the state constitution in November 1998.156 One of the provisions of the
amendment sets up restrictions on the disposition of any conservation lands, stating:
The fee interest in real property held by an entity of the state
and designated for natural resources conservation purposes as
provided by general law shall be managed for the benefit of
the citizens of this state and may be disposed of only if the
members of the governing board of the entity holding title determine the property is no longer needed for conservation
purposes and only upon a vote of two-thirds of the governing
board.157
The Florida Forever legislation designates all land purchased
under that legislation and all of the state’s previous land acquisition programs as having been purchased for conservation purposes, thus bringing over two million acres of land within the
scope of the amendment.158
The supermajority approval requires five of the seven members of the governor’s cabinet to vote in favor of the disposition.159 This in itself is not a unique procedural mechanism, for
153 Groups Hope to Block Walton Development, ST. PETERSBURG TIMES,
June 3, 1998, at 5B.
154 Id.
155 Id.
156 Clay Henderson, The Conservation Amendment, 52 FLA. L. REV. 285,
285-86 (1999).
157 FLA. CONST. art. X, § 18 (1998).
158 Henderson, supra note 156, at 293.
159 Id. at 292.
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supermajority votes are common in conversion restriction provisions. What is exceptional about the Florida amendment and implementing statute is the imposition of a conservation-based
standard to guide the cabinet’s decision. Although the “no
longer needed for conservation purposes” standard is vague and
open to abuse, the Board’s staff is in the process of designing
specific criteria by which to implement this standard. These criteria include the requirement that scientific data support the “no
longer needed” determination.160
C. Local Conversion Restrictions
As a whole, municipalities are surprisingly unprepared to
handle conversion issues in any systematic way. Most municipalities own extensive parkland but have no restrictions against conversion. Only a few municipalities have adopted ordinances or
provisions in their home rule charters that ensure against conversion. The citizens of Colorado Springs, Colorado, passed an initiative ordinance in 1997 which establishes an open space
acquisition program.161 One of the ordinance’s provisions requires a majority vote in a city-wide referendum or initiative if
the city seeks to sell, trade or otherwise convey any land acquired
under the program.162 In the event that such a conveyance is
approved in this manner, the money received in return for the
conveyance must be devoted to new open space acquisition.163
The simplest and broadest approach would be to amend the municipality’s charter to require that all park land owned by the municipality (not only land acquired through a particular program)
are to remain so unless the voters through a referendum or initiative decide to convey the property or to allow some other public
but non-conservation use. There is some anecdotal evidence that
citizens and municipalities are beginning to consider such mea-
160 BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND,
CRITERIA FOR DESIGNATING CONSERVATION LANDS AS SURPLUS (May 30,
2000) (draft document, on file with author).
161 An Initiated Ordinance Submitted to the Electors of the City at the Regular Election on April 1, 1997 Relating to the Creation of a Trails, Open Space
and Parks Program Through a Sales and Use Tax (Apr. 1, 1997), reprinted in
T.O.P.S. POLICIES AND PROCEDURES MANUAL, at 40 (1998).
162 Id. at 43-44.
163 Id. at 44.
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sures,164 but unfortunately these forward-thinking provisions are
all too rare on the local level.
D. Federal Conversion Restrictions
The federal government has protected land for conservation
purposes in a variety of ways over the course of its long history.
Among the most familiar conservation designations are National
Parks, National Wildlife Refuges, National Wildernesses, and
National Monuments. Furthermore, conservation lands have
been acquired through a multitude of different federal programs.
Although an exhaustive review of each of these designations and
acquisition programs is beyond the scope of this analysis, certain
statutes and policies are especially noteworthy examples of conversion restrictions.
The most explicit conversion restrictions of any government
land acquisition program are found in the Land and Water Conservation Fund (LWCF) program. This program, enacted by
Congress in 1961, has funded over 38,000 projects (either acquisitions or improvements) involving approximately 30,000 different
properties.165 Property acquired or improved by funds from the
LWCF may not be disposed of without the approval of the National Park Service (NPS) and the substitution of replacement
properties of equivalent conservation and/or recreation value.
The program’s enabling legislation states:
No property acquired or developed with assistance under this
section shall, without the approval of the Secretary, be converted to other than public outdoor recreation uses. The Secretary shall approve such conversion only if he finds it to be in
accord with the then existing comprehensive statewide outdoor recreation plan and only upon such conditions as he
deems necessary to assure the substitution of other recreation
properties of at least equal fair market value and of reasonably equivalent usefulness and location.166
As discussed above,167 despite this statutory restriction there
have been roughly 1000 conversions since the program was enacted in 1961. What little hard data there is suggest that cities or
states seeking to convert such properties have been quite success164 See E-mail from Barry Lonik, Coordinator, Washtenaw-Potawatomi Land
Trust (Feb. 27, 2001).
165 See supra notes 64-65 and accompanying text.
166 16 U.S.C. § 460l-8(f)(3) (1994).
167 See supra notes 65-66 and accompanying text.
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ful and that the Secretary of the Interior approves most conversion requests supported by the state agency overseeing the
LWCF program.168 It is not clear that the National Park Service
has adequately monitored the conversion process. In at least one
instance, a municipality (Lebanon, New Hampshire) converted
land that it did not even realize was under LWCF restrictions.169
Perhaps because of the regularity of these conversions, the proposed Conservation and Reinvestment Act of 2000, which passed
the House of Representatives but did not reach a vote in the Senate, included a strengthening of the conversion restrictions. This
statute would have added a “feasible and prudent alternatives”
analysis to Section 6(f), thus expanding the National Park Service’s authority to reject conversion requests.170
PROPOSAL
V
MODEL ANTI-CONVERSION
CONDEMNATION STATUTE
FOR A
AND
ANTI-
There is no single best mechanism to prevent conservation
lands from being condemned or converted to other uses. The
ideal approach is to establish a comprehensive set of procedural
and substantive restrictions that reflect the complexities of conversion and condemnation issues. The most important measure
of any given restriction is its efficacy in preventing rash and unnecessary conversions and condemnations. By raising the cost
and time it takes to convert or condemn conservation property,
restrictions force condemning authorities to consider other alternatives. This Part highlights some of the individual mechanisms
adopted in various jurisdictions and flags the relevant issues to be
considered in establishing a new set of conversion and condemnation restrictions.
A. Replacement Requirements
A replacement requirement is by far the most critical element of effective condemnation and conversion restrictions.
Without a replacement requirement, the total amount of conser168 Edward J. Heisel, Biodiversity and Federal Land Ownership: Mapping a
Strategy for the Future, 25 ECOLOGY L.Q. 229, 272 (1998).
169 Telephone Interview with Paul Doscher, Society for the Protection of
New Hampshire Forests (June 21, 2000).
170 Conservation and Reinvestment Act of 2000, H.R. 701, 106th Cong. § 209
(2000).
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vation land will inevitably shrink. Because most conversion requests involve a relatively small amount of land area, the
property owner may not understand the importance of replacement. But an acre here and there adds up, causing the gradual
but damaging loss of protected land. Thus, the mandatory replacement of converted or condemned property is the linchpin of
a “no net loss” policy. Many jurisdictions have successfully implemented a replacement requirement in their conversion
restrictions.171
Of course, true replacement is not always possible for sensitive conservation properties. Ball fields, swimming pools, tennis
courts, and other recreational facilities are easier to replace than
a bird sanctuary or a wetlands. Where replacement of land is not
feasible, the owner should be required to deposit money into an
account specifically dedicated to conservation acquisition, preferably in the vicinity of the jurisdiction in which the conversion
occurs.
A model replacement provision would require the replacement property to have conservation or recreation value and economic value greater than or equal to the converted property. As
in New Jersey, appraisals should be required in determining economic equivalency.172 Although the conversion process is inherently political, the decision to convert a property should also be
based on sound science. Where possible, scientific data should
be required to determine whether replacement properties are of
equal conservation value. Florida has the most explicit requirements for conservation-based decisions, stating that a conservation property cannot be converted until the reviewing bodies
make an empirical determination that the property is “no longer
needed for conservation purposes.”173 New Jersey’s Green
Acres review process also receives assistance from state biologists in determining the conservation values of the replacement
and conversion properties.174
171 See, e.g., N.J. ADMIN. CODE tit. 7 § 7:36-21.1(c)(3) (2000); 16 U.S.C.
§ 460l-8(f)(3) (1994).
172 N.J. ADMIN. CODE tit. 7 § 7:36-21.3(a)(1).
173 See supra note 157 and accompanying text.
174 Telephone Interview with Mike Heenahan, supra note 63.
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B. Elimination of Fiscal Incentives to Conversion
Related to the replacement issue is the need to eliminate
fiscal incentives to convert or condemn conservation land. As
discussed, there are often strong economic incentives to use public conservation lands instead of private land for transportation
and other development projects.175 This fiscal incentive is most
apparent in Massachusetts, where municipalities do not have to
pay anything to convert conservation lands they already own. In
Florida, by contrast, the state must sell surplus lands at the
greater of fair market value or the price the state originally paid
for the property, but there is an exception where the buyer is a
county or municipal government.176 This exception might prove
to be a significant loophole, as environmentalists fear that developers will pressure local governments to act as a conduit to
purchase conservation lands from the state and then convey them
to the developers.177 The state that has most successfully eliminated any fiscal incentives is New Jersey, where virtually all public conservation lands are protected by various statutes.178
States must sometimes go to great lengths to close all of
these economic loopholes. Maryland’s Program Open Space
(POS) has had to tighten its conversion restrictions in recent
years by implementing a unique valuation provision to remove
monetary incentives for conversions. Dating back to 1968, POS
modeled its conversion provisions after the Land and Water Conservation Fund Act,179 requiring replacement of any converted
lands with lands of at least equal recreational use value. But
since many of the lands initially purchased with POS funds became zoned as open space, their fair market values were artificially lower. Developers could thus reap windfalls by providing
replacement lands equal to the POS property’s open space value
and then rezoning the converted property for commercial or residential uses.180 In 1992, for instance, a Baltimore County developer applied to convert a POS-funded soccer field to expand a
175
Nober, supra note 23.
See FLA. STAT. ANN. § 253.034(6)(c)-(d) (West 2000).
177 Telephone Interview with Ansley Samson, Attorney, Earthjustice Legal
Defense Fund (July 6, 2000).
178 See supra Part IV.A.
179 See supra notes 165-70 and accompanying text.
180 Telephone Interview with Grant Dehart, Former Director, Program Open
Space, Maryland Department of Natural Resources (July 14, 2000).
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supermarket.181 To meet the replacement requirements, he offered property that was equal to the POS property’s open space
zoning value, and its comparable recreational use.182 Even
though the POS property would be immediately rezoned after
conversion, the developer would not have had to pay for the difference between the open space value and the rezoned commercial value.183 Protests from local “soccer moms” and the
disparity between the appraisals for the two parcels caused POS
to turn down the request for conversion.184 To further address
this potential loophole, in 1995 the state legislature changed the
law so that whenever a zoning change is required for a conversion, the converted land shall be valued at the use requested, not
the prior open space or recreation value.185 Since the replacement property must be of equal value, this provision eliminates
the economic incentive to convert land. As intended, the amendment has significantly reduced the number of conversion requests from the counties.186
C. Meaningful Alternatives Analysis
One of the most common condemnation and conversion restrictions is a substantive alternatives analysis requirement. This
burden has been established because of a perception that governments (and government-empowered condemnors) often select
conservation lands for private properties without carefully considering viable alternatives. Many state and local conversion restrictions, including SNAPs, state that a request will only be
approved if there are no prudent and feasible alternatives.187
The prudent and feasible alternatives standard comes directly from Section 4(f) of the Department of Transportation
Act.188 Section 4(f) imposes substantive and procedural restrictions on the use of certain parkland and historic sites for federally funded transportation projects. The Act, passed in 1966,
allows the Department of Transportation (DOT) to approve such
181
Id.
Id.
183 Id.
184 Id.
185 MD. CODE ANN., NAT. RES. I § 5-906(e)(8) (2000).
186 Telephone Interview with Grant Dehart, supra note 180.
187 See ARK. CODE ANN. § 15-20-314(a) (Michie 2000); CONN. GEN. STAT.
ANN. § 23-5e (West 2000); N.H. REV. STAT. ANN. § 162-C:6(IV) (2000).
188 49 U.S.C. § 303(c)(1) (1994).
182
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a project “only if (1) there is no prudent and feasible alternative
to using that land; and (2) the program or project includes all
possible planning to minimize harm. . .resulting from the use.”189
The Act applies to publicly owned land from a public park, recreation area, wildlife and waterfowl refuges, and publicly and privately owned historic sites. Section 4(f)’s protections are very
broad insofar as they may apply to all publicly owned parkland,
from Yellowstone National Park down to a town-owned playground. In addition, even privately owned historic sites are protected, as long as they are listed on or are eligible for the
National Register of Historic Places.
Section 4(f) may also extend additional protection to publicly held conservation easements. Although Section 4(f) protections apply for the most part to publicly owned park lands, the
Department of Transportation Act’s own 4(f) guideline manual
concedes that private lands subject to publicly held easements
are considered to be publicly owned for the purposes of the statute.190 This interpretation means that the thousands of conservation easements owned by federal, state, county, and municipal
governments fall under Section 4(f) protection. Since there is little statistical information on 4(f) reviews, it is not possible to determine how often DOT projects have encroached on public
conservation easements. But it is probable that to date these
lands have not been protected to the full extent of Section 4(f).
Officials who are charged with monitoring public easements
should be aware of this overlooked provision.
Despite the strong language of the statute, the effectiveness
of 4(f) in protecting parkland has been relatively modest and disappointing from the perspective of many environmentalists and
preservationists.191 Because the protections are only triggered by
a federally funded transportation project, solely state-funded
transportation projects need not meet these requirements. This
limitation has become a full-fledged loophole because states have
become adept at avoiding 4(f) by shifting federal funds away
189 Id. § 303(c)(1)-(2). The second prong (“all possible planning”) has not
received as much judicial scrutiny and is treated as more of a formality.
190 See FED. HIGHWAY ADMIN., U.S. DEP’T OF TRANSP., SECTION 4(F) POLICY PAPER (June 7, 1989), available at http://www.fhwa.dot.gov/environment/
guidebook/vol2/4fpolicy.htm.
191 D.J. Gerken, Loopholes You Could Drive a Truck Through: Systematic
Circumvention of Section 4(f) Protection of Parklands and Historic Resources,
32 URB. LAW. 121 (2000).
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from those projects that do use park or historic resources.192 In
addition, projects funded by federal departments outside of the
Department of Transportation are not covered by 4(f). Thus, a
Department of Defense project that clearly impacts on public
parkland would not trigger 4(f)’s procedural and substantive
requirements.
Finally, although 4(f) contains strong language, it is administered largely by the Department of Transportation and the federal courts.193 Since the DOT’s mission is primarily to support
transportation projects, its institutional capacity and willingness
to vigorously pursue environmental policies is inherently limited.
And although the 4(f) process requires cooperation with other
federal agencies with conservation missions, such as the Fish and
Wildlife Service and the National Park Service, the DOT has the
final word in deciding whether a proposed action meets 4(f) requirements. Even where these other agencies have expressed
strong opposition, the DOT routinely approves its projects. On
the judicial level, although Section 4(f) itself was originally a
powerful tool for opponents of harmful highway projects and was
even embraced by the Supreme Court in its forceful Overton
Park opinion,194 more recent federal court decisions have proven
mostly sympathetic to the DOT.195 Perhaps the broader lesson is
that even the soundest conversion and condemnation restrictions
will not amount to much without meaningful administrative and
judicial enforcement.
Despite these Section 4(f) shortcomings, the “prudent and
feasible alternatives” requirement nevertheless has the potential
to be an effective means of protecting conservation land on the
state and local level. As seen in the context of agricultural land
192
Id. at 127.
Compare Section 4(f) of the Department of Transportation Act, 49 U.S.C.
§ 303(c)(1) (1994), with The National Historic Preservation Act, 16 U.S.C.
§ 470 et seq. (1994) (requiring consultation with professionals), amended by National Historic Lighthouse Preservation Act of 2000, Pub. L. No. 106-355, 114
Stat. 1385 (2000).
194 Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 419-20 (1971)
(holding that the district court should undertake plenary review of Transportation Secretary’s finding that a highway project fulfilled the requirements of Section 4(f)).
195 See Matthew Singer, The Whittier Road Case: The Demise of Section 4(f)
Since Overton Park and Its Implications for Alternatives Analysis in Environmental Law, 28 ENVTL. LAW 729, 731 (1998) (noting that just one plaintiff
against the Department of Transportation prevailed in a Section 4(f) case between 1985 and 1998).
193
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preservation, an alternative analysis must be more than a mere
formality.196 The general thrust of an alternatives analysis is to
require a “second look” before authorities may proceed with eminent domain or conversion actions on conservation land.197 One
commentator has recommended legislation that would establish
substantive restrictions before a condemnor could take protected
agricultural land.198 The second look review by a state agricultural preservation program would cover the suitability and costs
of alternatives.
States and municipalities that seek to establish effective alternatives requirements should look to strict standards established by the Supreme Court in construing Section 4(f).
Significantly, as the Court noted in Overton Park, the alternatives must be evaluated on more than a simple cost comparison.199 The Court noted that there were truly unusual factors
demonstrating that the rejected alternatives would “present
unique problems” or require costs or community disruption of
“extraordinary magnitudes.”200 These standards make sense, for
if a proposed action need only show that it is less costly than any
of the alternatives, then conservation lands will almost always
lose out.201 Like Section 4(f), an alternatives requirement should
do more than simply require a condemnor or converter to conduct an alternatives analysis; in addition, it should prohibit completion of the project unless that analysis meets these heightened
objective standards. Only then will the alternatives analysis offer
more than “a moment for the conscience to shine.”202
D. Supermajority Legislative Approval
A supermajority vote (usually two-thirds or greater) is potentially an effective procedural mechanism for ensuring that
only non-controversial conversions are approved. Many SNAPs
and land acquisition programs require a supermajority as part of
the conversion process.
196
See generally notes 107-10 and accompanying text.
See Margaret Rosso Grossman, Exercising Eminent Domain Against Protected Agricultural Lands: Taking a Second Look, 30 VILL. L. REV. 701, 737-38
(1985).
198 Id. at 761-64.
199 Overton Park, 401 U.S. at 412-13.
200 Id. at 413.
201 See, e.g., note 23 and accompanying text.
202 Telephone Interview with Joe Daubenmire, supra note 107.
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But a supermajority requirement by itself will not always be
effective in preventing a large number of conversions. In Massachusetts, any conversion of municipally-owned conservation land
first must be approved by a two-thirds majority of the city council
(simple majority vote if the conversion is for low-income housing).203 Upon municipal approval, Article 97 of the Massachusetts Constitution requires a two-thirds vote of both branches of
the state legislature to approve the town’s conversion.204 As
noted above, 150 out of 176 properties that came up for a vote
before the state legislature were approved.205 State legislators, as
a matter of course, have been reluctant to reject a bill that comes
up from the local government level and has already achieved a
certain momentum.206
E. Notice and Public Hearing
The public is often a key voice in preventing a conversion.
But the public can only act when the conversion process is open
to public scrutiny. Many of the most destructive conversions occur with limited public input.207 Conversely, where the process is
open, vehement public support can add to the legitimacy of a
conversion. Notice and hearing provisions feature prominently
in many of the SNAP conversion restrictions208 and in various
condemnation restrictions.209
F. Broad Coverage of Conversion Restrictions
A land acquisition program should supplement and not substitute land that is already protected. Thus, a town or county
government should not accept acquisition funds from the state
with the left hand while it sells pre-existing conservation lands
with the right. To prevent this maneuvering, an acquisition program can apply its conversion restrictions to both funded and
non-funded properties.
203
MASS. GEN. LAWS ANN. ch. 40, § 15A (West 2000).
MASS. CONST. art. XCVII.
205 See LOSS OF ARTICLE 97 LAND, supra note 13, at 13.
206 See id. at 22.
207 See supra notes 54-55 and accompanying text.
208 E.g., ARK. CODE ANN. § 15-20-314(b) (Michie 2000); CONN. GEN. STAT.
ANN. § 23-5e (West 2000); NEB. REV. STAT. § 37-721 (2000); OR. REV. STAT.
§ 273.586 (2000); R.I. GEN. LAWS § 42-122-7 (2000).
209 E.g., N.H. REV. STAT. ANN. § 162-C:6(V) (2000).
204
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The Land and Water Conservation Fund (LWCF) requires
fund applicants to submit a “6(f)(3) project boundary map” with
each application. This map defines the project area that will be
covered by anti-conversion protections. Usually, the project area
includes not only the facility or tract being improved or purchased, but the entire park or site in which the project lies. Thus,
a LWCF grant to improve a small park facility can provide anticonversion protection to the entire park.210 Likewise, New
Jersey’s Green Acres Program also extends its conversion restrictions to all of the municipality’s conservation lands.211
G. Declaration of Highest and Best Use
Declaring conservation to be the “highest and best” use of a
property provides a limited measure of protection by making
condemnation by a co-equal unit of government more difficult.
The landowner or land trust cannot make such a declaration with
any authority, but when a public agency does so, it protects the
property through the prior public use doctrine.212 Under this
doctrine, where there is legislative intent as to what constitutes a
property’s highest and best use, the property will often be
shielded from condemnation by a co-equal unit of government.
Maryland’s incipient Rural Legacy Program includes a clause in
its standard conservation easement that declares conservation to
be the highest public use of the property under easement.213
Since all Rural Legacy easements are approved by the Maryland
Board of Public Works, a state body, the provision is meant to
ensure that the state legislature must vote to approve any condemnation by the state, a county, or a municipality. In addition,
several SNAPs include similar language in their enabling statutes.214 This declaration is often accompanied by a provision that
210 Legal Protection for Grant-Assisted Recreation Sites: Section 6(f)(3) of the
LWCF Act, National Park Service, at http://www.ncrc.nps.gov/lwcf/protect.htm
(last visited May 22, 2001).
211 See supra note 137 and accompanying text.
212 The prior public use doctrine is discussed supra Part III.B.
213 MD. DEP’T OF NATURAL RES., SAMPLE RURAL LEGACY DEED OF CONSERVATION
EASEMENT 12 (June 25, 1999), available at http://
www.dnr.state.md.us/rurallegacy/easement.pdf.
214 E.g., 525 ILL. COMP. STAT. ANN. 30/14 (West 2000); KY. REV. STAT. ANN.
§ 146.475 (Michie 2000); LA. REV. STAT. ANN. § 56:1868 (West 2000); MISS.
CODE ANN. § 49-5-157 (2000); NEB. REV. STAT. § 37-721; N.D. CENT. CODE
§ 55-11-11 (2000); R.I. GEN. LAWS § 42-122-7 (2000).
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permits a taking only for an “imperative and unavoidable public
necessity.”215
H. Use of Conservation Easement as a Backup Protection on
Public Conservation Land
It is entirely possible for a state or municipality to grant a
conservation easement on land it owns in fee simple. Colorado
has taken this novel approach in ensuring the perpetuity of conservation land acquired by municipalities through the Greater
Outdoors Colorado (GOCO) Trust Fund. GOCO, established in
1992 and funded by a state lottery, awards grants to both private
land trusts and local governments for land acquisitions.216 Early
on, the GOCO Board adopted a policy requiring a municipality
to grant a conservation easement to a third party.217
In New Hampshire, some towns have drawn a lesson from
the recent condemnation of municipally owned conservation
land for a highway extension. Most recently, the towns of Walpole and Lebanon voluntarily granted conservation easements
on town-held conservation land to local land trusts to help ensure
that the temptation to convert such property does not arise
again.218 This approach has the advantage of eliminating some of
the administrative burdens of a broader anti-conversion legislation. One drawback may be that conservation easements would
still be vulnerable to condemnation attempts. Indeed, if it felt
compelled, a government could condemn the very conservation
easement that restricts its own fee simple holding.
I. Expedited Processing
Conversion restrictions are purposefully designed to discourage and prevent conversions. Approval processes that require public input, strong replacement standards and the like will
no doubt cut down on rash conversions and ensure that those
that go through are well thought out. At the same time, these
processes have the potential to make non-controversial conversions needlessly difficult. A balanced conversion/condemnation
215 E.g., ARK. CODE ANN. § 15-20-314(a) (Michie 2000); 525 ILL. COMP.
STAT. ANN. 30/14 (West 2000); KY REV. STAT. ANN. § 146.475 (Michie 2000);
OHIO REV. CODE ANN. § 1517.06 (West 2000); OR. REV. STAT. § 273.586(4)(a)
(2000).
216 COLO. REV. STAT. § 33-60-101 et seq. (2000).
217 Interview with David Conley, in Portland, Or. (Oct. 16, 2000).
218 Telephone Interview with Peter Helm, supra note 61.
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process therefore should allow for expedited handling where the
harm to the environment is negligible or where there is a net
conservation gain. Interestingly, it is not uncommon for replacement property to be of greater conservation value, adding to the
quality and/or quantity of protected land. This result can be encouraged by allowing an expedited process if the replacement
property is of significantly greater conservation value.
In Maryland, the director of the Program Open Space can
issue a discretionary approval where the proposed conversion affects less than 1% of the property’s total area.219 Similarly, New
Jersey’s Ogden process for the conversion of state lands applies
only to properties above one acre.220 The legislation governing
the condemnation of New Hampshire’s Land Conservation Investment Program acquisitions allows the Department of Transportation to avoid legislative approval if the taking is for “minor”
projects.221
Another instance where expedited review might be prudent
is where the acquiring conservation agency purchases rich conservation properties that also include areas of little or no conservation value. These marginal conservation lands may be of high
economic value, so for maximum efficiency, the program should
be able to resell the undesired portion and reinvest the proceeds
in better quality conservation lands. For example, the New
Jersey Fish and Wildlife Division acquired a prime wildlife
habitat with a valuable home on one part of the tract. Even after
it determined that it had no interest in owning the home, the
Division had much difficulty selling it because of the strict Green
Acres conversion restrictions.222 But this option works well only
if it is clear from the outset which portion the acquiring agency
intends to resell. To address this situation, the Florida Forever
Act requires the purchasing agency to designate from the outset
any portion of an acquired property that is not for conservation
purposes.223 A similar provision exists under Maryland’s Pro-
219
Telephone Interview with Grant Dehart, supra note 180.
See N.J. STAT. ANN. § 13:1D-51 (West 2000) (by definition, a “conveyance” can only involve a parcel larger than one acre).
221 N.H. REV. STAT. ANN. § 162-C:6(IV) (2000).
222 Telephone Interview with Tony Petrongolo, Chief, Bureau of Land Management, New Jersey Department of Environmental Protection (July 7, 2000).
223 FLA. STAT. ANN. § 259.105(15)(h) (West 2000).
220
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gram Open Space.224 Such a procedure could be useful for other
states to adopt.
J. Administrative Commitment
Regardless of the exact standards or procedures chosen to
restrict governments’ authority to condemn or convert conservation lands, administrative resolve is a key intangible factor in the
success of those restrictions.225 The strongest restrictions will not
endure an indifferent or hostile administrative atmosphere, while
textually weak standards can go a long way if the administering
agency possesses sufficient resolve. Agency staff can play an important role by discouraging conversions at the very beginning of
an inquiry. At a minimum, any agency that administers conservation lands should designate at least one person who is responsible for monitoring those lands and making sure that any
conversion and condemnation restrictions are honored. The fact
that conversion statistics are incomplete is in part because most
conversion attempts will be rebuffed before they reach a formal
level, if the administering agency is doing a good job. Conversely, the requests that do advance to the final stages are those
most worthy of approval.
CONCLUSION
Let there be no quibbling about the matter: Permanent protection is indeed a radical goal. It is quite ambitious to declare a
property protected in perpetuity. Yet the fundamental inexorability of population increase and land development calls for such
a radical solution. At its heart, the land conservation movement
has always been about what this country should look like today
and a hundred years from today. As sprawl encroaches ever further, states, cities, communities, and individuals are making decisions to declare selected properties off-limits to development and
other intensive uses. In a sense, we are making a promise, to
ourselves, to future generations, and to the Earth, to keep our
hands off of these lands. Forever. While this may be an ideal, it
is one worthy of our aspirations.
224
225
MD. CODE ANN., NAT. RES. I § 5-904(e)(1) (2000).
Telephone Interview with Hank Huffner, supra note 98.
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