Summit County leaders plan to rescind a conservation easement from the late 1990s to make room for housing, and that’s drawn the attention of local residents and land trusts across Colorado.
Melissa Daruna, the executive director of Keep It Colorado, the coalition of more than 30 state land trusts, said her members “never want to see condemnation.” Conservation easements — there are about 4,000 in Colorado — allow landowners to transfer development rights away from their land in exchange for tax credits and occasionally cash. They are permanent deals, meaning the land can never be developed.
“Perpetual easements are put in place for a reason and they are perpetual for a reason, so we share a concern about the potential ripple effect of a condemnation process that starts to get viewed as regular or normalized,” she said, describing the condemnation of an easement as “a last-ditch measure.”
Summit County’s leaders have looked across the region for senior housing and say Fiester Preserve is their best option. The county locked the 6.125-acre Fiester Reserve in Frisco into a permanent conservation easement in 1998, creating a buffer between the homes in the Bill’s Ranch neighborhood and development planned for the 130-acre County Commons parcel to the east. That parcel is home to a community and senior center, an affordable housing community, St. Anthony Summit Medical Center and other county services.
Summit County first identified Fiester Preserve for affordable housing in the 1990s, shortly after it purchased County Commons from the Forest Service and began planning development there, county manager Scott Vargo said. The protection of Fiester Preserve came before the county’s open space program was created and would not qualify for that protection under the county’s current conservation program, he said.
“The circumstances under which the conservation easement was placed were questionable from the beginning, so the conservation values were never to the level for which we would normally place a conservation easement on a property,” Vargo said, describing political pressure and “a shortsighted decision” that led to the creation of the conservation easement. “There were some political issues and concerns by neighbors to prevent workforce housing too close to their neighborhood, which has since proven unfounded.”
Now is the time to make the change on Fiester Preserve as the county explores locations for senior and workforce housing, Vargo said. The county has studied other sites and has decided Fiester Preserve is the best option.
“The fact that the county is the owner of the underlying property, that makes it unique and I think any precedent it would set would be incredibly limited,” Vargo said.
Using eminent domain to overturn a conservation easement is a slippery slope, said Daruna, who fears a scenario where local governments see opportunities for development in protected open spaces. And she worries how an overturned conservation easement might create hesitancy among landowners who are weighing development versus protection of their properties.
“What if they are looking at a conservation agreement and say, ‘It says here it’s forever, but I see all these situations where that’s not the case,’” Daruna said.
The concern for Colorado Open Lands, which holds 426 easements in 44 counties including the Fiester Preserve, is the elimination of an entire easement. Every once a while the nonprofit accommodates an adjusted or amended easement, usually involving the expansion of a road. A Summit County conservation easement held by the Continental Divide Land Trust, the predecessor to Colorado Open Lands, was adjusted to make a new alignment of Colorado Highway 9 a mile shorter. The county was able to move the easement to a portion of land that included direct access to Dillon Reservoir.
“But the complete extinguishment is a much more significant precedent,” said Colorado Open Lands executive director Tony Caligiuri.
Caligiuri has an obligation to defend the easement that the group holds, but he’s not optimistic he can stop the condemnation. Legally, the owner of the property, Summit County, has the right to extinguish the conservation agreement.
“The question to the court is not if condemnation is a good idea, or if it is warranted,” he said. “The question is does the condemning party have the authority to condemn? And they have the authority.”
Colorado Open Lands is working with Summit County on the conservation of other parcels, and the group isn’t looking to burn bridges, Caligiuri said. And they aren’t getting into a political fight.
But he does have an issue with the county suggesting the parcel does not meet conservation values it wants in a property worthy of perpetual protection. The protection by conservation is a legal definition that covers anything from recreation and view corridors to buffers and wildlife habitat. So saying the parcel does not have conservation value because of beetle kill or a nearby road or adjacent density, Caligiuri said, “is just not true.”
But again, that definition does not impede the county’s legal right to condemn the property.
Still, Colorado Open Lands will argue the easement should be left intact.
“We don’t want to create an environment where it’s acceptable to undo a conservation easement out of convenience,” he said. “We go and look a landowner in the eyes and say, ‘Yeah, we are going to conserve this and it will be forever and we will defend it.’ Something like this undermines the promise that any easement makes to any landowner anywhere. It undermines the very concept of permanent land conservation.”
Unlike neighboring Eagle, Pitkin and Grand counties, Summit County has no senior-living facilities. The county has a rapidly growing senior community, and the nonprofit Staying in Summit group has been working to find a location to build assisted-living units that would help seniors remain in the county.
“Very meaningful folks within our community are having to relocate, and they are leaving not by choice, but because there are no other options,” Vargo said. “We believe this is an appropriate and necessary function to address a serious need in our community.”
Vargo is quick to dismiss the idea that overturning this easement means the county is abandoning its open space and conservation work.
“This is 6.125 acres and we will very quickly and very easily replace that 6.125 acres with many times that (in) open space we will protect soon and into the future,” he said.
Summit County has preserved 17,300 acres, including 300 outright property acquisitions and more than 200 partnerships with private landowners since 1993, when voters first approved a property tax for open space acquisition. Voters renewed the tax in 2008 and in November, they overwhelmingly approved a permanent extension of the mill levy to acquire and preserve open space and trails.
The rare condemnation of a conservation easement in Colorado comes as lawmakers this week study a plan that could refund more than $220 million in conservation easement tax credits that were dismissed in the early 2000s.
The state denied tax credits for several hundred conservation easements between 2000 and 2013, and a task force last month proposed a plan to reinstate those lost tax credits as well as a new system for valuing easements. A state investigation in 2012 showed abuses of the state’s conservation program and the state eventually negated tax credits for hundreds of farmers and ranchers in southeast Colorado. (Summit County received no tax breaks or credits in exchange for the Fiester Preserve easement.)
Karen and Ben Little are leading the Bill’s Ranch neighborhood’s opposition to the county’s plan to develop the parcel that serves as a buffer between the community’s homes and the County Commons campus.
The neighborhood’s main argument is that there are other locations where the county could expand its workforce housing.
“The taxpayers have spent a lot of money on land for workforce housing that hasn’t come to fruition,” Karen Little said. “Our concern is if they need this 6.125 acres, what about all the other land they have purchased and have nothing to show for it?”
“Nothing fits as well as Fiester Preserve,” said Vargo, noting its proximity to existing workforce housing, county services, bus routes and the senior center.
The Littles know they aren’t going to win a legal battle with the county. But they are hopeful the community can persuade the county to simply amend the conservation easement and carve out a space for the development and preserve a buffer with the neighborhood next door.
“They can find another piece if they really wanted to, but they are really set on taking this piece of property,” Ben Little said. “We know they will get what they want and we will have to try to work with them to provide some kind of a minimal buffer.”
Bill Wallace was on the board of county commissioners when they reached the deal to conserve Fiester Preserve. He said he has a different perspective on the conservation easement today.
“They are not making land anymore, and for the county to acquire property for the community to use, for the benefit of the community, I’d want to look at some other ways to create the buffer for the people at Bill’s Ranch,” said Wallace, who served as a county commissioner from 1997 to 2007.
But, he said, “let me put the other hat on.”
Undoing conservation easements “opens a real big can of worms,” Wallace said. What if other parcels started to be unwound to make room for development? he wondered. And what if parcels that should be protected are not because the county has shown a willingness to turn over conservation easements?
“On one hand, the property should never have had the conservation easement put on it,” Wallace said. “But on the other hand, what kind of unintended consequences are there going to be for taking the easement off?”
The Summit Daily News has been filled in recent weeks with letters from residents and local leaders, most urging the continued protection of Fiester Preserve. That’s important for advocates of conservation.
“We may lose this particular battle, but I am really heartened at how overwhelming the support has been to keep our promises of conservation and open space,” Caligiuri said.