Working With Local Open Space Programs

During the past several years, the number of counties and municipalities with voter-approved taxes for the purchase of open space has increased tremendously.  Government open space programs have the advantage of a dedicated revenue stream available for land conservation.   Municipalities and counties, however, are subject to unique rules that have advantages and disadvantages not found in private transactions. Land trusts considering working with government entities should be aware of these differences.

The most significant difference between municipal and private programs is the role of the political process.  Generally, a municipality or county reviewing an open space acquisition will be required to conduct public hearings before deciding whether to proceed with an acquisition.  Hearings may be required before citizen boards that review parks or open space acquisitions, as well as the governing body for the local government.  In jurisdictions where boards meet monthly or less frequently, delays are inherent in the political process.  Landowners and land trusts need to be aware of the time frames for the negotiation process and understand government staff roles.  Staff will often negotiate the details of the purchase, and execute letters of intent.  Letters of intent may be structured to bind sellers during the hearing process, without a commitment from the local government.  Until the decision makers, i.e. the City Council or the County Commissioners, review and decide on the proposal, no deal is final.

Access to public land is often an issue of concern for elected officials.   Creation of "private parks", purchased with tax dollars, may be unpopular with the citizenry.  Justifications for the value of maintaining land for agricultural use, habitat protection, biological diversity or other bases need to be explained.  Limited public access, such as for trails, may need to be offered to obtain approval.

Local government programs are based upon a predictable revenue stream.  Government entities may have the ability to negotiate cash purchases, and eliminate the financing piece of transactions.  Local government, with voter approval, can also issue bonds, which allow them to accelerate the receipt of funds, and in turn accelerate the purchase of fee and conservation interests.  A local government that has issued bonds may be able to close a cash deal quickly, subject to the approval process outlined above. Some entities can be quite nimble, making fast decisions and closing with cash.

The flip side of local funding is that debt may not be incurred without voter approval.  One common alternative used by local government is the rolling option.  Properties can be divided into parcels, and the government is given the option to purchase a parcel in each successive year.  Option payments are negotiated as a component of the transaction, and may be calculated to approximate interest payments on a note.   Options, however, are not binding obligations to purchase, and the municipality may choose to purchase only a portion of the property.  One way to encourage the municipality to continue with the purchase of all parcels is to make the final option parcel(s) the most desirable.  The track record of the entity and commitment to land preservation are critical in these transactions, as the seller and land trust must believe that the entity intends to honor its moral commitment to proceed with the purchase.

When the purchasing entity is also the land use decision maker, there is the potential to streamline the planning process.  If the transaction involves the creation of lots of fewer than 35 acres, the County may, dependent on its land use resolution, have the ability to approve the creation of lots, in the purchase agreement and through the public hearing on the acquisition.  Even when these decisions cannot be incorporated into the purchase agreement, the potential for parallel consideration by the land use department and the parks department, can facilitate a transaction.  The flexibility to consider land use type issues, creation of lots, boundary line adjustments, transfer of development rights, sizing and location of structures, in the acquisition process is a tremendous advantage of working with a government entity. As transferable development rights programs gain popularity, there is an opportunity to reduce the purchase price of open space by selling development rights to interested parties.  Land trusts can work with municipalities to bring parties to closing who will purchase development rights, and thereby reduce the purchase price to the land trust and government for the open space.

Government entities have the power of eminent domain and, if politically palatable, can offer sellers the tax advantages available when property is purchased in lieu of condemnation.

Government entities may be willing to assist land trusts and sellers with transaction costs, such as for appraisals, environmental assessments, legal and survey fees, but they will need to receive a tangible public benefit from any open space expenditure.  Land trusts should consider whether a portion of a property can be dedicated to an entity, whether the entity can be granted a backup position as a grantee of a conservation easement, or other mechanisms to assure taxpayers that their public officials have received an interest commensurate with the investment made by the local government.

Municipalities, towns and counties may cooperate to preserve open space in or near their jurisdictions.  In addition to increasing resources for open space purchases, with more than one entity, the number of public hearings and official bodies that must approve the transaction is multiplied.  Government entities may choose to purchase open space in undivided interests, with reciprocal conservation easements, restrictive covenants or with separate ownerships.  The goals of the various entities need to be considered, and the transaction structured to provide each entity with the type of property it seeks for its residents, i.e. protected viewshed, riparian habitat, passive recreation, or active recreation parcels.

Land trusts negotiating with a local government should familiarize themselves with charter provisions, resolutions and other procedures that govern that locality’s program.  They should also develop support in the community for the proposed project and organize backers to appear at public hearings and/or write letters in favor of the open space acquisition. As voters continue to approve open space taxes, there are increasing opportunities for land trusts and local governments to work together to preserve open space.