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Thread: Non-permanent open space

  1. #1
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    Non-permanent open space

    First, I want to thank all who actively participate in this online community. I'm not a planner. I'm just a concerned and engaged citizen who is chairman of one of five citizen-based committees the county assembled to help with their comp plan update. My group focused on land use/preservation. I've gotten a ton of info and insights from you folks over the last couple of years and I thank you for that.

    On to business...

    The first draft of the comp plan has been released. A lot of it is very good. Some things I disagree with but understand where they're coming from. Here's one I don't get. Regarding cluster and conservation subdivisions, one of the options for density bonuses is this:

    "Open Space - Provide a development layout that preserves environmentally significant or historically significant areas on the subject property. Open space areas must be placed in a conservation easement for a minimum of forty-years."

    I've researched and read many comp plans and zoning ordinances but I've never come across anything about non-permanent open space. Is there some advantage for offering this option that I don't see?

    Thanks.
    Last edited by mendelman; 27 Oct 2009 at 10:02 AM.

  2. #2
    Cyburbian Seabishop's avatar
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    Doesn't make sense to me. If this was the rule in the 1960's, think of all the developments where the open space would become unprotected now.

  3. #3
    Cyburbian Cardinal's avatar
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    Quote Originally posted by sparsegrey View post
    First, I want to thank all who actively participate in this online community. I'm not a planner. I'm just a concerned and engaged citizen who is chairman of one of five citizen-based committees the county assembled to help with their comp plan update. My group focused on land use/preservation. I've gotten a ton of info and insights from you folks over the last couple of years and I thank you for that.

    On to business...

    The first draft of the comp plan has been released. A lot of it is very good. Some things I disagree with but understand where they're coming from. Here's one I don't get. Regarding cluster and conservation subdivisions, one of the options for density bonuses is this:

    "Open Space - Provide a development layout that preserves environmentally significant or historically significant areas on the subject property. Open space areas must be placed in a conservation easement for a minimum of forty-years."

    I've researched and read many comp plans and zoning ordinances but I've never come across anything about non-permanent open space. Is there some advantage for offering this option that I don't see?

    Thanks.
    My guess is that they are trying to leave open the possibility for the land to develop in the future, if the community's needs change. Personally, I would prefer to see the land set aside with an open space (or historic, etc.) easement granted to the city. If there is a real need to develop, the city could always vadate the easement. If not, the land is indefinitely preserved as open space.
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  4. #4
    Cyburbian wahday's avatar
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    Quote Originally posted by Cardinal View post
    Personally, I would prefer to see the land set aside with an open space (or historic, etc.) easement granted to the city. If there is a real need to develop, the city could always vadate the easement. If not, the land is indefinitely preserved as open space.
    I agree. This kind of arrangement can also clarify who is supposed to maintain that space. Is it the City? The homeowners associations? etc.

    The temporary nature is also troubling to me, especially if it is targeting environmentally or historically significant sites. Will it be less environmentally significant in 40 years? Or less historical? Why would you put a time horizon on this kind of protection?
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  5. #5
    Cyburbian mike gurnee's avatar
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    Perhaps there is a VA court case that ruled covenants were valid for only 40 years? I have heard of such. As stated above, deed the sensitive areas over.

  6. #6
    Cyburbian Emeritus Chet's avatar
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    I ditto Cardinal's remarks about perpetual easement, but to a third party land trust, not the City. In the event of some major land use paradigm shift wher the land may need to be developed in the long term future, a court can vacate prmanent easements if need be.

  7. #7
    Cyburbian
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    Conservation easements, by definition, are legal agreements between a landowner and a public agency or non-profit conservation group that permanently restricts the amount and type of development on a property.

    Deed restrictions are one possible alternative. The restriction is recorded on the deed, and it prohibits land being sold for purposes other than those permitted. They don't require stewardship of the land, and they are not monitored or enforced on a regular basis. Depending on your state, courts can reduce protection or terminate restrictions based on (1) economic hardship or (2) impracticability without regard to public benefit. Therefore, there needs to be some extenuating circumstance(s) that would allow a deed restriction to be revoked.

    I agree that the forty year requirement runs counter to the very definition of a conservation easement. I would double-check with your local land conservancy to confirm the rules for your state. Some states also provide model conservation design development standards which may provide framework for conservation easements.

    Hope this helps-
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    The proposed comp plan has a traditional conservation easement option, too.

    "Permanent Conservation Easement Same as open space
    but the conservation easement would be established in
    perpetuity."

    So I guess this is how it would work: the Open Space option would give a developer a density bonus for dedicating 50% of the property as "open space", then 40 years later the developer (or heirs) gets to develop all of THAT property and the county loses the environmentally or historically significant land it wanted to protect 40 years earlier. Makes my head hurt.

    Thanks for the opinions!

  9. #9
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    The Code of Virginia allows easements to be anywhere between five years and forever, under the "Open Space Land Act" see 10.1-1701

  10. #10
    Cyburbian
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    Quote Originally posted by sparsegrey View post
    The proposed comp plan has a traditional conservation easement option, too.

    "Permanent Conservation Easement Same as open space
    but the conservation easement would be established in
    perpetuity."

    So I guess this is how it would work: the Open Space option would give a developer a density bonus for dedicating 50% of the property as "open space", then 40 years later the developer (or heirs) gets to develop all of THAT property and the county loses the environmentally or historically significant land it wanted to protect 40 years earlier. Makes my head hurt.

    Thanks for the opinions!
    First, open space is NOT a permanent conservation easement, you are comparing apples to galoshes. Second, a permanent conservation easement, is just that... permanent. It is held in perpetuity by a third party such as a land conservancy. It sounds like your community is really proposing a forty year moratorium on development, which is whole different issue. There are many reasons for establishing a conservation easement: poor access to recreation facilities, loss of nearby farmland, protecting an ecosystem, setting aside areas for scheduled burns, etc. Therefore, a conservation easement might include a park within it or a wetland or some acres of farmland, but a conservation easement is NOT a synonym for a park.

    I wrote a comprehensive plan and a subsequent zoning ordinance for a community that dealt with open space preservation. In this rural community, the open space was a requirement: the comprehensive plan required that 40% of the gross area of conventional subdivisions and 50% of the gross area of conservation subdivisions were set aside as permanent open space. In the zoning ordinance, I wrote a density bonus to be considered if the development exceeded that threshold. Keep in mind, density bonuses are not guarantees. They are merely carrots thrown out at the developer but each development is typically reviewed on a case by case basis by the planning staff and appointed bodies (usually a plan commission).

    Hope this helps-
    "This is great, honey. What's the crunchy stuff?"
    "M&Ms. I ran out of paprika."

    Family Guy

  11. #11
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    Excellent insights, folks. I understand that open space and conservation easements are two different things. It just seems to me that that one option negates the other. If a developer can get the same density bonus with either option but the chance to develop again in 40 years, which option will a developer choose? Of course, most will go with the open space option. Great deal for developers. Lousy deal for the county. I've discussed this with the chairman of our Planning Commission and he agrees with my concerns but indicated there might be other forces at work. The chairman of the Board of Supervisors is a dairy farmer with large land holdings and has served on the BOS for 30+ years. His son is a real estate broker. I think I get it now.

    Steve

  12. #12
    Cyburbian
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    Just because open space isn't held in a conservation easement doesn't mean it will be easy for a developer to convert that open space. Usually, the open space will be part of a planned unit development (PUD). Most communities have strict requirements that regulate what can be in a PUD. This is found either in the zoning ordinance, the larger municipal or county code, or a separate PUD ordinance/annexation agreement, etc. In some cases developers have tried to redevelop land at a higher density within a PUD many years later only to face severe legal obstacles. I worked extensively on two separate expert witness projects on behalf of two counties that dealt with this issue.
    "This is great, honey. What's the crunchy stuff?"
    "M&Ms. I ran out of paprika."

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  13. #13
    Cyburbian ursus's avatar
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    Case in point: planned unit development in my city lost a portion of it's common open space in a tax sale. We intended to buy it ourselves (the municipality) and maintain it since they wouldn't. We went to the tax sale with the allotted money, announced to the potential buyers that the land was part of the required open space of the subdivision and that the City would allow no developoment of the land whatsoever. We were OUTBID by a moron who called me three days later to ask me what he could "do with his land". I told him he could start mowing and watering it so I didn't have to sue him.
    "...I would never try to tick Hink off. He kinda intimidates me. He's quite butch, you know." - Maister

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