Zoning for Conservation Easements

Richardson, Jesse J., Jr., Bernard, Amanda C., Law and Contemporary Problems

"It will be extremely difficult to commit the sin of choosing too much open space in getting started (or at almost any other time, for that matter), and any planner who can't think now of some land worth saving ought to get into another line of work." (1)

I

INTRODUCTION

Federal and state income tax and other tax benefits have spurred a huge increase in the number of conservation easements, private agreements that restrict the development of property. Most conservation easements are perpetual and may have a huge impact on the land use in a community. With few exceptions, however, conservation easements have not been incorporated in any meaningful way into local land-use planning. Local comprehensive plans establish goals and set out a vision for the future land use of the community. Many comprehensive plans contain future land-use maps, delineating the future vision graphically. These maps rarely include designation of areas for conservation easements.

Land-use regulations, like zoning ordinances, implement the comprehensive plan. Zoning ordinances generally delineate districts allowing certain uses "by right" (without further permissions), prohibiting other uses, and allowing some uses only with additional levels of review ("conditional uses"). To this date, however, zoning ordinances fail to incorporate conservation easements into zoning ordinances in this way.

While no known zoning ordinances address conservation easements as a use, a handful of states link conservation easements to land-use planning. Eight state conservation-easement-enabling statutes explicitly link conservation easements with local land-use planning. The provisions in these enabling statutes fall into four categories: (1) review and approval by local governments, (2) required consultation with local government planning authorities, (3) consideration of land-use planning factors, and (4) conformity with the local comprehensive plan. Although most easement-enabling statutes incorporating zoning and land use focus exclusively on the initial placement of conservation easements, a few statutes incorporate land-use planning factors into subsequent easement decisions such as whether to terminate the easement.

II

CONSERVATION EASEMENTS

The Uniform Conservation Easement Act (UCEA) defines "conservation easement" as

   a nonpossessory interest of a holder in real property imposing
   limitations or affirmative obligations the purposes of which
   include retaining or protecting natural, scenic, or open-space
   values of real property, assuring its availability for
   agricultural, forest, recreational, or open-space use, protecting
   natural resources, maintaining or enhancing air or water quality,
   or preserving the historical, architectural, archaeological, or
   cultural aspects of real property. (2)

The number of conservation easements meeting this definition has grown dramatically over the past several years.

The number of land trusts--private nonprofit organizations that currently hold conservation easements--stands at 1,667, a thirty-two percent increase from 2000. (3) When private nonprofit land trusts are added to state easement holders, the combined rate of conservation easement creation between 2000 and 2005 more than tripled. (4) As of 2005, local, state, and national land trusts held easements on thirty-seven million acres, a fifty-four percent increase from five years earlier. (5) These statistics are based on data gathered by The Land Trust Alliance Census and actually undercount the total number of conservation easements. For example, while the Land Trust Alliance includes large national land trusts like the Nature Conservancy and Ducks Unlimited, the census does not count the increasingly numerous easements held by governmental entities. (6)

Despite the rapid growth in the deployment of conservation easements, reliable data regarding them is difficult to locate. (7) Many easements are held by private land trusts and currently no complete or all-inclusive central national database exists. Efforts to create such a database, however, are in progress.

III

LAND-USE PLANNING

A. The Comprehensive Plan

The land-use planning process begins with the comprehensive plan, which sets out goals and objectives for the future land use of the community. The comprehensive plan is created with community input and involvement and represents the community's vision of how its land should be allocated in terms of various uses. Thus, the comprehensive plan forms the centerpiece of any land-use planning effort and guides the growth of the community. (8) Future development and conservation efforts should be consistent with the provisions of the comprehensive plan.

While the comprehensive plan is the overarching legal document controlling land use, zoning, subdivision, and a myriad of other more specialized ordinances implement the plan. These land-use planning tools--such as zoning and subdivision ordinances and, at least arguably, conservation easements-- should promote and implement the goals of the comprehensive plan. Zoning ordinances are the most common ordinance used to implement the comprehensive plan.

B. Zoning

United States law clearly grants state governments the authority to regulate land use under the police power. (9) Traditionally, the states delegate this authority to local governments through state legislation that grants local governments authority to conduct land-use planning. (10)

The Standard Zoning Enabling Act, upon which many state-zoning-enabling laws are based, grants to local governments the power

   to regulate and restrict the height, number of stories, and size of
   buildings and other structures, the percentage of the lot that may
   be occupied, the size of yards, courts, and other open spaces, the
   density of population, and the location and use of buildings,
   structures, and land for trade, industry, residence, or other
   purposes. (11)

Further, the zoning ordinance may "divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of [the zoning ordinance]." (12) Within each district, the local government may regulate the use of land. (13) Other purposes of zoning include the provision of adequate light and air, the prevention of overcrowding, and the avoidance of "undue concentration of population." (14)

The typical zoning ordinance generally contains two parts. First, the zoning map divides the community into different sections and designates the zoning classification of each section. (15) The second part, the text of the ordinance, sets out detailed regulations pertaining to the uses allowed and the structures permitted in the zoning classification, as well as setbacks, open-space requirements, and other restrictions. (16)

Three types of uses exist within zoning ordinances. (17) "Permitted" or "of right" uses refer to uses that are allowed in a particular district with no further approval. (18) For example, in a single-family, residential zoning classification, a landowner may generally build a single-family, detached home without any further permission. "Conditional" or "special uses" are uses that are allowed within a particular zoning classification, but not in all locations, or without any additional restrictions. (19) For example, a gasoline station may be a conditional use within an agricultural zoning classification. A landowner within that classification desiring to construct a gasoline station must apply for a conditional use permit. The local government holds great discretion as to whether to grant or deny the application. If the application is granted, the local government may place additional requirements on the use, like the establishment of vegetated buffer areas or limitations on hours of operation. (20)

The zoning ordinance also includes "prohibited uses" in each classification. Most commonly, if a particular use is not listed as permitted or conditional, the use is prohibited. (21) Without receiving a variance from the zoning regulations or a rezoning to a different classification, an owner may not engage in a prohibited use.

The genesis of zoning lies in the increased urbanization of the United States. (22) The 1920 United States Census was the first to show a predominantly urban population. (23) The larger population centers, where population densities were increasing significantly, first implemented comprehensive zoning. (24) Although zoning initially focused on cities, recognition that jurisdictional boundaries failed to coincide with the boundaries of functioning communities prompted "regional zoning." (25)

Regional zoning spreads land use and zoning practices into areas outside of cities, representing the preventive aspect of zoning. (26) The preventive aspect refers to maintaining open space, as opposed to regulating only the type of development that will occur on the parcel. "The regional approach not only permits but usually incorporates consideration of open spaces that probably will be perpetually preserved against the urbanization so typical of large centers of population." (27)

Although zoning ordinances may be amended and thereby do not provide for perpetual preservation of land, the purposes of zoning include delineation of appropriate locations for perpetual preservation. "The core principle of use zoning ... is that everything has its place." (28) Even "uses" of land that some may consider "non-use," like designation for open space for perpetual preservation, have a place in zoning ordinances.

C. Conclusions

Although not used in every jurisdiction, zoning is one of the most common land-use tools used to implement the comprehensive plan. Contrary to the popular notion of zoning as applying to development only, zoning appropriately also addresses open space. Where allowed by the comprehensive plan, zoning is a tool that may be used to prevent development on lands considered more valuable in their undeveloped state.

IV

ZONING ORDINANCES AND RESTRICTIVE COVENANTS

A. Introduction

The comprehensive plan and implementing tools, like zoning, represent public control of land use. Private parties also control land use through means such as restrictive covenants. A restrictive covenant consists of a promise to limit the use of land. (29)

Restrictive covenants essentially consist of private agreements, usually initiated by the developer of the property. The covenants are privately enforced. Restrictive covenants have proved to have "a more enduring effect than other agreements since the restriction will be binding on subsequent purchasers of the land." (30) This more enduring effect results from the fact that most restrictive covenants are designed to "run with the land": they remain in effect regardless of transfer of ownership of the property. (31)

Restrictive covenants raise some concerns that parallel those of conservation easements. Like …

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Publication information: Article title: Zoning for Conservation Easements. Contributors: Richardson, Jesse J., Jr. - Author, Bernard, Amanda C. - Author. Journal title: Law and Contemporary Problems. Volume: 74. Issue: 4 Publication date: Fall 2011. Page number: 83+. © 2009 Duke University, School of Law. COPYRIGHT 2011 Gale Group.

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