One approach to accomplishing this is through limited development. Limited or partial development can be loosely defined as financing the preservation of threatened property by developing a portion of it. Limited development is only one of many approaches to preserving open land, but it has important applications when other options are not feasible.
There are many variations of the limited development concept. This paper describes three examples that illustrate the range of limited development applications. An example in Texas illustrates how limited development helped write down the cost of the purchase of 5,150 acres of land, allowing the acquisition cost to be reduced so that a public agency could purchase 90% of the threatened tract. The second example illustrates how a combination of private financing and limited development will result in the acquisition and long-term maintenance of 18,000 acres of a 20,000 acre ranch in coastal California. The third example illustrates how a viewshed in historic Concord, Massachusetts was preserved through the limited development approach without the use of any public or private funds.
The community believed that it was important to preserve this property because of its proximity to San Antonio and because of its natural resource values . One of the most important of these values was the location of most of the site within the Edwards Aquifer, which is the source of water for 1.5 million residents in the San Antonio region. The property also contained important historical resources, including Native American archeological sites and an ancient trail used by the Cibola Indians to follow herds of buffalo. It was also the habitat of endangered and other wildlife species, including two federally-listed endangered songbirds, the Gold-Cheeked Warbler and the Black-Capped Vireo.
The Trust for Public Land negotiated the sale of the land with the RTC over a two-year period, finally arranging a bargain sale with the assistance of $1 million from the Edwards Underground Water District and $500,000 each from the San Antonio Water System and the Texas Parks and Wildlife Department.
However, this assistance was short of the negotiated sales price and associated acquisition costs. In order to provide the necessary income to close the sale, TPL identified 450 acres that were already cultivated and that did not have significant natural resource value. After placing restrictions on the 450 acres to limit its development potential and its impact on water resources, The Trust sold the land to a private party. The income from this sale provided the additional amount necessary to meet the sales price and associated costs.
The 4,700 acre tract of public land will be managed by the Texas Parks and Wildlife Department for conservation and recreation purposes, with the Edwards Underground Water District and the San Antonio Water System having access to the property for research, water quality protection and educational purposes.
"This is the first significant victory related to the protection of the Edwards Aquifer", said David Sutton, Director of Projects for the Western Region of the Trust for Public Land, "and it demonstrates the valuable role that limited development can play in preserving irreplaceable natural resources".
Sensing a unique opportunity that could not be lost, a group that included Pacific Union Real Estate and Japanese investors formed the Rancho San Carlos Partnership in 1990 and acquired the tract for approximately $70 million.
However, acquiring the property was only the first step, for the Partnership then had to determine how to maintain, manage and otherwise financially support the preservation of these 20,000 acres of natural resources. In order to meet this challenge, the Partnership created The Santa Lucia Preserve, which encompassed a vision for the future of the area and how it might be maintained in perpetuity. This vision included three interrelated objectives: (1) resource protection, including the long-term protection of the areas unique beauty, vitality and habitat values; (2) a community within a preserve, where a new human settlement would be created as an integral part of a healthy rural and wild land ecosystem; and (3) sustainability, where the residential community would provide the cultural and financial support necessary for the preservation of the open lands.
The plan would involve a limited development community restricted to a small number of carefully-selected sites, just enough to sustain the continued preservation of these lands in perpetuity. New residents in this community would not only enjoy the benefits of one of California's exceptional natural areas but would also be responsible for assuring its long-term preservation at no cost to the public.
The legal and management vehicle for assuring the protection of the Santa Lucia Preserve is The Santa Lucia Conservancy, which was incorporated as a subsidiary of The Trust for Public Land. The Conservancy will be the legal vehicle for enforcing restrictive covenants and for managing the 18,000 acres of protected natural resource land. The Conservancy's operating funds will come from a $25 million endowment that will result from the proceeds of the limited development residential community.
However, Rancho San Carlos still has obstacles to overcome. A successful recent county-wide referendum challenging zoning variances and an ongoing lawsuit have created some uncertainty about the ultimate future of the project. Yet, the story of Rancho San Carlos provides a bold and innovative model for realizing large-scale private sector land conservation where public funding is not available.
In 1995, a 30 acre parcel of land with one house on it was sold and a subdivision plan submitted to the Town for two additional house lots. Environmentalists in town became concerned because of the sensitivity of the site. The parcel fronted on the Sudbury River, between two sites that were already protected: one by public ownership and the other by a conservation restriction on private land. This site was especially sensitive to development because of a steep embankment that ran parallel to the river; any development there would be very visible from the river should the upper part of the site be cleared for development and the slope cut to provide an open view for the new residences.
The parcel was assessed by the Town under Chapter 61, which allows a reduced tax payment if the land is used for forestry purposes; however, upon sale for a different use, the owner must give the Town the right of first refusal for a 120 day period. The owner entered into an agreement with a buyer, who subsequently subdivided the land for resale to three buyers. During a title search, however, an attorney for one of the buyers found that the release from the forestry assessment first required that the seller offer the land to the town on terms similar to those described in the Purchase and Sale Agreement.
Although the Town was very interested in preserving the viewshed of the Sudbury River, the cost to acquire the three parcels was determined by the Board of Selectmen to be prohibitive. However, Chapter 61 allows a municipality to assign its right to purchase to a non-profit conservation organization, as long as at least 50% of the property remains in the open space use. Following its decision to not exercise its right of first refusal, the Board contacted The Trust for Public Land to determine if it might be interested in assuming the Town's right to purchase. The Trust agreed to do so.
The Town's objective was to implement a conservation restriction from the top of the ridge down to the river, including a no-cut restriction to preserve the forested viewshed from the Sudbury River. In addition, the Town also wanted to assure public access along an existing trail at the bottom of the hill and to secure access to the lower portion of the site to allow exploration for a possible future town well.
Because two of the lots were already under agreement, the owner was motivated to work out some form of arrangement that would satisfy the Town and The Trust for Public Land and allow him to be released from the Chapter 61 restrictions and free to sell the parcels. After some resistance to allowing public access, the seller agreed to the terms and the restrictions were drawn up and recorded.
By using the leverage provided under Chapter 61---and by taking advantage of the flexibility and speed of action provided by a private non-profit entity---the limited development approach allowed Concord to achieve all of its conservation objectives for this site within a few weeks and at no cost to the Town.
This approach to land protection should also not be confused with cluster development, which typically results in the concentration of as-of-right (or higher) densities into a portion of a site. The limited development option usually has lower densities than would otherwise occur in a cluster development.
There are some limitations to the partial development approach. Perhaps the most significant of these is the need for a third party "deal maker", who possesses the skills to not only negotiate a resolution that is satisfactory to all parties but who also has the flexibility, financial resources and professional ability to buy the land, sell off a portion of it, then sell or assign the remainder to a public entity.
A third party facilitator is almost always necessary in limited development because of the legal restrictions that public agencies face when disposing of land for development purposes. Third party intervention is especially critical where quick action is required to secure a site and hold it for disposition.
There is also the element of uncertainty. Buying, holding and selling tracts of land involves an assumption of risk. Will the public entity follow through in authorizing the purchase? Can a buyer be found for the portion that is to be developed? Do the numbers work?
Where few public land acquisition options exist---and particularly where public funds are not available for major open space purchases---the limited development approach provides a valuable strategy for preserving a community's character and natural resources.
Alfred J. Lima
Director of Planning and Land Management for the Town of Concord, Massachusetts