Creativity is vital in efforts to preserve open space

With annual population growth at historically high rates, many U.S. cities and counties face the increasingly difficult task of maintaining a high quality of life in urban areas. Development pressures and sprawl are gobbling up open spaces and landscapes that make communities both healthy and livable, forcing municipal planners and managers to make rushed, sometimes poorly planned attempts to protect valuable land for open space and parks.

In most cases, burgeoning cities and counties rely on land use regulations as their open space protection tool of choice. Unfortunately, this approach is fraught with difficulties, and open space protection requires more foresight than a regulatory approach alone can provide. Too often, skyrocketing land prices can make regulation politically untenable and outright purchase prohibitive on a large scale.

An alternative tool for open space protection involves the use of development agreements. In these cases, cities or counties agree to approve developments only if they meet certain environmental/open space guidelines, such as a requirement to set aside a percentage of the total acreage as open space or a mandate to build public trails through the development.

However, this approach has been criticized by some as unjust, since only those developers who build projects that are large enough to fall under the new regulations will feel the economic impact of the regulations.

What tools, then, are cities and counties overlooking? How can communities protect open space outside the traditional legal arena?

Ted Harrison, Southwest Regional Director for the San Francisco-based Trust for Public Land (TPL), says he sees two recurring problems in most open space protection efforts. For one, he says, “most communities behave as though they are bound by convention and/or formulaic models of land use planning. “We are locked into planning protocols that isolate land uses and thereby encourage sprawl. Zoning laws have been adopted in a wholesale way, assuming what works in New Jersey will work in Santa Fe,” he says.

In addition, Harrison points to a “false dichotomy” that is put forward to challenge the value of open space protection as a threat to economic development.

“Too often,” he says, “open space is judged as an enemy to affordable housing and new business development when, in fact, the opposite is true. Open space and parks are net positives for local economies.”

The experiences of cities like Boulder, Colo., and Portland, Ore., which have extensive programs for acquiring open space and parks, provide evidence that money spent on land protection is returned to the community in the form of higher property values, enhanced quality of life and a greater likelihood of attracting outside business investment to the community.

Boulder has used several tools for open-space protection, including funding land purchases with a sales tax and controlling the number of building permits issued, according to Harrison. The city has also protected areas above a certain elevation by prohibiting the extension of water and sewer lines to these areas, thus limiting development.

Harrison advises city and county planners and managers contemplating open space programs to emphasize community dialogue. “Land use planning is work that cannot be delegated to a small collection of citizens or a planning commission,” he says. “Community development is a fundamental process that deserves an ongoing discussion about a community’s needs and priorities.”

In New Mexico, Santa Fe’s railyard land protection project is an example of this kind of community-driven program, In 1995, TPL helped the city purchase 50 acres near the city center and then supported a public planning process to determine the future use of the property.

The process included a series of hearings, meetings, surveys and votes. The community plan, now proceeding to the city council for consideration, focuses on open space and local community uses; low and slow development; and preservation of the area’s authentic character.

Transfer of development rights (TDR) programs also have potential merit as tools for preserving open space. “TDRs seem to offer good promise for many developing communities, but they are a politically and legally complex tool,” Harrison says. “People find it more complex than outright fee acquisition because you are dealing with a less visible form of property interest.”

In its most useful application, a TDR program allows landowners with property in desirable open space areas to sell their development rights to landowners in other areas of the city or county. The new owners are then allowed to either increase densities or build where they previously would not have been allowed.

The redistribution of development rights protects open land by allowing for other parcels to be more intensely developed. Furthermore, the landowners in the areas targeted for open space protection do not bear the sole economic burden of losing their development rights through an unpopular land use ordinance.

In some cases, TDR programs can be too limited by not allowing the transfer of rights from areas several miles away. For those interested in learning more about TDRs, the American Planning Association, Washington, D.C., has assembled a useful library of case studies and examples of model legislation.

There are no real formulas for success, only unlimited opportunities to innovate. Communities all over the country have successfully protected land for parks and open space on tight budgets, with a high degree of regard for landowners, by using a public process that is both inclusive and highly interactive.

“This is not work for the creatively challenged,” Harrison says. “The most effective open space programs are those that involve a bountiful stew of legal, fiscal and political techniques and strategies. And the spicier the stew, the better!”

This article was written by Craig Heacock, a free-lance writer based in Albuquerque, N.M.

Some Options For Open Space Acquisition

• Fee simple: A government entity or non-profit purchases outright the full title to a tract of land and all the rights associated with the land.

• Conservation easement/development rights: Partial interest in a tract is transferred to a non-profit or government either by gift or purchase. As ownership changes, the tract remains subject to the easement restrictions.

• Fee simple/leaseback: Full title is purchased and the tract is leased back to the previous owner or another, who must abide by restrictions.

• Lease: The government or non-profit rents a tract of land on a short- or long-term basis.

• Undivided interest: Ownership of a property is split between different owners, with each owner having equal rights to the entire property.

  Depending on local circumstances, it may also be possible that:

• A non-profit organization could purchase a tract of land and hold it until a public entity is able to buy the tract;

• Certain government agencies could have surplus property inappropriate for their needs that could be transferred to a park agency; or

• As a condition for receiving subdivision approval, a developer could be required by a local government to pay a fee or dedicate land to a municipal trust fund for preserving open space.

Source: The Regional Plan Association (New York), in cooperation with The Trust for Public Land and the National Park Service.