LAND STEWARDSHIP FOR MUNICIPALITIES

David Peifer

Project Director

ANJEC

(973) 539-7547

dpeifer@anjec.org

February 2007

“The importance of stewardship to the credibility and sustainability of the easement holder cannot be overstated. In the final analysis, the work we accomplish is only lasting and meaningful if our stewardship programs are above reproach”.

Ruthie Johns, Stewardship Director, San Juan Preservation Trust

If your municipality has had a concern for environmental protection, chances are that you have acquired a number of conservation easements through the site plan review process, purchase or donation. The municipality has acquired these property interests to protect the natural resources and assure the preservation of wetlands and other “critical areas” in the public interest.

Guaranteeing that these resources remain intact and viable in your community’s ecosystem is called “stewardship”. Municipal governments often find themselves with opportunities and responsibilities relating to land they own and conservation easements they hold within their town. Preserved lands may also be a part of a regional system of open space preservation, particularly related to wildlife, water resources and recreation.

There are many definitions of what constitutes stewardship of open spaces. One, applicable in New Jersey, comes from the NJ DEP’s Green Acres Program Rules:

“The municipality shall maintain the land in a condition which is equal to or better than the condition of the land at the time it was acquired or developed with Green Acres funding.”

All across New Jersey, municipalities are acquiring open space for a wide variety of purposes. They are requiring developers to preserve land or partial interests in land, called conservation easements, during the site plan review process, or are purchasing land or easements using funds from state government, local open space trust funds, and other public sources. (See: A Handbook for Public Financing of Open Space in New Jersey, ANJEC, Dec. 2001) The public has overwhelmingly supported acquisition of land and easements, perhaps without a full understanding of the obligations that come with the ownership of conservation lands. Setting aside critical areas, like wetlands, and protecting them with an easement when new development is approved is becoming increasingly common throughout New Jersey.

Local governments should view these obligations as an opportunity, rather than a problem. Overall, the municipality benefits from a good stewardship program because it:

· Protects and guarantees the public health, safety and welfare;

· Defends and guarantees conservation values in the long term;

· Creates good relations with landowners and users of municipal open space;

· Minimizes land use or management problems;.

· Fulfills commitments and obligations in an accountable and transparent way;

· Follows regulations, either local, state, or those of the I.R.S..

· Builds and maintains a support constituency for open space protection.

Because the use of public funding also implies a duty to maintain and manage the acquired lands in the public interest, there is a need for accountability and this, in turn, requires some degree of transparency to assure that the public has the ability to oversee its investments.

Many municipalities acquire conservation easements as part of the development approval process. These usually involve the protection of some form of designated “critical area” such as a wetland, floodplain, or steep slope area. It is important to remember that these easements have been acquired to protect the public health and welfare. Along with the initial acquisition comes the responsibility to assure that the conservation values of these lands are protected, in perpetuity. These obligations require an appropriate commitment to stewardship.

In some cases, local governments have benefited from the donation or “bargain sale” of land or easements. In these circumstances, a landowner has expressed a charitable intent to donate land or easement to benefit the local community. Often, the donor has claimed a federal income tax deduction or an estate tax benefit from this donation. Protecting the wishes of the donor and the conservation values present on these lands is also a municipal stewardship responsibility.

Finally, lands are often protected from development that are intended to remain active as agricultural and forestry operations. Sometimes called “working landscapes,” these lands are an important part of land preservation in New Jersey, providing a host of public benefits. While municipalities are often not the easement holder, they can reach out to the operators of these easements with education, advice and technical assistance to assure that the operation of these working landscapes is indeed an asset to the municipality. This can also be considered a form of stewardship.

Intelligent stewardship of municipal lands held in fee (owned outright) and conservation easements requires a structured program at the municipal level. Private land trusts have addressed this issue and can offer important guidance to municipalities. Drawing on their experiences and expertise, municipalities can craft effective stewardship programs applicable to their situations. The important differences are that the local government is responsible to its voters and that it has the power, through ordinance, to develop, fund and operate a stewardship program.

Since other municipalities have begun to address the issue of stewardship, many have programs and procedures that your municipality can adapt to its unique circumstances. Guidance is also available from funding agencies like the Green Acres Program in New Jersey.

Components of a Municipal Land Stewardship Program

In broad terms, what are the major components of an effective stewardship program at the local level? One clear source of direction can be found in the “Standards and Practices” developed by the Land Trust Alliance, a national non-profit support organization dedicated to land preservation (www.lta.org). Municipalities may join the Alliance for a minimum of $250 and avail themselves of a wealth of information, training and advice. The subject of stewardship is specifically addressed in Standard 11.

All stewardship programs, including those operated by municipalities have certain characteristics in common. Among the common issues to be addressed are:

· Funding

Stewardship activities entail costs. Without the financial “where-with-all” to accomplish its objectives, the best intentioned stewardship program will fail. Since the obligations are permanent and run with the land, a stable source of funding is strongly recommended.

Interestingly, when a private land trust accepts a donated conservation easement for which the donor claims a tax deduction, the land trust must certify that it has the ability to carry out the terms of the restriction in perpetuity.

Many land trusts have created dedicated funds, operated like endowments, to address these on-going obligations. When an easement is donated, the donor is asked to contribute cash, commit to staged payments or contribute other items of value to the land trust with the express understanding that these funds will be dedicated to stewardship. One New Jersey land trust asks for 1-2% of the value of the easement or $5,000, whichever is larger.

However, while there is no such requirement for a municipality, the importance and obligation to assure that the public good is protected may be even greater. Municipalities may use funds derived from their open space trust fund for stewardship functions, provided the enabling ordinance and language of the referendum permits such uses. If the ordinance and referendum language prohibits such uses, it is strongly recommended that the issue be re-examined and amendments made to permit the use of funds for this purpose.

In the case of easements obtained as part of the development approval process, it may be possible to require the applicant to contribute to the stewardship of the conservation easements at the time of approval. This will require an appropriate municipal ordinance.

It may also be possible to structure a “transfer fee” in the original easement agreement that provides funds to inspect the easement at time of transfer, issue a compliance letter, and educate the new landowner to the requirements of the easement.

Finally, numerous government grants are available for specific stewardship activities. The municipality may use these for specific stewardship activities such as stream corridor stabilization, reforestation, wildlife habitat enhancement and “development” of open space features. These grants are best used within the context of an overall management plan developed for a specific property or area. Non-profit conservation groups are often willing to assist municipalities in obtaining these grants. In one case, the New Jersey Audubon Society has facilitated over $300,000 in such grants into one municipality, many to private owners of active farmland. Some examples of available grant funding include the Partners for Wildlife Program, administered by the U.S. Fish and Wildlife Service, the Conservation Reserve Program (CRP) and the Conservation Reserve Enhancement Program, administered by the U.S. Department of Agriculture and the 319 h Grant Program administered by the N.J. DEP

Baseline Documentation Reports

A fundamental part of any stewardship program is a report on the conditions of a property at the time of acquisition. Such reports are like site-specific resource inventories and should include a survey map, aerial photography, and descriptions of the environmental features of the parcel like wetlands, forests, soils, geology, water resources and wildlife habitat. Some of these descriptions will be common to all properties while others will be added or dropped depending on the character of the land. An important part of the baseline documentation report is a determination of conservation values to be protected. Conservation values are those specific features and natural process functions present on the parcel that are of concern. For example, a parcel that contains habitat suitable for the wood turtle, a threatened species in New Jersey, would require that stewardship actions respect and enhance this habitat. Because some stewardship activities like forest restoration require many years and often decades to complete, an accurate picture of the beginning conditions is essential for future decision making. As an easement holder, the municipality will need to make periodic inspections and comparisons to the original and previous conditions. The base line study provides the means to make these comparisons.

Monitoring

Evaluating the conditions of a parcel or easement on a regular basis is not only an essential part of good stewardship but is also a mandatory obligation of the easement holder. The landowner should always be notified that a monitoring visit is about to take place.

Most non-profit land trusts recommend annual monitoring, although more or less frequent monitoring can sometimes be justified. The objective of monitoring is to check to see that the conservation values are being protected and to record changes, either positive or negative, on the tract. Comparisons to the baseline conditions are also commonly made. A field visit is made, maps prepared and photographs taken. A written report is prepared and necessary action steps specified.

Municipalities should also be concerned with the notice, access and monitoring provisions of the easement agreement. Monitoring activities must take place and the easement language should be as supportive as possible to facilitate monitoring.

Landowner and User Relationships

In the case of conservation easements held by the municipality it is important to establish a cooperative relationship with the landowner. Regular contact resulting from the monitoring program is one way to do this. Properties on which there are easements may change hands and the new owner may only be vaguely aware of the easement. The goal of these contacts is to create a cooperative “conservation partnership” with the owners, not an adversarial relationship.

Where the municipality owns land that is used by the public, efforts to involve the users is the process of stewardship can pay important dividends, preventing conflict, enhancing participation in stewardship activities and creating a support base for conservation in the community.

Enforcement

When a monitoring report reveals what appears to be a violation of a conservation easement, it is vital to apply a level of judgment to the situation. Efforts should be made to resolve the violation without formal legal action. In the event that such efforts fail, the municipality should be prepared to seek legal remedy to enforce the terms of the easement. This will entail costs that should be anticipated in the funding of the program or provided for under other budget lines in the municipal budget. Municipalities should be aware that the original easement agreement should specify penalties that could be assessed, including orders to restore in addition to monetary damages.