|A loss to my net worth....
Thank you for Mr. Walley's excellent articles on conservation easements (CEs). His articles are invaluable sources of information to the private property owner who is considering an easement on his/her property. Little if anything is known about the long-term impacts to a county or the property owner when agreeing to a CE
In El Dorado County, California, where I reside, CEs were used to create five rare plant preserves, mandated by U.S. Fish and Wildlife. At the time, many property owners willingly donated a portion of their property for the reserve. They were not informed and were unaware of the furure problems or restrictions the CEs would create.
One of my neighbors recently told me that granting the easement was the worst decision he ever made. He had originally purchased the property for the purpose of building a retirement home. After the easement was in place, he found that he could not build his dream house. Trying to make the best out of a bad situation, he decided to sell his property. To date he has found no buyers. It seems that, when potential buyers are informed of the easement, they are no longer interested in the property because of the use restrictions. Discouraged, he told me: "I now own property I can't sell or use. This wasn't what I was told."
Another of my neighbors told me how difficult it is for her to do routine maintenance on her property. We live in a rural, high fire hazard area where brush removal is necessary for fire protection around our homes. She has to get permission from the conservancy who has the easement every time she needs to do the work. It would seem logical that removing brush around the area would help to protect the rare plants and that, therefore, getting permission would be an easy process. Logical, yes. Easy, no. She is required to jump through so many hoops that, disgusted with the process, she recently told me it was the biggest mistake she ever made.
I am glad I haven't given an easement on my land. Out of curiosity, I contacted two local banks and asked them how they would look on my land if I wanted a loan with a CE in place. My bank told me that they would make a loan, but they would exempt that portion of land on which the easement occurred for appraisal purposes. I was advised to consider an easement a loss to my net worth. The other bank told me that they would not make a loan at all, as they felt title would be split and that they would have no recourse if I defaulted.
In May of this year, U.S. Fish & Wildlife announced its Draft Recovery Plan for the California Red-Legged Frog. The plan proposes to create suitable habitat for the recovery of the frog by identifying 5.4 million acres in 30+ counties as suitable habitat. The primary tool for the creation of the habitat will be the use of CEs and agreements.
While USFW has assured us that these easements will have no affect on private property owners, numerous authorities in the state have found otherwise. Our own County Counsel has stated: "Finally, it is simply not true to assert, as the Plan authors have recently in the media, that this
Plan is not binding on private landowners or state and local government agencies. The fact is a wide variety of land-use proposals today require some sort of permit or approval from a federal agency. If the land involved is encompassed by the Plan, the federal agency will be required to consult with U.S. Fish & Wildlife under Section 7 of the Endangered Species Act.
Through that consultation, Fish & Wildlife will impose the standards of this Plan as 'reasonable and prudent alternatives' to prevent harm to the frogs and their habitat. Those standards will then be passed to the landowner or local agency as conditions upon the federal permit or approval. So long as a land-use activity requires any sort of federal permit or approval, the
'voluntary' nature of this Plan is an illusion. It can be and will be applied to compel compliance."
The concern is that the use of CEs will trigger the consulting process under Sec. 7 of the Endangered Species Act onto private property owners. The uses of CEs are not as innocuous as they appear. The public needs to be better informed as to the consequences and risks involved before making their decisions.