Precedent-Setting Decision on Conservation Easements Scheduled for Thursday

By Meg Waters

Sisk conservation easement (foreground) from Blue Mountain Road. Photo by the author.

Last December, Boulder County Commissioners heard public testimony on a proposed change to a series of conservation easements the county holds on a 1,500-acre parcel outside of Lyons. This Thursday, March 8, commissioners will make a decision about whether to allow the construction of a 6,000-square-foot home on the property. The land currently has no buildings, although the easements allow for “agricultural/grazing uses and related structures.”

At the December 20 meeting, Boulder County Parks & Open Space presented the proposal, which would consolidate the property’s five conservation easements into one and set limits on the size and location of agricultural buildings. In exchange for this revision to the easement contracts, the landowner would be allowed to build up to 6,000 square feet of residential buildings and up to 15,000 square feet of non-residential buildings. All construction would have to occur within a two-acre building envelope. Staff said that the county sees the limitation on the size and placement of agricultural outbuildings as a benefit; currently the size and placement of outbuildings on the property would be limited only by the county planning process, which would allow for a larger total square footage. Also, the county believes that merging the easements would reduce the likelihood that internal fences would be added on the property because it would eliminate the possibility that the property could be sold as five parcels to five separate individuals.

Following the Parks & Open Space presentation, the landowner’s lawyer presented his point of view. He claimed that although the current conservation easements explicitly prohibit “the construction, reconstruction, or replacement of any structures” except those explicitly allowed, they in fact allow the landowner to build five separate homes—one on each parcel. He said case law indicates that residences are structures related to agriculture, because every farm needs a farmer and every farmer needs a home. Thus, a residence falls under the umbrella of the easements’ permitted “agricultural/grazing uses and related structures.” He also said that although “additional residences” is the number-one item on the list of prohibited uses of the property, the current easements prohibit only the second, third, etc. residences on each parcel because the word “additional” implies that there is already a residence on the property.

Next at the December meeting, more than 20 members of the public spoke; all opposed the proposal. Some addressed the landowner’s stance that the easements currently allow for construction of homes, explaining that “additional” means “by way of addition; added”—not “more than one.” As one neighbor of the property put it, “If you have zero homes and you build one home, that’s an additional home. One is in addition to zero.” Another speaker expressed alarm at the idea that a residence is necessarily allowed on any land that permits agricultural use. This could lead to homes being built right in the middle of conservation easement properties across the state, she said.

Other speakers argued that construction of a house, a driveway, and 15,000 square feet of barns would be more disruptive to wildlife than would perimeter fencing that might theoretically be installed to demarcate property lines if the land were sold to multiple owners. In fact, the addition of a house and barns might make fence building more likely, not less likely.

Still other speakers raised questions of taxation and valuation of the land. The conservation easement has almost eliminated property taxes paid on the 1,500 acres for the past 15-plus years. And when the property sold several years ago for about $1.6 million, the sale price presumably included a discount to account for the fact that the land couldn’t be developed. While this proposal seems to provide very little value to taxpayers, turning the property into a 1,500-acre building lot could prove quite profitable to the landowner petitioning for the right to build a home.

At the end of the meeting, the commissioners deferred their decision, wanting to discuss the issue in a closed session with legal counsel. Now Cindy Domenico is the only remaining commissioner who was present at the December meeting. (Will Toor was unable to attend that meeting, and Deb Gardner had not yet replaced Ben Pearlman.) In a letter to neighbors of the property, Parks & Open Space staff said that Toor and Gardner have viewed the video of the original hearing, and all three commissioners have visited the property.

So Thursday at 11 a.m., the commissioners will discuss and decide whether to change these conservation easements. They are not allowing public input at tomorrow’s meeting. But if you’re concerned about the possible implications of this decision for conservation easements across the county and beyond, please consider attending.