Conservation Easements at Risk in Boulder County

Randall Weiner’s Comments to Boulder County Planning Commission, March 15, 2023 Meeting. Commissioners in attendance were Gavin McMillan, Ann Goldfarb, Mark Bloomfield, Chris Whitney, and Sam Libby.

Thank you for your consideration.  Conservation easements should mean what they say.  They are not conservation time-outs, or conservation trade-ins.  They are meant to be left in place for as long as they are needed.  They should be held in trust for the public and extinguished only when the purpose of the easement becomes impossible to fulfill. 

I’d like you to turn to the last document on this agenda item, the Conservation Easement itself, called Kanemoto Estates NUPUD (Outlot A) dated April 21, 1982.  As you know, you are being asked by staff and by the developer to terminate this 40-year-old agricultural conservation easement.  It should be a rare occurrence indeed to extinguish a conservation easement, and when done, done carefully.  Like most easements, there is an extinguishment clause that starts at the bottom of page 1. 

“The easement herein should run with the land and remain on the land until terminated as follows:

A. Where the Boulder County Planning Commission [has] determined that the proposed and/or allowed development and/or land use resulting from such termination or transfer is consistent with the current Boulder County Comprehensive Plan and Boulder County Land Use Regulations.”

Commissioners, this development is in a state of flux.  The annexation, let alone the actual development plans, have yet to be approved by Longmont. We urge you to postpone this decision until the developer’s plans are approved.  That’s what the CE extinguishment clause requires you to do, to “determine[] that the proposed development is consistent with the BCCP.”   Ms. Hippely showed you the picture of the concept plan showing how dense and uninspiring this development will be.  Likewise, the developer provided pretty pictures and environmental goals in its concept plan.  Until the developers’ plans are approved, they are just fiction.

Moving to the second extinguishment clause requirement, Hannah Hippely just told you that “analysis of the county land use code is not necessary,” so the staff didn’t prepare one.  But that’s not what the extinguishment clause says, it says the Planning Commission has to determine if the development is consistent with the Boulder County Land Use Regulations.  Words have to mean something.  As a result, there is no way you can find that the proposed development is consistent with the County Land Use Regulations. 

The prematurity of this vote is also shown by the Applicant’s admission on Page 1 of its request that notes that while the site was designated as a receiving site under the Longmont Area TDR IGA of 1996, that intergovernmental agreement expired after ten years, or 2006. 

Now I’d like to move away from law and focus on practicalities.  In those rare circumstances when groups like the Nature Conservancy or Trust for Public Land lose one of their conservation easements, they demand concessions from the developer.  Boulder County should demand concessions here too, and these might include:

  • Partially funding Longmont to build the bike underpass at Colorado 119 bikeway that Mark and others brought up in the previous Agenda Item to reduce accidents at Airport Road and 119;
  • Putting a park where the development abuts the neighboring developments;
  • Adding a wildlife corridor;
  • Adding trees and pocket parks; and
  • Adding greenhouse gas reduction initiatives.

Now County Parks and Open Space staff will tout their Open Space revolving fund into which this developer will eventually contribute an amount of money that was not disclosed today.  This should not come at the expense of the Kanemoto Estates’ neighbors, who have for forty years reasonably expected that a conservation easement found in the Boulder County land records would mean what it says:  that it “shall prohibit the Grantor, his successors and assigns, from erecting or constructing any residential structures.”

The staff’s proposal to simply trade this CE for future open space places the concept of conservation easements on its head.  A CE should be a bulwark against development pressures.  It is precisely when the development pressures are great that the County, and the Planning Commissioners, should fulfill their fiduciary obligations to maintain the conservation easements already in place.  If conservation easements can be traded like playing cards, as you’re being asked to approve, then nobody in this entire County, wherever they dwell, can safely rely on them.

Janice Whisman, from Open Space, suggests that different conservation easements should be treated differently, and that one donated to the County cannot be extinguished, while one that came from a regulatory process can be.  This is not a distinction grounded in law or common sense.  The Kamemotos provided a CE to the County in return for getting to build two structures instead of one.  Other folks donate easements in return for tax benefits.  Both types of easements provide benefits to the grantor, and both should be enforced.

Unfortunately, Longmont has not shown that it will step up and support the values contained in the Boulder County Comprehensive Plan, like preserving agricultural lands, maintaining scenic views, and encouraging traditional land use reliant on existing utility and transportation infrastructure.  I assume many of you have seen what Longmont has done with the Ken Pratt/Highway 119 corridor heading east to I-25?  Is this really how we want the Diagonal Highway to someday look? 

Our law firm engaged in litigation with Longmont over the size of its new Costco parking lot.  If you’ve been to Superior you know how large Costco parking lots can be, yet Longmont granted Costco almost 20% more parking spaces than the maximum allowed under its Municipal Code.

To conclude, please fulfill your fiduciary obligations to protect this conservation easement until you have no other choice, and until the developer’s plans conclusively demonstrate that they will be consistent with the BCCP.  And remind Open Space staff to use its leverage, as is legally required, to negotiate concessions that would make this development consistent with the BCCP, including protecting the public on the Diagonal Highway.

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