AGENDA #10

 

MEMORANDUM

 

 

TO:                  Mayor and Town Council

 

FROM:            W. Calvin Horton, Town Manager

                        Ralph D. Karpinos, Town Attorney

 

SUBJECT:       Conservation Easements on Town-Owned Open Space

 

DATE:             May 10, 2004

 

This memorandum provides additional information on the possibility of granting conservation easements on Town-owned open space. 

 

BACKGROUND

 

On March 22, 2004, the Council received a report from the Manager and Attorney responding to a petition proposing the Town place a conservation easement on recently acquired land along Morgan Creek.  A copy of that report is attached (Attachment 1).  The Council briefly discussed that report and requested additional information and an opportunity to consider this matter further.  Attachment 2 is an excerpt from the minutes of the Council’s discussion on March 22, 2004.

 

DISCUSSION

 

Additional Information on Conservation Easements

 

On March 22, the Council asked for additional information on conservation easements.

 

In 1979, the North Carolina General Assembly enacted the State’s “Conservation and Historic Preservation Agreements Act.”  That act was codified as Article 4, Chapter 121 of the North Carolina General Statutes. It established a definition for a conservation agreement and statutory standards for such agreements and their enforcement.

 

 In 1995, the General Assembly enacted an amendment to the State’s Real Property Marketable Title Act, Chapter 47B of the North Carolina General Statutes that recognized conservation agreements as rights not extinguished by the provisions of the Marketable Title Act. 

 

Attached are excerpts from The Conservation Easement Handbook, Managing Land Conservation and Historic Preservation Easement Programs, a book published in 1988 by the Trust for Public Land and the Land Trust Exchange.  The excerpts include:

 

1.      Chapter 1, Answers to Common Questions About Easements (Attachment 3); and

2.      Chapter 11, Term and Termination:  When Easements Aren’t Forever (Attachment 4).

 

Sample Conservation Easements

 

Attachment 5 includes Chapter 13 from this Book on Model Easements and provides a sample conservation easement.

 

Attachment 6 is the Declaration of Covenants and Restrictions that the Town was required to execute and record as a condition of receiving a grant from the Clean Water Management Trust Fund to purchase a tract on Erwin Road. 

 

Status of Greene Tract Easement 

 

On March 22, a member of the Council asked for background information on the Greene Tract conservation easement.  Such an easement has been proposed for a portion of the Greene Tract, but has not yet been executed. 

 

The Greene tract is a 169-acre tract purchased in the early 1980’s as a site for possible expansion of the landfill.  At that time it was jointly owned by the County and the Towns of Chapel Hill and Carrboro.   When the County assumed responsibility for operating the landfill, a 60 acre portion of that tract was transferred to the County for non-landfill, solid waste management use.  A certain portion of the Greene Tract, 85.9 acres, held in joint ownership by the County, the Town, and the Town of Carrboro, was to be set aside for open space protected by conservation easements. 

 

According to the Resolution approving a Concept Plan for the portion of the Greene Tract remaining in joint ownership after the County assumed responsibilities for operating the landfill, Resolution 2002-11-11/R-9, the Managers were to investigate options for reimbursement of the Landfill Enterprise Fund for the portions of the Greene Tract set aside for affordable housing and open space.  Further, the Resolution stated:

 

BE IT FURTHER RESOLVED that the Council recommends that the triggering mechanism for reimbursement to the Solid Waste/Landfill Enterprise Fund should be formal action taken by all three boards to approve conservation easements protecting the designated open space, with such approvals taking effect no sooner than July 1, 2003, and no later than July 1, 2005.

 

At this time, there is no conservation easement on the 85.9 acres of the Greene Tract which has been designated as open space and is currently jointly owned by the County and the two Towns. 

 

Key Issues   

 

We believe that some of issues the Council may wish to consider before deciding whether to grant conservation easements in Town-owned open space are many of those identified in the previous memorandum and in the attached materials, including the draft minutes from Council’s March 22, 2004, brief discussion.  They include:

 

  1. What are the benefits to the Town and to the community in granting such easements?
  2. What are the disadvantages to the Town and the community in granting such easements?
  3. Can such easements be granted and still allow the Town to make other use of the property if needed?
  4. If so, then what does granting such an easement accomplish?
  5. What happens to an easement granted to a third party if the third party ceases to exist?
  6. Can an easement granted to a third party be transferred by that party to someone else?
  7. Can we ask others to preserve land through conservation easements if we will not do so ourselves?
  8. If such an easement is to be granted, should the holder be a public agency or a private non-profit organization?

 

CONCLUSION

 

We are ready to assist the Council in any further discussion the Council may wish to have on this matter.

 

ATTACHMENTS

 

  1. Memorandum dated March 22, 2004 (p. 4).
  2. Excerpt of Minutes of March 22, 2004 (p. 9).
  3. Excerpt from book on Conservation Easements (p. 10).
  4. Second excerpt from book on Conservation Easements (p. 15).
  5. Third Excerpt from book on Conservation Easements (p. 21).
  6. Declaration of Covenants, Leon Carroll property (p. 32).