Tuesday, April 15, 2003

Land owners use secret weapon
to block development

Conservation easement locks in use

By Susan Vela
The Cincinnati Enquirer

INDIAN HILL - As Bonnie Mitsui ambles across the muddy fields of her 60-acre organic farm, she takes comfort in knowing that developers will never get the opportunity to pave over her precious ground.

Bonnie Mitsui, owner of Turner Farm in Indian Hill, drives her donkey Jenny along a gravel road on her farm. She is protecting her 60-acre organic farm with a conservation easement.
(Glenn Hartong photo)
| ZOOM |
Even her heirs - if the land is passed to them - cannot spray chemicals on the crops at the 200-year-old Turner Farm. Nor can they allow subdivisions, cell towers or anything else that the 59-year-old conservationist opposes.

That's because the rolling fields off Given Road are protected by a conservation easement - a legal document that allows property owners to control land use, even long after they die.

"I wanted to make the point, particularly in this neighborhood, that you could save your land from development," she said. "It's the best way I know to have control. I'd like to think that, after I'm gone, this place will still be alive."

Across Greater Cincinnati and throughout the country, years of sprawling development and the loss of green space have sparked a backlash.

Farmers and owners of riverfront property or wooded homesteads are fighting back with the conservation easement. They, along with other conservationists, are spreading the word - via fliers, events and simple word of mouth - about the legally binding deed restriction that strips the land of development potential. Easements can reduce land values by tens of thousands of dollars, resulting in lower property tax bills, income and estate taxes.

Any property owner can create a conservation easement to protect their land's agricultural, historic, natural or recreational values. But state laws mandate that the easements must be transferred to government agencies, soil and water districts and land trusts.

The region's non-profit land trusts - the Land Conservancy of Hamilton County, Hillside Trust, Little Miami Inc., Oxbow Inc. and Western Wildlife Corridor - hold easements protecting about 530 acres. That's about a third of the acreage protected by easements throughout Greater Cincinnati.

Legal rarity

"This is a very rare legal instrument," said Rand Wentworth, president of Land Trust Alliance, a Washington-based group that promotes voluntary land conservation across the nation.

  The cost of a conservation easement can be as much as $1,500, most of which is for getting a professional appraisal of the land.
  The whole process typically takes less than six months.
  For more information, contact the Land Trust Alliance, (202) 638-4725, or www.lta.org.
"There's the rule against perpetuities (where) no contract between two people can last forever," Wentworth said. "What's extraordinary about the conservation easement is that it's one of the very few exceptions to that rule. It's an amazing notion that two parties can do something forever. And that something is to protect land."

Conservation easements cover 2.6 million acres of farm and privately owned land in the United States, according to LTA's 2000 national land trust census. While still a small percentage of the nation overall, the acreage has quintupled during the past decade.

In Ohio, about 9,390 acres have restrictions. That's more than seven times the 1,290 acres covered in 1990.

Indiana and Kentucky lag the Buckeye State. In 2000, Indiana had 1,376 acres and Kentucky had 1,545 acres protected under easements, the national census said.

Local interest growing

Roland and Clare Johnson of Green Township helped found the Citizens' Land Conservancy, which holds Mitsui's easement.

"The potential is hundreds and hundreds of acres," Clare Johnson said. "Our primary tool is the conservation easement. It offers a time honored and legal way for families to preserve their land."

Hillside Trust, a non profit land trust driven to preserve the region's slopes, will help sponsor a fall conference featuring Boston-based tax attorney Stephen Small. He has written two books on conservation easements.

Eric Russo, Hillside's executive director, frequently fields calls from people interested in saving their property.

"The loss of green space is touching all of us and we're seeing more people responding because of it," he said. "There is growing concern about encroaching development. (But) the general public is still not aware of this avenue of preservation."

Lawyer Tim Mara, a Land Conservancy founder, negotiates conservation easements. Generally, he and other representatives visit the property to arrange details such as whether the easement will allow construction of one more house or the preservation of a tree fort that holds special meaning.

Mara said the land trust is always seeking to preserve land in its most natural state. At the same time, the trust wants to reach an agreement that satisfies land owners.

Anyone interested in preserving their surroundings should consider the easements.

"People need to be looking ahead and, if they value that wooded area near their home, they should be working with their neighbors to see what they can do to preserve that wetland area or that pasture. They need to be pro-active rather than reactive."

Developers use them, too

Some developers also are using conservation easements to protect the surroundings of new homes.

David Reibold, vice president of Robert C. Rhein Interests, said he's gotten conservation easements to preserve woods on the property. If they're not preserved, the reputation of the subdivision - and the developers - could tarnish.

"A natural area is valuable to the neighborhood as well as the community in general," Reibold said.

However, Green Township resident Aileen Ettensohn doesn't trust developers.

"The developers are just so greedy. They're just eating the place up," she said. "I just decided that I didn't want that to happen to mine."

Ettensohn lives on 10 acres of woods, where deer, rabbits, opossums and birds also make their home. Last year, she went for a conservation easement.

"I never wanted anything to happen to this ground. Now I'm sure it won't," she said.

E-mail svela@enquirer.com

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