Securing open spaces for urban America conservation easements

[From the U.S. Government Printing Office, www.gpo.gov]

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December 1959
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Securing Open Space for Urban
America: Conservation Easements

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1968 ban Tand -InstitubC TECHNICAL BULLETIN 36

1200 18th Street, N.W. Washington 6, D. C. e Max S, Wehrly, Executive Director

URBAN LAND INSTITUTE-TECHNICAL BULLETIN NO. 36

COALSTAL ZONE
INFORMATION CENTER

SECURING OPEN SPACE FOR URBAN AMERICA:
CONSERVATION EASEMENTS

WILLIAM H. WHYTE, JR.
Author and Lecturer
New York City

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UNITED STATES GOVERNMENT
NATIONAL

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Front Cover Photo by Anthony Linck
Courtesy of LIFE

From "A Plan to Save Vanishing U. S. Countryside"
by William H. Whyte, Jr., LIFE, issue of August 17, 1959

URBAN LAND INSTITUTE-TECHNICAL.BULLETIN NO. 36

SECURING OPEN SPACE FOR URBAN AMERICA:
CONSERVATION EASEMENTS

TABLE OF CONTENTS

Page

Preface ------------- ------------------------------------------------------------------------------ 5

Foreword ----------------------------------------------------------------------------------------- 7

SECTION ONE: The Precedents ------------------------------------------------------------------------- 11

SECTION Two: The Public Purpose ----------------------------------------------------------------------- 15

SECTION THREE: The Limits of Zoning ------------------------------------------------------------------ 21

SECTION FOUR: Just Compensation -------------------------------------------------------------------- 30

SECTION FIVE: Gifts ------------------------------------------------------------------------------------ 36

SECTION Srx: The Tax Question ------------------------------------------------------------------------ 38

SECTION SEVEN: The Costs to the Public --------------------------------------------------------------- 42

SECTION EIGHT: The Deed -------------------------------------- L -------------------------------------- 44

SECTION NINE: The Financing ------------------------------------------------------------------------ 47

SECTION TEN: The Agencies -------------------------------------------------------------------------- 50

SECTION ELEVEN: Legislation -------------------------------------------------------------------------- 54

APPENDICES

A Purchase of Interest and Rights in Real Property (State of California) ------------------------------ 57

B A Proposed Bill on Conservation Easements (Commonwealth of Pennsylvania) ---------------------- 59

C Scenic Easement Deed (State of California) --------------------------------------------------------- 60

D Typical Ohio Reservation Agreement --------------------------------------------------------------- 62

E Excerpts From the Conservancy Act of Ohio ------------------------------------------------------- 63

F Oil and Lease Fund (Commonwealth of Pennsylvania) ---------------------------------------------- 65

G Federal "Rights in Land" Act ----------------------------------------------------------------------- 65

H An Act Providing for the Establishment and Development of the Massachusetts Bay Circuit ---------- 66

Preface

By the year 2000, we may expect to find the United States a nation of some three
hundred and twenty million persons. About four fifths of these people will be living in
tremendous urban concentrations roughly divided between ten huge super-metropolitan
regions and 285 smaller metropolitan areas with populations ranging from 100,000 to
5,000,000.* Thus growth could mean the absorption for urban use of additional land area
equivalent to the State of Illinois or over seven times that of New Jersey!
As land is absorbed for urban purposes,. open land areas disappear with finality. Thus
when the need for permanent open space is greatest the raw land is no longer there.
Is this important to the physical, social and economic well-being of the United States?
We think it is becoming increasingly more so and should be of increasing concern to
every person who has the welfare of his country and city at heart.
William H. Whyte, Jr., the author of this study thinks so too. He set out on a year's
survey to determine whether under our economic and social system, realistic ways and
means could be found to insure the preservation of open space both in urban and rural
areas. He took leave of absence as Assistant Managing Editor of Fortune magazine to
get the job done. The complete results of his investigations are contained between these
covers. Some general results of his findings appeared in an article in the August 17, 1959
issue of Life magazine.
There may be those who differ with the urgency of the matter or the conclusions
reached by Mr. Whyte. No one, however, can question the fact that in perusing this
study he did so as a highly trained observer, as an accurate reporter with a mission and
as one whose journalistic skill has permitted him to state the case for accomplishing open
space conservation both forcefully and convincingly.
Born in West Chester, Pennsylvania, he graduated cum laude from Princeton in 1939.
He joined the Marine Corps in 1941 as Intelligence Officer in the Ist Marine Division
serving through the Guadalcanal Campaign and later as head of G-2, Marine Command
and Staff School. He joined Fortune in 1946 becoming Assistant Managing Editor in 1951.
His interest in urban and suburban growth problems began in 1953 and led to a number
of books and Fortune articles including "The Organization Man," and "The Exploding
Metropolis." During this period he became deeply involved in the problems of open
space conservation leading to the present study which included extensive field work in
both the United States and Europe. Mr..Whyte has left Fortune to devote full time to
his own studies and writings.
ULI is pleased to make this contribution to the field of land use available in its Tech-
nical Bulletin Series.

MAX S. WEHRLY
Executive Director
URBAN LAND INSTITUTE

Pickard, Jerome P., Metropolitanization of the United States. (Urban Land Institute, Research
Monograph No. 2) Washington, Urban Land Institute. 1959. 96 pp. ($4.00)

Foreword

The purpose of this report is to be of some it is a public benefit in its own right, now, and
help to those who want action to save open should be primarily justified on this basis.
space. There is in it no exposition on urban Some may argue that I am merely concentrat-
sprawl, why it is bad and why we should do ing on one side of the coin, and, that the other
something about it. Nor is there full treat- w .ould do as well. I do not believe so; the
ment of the best known tools for achieving concept of a benefit has important legal and
open space, such as the out-right pvrehase of tax aspects, and it is critical to the problem
land, for example. These tools may not be of rousing real public support.
used as well as they should be, but their It is for this reason that we must look care-
availability hardly needs belaboring. fully to the law of eminent domain, and it
There is one tool, however, which may be should be stressed at the outset that the tool
of considerable usefulness, but which is not under discussion is an extension of eminent
well known, and it is on this tool that the domain rather than the police power. This is
report concentrates. It is the purchase by a not to deprecate the latter, which is tremen-
public agency of rights in land from private dously important in any open space plan. But
owners to insure the continued integrity of key while the two powers complement each other,
open areas. Essentially, it is nothing more there is a fundamental distinction between
than the adaptation of the ancient common them; the failure to see the limits of the police
law device of easements, and in several areas power, I submit, is the greatest ideological
legislation is already in existence authorizing obstacle to successful action.
the purchase of easements for open space In many cases the community can properly
purposes. So far, the tool has yet to be applied use its police power to conserve open spaces-
on any scale for the control of -urban sprawl. through the zoning of flood plains against
Few officials realize that such a tool exists, development, for example. If the police power
and partly because of this there are many were the main tool, however, this would be to
questions which cannot be answered - the a large degree a negative way of securing open
reaction of the tax assessor, for example, is space; that is, the community would have to
one that can be answered satisfactorily only maintain that it is harmful to the pAlic interest
when there is an actual program for him to for development to take place in particular
react to. areas-so clearly harmful that the community
Study of what we've learned so far, however, has no obligation to compensate the owner for
can at least take us part of the way. Thus this the rights taken away from him.
report. In it we have attempted an inventory This is placing an intolerable burden on
of the most relevant precedents and have also common sense, let alone the law-and the
attempted an inventory of the knottiest ques- feelings of landowners. For if it is a benefit
tions for the future, for there must be no we are getting-if we want to keep a stream
blinking the fact that there are some knotty valley open because we like it-the law is very
questions indeed. clear. We've got to pay for it.
The first version of this report was completed We may buy the whole property. We may
in August 1958. Since then many planners, buy only one or more rights in it, as with an
officials, and legal experts have helped greatly easement. In either event, and whether or not
with criticisrns and suggestions. I have also condemnation' is used, the law of eminent
profited by the further chance to talk with domain applies. We must do it for a public
more landowners', civic groups, developers, purpose, and we must offer the owner fair
and special interest groups of one kind or compensation for what he is giving up.
another, and to follow the trials and errors of Those who have been working for open space
a number of promising open space programs. don't need to be told it's a valid public purpose.
What I have learned convinces me that there But will the courts? Will the public? We must
is one overriding consideration for any open go on faith a bit, but it Will help if we also
space program. It is, simply, that open space hammer at the positive with as much force as
must be sought as a positive benefit. Open we can. It is for this reason, I am now
space is not the absence of something harmful; persuaded, that "Development Rights," the

working title of the original report, is not the tion of land in fee simple for parks and other
@best one. Several planners had argued that it kinds of property the public is going to need.
would tend to confuse people and I now think At the same time, however, easements can
they were right. Among other confusions, the provide future options. Even though the com-
term has suggested the procedure which the munity might not know now what its precise
English have now abandoned as unworkable- land use needs will be in twenty years or so,
that is, the purchase of development rights to by the conserving of key open spaces it insures
whole areas rather than specific open spaces, that it will have choices to make, and that the
.and the use of the sale-back of rights to specify developer's bulldozer will not have gotten there
where development could take place. first. As I will note later, however, this is a
More important, however, the term stresses minor reason for securing easements: The main
what is to be avoided, rather than what is to justification must be present benefits.
be gained. What we're really after is con- Easements may also break certain ideological
servation of things we value, and thus I have blocks. They are ancient, they respect property
been trying the term "conservation easement." rights, and are far less "socialistic" than many
Another term may well prove better, but programs which conservatives now sanction.
41conservation easement" has a certain unifying Why not go a step further, buy the land out-
value: It does not rest the case on one single right and then lease it back to the owner, or a
benefit-as does "scenic easement," but on the new owner, subject to open space restrictions?
whole constellation of benefits-drainage, air In many cases, this procedure might be in order-
pollution, soil conserv 'ation, historic significance, and it is notable that the California Easement
control of sprawl, and the like. Act (Appendix A) has a provision for sale and
leaseback. The writer's opinion is that the ease-
Let me sketch briefly how the kind of open ment is a more promising device for large
space program envisioned can achieve several scale conservation. Those who decry it as too
important benefits at one and the same time. limited a tool have many arguments on. their
To conserve key portions of the countryside of side but when they demand public ownership
an area-such as the heart of a stream valley- of open space as the only real solution, I feel
the public agency purchases away from land- they are flying from current reality. If ease-
owners their right to develop it into a sub- ments prove faulty, the effort will have taught
division or splatter it with billboards. Except us something but at least it is an effort that can
for the open space restrictions, the owner keeps be made: Now let's not ask for Utopia or bust.
full title to the land. The amount of land .Some people believe emphasis on any specific
involved will probably be only a small fraction tool is prematdre; they argue that first priority
of the total; the idea is not to prevent develop- must be given to the study and development of
ment of an area, but to channel it; there will. a regional plan and regional planning instru-
be plenty of room left for subdivisions-and mentalities@only then, they contend, does dis-
the people in them will enjoy a better environ- cussion of specific ways and means become
ment than otherwise would be the case. pertinent. It is true that we must have
The purchase of easements in fringe areas regional planning if. any long range program
should be considerably less expensive than is going to succeed. It is also true that the
acquisition in fee. The land, furthermore, will easement tool is only one of many-and possibly
be kept alive-in securing the. land against it will be.of less importance twenty or thirty
subdivision, more than a negative thing is years hence than sale and leaseback, the use
scenic asset; by keeping the land in cultivation, of subdivision controls, control of sewage and
secured: .Not only can land be kept in produc- water lines, etc., to achieve the most economic
tive farming, for example, but maintained as and amenable pattern of development.
a scenic asset; by keeping the land in cultiva- Yet the easement tool may prove an im-
tion, furthermore, the easement tool can be of portant catalyst. As an abstraction, regional
material help in any program of watershed planning simply doesn't connect with most
control. Indeed, .upon this latter need one citizens. They know what is happening to the
could rest the major justification. countryside, but so long as they see no practical
The purchase of "conservation easements" way of coping with it-and most of them don't
also can have a great preemptive value. There -they will turn their eyes to the host of other
is, of course, no substitute for outright acquisi- problems pre ssing for their attention. But

show them that there is a way-a practical one, and constant work too, for years to come. But
in the. here and now-and their attitude let us not await the millennium. It will be
changes. They ask questions, sharp ones. They extremely difficult to commit the sin of
do care about what's happening, and once they choosing too much open space in getting started
see a real chance to do something effective, a (or at almost any other time, for that matter),
support that otherwise would lie dormant can and any planner who can't think now of some
become aroused. land worth saving ought to get into another
This report does not go into the technical line of Work.
details of land selection. It does not go into We need long range planning, but we need
them because no research is needed to establish
the ways and means that can be used. Indeed, a little retroactive planning, too: Let's save the
there have already been a plethora of studies best land as soon as we. can, and then, at our
on open -space needs, and with monotonous leisure, rationalize with further studies how
regularity these studies time and again identify right we were to have done it. I
certain key areas. (In the Southeastern Penn- One caveat is in order. I have tried to
sylvania area, William Wilcox of the Greater indicate those points which are based on my
Philadelphia Movement has pointed out, there own personal opinion so that the reader may
have been since 1932 nine studies on land needs, draw his own, and have tried everywhere to
seven of them on recreation and open space distinguish between fact and surmise. Yet no
needs). To be sure, not,all of the plans have one can claim complete "objectivity" about this
been well conceived for today's situation, but problem, nor should he. Facts are vital, but
they do at least illustrate that there shouldn't they will not stand still; time is a critical
be any great difficulty in figuring out which dimension and the question of values that
areas deserve top priority. For the long haul, underlies the whole problem is changing. What
there should be the kind of comprehensive' we hope and work for will shape the reality
planning which will make of open space we are studying.
selections, not isolated. bits and pieces, but a
framework which supports such other elements
as. industrial development, highways, and the WILLIAm H. WHYTE, JR.
like. This, certainly, will require a lot of work, October, 1959

SECTION ONE: THE PRECEDENTS

Basically, the principle of eminent domain is so that the public interest may be served
simple. The public can acquire property if it without having to purchase the entire bundle.
will serve a public purpose and if the owner is Such easements have had a statutory basis for
given just compensation.' In acquiring property, many years and have been upheld by the courts
the public does not have to buy all of it, but as a valid exercise of governmental power in
that element of it that will serve the public the public interest.
purpose. We are talking, then, about property While in many states there already exists a
rights. They are plural; economists and lawyers statutory basis for purchasing easements. for
are now agreed that we should think of the purpose of securing open space, the urban
6(property" not as the tangible thing owned, sprawl problem is so new-or at least, seems
but as a composite bundle of rights-the right to be so new-that there are few cases directly
of the man to sell his property, to encumber it, bearing on this kind of use. The Massachusetts
to have his wife and children inherit it, to build legislature authorized the Boston Metropolitan
upon it and to develop it. Park Commission to acquire rights in land in
The public can acquire these rights in land the basic act of 1893, and in 1898 additional
by gift, purchase by voluntary agreement, or powers were granted "to acquire by agreement
by condemnation. It may buy the whole bundle or otherwise, the right forever or for such
of rights-that is, acquire the land in fee period of time as said board may deem ex-
simple-or it may acquire less than the full pedient, to plant, care for, maintain or remove
bundle. trees, shrubs and growth of any kind within
It is this latter aspect that we are concerned said regulated spaces [along or near rivers and
with, and in the form of easements it has been ponds]." (Chapter 463, Act of 1898.)
common practice for generations;2 though the Back in the nineteen-twenties, a study for
particular purpose for which the public acquires the park needs of the Washington, D. C., area
the easements has shifted, the basic principle recommended six methods for "withdrawing
involved has remained the same. Today, we land from urban occupation"; one of them was
have channel-change easements, slope and the acquisition of rights in land, or easements,
drainage easements, scenic easements for high- as well as outright purchase. In the Federal
way and parkway purposes, highway deve *lop- Rights in Land Act of 1928 (40 USC, Section
ment rights, air rights, sight-distance easements, 72A), Congress gave the National Capital Park
easements of view, building protective ease- and Planning Commission authority for such
ments, and many others; whatever the varia- acquisition, and in the Capper-Crampton Act
tion, they are essentially a purchase from a of 1930 authorized the spending of $32,500,000
landowner of one or more of his rights in land for three kinds of park and open space projects.
I The standard work is The Law of Eminent Domain In 1956, in the act establishing the Bay Circuit
by Philip Nichols; originally published in 1909 by surrounding metropolitan Boston, the Massa-
Mathew Bender & Co., N.Y. It has since been exten- ch@usetts legislature authorized acquisition of a
sively annotated (by J. L., Sackman and R. D. van
Brunt; see 3d edition, Bender, N. Y. 1950) and the variety of rights in land in order to preserve
footnotes bringing it up to date have swelled it to open spaces.
many heavy volumes. Nichol's original running text,
however, stands up admirably; even a layman can But though the authority has existed, up until
understand it, for Nichols had an inclination to plain now park officials have not sought recourse to
English. it, and have concentrated on the acquisition
2 The law of easements in the United States is
virtually identical with English law (and was bor- of land for parks. Since 1894, the tool of rights
rowed by us, it might be added, several centuries in land has been exercised only once in
before the English Town and Country Planning legis- Massachusetts; this was by the Metropolitan
lation). Here, as in England, the essential features
of an easement are (1) that it is an incorporeal right, District Commission to protect land lying along
a right to the use and enjoyment of land-not to the
land itself; (2) that it is imposed on corporeal prop- the Charles River Basin in Waltham (no
erty; (3) that it is a right without profit; (4) that it shrubs may be removed or planted, nor may
requires two distinct tenements: the dominant, which any physical changes be made in this area
enjoys the right; the servient, which submits to it.
(e.g., a park commission which purchases a scenic without the approval and consent. of the
easement would be the "dominant tenement." The
owner of the property to which it applies would be Metropolitan District Commission). The Metro-
the "servient tenernent"-not just the owner who politan Parks Commission has received a great
agreed to the purchase, but also subsequent ones, many gifts in fee and in private lands from
since the easement "Runs with the land.")

12 U. L. 1. TECHNICAL BULLETIN NO. 36

landowners, but to date has not used its power and advertising structures within 500 feet of
of eminent domain for this purpose. The the border of any state park or parkway, scenic
National Capital Planning Commission has easements have not been necessary).
been studying several proposals that envision (b) "SCENic EASEMENTS" FOR PARKWAYS. In
development rights purchase but have been the building of our National parkways, notably
concerned primarily with the task of park and the Blue Ridge Parkway and the Natchez
parkway acquisition. Trace Parkway, scenic easements have been
There is, accordingly, no case law bearing used to conserve sections of natural landscape
directly on development rights. There do not along the rights of way. These are defined as
appear to be any judicial decisions construing 64 a servitude devised to permit land to remain
the Federal Rights in Land Act of 1928; and in private ownership for its normal agricultural
nothing directly in point in the cases con- or residential use and at the same time placing
struing the various Massachusetts park laws a control over the future use of the land to
(Chapter 463, Acts of 1898, found in Chapter maintain its scenic value for the parkway.":'
92, Section 79 of the annotated laws of The National Park Service does not itself pur-
Massachusetts). chase the easements; this is done by the high-
At this point in time, then, it is to analogy way departments of the various states involved,
we must look for the most relevant precedents. but the Park Service, which eventually receives
Here are some of the principal kinds of ease- the deeds, does lay down the general standards
ments for which a successful body of experience to be followed. Currently, it asks a minimum
exists: right of way averaging 125 acres per mile in
(a) "ScENic EASEMENTS" FOR PARK PURPOSES. fee simple, supplemented by scenic easements
Since 1933 the State of California, through its where appropriate.
Department of Natural Resources (Division of The device not only insures a natural land-
Beaches and Parks) has from time to time scape, it saves money on maintenance costs.
acquired scenic easements from landowners Along the Blue Ridge Parkway there are some
immediately adjacent to state park units. The 177 scenic. easements totalling 1,468 acres, most
easement is a fairly standard one; the land- in grassland. Maintaining the grassland within
owner grants to the state the scenic easement the regular right of way costs the Park Service
deed (see Appendix for the form of agreement), about $4.50 a year per acre; on the land covered
by which he gives up the right to put up any by easements the farmers do it by continuing
buildings on the land without state approval, to farm, thus saving the Park Service some
erect billboards, and the like. $6,100 a year. (To save more money yet, the
While the state has not extended this ease- Park Service is now applying a sort of reverse
ment principle to the acquisition of future park gambit also; for right o 'f way it owns, it often
sites, the powers given are fairly broad. Under gives a "special use permit" so neighboring
Section 5006 of the state's public resources farmers can use it for grazing or crops or such
statute, "The State Park Commission, through -they pay a small fee for the privilege, as well
the consent of the Department of Finance, may as relieve the Park Service of the $4.50 per acre
acquire by purchase or by condemnation pro- maintenance CoSt.)4
ceedings, brought in the name of the people The Great River Road proposed by the states
of the State of California, title to or any bordering the Mississippi is to make consider-
interest in real and personal property which able use of easements. Instead of a continuous,
the Commission deems necessary or proper for and somewhat antiseptic, strip park, it will be
the extension, improvement, or development a "living landscape of our life and industry-
of the State park system." the vast wheat and cotton fields; the waving
Somewhat similarly, the New York State sugar cane and the pumpkins among the corn
Division of Parks has in a few cases acquired shucks; the cattle grazing in pastures; the hay
easements by appropriation (Section 676-A of 3Requirements and Procedure to Govern the Ac-
the Conservation Law), to prevent the con- quisition of Land for National Parkways: National
struction of commercial facilities opposite the Park Service, Washington.
entrance to state parks. (Since Section 675 of 4Earl A. Disque, "Land Use Treatment as Related
to Maintenance," Highway Research Board, Washing-
the Conservation Law prohibits use of signs ton 1959.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 13

stalks and corn cribs readied for winter, and Public Works to acquire easements restricting
always the ever-changing panorama of the the erection of billboards on all controlled-
mighty river." 5 [See cut attached to this access state highways. (In the past such ease-
section. Diagram by National Park Service of ments have had a width of 750 feet from the
a. typical stretch of the Great River Road, edge of the actual roadway. This policy is now
showing complementary uses of fee simple and going to be altered to take advantage of the
easements.] new federal aid highway bill which the
(C) "SCENic EASEMENTS" FOR HIGHWAYS. In President signed April 16, 1958; this provides a
New York State, to cite one example, it is the financial incentive for. states to acquire rights
present policy of the State Department of in strips 660 feet from the edge of the highway
right of way.)
The New York State Thruway Authority,
5 Dudley C. Bayliss: "Planning Our National Park
Roads and Our National Parkways." National Park
Service, 1957. whose enabling legislation has a provision

FEE SIMPLE PURCHASE
OF iSLANO

STATE 01I)TE

7, , - @,77_ '47
SE
.0 V 0C 10G
VIP,

SCENIC EASEMENT
_.0
300,
e U
CeAllc
4
4se4,eV;,.

0
3 0'
0 90
FIEL 05 SCENIC EA SEMEN T

HISrORICk
BUILOING

From: Planning Our National Park. Roads and Our National Parkways,
Dudley C. Bayliss, Dept. of the Interior, National Park Service, 1957.

PARKWAY LAND CONTROLS IN RURAL AREAS
Hypothetical drawing to illustrate variability of Parkway land takings so as to provide:
1. A development width of 220 feet with space for widening of pavement if necessary in the future.
2. Control over the sightlines of rural scenery by means of easements, so that lands could continue in present ownership
and remain in use as farms.
3. Outright purchase of occasional historic sites, wooded islands, swamps, bluff faces, and marginal lands.

14 U. L. I. TECHNICAL BULLETIN NO. 36

similar to Section 676-A of the N. Y. Conserva- heavy use of easements both to prevent
tion Law, has protected its right of way through destruction of view and for the actual highway
a combination of police power and easements. right of way; several thousands of California
Up to 500 feet from the edge of the roadway, highways have been built on easements, and
signs are prohibited by the state's police power. legally and economically it has worked out very
Beyond this point the Thruway Authority has satisfactorily.
purchased in scattered areas 1000-feet ease- (e) "AIRPORT EASEMENTS.'.' Another type of
ments from property owners to prohibit bill- easement, for which a considerable body of
boards. These were acquired at the same time experience exists, is the acquisition of rights in
as the rights of way. land from nearby landowners to assure an
(d) "RIGHT-OF-WAY EASEMENTS." In addition unobstructed path for landings on airfields.
to securing easements for billboard control, Under the federal airport program, all par-
several states have also used them to conserve ticipating airports must provide for control
future rights of way at relatively low cost. In over the "clear zone area" up to 2,700 feet by
Wisconsin, such authority is to be found 1,000 feet (Federal Airport Act, Public Law
specifically in Section 84.105, Wisconsin statutes. 377, 79th Congress, 1946).
Ohio, which has made considerable use of
tireservation agreements" to protect rights of (f) "EASEMENTS FOR WATER CONTROL." Many
way, has no specific enabling legislation but kinds of easements are used for this purpose.
has presumed the authority to exist in the To conserve the sponge-like qualities of flood
general authority of the Department of High- plainsi for example, .easements can be acquired
ways; since in specific statutes the department to prevent building on them and, thus, a higher
already has the power to acquire the entire rate of run-off. By easements the public can
bundle of property rights, it is presumed any also purchase the right to flood an area, or to
lesser interest may also be acquired. Texas, discharge sewage effluent on it. Rates of com-
which has used the easement device under the pensation vary widely, depending to a great
name of "highway development rights," has a extent on the enjoyment of the land left to the
specific statute to this effect. California makes owner.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS is

SECTION TWO: THE PUBLIC PURPOSE

The precedents, then, are many. More than agency has no business accepting easements,
that, in different variants, the easement tool has let alone paying good money for them, since
been on the books for some, time. We don't the whole idea is merely to help landowners
have to start from scratch; even without dodge taxes.
further legislation, much more use of the ease-
ment device could be made than now is the How, then, do we define the public purpose?
case; and while it is right to talk about new The law of eminent domain holds that the
tools, it wouldn't hurt us to spend more time purpose of securing a property or a right in it
rediscovering what ha's already been given us. must be public, and not primarily for a private
That said and done, let us note that there are interest only incidental to the public.6 This
some definite advantages in tackling the does not mean that there is anything wrong if
problem the hard way. For if there is to be the landowner happens to benefit also; there is
any really major program, it must be estab- nothing in U.S. law that says someone has to
lished for the public that open space is a benefit suffer if the public is to gain.7 Nor does it mean
in its own right and not merely as an adjunct that the public has to have physical access to
of some other established public program, as the property. In the past, some courts have
is the case with most present easements. Upon taken a narrow view of what constitutes "use,"
this proposition all else rests; it is not just a but it is now generally held that the public
question of "selling"-for legal and tax reasons can enjoy a benefit from the property without
the ease must be firmly documented, and the physically going on it." To be on the safe side,
more homework done now, the less chance of however, it is important that we do not beg
critical setbacks later. the question by failing to stress the positive
The best way to clear the easy hurdles may benefits the public enjoys without access; the
be'to address ourselves to the toughest: justi- establishment of these-as is so admirably done
fying the use of condemnation. Some might in the opening sections of the California bill-is
wonder why so much stress is put on this con- the best way to avoid unnecessary troubles over
tingency; gifts and negotiated purchases may 41 use." (Later I will take up the possibility of
well gain the bulk of the open space we want combining easements with provisions for lim-
saved, and condemnation should be used very ited physical use by the public, the right to fish
sparingly indeed, certainly so at the beginning in a stream, for example, that runs through a
of the program. man's property. Suffice it to say now that the
But eminent domain is . an excellent disci- two benefits must be considered as separate,
pline. We must prove that we have justifica- and not contingent. One thing at a time-the
tion for using it; otherwise our lesser measures public gets a fair bargain when it gets a man
will be in jeopardy. This is so because the law to agree to keep his land open; if it wants to
of eminent domain applies to public purchases fish in his stream as well, that is another
whether the owner wants to sell or not; whether matter and it can't demand both benefits at
it is by gift, or voluntary purchase, or by con- the price of one.)
demnation, when an agency of the public ac- 6 Madisonville Traction Co. v. St. Bernard Mining
quires a property, the purpose must be public. Co., 196 U.S. 239, 25 S. Ct. 251. (1905).
To put it another way, if we cannot establish 7 Nichols, Ch. IV. See. 48: "If the use for which land
that open space conservation is a public enough is taken by eminent domain is public, the taking is
not invalid merely because an incidental benefit will
purpose to justify condemning an easement, inure to individuals."
we're going to have trouble justifying the pub- 8 "That the public gets no physical use of the
premises is clear. It cannot travel upon or occupy
lic's paying money for it in any event. Even them. The use acquired, so far as the general public
a gift of an easement does not allow us to side- is concerned, is rather negative in character, except,
perhaps, that its sense of the appropriate and har-
track the issue; if a public agency is involved, monious will not be offended by the erection in the
it9s got to be able to prove that a public purpose condemned district of proscribed buildings. The con-
demnation does not take any part of the ground away
is being served. Sooner or later there will from the owner; the taking consists in restricting its
be a taxpayers' suit, and it is not difficult to use. He is compensated for the restrictions imposed.
... State ex rel. Twin City Building & Investment
imagixie someone complaining that the public Co. v. Houghton, 144 Minn. 1, 176 N.W. 159 (1920).

16 U. L. 1. TECHNICAL BULLETIN NO. 36

Who's to say what is a public use? The law In delivering the majority opinion.. Justice
is what common sense would indicate; in es- Douglas hauled off and took a resounding crack
sence, it holds that something serves a public at the constricted view of the public welfare.
purpose if the public thinks so. This, in prac- He wrote:
tice, means what the legislature says the pub- "The concept of the public welfare is
lic wants, and though the two are not always broad and inclusive. The values .it repre-
synonymous, the courts tend to go along; if the sents are spiritual as well as physical,
public through its elected representatives des- aesthetic as well as monetary. It is within
ignates a public purpose to be served, the courts the power of the legislature to determine
reason, t .his justifies exercise of the public's that the community should be beautiful as
powers, so long as other constitutional require- well as healthy, spacious as well as clean,
ments are met. well-balanced as well as carefully
patrolled. In the present case the con-
The courts' adjustment to new public needs gress and its authorized agencies have made
may not be instantaneaus,'but they have shown determinations that take into account a
much more flexibility that most laymen real- wide variety of values. It is not for us to
ize, and this is particularly true in connection reappraise them. If those who govern the
District of Columbia decide that the na-
with problems of urban growth. Compared to tion's capital should be beautiful as well as
other extensions of eminent domain courts have sanitary, there is nothing in the Fifth
approved, open space easements are relatively Amendment that stands in the way."
mild, if not antique. Consider, by contrast,
what public agencies have been doing under Let us now turn to the public benefits from
Title I of the Housing Act. They can take a open space. In a sense, they are indivisible,
man's property-all of it-and then re-sell it for an open space that serves one public pur-
to somebody else, and at a cheaper price, too. pose well will usually serve a number of others
Not so many years ago the very idea would too. The aesthetic will probably be the basic
have been thought outrageous, unconstitutional, motivating force, and thanks to the trend in
communistic; and so, indeed, it was. Now it's court decisions, we need not be the slightest
part of the status quo, for the public has real- bit shy in affirming them. But solid economic
ized the overriding need for such action if the and social benefits must be established also,
larger community purpose is to be served. and the more we go into them the more we
It has been a far more drastic exercise of emi- realize how intertwined they are with the
nent domain than anything envisioned in open aesthetic. Let us run down the list briefly.
space conservation, but most courts have upheld Water. Quite aside from any of the other
it.9 The most notable decision of all has been benefits produced by an open space plan, , it
Berman v. Parker, 348 U.S. 26, 75 S. Ct. 98 could be justified on the basis of watershed pro-
(1954), in which the owner of a store, Samuel tection alone. In practice, a great proportion
Berman, contended that the District of Colum- of the key areas that most people would agree
bia Redevelopment Land Agency was depriving should be conserved are likely to be stream
him of his rights under the Fifth Amendment; valleys. Many people would not be thinking
his store wasn't hurting anybody, and here they of the drainage and flood control aspect-but
were forcing him to sell it so they could tear it of the fishing and the swimming in the streams,
down and sell the land to somebody else. On or the beauty of the meadows, or the excel-
November 22, 1954, the Supreme Court upheld lence of the farming, the contoured slopes that
the Redevelopment Agency and the enabling !ieern to go so well with the stream valleys.
act of 1945. Yet for the reasons these valleys are
beautiful, they are tremendously useful. Like
')Even the Pennsylvania courts. They have had a great sponge, their flood plains temper the
rather a bad reputation with planners, but though flow of the water downstream; the good soil
some of their decisions on zoning have been highly
conservative, they have kept up with the trend to a practices of the farmers help keep down the
liberal construction of the eminent domain power. silt that can be such a problem.for communi-
In Oliver v. City of Clairton, 374 Pa. 333, 98 Atl. 2nd
47 (1953), land 90% vacant and unimproved was de- ties and industries further downstream; be-
clared to be blighted land and condemned so that it cause they have not been covered with asphalt,
could be redeveloped for industry. The courts sup-
ported the city on this. their runoff is much less; and when there is

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 17

heavy rainfall, the streams and the creeks that ling; and more to the point, in their hands it
flow into a natural storm sewer system are far has a tremendous leverage. Urban planners
better than anything constructed by man. have long lamented the lopsided way our legis-
Agricultural land conservation. Closely re- latures over-represent the rural interests, but
lated to watershed control is the problem of as far as open space is concerned. this is not
our declining supply of prime agricultural land. without some advantages.10 If rural legislators
A heavy proportion of Class 1 land is located perceive how an easement program can help
in the metropolitan areas. It is not the mar- their constituents, they won't have to be
ginal farms that are sought after; it is the best thoroughly sold on its benefits to the city; as a
kind of land that is most attractive to devel- matter of fact, they're likely to see it as a
opers. Some farm people feel the argument for defense against the city. If this sharpens their
agricultural land conservation so compelling enthusiasm, so much the better.
that they believe an open space program could Recreation. There can be no substitute for
be justified solely on this basis. outright purchase of park lands, but easements
They have an impressive case, but in the can greatly complement-and protect-park-
writer's opinion farm groups are not going land, and they provide some definite recreation
to get too far with the general public if they benefits of their own. Even if the public doesn't
continue to go it alone. If my talks with non- go onto the land itself, it can enjoy the fact
farm people are any indication, the farmers' of it; the drivethrough the countryside is en-
argument is not a persuasive one to lead off joyable because there is countryside.
with; rightly or wrongly, many people think The existence of countryside-some country-
the farmers are getting away with murder as side, at least-has considerable effect on any
it is, and they have a vague idea that increas- regional park system. Big parks are not so
ing mechanization, chemical farming, and such dependent on their surroundings, but smaller
can easily compensate for the loss of acreage. ones are; there is, for one thing, their water
They wouldn' be so sanguine if they studied supply, and if their lakes and dams remain good
the statistics thoroughly, but this is a chore to swim in, conservation of farmland upstream
they are not likely to undertake. may have a lot to do with it.
In making this qualification, I am not depre- It should also be pointed out that, while
eating the cropland argument: I am merely public use does not necessarily go with an ease-
suggesting that it does not become truly effec- ment, there are many opportunities for limited
tive until the citizen sees his own equity in use. We tend to underestimate how much
open space. Once he does, however, he can public recreation takes place on private land.
become quite receptive to the cropland argu- In the course of making a movie record of the
ment. He now wants to believe it. For one Brandywine area, I have been struck with how
thing, it helps neutralize his pessimistic as- many people use the Brandywine and the land
sumption that maybe subdivision and commer- along it; at first sight you don't notice
cial development is the "highest and best use" many people, but if you stay put in one spot
and that to think of saving farms in suburbia's
path is being retrogressive and sentimental. 10BY the same token, farmers can lament that
planners don't pay much attention to farming.
He still may not really care about the farmers' "Today we planners," writes one, "have done almost
problem, but their case now helps him prove nothing for agriculture, because, I fear, we know so
little about its needs. Even when we believe that it
to himself, and others, the economic sound- should be preserved, we don't know enough about
ness which his instincts impel him to. It's not the specific criteria of crop growth and land use
relationships to do anything positive about it. In
necessary for him to agree completely with fact, by and large we tend to consider agriculture as
the cropland argument; what makes it impor- a single entity without distinguishing between its
vastly differing varieties and their respective char-
tant to him is its assurance that it won't be acteristics and needs. How many land use maps and
uneconomic to save farmland. master plans lump all agriculture into one classifica-
tion? Practically all do. From our study we believe
I have been speaking primarily of the citi- that we must have at our fingertips such a sufficient
zens of the metropolitan areas, where the bulk command of basic agricultural information that we
may distinguish floriculture from dairy or from
of our population lives. When we turn to the poultry, as we would distinguish commercial, indus-
citizens of our rural areas, however, the agri- trial, and residential land uses." From a letter from
Leonard C. Moffit, Alameda County Planning Com-
cultural argument can be immediately compel- mission, 20 May 1959.

18 U. L. I. TECHNICAL BULLETIN NO. 36

only a few hours you'll be amazed at how many full text is contained in Appendix A. But one
canoers will pass by, how many people you'll passage deserves quotation now:
see fishing whom you didn't spot at first. (I "The legislature finds that the rapid
have also been amazed at how traveled are growth and spread of urban development
the back roads, particularly on weekends; and is encroaching upon, or eliminating, many
the number of picnics is awesome.) The land- open areas of varied size and character, in-
owners are very good about letting people go cluding many having significant scenic or
across their property, and the local sporting esthetic values, which areas and spaces, if
club, which has built "step-overs" to protect preserved and maintained in their present
open state, would constitute important
the farmers' fences, has posted the area with physical, social, esthetic or economic assets
signs telling people to come and fish but to be to existing or impending urban and metro-
sure to clean up any trash. As population politan development."
mounts, landowners can't be expected to keep
on providing free parks without a quid pro quo, As if this isn't touching all bases, later, in
but certainly there are ways to work out defining open spaces, the Act goes on to say
sensible agreements that will protect the land- that these areas "would enhance the present
owner and compensate him for any increase in or potential value of abutting or surrounding
the burdens involved. urban development, or would maintain or en-
Control of sprawl. One of the great benefits hance the conservation of natural or scenic re-
of an easement program is that it provides a sources."
-way of channeling metropolitan growth.; it
should be valuable, not just for the land it Before concluding this section on the public
saves but also for the way it helps concentrate purpose, let us consider one other potential
development in the land around. The eco- benefit: the reservation of future options.
nomic benefits of this can be clearly demon- In conserving open space by easements, we
strated; the case against sprawl has been docu- may have a relatively inexpensive way of re-
mented to a fare-thee-well, and though ease- serving land, even though we may not be sure
ments are only one of several tools that must at the time exactly what future use the com-
be used, any brief for establishing the public munity might need to make of it. In the case
purpose of easements should bear down heavily of a possible park, for example, the community
on sprawl." could lose nothing by securing an easement on
suitable land; if subsequently, the community
There are other points that should be made decided that a park was desirable, then it
the relationship of open space to our air pol- would still have to pay for the land, but the
lution,12 for example, or how it can lead to a easement would have insured that the land
more economic spacing of highway inter- remained open and that there would be the
changes. But in whatever order the argu- choice to make.
ments are advanced, they must be brought to This is an attractive argument, but the writer
focus on one simple clearly stated proposition: has come to believe that it can be a dangerous
that open space is a public benefit in its own one too. There must, of course, be an oppor-
right. This is the critical part of any legisla- tunity for the public to adjust to changed con-
tion, for it is the rock on which favorable court ditions, and in a later section we will take up
"construction" ind tax decisions can be based. the advisability of reversionary clauses, the
The California Act does this superbly. The question of subsequent condemnation by an-
other public body, and such. But valuable as
11 For up-to-date documentation, aerial photos can easements might be in giving us future
be very compelling. For people on the Eastern Sea- choices, to stress this is to stress the hypo-
board, it should be noted that Aero Service Corp.
at 210 E. Courtland St., Philadelphia 20, Pa., in thetical and thereby to undercut the force of
the summer of 1959 made a photographic Right with the major argument. To repeat, open space
a new type camera which yields picture enlargements
of extraordinary detail. The photos diagram vividly must be established as a benefit in its own right
the interstices of the urban area. and a benefit now. For another thing, land-
12 For supporting data see: Proceedings, National owners might reasonably become suspicious
Conference on Air Pollution, Nov. 18-20, 1958. U.S.
Department of Health, Education and Welfare. that the authorities were using the device as

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 19

a back door to make sure they'd get the land the courts have sustained the acquirement of
later for a park. Do they want me to keep my lands for future highway use (Arkansas, prior
land open for the reason they say they do, he to its law, Illinois, Iowa, Kansas, Mississippi,
may well ask, or are they buying time at my Missouri), and the Delaware high court has
expense? We should take care that the issue approved the concept in principle. Aside from
is not clouded by the hypothetical. Present highways, acquisition for future use has been
use is the best yardstick, legally, politically, authorized or sanctioned by the courts for a
and otherwise. In selecting land, and advocat- series of other public needs. These have in-
ing a program for doing it, the key question is volved schools, waterworks, railroads. Some
not what open space might provide but what it of these date back to the 1800's, so that prece-
does provide. dent of long standing is involved.
It should not follow from this that the land To sum up: the cardinal requirement of an
must be frozen, or that easements cannot be open space easement is that it provide a public
used to prepare for future conditions. Take, benefit. It may provide future benefits not
for example, the advisability of reserving land yet clear, but though the courts are becoming
for reservoirs that may be needed in 1990 or more liberal on this score, it is not necessary
2000. Planners in the Delaware River basin to justify open space on what it might do; we
area have just such a problem, and they are have abundant reasons to show that it is a
studying the applicability of the easement de- benefit now, and it is this proposition that we
vice. One question has been that of futurity: must put before the public.
would the courts approve the acquisition when
the needs are so far off in the future? What- How do you convince the public that open
ever the answer to this question, it might well land is a benefit-particularly when it remains
be possible to justify the acquisition to the in private hands? Many landowners and citi-
courts on the basis of present benefits. Even zens ask this question, and though they say they
if the reservoirs were never built, the exist- recognize the benefit; they're still not sure the
ence of these open areas might serve a readily public at large will. May not the public look
perceivable public purpose in water retention, on the whole thing as a tax dodge?
silt control, recreation, or whatnot. The word- It is true, unhappily, that people most readily
ing of the California Act again comes to mind. recognize a benefit only when it is being taken
If there's a good piece of open space which we away from them. About the time an open
can't find some reason for saving for the space is threatened-whether by a highway, a
here and now, we have lost our capacity for subdivision, or one of the many crews of tree
invention. cutters that seem to be everywhere these
days-the public begins to get aroused. At this
While the matter of futurity is tangential to very moment, undoubtedly, there are scores of
our main case, it should be noted that courts protest meetings over outrages to be commit-
and legislatures have been looking with in- ted-and if events run true to form, the out-
creasing favor on advance land acquisition. In rages will be committed just the same.
seventeen states there are now statutes spe- Outrages do have their usefulness: one of
cifically authorizing land acquisition for pos- the reasons why Monterey County citizens
sible future highway use. In most cases, the girded for action on open space was the sight
authority is granted to the state highway de- of a hilltop being chopped up for a highway
partments, in several instances to a specific cloverleaf, and the smoke of burning stumps
state authority, and in one instance, to counties. ("funeral pyres," as one citizen put it) roused
In five additional states there is legislation many tempers to a high pitch. Question: But
which seems to imply that there is authority is there not some way to dramatize a benefit
to acquire land for future highway use (North before it is too late? Some.vigorous showman-
Carolina, Oregon, Tennessee, Texas, Washing- ship might accomplish a great deal.
ton). Most of the statutes run for only a Let me illustrate with an outrageous scheme
relatively short time. I heard put forward. A large landowner was
Even though there had not been specific complaining that though the hills of his land
legislation authorization, in at least six states made the view for miles around, people would

20 U. L. 1. TECHNICAL BULLETIN NO. 36

begrudge him any tax concession if he gave up the view would chip in enough to make up for
an easement; they took his land for granted. the money the sign people would pay him, then
Someone came up with this idea: rent a large he could afford to keep the hills open. The
neon sign, transport it up the highest hill, then, cost, spread among so many people, would only
at dusk-just as householders were contem- come to a dollar or so a year for each house-
plating their blessings over cocktails on their hold. Was the view for which they built their
terraces-turn the thing on. In short order, picture windows and their terraces worth a
hundreds of angry people would be on the dollar?
phone. The landowner would agree with them: The suggestion was facetious, but the basic
yes, it was a shame and he hated to do it. But, principle is there. The public has an equity in
after all, he had children to educate, and he the open spaces it has long taken for granted;
just couldn't turn down the money. "Perhaps," if it is to be persuaded to preserve this equity,
he might go on, "they could work out a com- the fact of it must be graphically and forcibly
promise." If all the landowners who enjoyed demonstrated.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 21

SECTION THREE: THE LIMITS OF ZONING

The question of costs brings us to a funda- where minimum lot control has been ruled on
mental question. Why do we have to go to so by appellate courts, all but one-Michigan-
much trouble and expense when there is a have upheld it. In twenty-five other states,
much simpler tool at hand? Why not zoning court decisions on related issues indicate that
instead? It has been tested in the courts, it a similarly liberal viewpoint can be expected.
does not involve negotiations with a series of In only six states do the courts seem inclined
individual landowners, it requires no expendi- to rule against minimum lot zoning.13
ture of money, and the basic idea has had wide Pennsylvania furnishes a particularly good
public acceptance. example of the shift. Only a few years ago, in
If easements are to be justified, this ques- the Easttown township case, the state's su-
tion must be met head on. For their part, preme court had seemed dead set against the
laymen instinctively think of zoning as the whole idea of minimum lot zoning. The Bilbar
answer to sprawl, and while the mention of Construction Company had gone to court to
eminent domain strikes them as drastic, they protest the township's one-acre zoning; the
look on the use of the police power as the company had a fifty-acre property and wanted
traditional, conservative way. Planners, who to subdivide into half-acre plots. The lower
have reason to be amused by the fact that court supported the township, but when the
zoning now seems so respectable, see many supreme court ruled on it, in July 1957, the
flaws in large-lot zoning. At the same time ordinance was struck down. Less than a year
they feel that other applications have great later, by which time the composition of the
promise for the conservation of open space- court had changed, it reversed itself. It did
much more promise, many feel, than an ap- not rule on the desirability of minimum lot
proach which calls for new legislation and an zoning; it said this was really up to the Legisla-
arduous campaign for public acceptance. ture. It did hold, however, that the zoning
In answering this objection, I do not wish to restriction was not illegal for it primarily
suggest that there must be an antithesis be- served the public, rather than the private
tween the use of the police power and the use interest. Justice Bell, a member of the former
of eminent domain. My point is that there is a majority, restated, energetically, the old view;
distinction, a profound one, and however close in his minority opinion, he said the court was
the end goal, we overlook it at our peril. The condemning "the doctrine of unlimited police
police power, obviously, must be used if we are power-a doctrine which is repugnant to our
to control sprawl, and I will note some of the birthright of liberty, our tradition, our con-
ways new applications of it are helping very stitution, and our American way of life."
much. My argument is directed solely against But the dominant trend is clear. Not only
over-reliance on the police power. is there increasing approval of the idea of
minimum lot zoning; there would also appear
Let's start with large-lot zoning. This is the to be a growing disposition to approve higher
exercise of police power that the citizens of minimums. At present, the firing line seems
outer Suburbia see as their best shield against to be located in Fairfield County, Connecticut.
sprawl, and they can argue that it has yet to Controversy is fierce there, but despite the
be fully exploited. The trend to one-acre mini- counterfire, the minimums are gaining. Most
mum lot sizes, they acknowledge, doesn't pro- recent is the case of New Canaan. In 1956 the
vide greenbelts, but these have tended to keep zoning board raised the minimum from two to
the mass developers at bay. As minimums are four acres in the northern part of the town. A
increased, furthermore, the by-product may be
many a large tract left as open space; for if
minimums can be increased to three-four acres, 13The eleven states, significantly, include most of
or more, the main stream of subdivision will the heavily populated ones: California, Connecticut,
Florida, Maryland, Massachusetts, Illinois, Missouri,
be deflected elsewhere. Nebraska, New Jersey, New York, and Texas. Zoning
Increasingly, the courts have been. ruling in for the Minimum Lot Area, Communities Research
Institute Project, School of Law, Villanova Univer-
favor of large-lot zoning. In the twelve states sity, Villanova, Pa., 1959. 76 pp. ($3.50).

22 U. L. 1. TECHNICAL BULLETIN NO. 36

developer, who planned to cut his property into parks, or industrial sites, or just plain open
two-acre lots, went to court. On June 30, 1959, space."
the Supreme Court of Errors, the state's highest In the meantime the country is producing
court, ruled in favor of the zoning board. In more and more people, and they are bound
its opinion, the court said, there were plenty to limit the potential of large lot zoning. The
of smaller parcels in other parts of the town, growing middle class can't be housed in one-
and the upgrading of the zone, therefore, acre homesteads, and it will become progres-
wouldn't keep all but the wealthy away from sively more difficult for communities to bid
New Canaan, as the developer had charged. In new people go somewhere else. Even if the
line with the general trend elsewhere, the community does keep the immigrants away, the
court did not attempt to pass on the wisdom victory will be Pyrrhic; they will fill the inter-
of the ordinance; its prime concern was whether stices-and the surrounding environment the
or not, in the specific instance, it was arbitrary communities have taken for granted will now
or unreasonable. be all the worse. The community won't be
penetrated; it will be enveloped.
As far as open space is concerned, however, A good case could now be made for maximum
minimum lot zoning is not the wave of the lot zoning. At the very best, communities
future. We must grant that it will be very should temper their ordinances so that sub-
helpful in maintaining the integrity of differ- divisions could make better use of the space
ent kinds of residential areas, we may also they develop; the same ratio of houses to total
grant its usefulness in buying time and fore- acreage could be maintained, but instead of
stalling premature development while other filling the whole parcel with minimum plots, the
safeguards are being established. subdivider could group the houses somewhat
As a defense against sprawl, however, mini- more tightly and thereby have some really
mum lot zoning has several basic defects. In usable space left over. Some planners feel
the first place, it tends to accentuate, not di- subdividers should be made to do this. The
minish, scatteration. By demanding larger lot pattern is not only economic for the developer,
sizes, the community forces the developer to who would then have to install less asphalt
chew up even more open space to house a road, pavement, gutters, and such per family,
given number of people; instead of several it is also economic for the community, which
tightly knit subdivisions, there will be a smat- will have to service the development.
tering of them all over the landscape. In their .And it will be'a better place to live in. Lot
eagerness to keep away mass builders citizens sizes will be smaller, but the residents gain
of outer Suburbia fail to recognize that it is far more amenity in exchange. If a stream
often a multitude of small developments that is gully runs through the area, for example, it
their main problem, and the fact that the lots won't be chopped up into a mess of back lots
must be large by no means inhibits many sub- that will be a headache for the owners to keep
dividers. The developments that are doing the up (if they do keep them up, which experience
most to ruin the countryside I know best are indicates is most unlikely). Instead, it can be
relatively small ones put up by local builders. conserved as a whole, or by enough to be made
Acre minimums haven't meant much to them; into a worthwhile community asset.
they've picked cheap land far out; their 1200 A pioneering example of how the community
sq. ft. ranch houses may look incongruous on can induce subdividers to follow this pattern
an acre of ground, but the cost of the extra land .14 In showing slides to groups, I have noticed that
aerial shots of mass housing developments invariably
is only a small part of the developer's cost. bring gasps of horror. Here, they feel, is the enemy.
Eventually, it will be a very large part of the It is an easy, but unfortunate, assumption, and it is
important that people realize it. Without attempting
owner's, and the community's, cost, but that is any praise of a "Levittown's" aesthetics, I point out
a matter not considered very much at the time. that if there weren't large developments like these,
there might not be mu&h open space left in adjoining
And too late will the community realize how areas to talk about. For example, were the popula-
much just a few badly placed subdivisions will lion of Levittown, Pa., spread across lower Bucks
County in an aggregation of typical subdivisions, the
have robbed it of choices it would very much place would- be an unsalvageable mess; add to this
a blanket of large-lot zoning, and a good part of the
like to have five or ten years from now-for rest of the county would have had it too.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 23

is provided by Philadelphia. Unlike most farmer's sprays, his early hours with the
cities, it still has some farmland within its tractor; more important, they needed new
limits; it has also an imaginative planning schools for the children they were breeding so
commission. Planner Edmund Bacon and his prolifically, they needed new sewer lines and
staff saw a great opportunity; in the undevel- services of one kind or another. Before long,
oped far northwest section they would lay down the assessor was raising taxes on the farms,
the basic pattern before the developers got which didn't need the new schools and services.
there. The conventional device of asking de- With Karl Belser, the county's able planner,
velopers to dedicate a portion of the land to the farmers worked out a program. They
public use wouldn't be enough; all too fre- would petition to have the few large green
quently, the 3, 4, or 5 per cent turns out to spaces left zoned exclusively for agriculture.
be the useless patches the developer couldn't The county supervisors approved the idea, and
do anything with. The planners assumed the in 1954, at the request of a group of peach
initiative: they laid out the whole street pat- growers, the first zone was set aside. To keep
tern and in doing so they provided for a series the cities from annexing farmland, Belser and
of cohesive neighborhood units, with a series the farmers went to Sacramento and got the
of "greenways" and parks in between. The legislature to pass an act forbidding annexa-
power of the city government was put behind tion against the farmers' wishes. In time,
the plan, and though private builders were not other areas were "greenbelted," including the
wildly enthusiastic when the idea was briefed, local golf courses and an airport ("Their uses
they began to see that within this overall pat- are compatible with agriculture," says Belser,
tern they could manage very well. Twenty who is a thoroughgoing pragmatist). The re-
builders are now at work on the neighbor- sult is quite visible; much of the valley floor is
hoods. When completed, these will comprise a mess of neon, subdivisions and hot-dog stands,
a community of 68,000 people, on a tract of but flying over it you can see several large
2,500 acres. Being in Philadelphia, the houses tracts of green still intact-in all, some fifty
are row houses and the density is higher than square miles of "greenbelt."
would be necessary farther out. But the basic But the total area the Santa Clara zoning
principle is just as applicable to detached experiment has helped save is much greater.
houses in Suburbia. Other California counties have followed suit,
Agricultural zoning. Perhaps the most suc- particularly those with highly specialized crop-
cessful zoning device for open space at this lands, like the Salinas valley in Monterey
time is exclusive agricultural zoning. Santa County, the artichoke fields of San Mateo Coun-
Clara County, California, has done the pioneer- ty. In the East, such highly fertile areas as
ing, and it is there that the pros and cons Pennsylvania's Lancaster County are also tak-
have been most sharply revealed. Few coun- ing up exclusive agricultural zoning; after
ties have been so hard hit by sprawl so quickly, studying the Santa Clara experience, one of
Until the War, its flat, rich valley floor, which the key townships, Manheim, set up a large
contained 70 per cent of the Class I soil in the zone (fortuitously, the Lancaster city-county
Bay Area, was primarily farmland-and San airport was located in the area, and thus the
Jose, the county seat, was the center of a zone could be justified as a safety, as well as
thriving agricultural industry. By 1946 the a conservation, measure).
developers had begun to leapfrog south from
San Mateo County; the flat land was easy for But Santa Clara County also furnishes some
builders and the farmers were dazzled by the sobering lessons. Nowhere is exclusive agri-
land prices offered. Here and there a p arcel cultural zoning now under such fire. The cities,
was sold, and then another, and another. or most of their officials, at any rate, never
By 1954 the place was a mess. The develop- liked the idea in the first place-just a political
ments were not grouped in any pattern; they grab, they charged-and their hostility is get-
were scattered all over the place. Farming ting intense.15 Meanwhile, as some 5,000 new
suffered. It was not merely that there was 15 Officials of San Jose were so outraged by favor-
less land for cultivation; what was left was able comment I made on the county's experiment in a
jeopardized by the scattered developments. Life piece they drafted an official protest to Time
Inc. ("The greenbelt, in our booming society," wrote
The people in them complained about the city manager A. P. Hamann, "is an anachronism.")

24 U. L. I. TECHNICAL BULLETIN NO. 36

people move in every month, land prices are stake, and in going through the arduous task
going up still more; the temptation to sell has of getting action on the zoning program, they
been growing, and if a farmer wants to get his will have produced a considerable momentum.
land de-zoned, he can apply to the nearest city They will have bought time.
to be annexed. There are signs that some It is significant that the people who pioneered
farmers' fealty to husbandry may weaken under exclusive agricultural zoning are conspicuous
the strain. among those pressing for a much. more far-
In Santa Clara County, at least, it does take reaching program. The farmers of Santa Clara
some work to get out of a zone. In many County are glad they got the zoning-there
other areas the agricultural zoning is only wouldn't be much land left to save if they
cumulative-that is, available for farming and hadn't-but they are well aware of the flaws in
subdivision; in many that are exclusively agri- it, more so than most of the communities
cultural a farmer who wants to sell part of which are just getting excited about the pos-
his land for a subdivision need only appeal sibilities. This year (1959) the County Planning
for a zoning change. The boards are usually Department officially recommended an ease-
compliant, and as with other kind of zoning, ment program to make the greenbelts really
the exceptions often seem to be the rule. In binding. The county supervisors were rather
Macon County, Illinois, one of the first counties shocked at the idea, but a member of influential
to adopt an agricultural zoning ordinance, there farm people believe such a move necessary. In
has not been a single case in fifteen years where nearby Alameda County, where the pressures
a farmer who wanted such a change was turned on zoning have been similarly intense, the
down. City officials can be excused some of farmers are now talking of "agricultural parks."
their skepticism; in quite a few cases agri- They suggested to the county planning com-
cultural zoning has been presented to the mission that they ought to borrow a leaf from
farmers as a fine tool for preventing sign- the industrial park developers; set up fully
boards, automobile graveyards, etc-and for planned, concentrated farm areas surrounded
giving them low taxes until the day they want by compatible buffer zones to protect against
to cash in and sell to a subdivider. ("Zoning antagonistic and jeopardizing uses (e.g., sub-
is one of the best ways to assure that you'll divisions). This would take money; at present
have something worth re-selling," The Farm the only hope of attracting the necessary
Journal quotes one farmer as saying.)" capital would lie in the formation of a new
The low tax idyl, however, can only be variant of the farmer-owned cooperative, and
temporary. So far, agricultural zoning has this in turn would require state help. But
helped in keeping assessments low, but legally California farmers are resourceful people.
there is no direct cause and effect relationship.
As I will take up in detail in a subsequent The Official Map. Another important appli-
section, the pressures on assessors to raise cation of the police power is the official map.
valuations begin to compound as soon as de- So far, it has been used largely to chart future
velopers move into an area; too late, many streets and possible widening of existing ones,
farmers will then find that the zoning can be but many feel it can be used effectively for
ignored when valuation time comes around. reserving open space; if a community can pro-
The zoning may have been coincident with low hibit owners from building on land that may
valuations; it did not insure them. But the be needed for streets, it should also be able
zoning can have achieved much-if its weak- to prohibit them from building on land that
nesses have been recognized. Psychologically, may be needed for parks, and in several states
it will have had the great effect of making a (cf., New York, Pennsylvania, Wisconsin) there
number of people recognize their common is specific enabling legislation for such pre-
emption. If a landowner finds the community
IG For an excellent discussion of cumulative vs. ex- has zoned his property against development
clusive agricultural zoning, and the advantages of because it may want to buy it for a park, he
rural zoning in general, see "The Why and How of
Rural Zoning," E. D. Solberg: Agricultural Informa- cannot build on it unless he can prove he is
tion Bulletin 196. - Dept. of Agriculture. For sale by unable to earn a fair return on the value of
Supt. of Documents, U. S. Government Printing Office,
Washington 25, D. C. Dec. 1958, 58 pp. (400). his land.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 25

The fact that the community could secure stituted the taking of a property right. The
the land against development by purchase of land in question, which the plaintiff wanted
the land-or rights in the land-does not to develop, has been put on the community's
necessarily invalidate the use of the police map as a future park, and the community had
power to achieve the same end. In Pennsyl- three years of grace before it had to buy it.
vania Coal Company v. Mahon, 260 U.S. 393, During this time, the plaintiff argued, his land
the Supreme Court struck down a Pennsylvania would be virtually unsalable, and he was
regulatory statute. Inveighing for the majority being deprived of just compensation. The
Justice Holmes argued that regulation under court agreed.
the police power can go too far and become a Again, however, the basic trend is towards
taking. In one of his famous dissents, Justice liberalization of this use of the police power.
Brandeis said, "Nor is a restriction imposed The main point in question is how honorable
through exercise of the police power inappro- are the intentions of the community; once it
priate as a means merely because the same has said, via the official map, that it will want
end might be effected or otherwise at public to use a particular property, it cannot stall
expense. Every restriction upon the height of around interminably; if the owner's equity
buildings might be secured through acquiring is to be protected, the community must con-
by eminent domain the right of each owner summate the intended purchase within a reason-
to build above the limited height; but it is able time-three years is frequently the limit.
settled that the state might not resort to that If it doesn't, the owner can properly claim that
power." his title has been clouded, and for no valid
Since that time the use of the official map purpose. Given these safeguards, however, the
has been upheld in a number of cases. Re- community can do much more than it has to
cently, for example, in Miller v. Manders, 86 secure open space for public needs.
N.W. 2nd 469 (1957), the Supreme Court of Why, then, easements? The thrust of court
Wisconsin upheld the state's official map law. opinions on different uses of the police power
In this case one Miller applied for a building would seem to be all in the direction of further
permit to erect a drive-in lunchstand within extensions of it. If the community can estab-
the bed of a street that was planned on the lish that open space is necessary for the public
official map. When the permit was refused, welfare, why cannot it use the police power
he started proceedings. At that time thirty- to zone key areas against development? For
three Wisconsin cities and villages had adopted the saving of open space, many planners feel,
official map ordinances under the state's official this is the main road to pursue, and they see
map law. The court accepted the ruling of Berman v. Parker as one of the great land-
the New York Court of Appeals in Headly v. marks on it.17
City of Rochester, and said that a broad reading Let me return again to the basic premise.
of the recent decision of the U.S. Supreme Open space is a benefit; it is not the absence of
Court in Berman v. Parker "is that the Con- something harmful, it is a positive good. If
stitution will accommodate a wide range of this is so-and my whole case, let it be clear,
community planning devices to meet the press- rests on this assumption-then it follows that
ing problems of community growth, deteriora- we must be prepared to pay for the benefit.
tion and change. . . ." The court spoke of the The question is: who should pay for it? The
financial interest of the taxpayers of the city-
(This court has previously held that the pro- landowner-or the public?
teetion of economic interests of the general 17 It is surprising how many people who cite Justice
public falls within the scope of promotion of Douglas' famous opinion think the case was about the
police power. It wasn't; it was about eminent do-
the general welfare, and thereby affords a main. Justice Douglas wanted to convey the major-
basis for the exercise of the police power." ity's desire to enlarge the narrow concept of what
serves the public purpose. This did have implica-
In Pennsylvania the official map has had tions for subsequent cases on the police power, but
rougher sledding. In Miller v. Beaver Falls, was not a license to zone something because it served
a public purpose. Berman, let us remember, did get
368 Pa. 189, 82 Atl 2nd 34 (1951), the Penn- paid for his property; the issue was whether the
sylvania Supreme Court declared against a use taking of the property served a valid public purpose.
Forget about the matter of compensation and you
of the official map on the grounds that it con- misunderstand the whole case.

26 U. L. I. TECHNICAL BULLETIN NO. 36

Here we come to the vital distinction between an activity to benefit the public, even if
the police power and the power of eminent in the form of a restriction, is to compel
domain."' Under the police power we prevent one person to assume the cost of a benefit
somebody from doing something harmful to conferred on others without hope for re-
coupment of the cost. An owner is com-
the public, and we have no reason to pay him pelled to furnish a public benefit just as
anything. Under eminent domain we purchase much when his land is taken for the run-
a benefit. The distinction is not to be fudged. way of an airport as when he is prevented
It is easy to say that preventing blight and from building upon his land so that air-
gaining open space add up to the same thing, planes may approach the runway. In the
former the landowner is paid without
so why the fuss, but the matter of compensation question; in the latter there is an attempt
forces the issue. The community, let us say, from time to time to compel the landowner
decides to do it the easy way; it tells the land- to furnish the easement of flight without
owner in a key stream valley that it is vital compensation by restricting building. The
to public health, general welfare, etc. that the evil of the latter system is that there is no
approximation of equal sharing of cost or
valley be kept free from subdivision and that of sharing according to capacity to pay as
his land is now zoned against subdivision. To there is where a public benefit is obtained
put it more bluntly, they are saying to him bv subsidy or expenditure of public funds.
that his land is so beautiful they've decided The accident of ownership of a particular
he's to keep it that way, and that they've got location determines the persons in the com-
munity bearing the cost of increasing the
enough power so that they don't have to give general welfare. A further consequence of
him a damn cent, either. an attempt to obtain a benefit by means
This is simply not fair. The community of a restriction is that the full cost of the
wants the benefit of the open space, but it's public benefit is thereby concealed from
too cheap to pay for it. The landowner is to those in our democratic society who are
pay for it. By giving up his normal chances given the power of deciding whether or not
for realizing a profit on his land through sub- they want to obtain a benefit . . .
"The moral and political question is:
division, he is now bearing the whole cost of When should an owner be compelled to
the benefit while the public pays nothing. The do something for the general welfare with-
fact that the public welfare is served by the out compensation? The planning statutes
land being kept open does not absolve the in England and other Commonwealth
community from paying. It cannot compel a countries in general draw a distinction
between a restriction imposed on the prin-
benefit. In those cases where building would ciple of 'good neighborliness' (that is, pre-
be clearly injurious, the community can prop- venting one neighbor from hurting others)
erly pay nothing, but the case must be clear and one imposed to secure a public benefit.
on this point. The public need not compensate an owner
In a piece in the Columbia Law Review, when it takes (restricts) his privileges of
ownership in order to prevent him from
May, 1958, Professor Allison Dunham of the imposing a cost upon others; but when the
University of Chicago Law School has pointed state takes (uses or restricts) his property
out how very important are the implications rights in order to obtain a public benefit
of this distinction for future metropolitan plan- it must compensate him.
ning. It is worth quoting at some length: "There is much in American constitu-
tional law to support this distinction al-
"From time immemorial the common law though precise accuracy in application is
and statute law have evidenced a com- not required under the rule of deference
munity judgment that it is proper to make to the legislative judgment. Thus it has
an activity assume the burdens or costs been held unconstitutional to compel an
which the activity might cause . . . But to owner, without compensation, to leave his
compel a particular owner to undertake land vacant in order to obtain the advan-
tages of open land for the public or in order
18 "It may be said that the state takes property by to save the land for future public purpose,19
eminent domain because it is useful to the public, but it is within constitutional power to
and under the police power because it is harmful ... compel an owner to leave a portion of his
From this results the difference between the power
of eminent domain and the police power, that the 19 Galt v. County of Cook, 405 Ill. 396, 91 N.E. 2nd
former recognizes a right to compensation, while the 395 (1950); 59 Front St. Realty Corp. v. Klaess, 160
latter on principle does not." Freund, The Police N.Y.S. 2d 265 (Sup. Ct. 1957). But cf. Miami v.
Power, pp. 511, 546, 547 (1904). Romer, 58 So. 2d 849 (Fla. 1952).

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 27

land vacant where building would be developers from building on it (not so far
harmful to the use and enjoyment of other away from this farm a builder has done just
land (e.g., set-back lines)."" that), but this is clearly harmful to the public
A good way to illustrate the critical difference interest, let alone that of the poor devils who
is to think of a property along a stream. In buy such houses. Quite properly, this strip
the photograph we see an 80-acre farm border- of flood plain is zoned against development.
ing a stream. The 200 yards between the The owner is not compensated, and shouldn't
stream and the road running parallel to it is be. There is no reason to pay a man for not
flood plain. The land in back slopes upward, fouling the water supply of the countless people
culminating in some low hills. downstream.
The flood plain is good flat land, and most Now let us go to the ground higher up.
of the time you will see cows grazing on it. It would be nice if it were kept open too,
But once in a while the stream does flood over and there are clear public benefits involved.
the plain, and after a spell of rain it is apt But can we rightfully use the police power on
to be very spongy. This will not prevent this part of his property? Here we must pay,
or be prepared to; if the owner cedes the chance
241 Gorieb v. Fox, 274 U.S. 603 (1927). to develop it, he is giving up a right. We can-

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Photo: WILLIAm GARNETT
An illustration of aplan to use conservation easements and flood plain zoning for saving open land along stream valleys.
By this means the value of surrounding land for development purposes is raised. The photo shows at the top land that can
be developed. Through the center, the photo shows land to which flood plain zoning is applied. On either side of the flood
plain is land that could be preserved by easements.

28 U. L. 1. TECHNICAL BULLETIN NO. 36

not take it away from him by administrative court opinions that abrogates the constitutional
fiat and claim we're doing it to prevent injury. provision that a man's property cannot be taken,
This strains credulity. It is one thing to prove in eff ect as well as by purchase, without due
such open space is a benefit. It is quite another process, and just compensation.22
thing to prove that a well constructed develop- The practical question, then, boils down to
ment on it would wreak harm. this: What part of a stream valley is it neces-
As long as the essential differences are recog- sary to keep open; what part would it be good
nized, the two tools can complement each other to keep open? For the first, we zone; for the
very well, and though it is not necessary, they second, we negotiate .23
can both apply to the same piece of property. To recapitulate. We properly use the police
If the owner has been given fair compensation power to compel owners not to build on open
for giving up the right to subdivision on his space when building on it would harm, the
upper property, it could be zoned against it public. With certain kinds of land we want
as well, though this would be somewhat re- saved for all sorts of other reasons too, such
dundant. Conversely, though the flood plain, as flood plains, this is clearly the case. With
is property zoned against development, it other kinds of land-gently rolling hills, for
wouldn't hurt a bit if easements were taken example-we could stretch a point and say
on it also, just to make sure (and for which that we're doing it to prevent public harm,
the compensation should be nominal, since the and thus apply the police power here too. But
owner isn't giving up much). This will relieve the point will not stretch this far; a good lawyer
the owner of the temptation to ask for a vari- could tear it into shreds and ask, vehemently,
ance some day-a temptation, alas, that has if providing decent homes for people on land fit
affected many owners of flood plain property for building is harmful.
these past few yearS.21 No, if we, the public, want this kind of land
Conceivably, the community could stall off saved-and it is the greater proportion of our
the necessity of paying for an easement by open areas-it is as a benefit. The law is clear
marking the whole property on the official on the matter. If we want it, we pay for it.
map as a future open space reservation. Almost What we pay depends on how much the owner
immediately, however, the land can cease to is giving up in keeping it open; sometimes it
rise in value; developers may be bidding up will be considerable, sometimes little, and often
comparable land around but this has been he will give it free. But the offer we cannot
taken out of the market. Unless the community evade.
makes up its mind in a reasonable time and 122 Recently, Los Angeles authorities re-zoned a part
buys an easement or the fee simple, the owner of the San Fernando Valley from a multiple-dwelling
will have suffered condemnation without com- to a single- family -house district; builders had started
to put up multiple dwellings on land that might soon
pensation. be condemned for airport purposes. The court struck
I have used stream valleys, not only because down the re-zoning: "The true purpose of the ordi-
nance," it said, "was to prevent the improvement of
they clarify the issues at stake but because the subject property in order that it might be ac-
the first, critical tests are likely to take place quired at a lesser price for airport purposes." Kis-
singer v. City of Los Angeles, 161 CA 454, 327 Pacific.
in them. In most general plans for open space, 2d 10 (1958).
stream valleys are given first priority, as they 23 An interesting test may be furnished by Rock-
should have been, one should add, for some ford and Winnebago counties, Ill. In the joint land
use plan for the two counties, the Rockford City-
decades. This report is most certainly not a County Planning Commission has recommended
"floodway preservation strips" along every water
counsel for more procrastination, but a warn- course that drains more than 500 acres of land. These
ing is in order. If officials think, as many seem run roughly 300 feet wide at the maximum; on this
land, by zoning ordinance, no structures are to be
prone to do, that the courts are so liberalizing built. While the criteria are based on careful study
the police power that the knotty question of by the Corps of Engineers and others, and despite
the clear relationship to public health and safety
compensation can be by-passed, they are making the idea is under attack by some on the grounds it
a serious mistake. There is nothing in recent is a value taking (???) The Planning Commission
itself is not without apprehension in the matter; in
its recommendation to the Board of Supervisors in
January 1959 for floodway protection, it carefully
21 See Changes in Urban Occupance of Flood Plains asked that the action taken would assure "that the
in the Un4ted States: G. F. White et al., Univ. of constitutional principle against public taking of pri-
Chicago Press, 1958. vate land without compensation is not violated."

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 29

I recognize that some planners feel this argu- of the attacks on any kind of planning have
ment is an unfortunate one to expound at this tiresomely pled this principle. But two wrongs
time. One can understand the feeling; by re- don't make a right. If those who want open
flex, planners are suspicious of arguments which space don't recognize the limits of zoning, the
invoke the sanctity of private property; most enemies will-and the lesson will come hard.

30 U. L. I. TECHNICAL BULLETIN NO. 36

SECTION FOUR: JUST COMPENSATION

How much will easements cost? Whether we to one of the objections most frequently raised
get them by negotiation, or condemnation, the to pursuing the easement device. Many people
law of eminent domain furnishes our ground not merely raise the possibility of such awards,
rules. It holds that we base payment, not but assume they would be the rule, and this
on the benefits we may derive from the ease- assumption has cropped up often in literature
ment-which in the case of open space would on the open space problem. Indeed, it has
be highly difficult to put a figure on-but, gained such force as established fact that the
simply, on what the owner gives up in deeding absence of documentation is not questioned.
the easement. As Nichols put it, "Just com- I have tried to track it down and have found
pensation is what the owner has lost, not what that there are few cases to buttress the con-
the condemning party has gained." (Ch. XIII, tention; a great many, as I will show, tend
See. 208.) strongly to refute it. The question remains as
The general rule of thumb for gauging this to why the assumption has gained such cur-
is to estimate what the property is worth with rency. I think I have found an answer. It lies
the easement and what it is worth without it. in the fact that for many years the kind of ease-
The difference is the damage the owner suffers. ment most commonly used was for highway,
As I will touch on later, it is for this reason streetcar and railroad rights of way. Naturally
vital that the easement deed explicitly state enough, in such cases the owner is usually
just what it is the owner cannot now do; if the given as much for the easement as he would
wording is too loose, he can claim that he's be for the land itself; for all practical purposes,
letting himself in for more restrictions-and he suffers as much loss one way as the other.
hence damage to property value.*24 Since the most important easement cases
There are many ways of estimating damage, have been for rights of way, many people
but "fair market value" is the basis for all. thought-and many still do-of the two as
The U. S. Supreme Court said in reference to synonymous, and lawyers, in writing about
fair market value that it is "the price in cash them, often left off the qualifying phrase,
at which the property would at that time "right-of-way". Unless one reads carefully, in
(i.e. the time of taking] change hands in a consequence, the generalization,
transaction between a willing buyer and a # right-of-way easements cost as much as the
willing seller, neither acting under any compul- fee simple,
sion to buy or to sell.", becomes:
An owner might say his land would fetch # easements cost as much as the fee simple.
$1,000 an acre with the easement but $3,000 An obscure indexer in a publishing firm may
without it; the community might claim this have caused some of the trouble. If you didn't
was outrageous exaggeration and that at best know anything about easement costs and de-
it would fetch only $1,500. The court must cided to look them up in the index of Nichols'
be the arbiter. There are all sorts of objective The Law of Eminent Domain, you might easily
evidence that can help it-record of sales in the close the book and go no further. This is the
area, professional appraisals, and so on, but way the index reads:
the final weighing will vary from court to
court. EASEMENT
Would a jury award as much for the ease- abandonment of --------------------- 320
ment as for the land itself? We come now abutters, in highway ------------- ----- 491
24In an Ohio case, a park commission secured an additional consistent, authority to im-
easement by which it was allowed to change the pose inferred ---------------------- 1003
restrictions from time to time. The courts struck constitutes property ------------------ 346
down the easement; the uncertainty, it held, made exercise, of outside land taken ------- 465
it much too difficult to assess damages. Pontiac Im-
provement Co. v. Board of Commissioners of Cleve- full value of land commonly paid for -_ 689
land Metropolitan Park District, 104 Ohio St. 447,
135 N.E. 635 (1922). If you do turn to page 689, you'll find the all
`--, United StaL,,s v. General Motors Corp., 323 U.S.
373 (1945). important qualification: "for such purposes as

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 31

a highway or a railroad which requires a per- cost a great deal to buy an open space easement,
manent and substantially exclusive occupation yet be of such benefit to the community that
of the surface, the distinction between the tak- it is willing to pay a good bit. In such cases
ing of the fee and of the easement has no it might well figure that since it's going to
practical application in the determination of have to pay a lot, it might as well get the
the compensation. . . ." As Nichols elsewhere land while it's about it, then lease it back,
makes clear, common sense, let alone the law, subject to the open space restrictions. This
indicates that when an easement allows the might be especially advisable with land the
owner beneficial use of the land he shouldn't be community foresees it will need for a park
paid as though it didn't. or other purposes later, or for property of
Because a man retains beneficial uses does great historic significance.
not mean he cannot be paid the full value. As a large-scale measure for conserving open
There may be a serious question as to how long space, however, it could conjure up the
or how much he can enjoy these uses, and spectre of government ownership, "socializa-
in such cases many courts tend to give the tion" of the land, and in outlying areas would
landowner the benefit of the doubt .21' ,If a man cost far more than easements. It may be that
has given a public body, via an easement, the in time the public will incline to such a pro-
right to occasionally flood part of his property, gram; there are few signs that it is a realistic
he'll likely get full price for it, for though he possibility for the near future.
may be able to use the property himself at Let us now look at data on easement costs.
times he certainly can't count on it. There are no court cases directly bearing on
With an open space easement, however, the the purchase of easements for an open space
owner retains all present uses and any possible program, but some clues are afforded as to
future ones that don't conflict with the stipu- cost by recent experience in other applications
lated restrictions against building. How much of the easement principle. First, let us take
is he giving up? It depends on time and place. highway easements. The most extensive body
If he's in the midst of suburban developments of experience comes from the acquisition and
and developers are besieging him with offers condemnation of scenic and right-of-way ease-
of $4,000 an acre, he's giving up a lot. If he ments in connection with the improvement in
yields an easement, the fair market value of 1951 and 1952 of the first section of Wisconsin's
his land is reduced to what people will pay Mississippi River Parkway and State Trunk
for it as a farm or an estate--say, $1,000 an Highway 23, Trempealeau and LaCross Coun-
acre. Out in the open country, however, the ties, Wisconsin. The easements vary in width,
present going market may be primarily for but are generally confined to a width of 350
farm and estate land; here he would be giving feet on both sides of the highway centerline.
up very little. Easements were acquired only through rural
In some cases sale and leaseback might be areas.
preferable to an easement. The property, for The actual costs of acquisition for the nine
example, might have such a high current projects comprising the 331/2 miles involved are
market value for development that it would summarized as follows:
261n North Carolina the highway commission ob- DEVELOPMENT RESTRICTION (SCENIC) EASEMENTS DATA
tained a 150-foot-wide easement but used only 50 feet ON Mississippi RIVER PARKWAY PROJECTS, WISCONSIN
of it for a highway. The court awarded full value Easement
for the whole width, even though the farmer could Taken No-of
use much of it: compensation is to be assessed OnNum- Parcels miles
No. of Easement ber of con of
on the basis of rights acquired by the condemner at Project Acres Cost Parcels demned Road
the time of taking, and not on the condemner's sub-
sequent exercise of such rights." North Carolina A 565.68 $ 5,570.00 57 20 11.16
Highway Commission v. Black, .239 N.C. 198, (1954). B 56.86 315.00 7 1 2.74
By contrast ' a Kentucky court denied full value to a C 15.32 75.00 2 0 0.78
farmer for a pipeline easement; it held that he still D 141.96 ---- 1 0 2.30
could use the land for farming. Tennessee Gas and E 48.50 395.00 8 1 1.12
Transmission Co. v. Jackman et al., 311 Ky 507, F 125.06 1,853.88 12 6 2.74
(1949). In a previous Kentucky case the court denied G 149.06 4,672.59 15 6 3.13
full value for a transmission line; save for the fraction H 163.40 5,990.00 30 2 7.00
actually occupied by the towers, the land was still 1 5.98 1WOO 1 1 2.42
available for farming. Kentucky Hydroelectric Co. -
v. Wood, 216 Ky 618, (1926). Totals 1,271.82 $19,151.47 133 37 33.39

32 U. L. I. TECHNICAL BULLETIN NO. 36

Some averages derived from the data for these this reservation easement concept was applied
projects are the following: was on a section of the Columbus-Wooster
Range Road in Delaware County, Ohio,
It should be pointed out that in both the
Average easement cost per parcel $144.00 ($2.63
Average easement cost per acre 15.06 to Wisconsin and Ohio illustrations indicated
Average easement cost per mile 573.57 @ $5.73) above strictly rural areas were involved. If
Per cent of parcels condemned 28% (7 to 50%)
Lands donated ------------------ 142 acres the device were applied in urbanized areas,
the costs, quite naturally, would be expected
The cost of acquiring fee title versus ease- to be much higher, consistent with the char-
ment title to these rights on two projects, are acter of the uses involved.
the following: National parkway scenic easements. While
Project scenic easements have worked well to conserve
a natural landscape along sections of the park-
A B ways, there is a widespread belief that they
- cost as much to acquire as the land in fee
Fee title cost per acre $35.00 $44.85 simple would have. Since most were acquired
Easement cost per acre $ 8.22 $23.75 10-20 years ago, this assumption has achieved
the stature of a well known fact and has dis-
The magnitude of -the parcels condemned may suaded many officials from trying the device,
be significant. Condemnation had to be resorted The National Park Service has no record of
to in approximately 28 per cent of the cases. the costs, and the writer therefore queried the
This is at least twice the amount condemned highway departments of Virginia, Alabama, and
in ordinary highway projects. This high per- Mississippi (the easements were acquired by
centage might indicate that too little is being the states at the request of the Park Service).
offered by the state for these rights or it may The answers show a considerable variation in
be that the character of the restrictions in- experience, a variation that seems to have been
volved and their impact on remainder values influenced very strongly by the practices of
are not fully understood and appreciated. the highway engineers. By tradition, highway
,Another significant illustration of the appli- departments are used to getting land outright,
cation of the protection easement is the Ohio and many did not look with especial favor on
"highway reservation agreement." (See Ap- the use of easements (which would require
pendix D for the form of the agreement.) enforcement); particularly so in cases where
Under the Ohio agreement, the Department of the cost of outright acquisition was moderate
Highways acquires specific "rights" in desig- to begin with. In Virginia, for example, land
nated "reserved" areas, for a normal considera- in the rural sections cost only $60 an acre out-
tion; the owner is permitted to use the reserved right; the easements cost $50. For the last
areas for all normal purposes that will not later thirty miles of the Blue Ridge Parkway, there-
interfere with the future use of the marginal fore, the highway department acquired alf the
strips as highway right of way. The reserved land in fee simple.
areas may vary from 100-foot strips along the The Mississippi Highway Department feels
tangent sections of road to 200 and 300-foot easements burden the taxable land of the prop-
areas at the crossroads, where future inter- erty owner, restrict his rights, and impose an
changes may be contemplated. enforcement burden on the administrative
Ohio has been paying for the reserv 'ation of agency that holds the easements. In obtaining
these areas at the uniform rate of $5 per acre easements for the Natchez Trace Parkway, the
or portion thereof. Thus, on one project, $421 department paid between 50 per cent and 100
was paid for 21 reservation agreements involv- per cent of the cost of comparable land in fee
ing 3.85 miles of road. This is at the rate of simple.
$109 per running mile. State authorities have The Alabama Highway Department, by con-
estimated that the average state investment trast, was able to get easements for its portion
will range from $60 to $120 per mile, depending of the Natchez Trace Parkway at a nominal
upon the width of right of way and the area price. For a ten-mile stretch acquired in 1941
protected. One of the earliest projects where and 1942, it paid an average of $75 per acre

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 33

for land in fee simple; the price for easements thetical sum the owner thinks he could make.
,on comparable land was $10 an acre.. In this respect, the Pennsylvania courts fur-
The absolute figures, of course, are not per- nished a good case; in Laureldale Cemetery
tinent to today's prices nor for land in built-up Company v. Reading Co., 303 Pa. 315, 154 Atl.
areas. Two tentative conclusions, however, are 372 (1931), the court wrote a fine opinion in
suggested: (1) easements can be acquired at rejecting the contention that the owner was
a fraction of the fee simple cost; (2) the com- entitled to reap the full potential value of his
parative price depends a great deal on the fulP land; an unimproved portion of his property
understanding of easements -by landowners.' had been condemned, and he was asking for the
The task of proper enforcement is not to be value that the land would have had if he had
underestimated, (But the lowering of main- developed it for cemetery purposes like the
tenance costs required with fee simple land balance of the plot. The court held there was
may more than offset this. See Section Two.) no reason why he should be paid for the hypo-,
Flight safety easements. On agricultural thetical future value of his land. This is
lands adjacent to the Lemoore Naval Air Sta- promising, for it indicates that in assessing the
tion in Kings and Fresno Counties, California, value of development rights, such a court would
the Navy is purchasing 19,236 acres outright probably be conservatively low.
and is buying easements on 12,312 acres. The To recapitulate, the question of price is one
.easements limit the use of the land to agri- on which precedent can be of only limited help
culture and impose limitations,on the heights since an open space program has riot been tried
of structures. Average cost: about $15 per acre. before. Yet there is some encouragement for
Flood easements. California has had a great the belief that the price need not be excessive-
deal of experience with, hood easements; in if purchase is started soon and in outlying
conjunction with flood control projects of the areas where developers are not waving thou-
U. S. Corps of Engineers and other water con- sand dollar bills around. Experience with other
servation projects, the state generally acquires kinds of easements, notably scenic easements
flooding easements. Much of the land in the for highways and airport easements, suggests
by-pass channels protecting the city of Sacra- that in many areas the price would be quite
mento, for example, is preserved by easements moderate indeed, and in many cases, as we will
from such conflicting uses as development. In note later, the rights would be given free.
negotiating price, the state has f 'ound that no Let us now consider the arguments that can
rule of thumb can be used; in flood control be presented to lan@owners. We do know
easements the historical hydrology of the enough now to see that there are some com-
streams causing the floods and the frequency pelling ones-and in terms of their own self-
of flood and its length of time would naturally interest.
affect the use remaining to the landowner, and (1) Immediate compensation vs. -hypothetical
therefore the easement price. In levee ease- gain. Let us say, for example, that we are try-
ments, for example, the Department of Water ing to negotiate the price of $100 an acre
Resources and the Reclamation Board pay al- for the development rights to a 140-acre farm
most the full market price of the land, since the on the present urbari-rural fringe .27 The
owner is being deprived of the actual use of farmer might argue something like this: "Why
his land and only a nominal value remains should I settle for $100 an acre? Right now
to him. In many flood control easements, how- I'll admit the land is worth only about $1,000
ever, the owner still enjoys almost full use an acre as farmland. But five to ten years
of his land, and in such cases, naturally, he frorn now a lot of developers are going to be
is paid much less for his easement. (Lands on coming out here, and they might give me, say,
the bypass channels around Sacramento, for $2-3,000, maybe $4,000 an acre. I've got my
example, are still farmed. Similarly, in the kids to think of."
reservoir areas w 'here the state has purchased First, it can be pointed out that he gets,.the
easements the land is still used for grazing money now-$14,000 in cash on the line (and
purposes.)
In assessing damages, the courts looks' to 27Lest the reader be misled by false concreteness,
let me point out that this $100 figure is solely for
present market value, and not to some hypo- illustration and is not based on any computations.

34 U. L. 1. TECHNICAL BULLETIN NO. 36

taxed as capital gains, not income). And what fact in selling an open space program is bound
he must contrast is not $14,000 vs. a possible to backfire. Without eminent domain a land-
great sum later, but what that $14,000 could owner in the middle of an open space area
do for him during all those years while he's could reap a very big-and very unearned-
waiting for a killing-and paying rising taxes. increment in value by selling out to a de-
(2) Uncertainty of high price. And what as- veloper-who, promptly, would advertise the
surance does he have that he is going to make "parklike" surroundings his customers would
a killing by selling to a developer? Many enjoy.
people have the erroneous idea that develop- (5) Possible increase in value as estate land.
ment advances in consecutive steps, digesting It is not correct to assume that if one gives
everything as it goes along, and for this reason up his development rights, he necessarily will
they have exaggerated notions as to potential be permanently lowering the value of his land.
land values. It would be sobering to them to In terms of today's market, it does appear that
be shown an aerial map of the great number land that cannot be cut into a subdi-Osion
of scattered tracts that have been left open would fetch less when it is put on the market
in the areas close to the city. Are the de- than land that is not restricted in this way.
velopers bidding high for all that land? In a This fact should be taken into account by the
few cases here and there, yes, but.for the most tax assessor. At the same time, however, we
part they bypass it to seek cheaper land.-` should not assume that today's "highest and
(3) Replacement costs. Santa Clara County, best use" will hold true in perpetuity, and that
California, furnishes some pointed examples; the land has been irretrievably damaged as
there, where farmland is immensely productive far as market values are concerned.
and worth a great deal as farmland alone, many Let me cite a point I heard brought up in a
farmers were dazzled at the thought that land discussion with a group of landowners in what
they thought worth $2,000 an acre would fetch is known as the Kennett Pike section, north-
$5,000 if they sold to a developer. But for west of Wilmington. We had just returned
many farmers this was only a paper profit. If from a meeting of the local watershed group,
they wanted to keep on in farming, they could the Red Clay Valley Association, and there was
find no comparable land at the old price. a very hard-headed discussion of the develop-
(4) Low cost protec 'tion. Next, let us consider ment rights idea. One of the landowners
another kind of landowner, the gentleman questioned the premise-which most of us were
farmer. You can demonstrate to-him that it more or less accepting-that yielding of de-
might even pay him to give up his development velopment rights would permanently impair
rights, so long as he has assurance that land the market value of the land. He said some-
of neighboring owners will be similarly pro- thing like this: "Right now there are a fair
tected. It is important that we do not obscure number of good-looking farms for people like
the fact that eminent domain will eventually us to, buy. But the prices are getting pretty
be needed, and any attempt to sugarcoat the steep. If I were to sell my eighty acres to a
developer, I might get $2,000 an acre. And if I
28 Let me refer to Chester County, Pa., again. Most
people would agree that the very eastern part of the gave up my development rights, I certainly
county, 20-25 miles from Philadelphia, has been couldn't get that much now. But the supply
heavily settled while the rest remains quite open.
In going over the ground, however, one quickly sees and demand is changing. If things keep on
that the total amount of land in the eastern part that *going the way they are, in. ten or fifteen years
has been developed. since the War is not great at all; how many farms will there be available-at any
put together, all the new subdivisions can be con-
tained in several square miles. They are not, of price-like mine? But there will probably be
course, put together, and, there is the rub. They at least as many du Pont people as today who
are along the main roads, and even here they are
scattered. Yet they have sterilized much of the open would like to have one. In other words, if I
space that remains behind them, or between them, do give up my development rights I may lower
and you see more acreage going to weeds and second
growth in this part of the county than you do in the the market value of my land for the short term,
central and western parts. Much of this remaining but it's quite possible that over the long run
land in the eastern part will indeed be developed
and fetch high prices, but much of it won't be, and that might make it all the more valuable."
some landowners who have been anticipating a The validity of such arguments we cannot
killing are going to be disappointed, The developers
are looking westward. satisfactorily test today, but they have another

SECURING OPEN SPACE -FOR URBAN AMERICA: CONSERVATION EASEMENTS 35

significance. The well-to-do landowner is only way easement is taken. Somewhat the reverse
one of many people served by an open space may apply to the case of many open space
program, and it would be a great mistake,. easements. Quite often, only part of a man's
certainly, for the program to be tagged as a property will be covered by the easement-in
way to help rich people at the expense of every- the farm in the photograph (p. 27) for example,
body else. the flood plain is zoned. the middle section is
But let us count our blessings. , The fact is covered by an easement, the rear part is left un-
that there is @a fortuitous linkage of self-interest; restricted. The very restrictions raise the value
landowners @an recognize this rather quickly, of the unrestricted part and make it a far
and when they turn the cap around the other better buy for a developer than it would other-
way, they are usually situated in considerable wise be. Land owners should read the National
positions of power. Furthermore, not having Association of Homebuilders manual on land
to. protest their conservatism, and by training, planning: it is quite explic-it on the value of
highly able to see their long-range self-interest, such buffers ("Be sure to check the zoning of
they find, more than do most people, that it is adjacent tracts, whether vacant or built up,
relatively easy to make whatever ideological and the presence of protective covenants on
adjustments may be necessary. these properties which will protect you against
(6) The "non-injured" remainder. Much at- future adverse uses." Homebuilders Manual
tention has been given the injury a man may for Land Development, page 7, second revised
suffer to the rest of his property when a high- edition, 1958.)

36 U. L. 1. TECHNICAL BULLETIN NO. 36

SECTION FIVE: GIFTS
A surprising amount of land can be obtained sary if one man is not to exploit the contribu-
by gifts. Many landowners have bequeathed tions of others. For this reason, the writer be-
land to park commissions in their wills and in lieves that the long,range necessity of eminent
many cases have been prepared to give the land domain, like that of perpetuity in the deed,.
before their death provided they may enjoy a must be constantly stressed, and not soft-
life estate in it. There is a large body of ex- pedaled.
perience on the legal and tax aspects of such A second quid pro quo for the landowner is
deeds; Massachusetts, through the pioneer work tax treatment. In the following section I will
of the Trustees of Reservations, has received go into the 'matter in detail; suffice it to say
many such gifts; similarly, in California, state here that by giving an easement, the landowner
park authorities have acquired tracts, particu- protects himself from rising assessments based
larly those of historical significance, by letting on the subdi *vision potential of his land. In
the grantors keep a life estate in them. many areas it is precisely. this problem that is
The easement device may greatly enlarge the uppermost in landowners' minds. It may also
gift potential. Only a relatively few landown- be pointed out that if he gives the easement as
ers are wealthy enough, ,'or public spirited a gift, the value of it is deductible in computing
enough, to give their land outright, but there his income tax. In outlying countryside the
is a rather sizable group who could afford to value might be little, there being little differ-
give easement, and would be willing to; indeed, ence between the market price of his land with-
it can be demonstrated that it would actually out the easement and with it. In areas where
pay them to do so. the market price is being pushed upward by
Before listing the arguments, let it be empha- developers, there might be a considerable dif-
sized that they can apply only to the owner ference, and thus more of a sacrifice of poten-
who really does have a feeling for the land; tial profit on the part of the donor. If this is
if he secretly hankers to make a killing, the the case, he has a compensating advantage in
arguments can only have a certain neutralizing that this difference is fully deductible as a gift.
effect. But if the owner does want to see his
land remain open, the easement nicely couples These considerations should not be over-
his self-interest and that of the community.. stressed; they are not themselves sufficient
First, it provides him with the flank protec- motivation. They are important because they
tion that he probably has worried about more enable a landowner to do what he wants to do
than once. An open space program can't be and feel that he is being sensible and prudent
planned in bits and pieces; it must have some in the bargain. I have talked with many land-
topographical unity, and thus, in talking to any owners, and I have been struck time and again
one landowner, we can point out how the ease- by the fact that, in any general discussion, it is
ment program will conserve surrounding areas. the landowners who take the lead in hypothe-
If he has been concerned, say, about the promi- sizing the different advantages that would ac-
nent hill across from him ("I know Dave won't company an easement program. They don't
sell out, but I'm not sure about his kids, and talk about the tax angles because they are look-
Dave's getting on"), he can now be assured as ing for favors. There are much easier ways
much protection as if he put in a preemptive open to them if it's more money they want.
bid for it himself. They explore these angles because they are
This points up the eventual necessity of hav- eager to justify economically what their in-
ing the power of eminent domain. The first stincts impel them to.
legislative efforts, as I will note later, have This kind of landowner, characteristically, is
tended to omit this on the grounds of first the gentry. They may be the third or fourth-
things first, and one can appreciate the Dolitical generation to hold the property, gentlemen
advisability of taking the easier stens first. As farmers or ranchers, older executives who have
the public becomes more involved in an open bought a country estate, retired generals, or,
space program, however, it is going to become simply, people who are rich. The gentry make
apparent that eminent domain will be neces- up only one category of owners, to be sure, but

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 37

they are critically important to the success of less important, kind of open space. It is a kind
open space conservation, and the potential they of open space, furthermore, that will not straiii
represent, I maintain, is being badly neglecte@. operating budgets. As has long been known,
This brings us to the last quid pro quo offered gifts of land can often be troublesome unless
the landowner. Characteristically, the gentry there is going to be money to develop the prop-
have a strong bias for the "natural" country- erty and to maintain it.-'!' Land that is con-
side, and it is the preservation of this that the served with easements, however, is maintained
easement device promises. When they think of by the owner, and economics aside, aesthetic-
open space, they usually. don't think of parks, ally this provides something a park cannot.
or lakes for recreation, or the landscaping along The owner, certainly, is doing it for his own
super-highways; they think of farmland, self-interest; he's not contour plowing his
streams and meadows, white fences, and barns. slopes or having cows graze in his meadows to
Many such people feel they should be for park provide a spectacle, but this has a lot to do with
programs, but more from an abstract sense of the public's self-interest. The land is being
obligation than from any personal impulse. If used and it is productive. It is kept alive.
they're for parks, it's likely to be for parks Some years ago the State of Pennsylvania
somewhere else, and if they get to talking can- made moves to acquire land for a park in the
didly, it's not long before they'll reveal a defi- lovely valley where the battle of the Brandy-
nite distaste for the idea of picnic benches and wine was fought. The landowners went up in
formal landscaping. The word "manicured" arms; some of their reasons were not altruistic,
comes up often; so do invidious references to but on one point many others were in impas-
the monotonous green perfection of parkways. sioned agreement with them. This was no way
Much could be written about the muted class to save the Brandywine; for the tourist as well
and economic conflicts in this situation, but it as the native, it was far better if its rolling hills
would not be to the point; the simple fact is were left in farming, little changed from the
that these people do have this bias and that way it looked 200 years ago. This view pre-
they, happen to own the best land just beyond vailed, and the valley is still almost as lovely
today's suburbia. The job is to understand as ever. The resolution of the issue was nega-
their inclination and to exploit rather than de- tive. Because there has seemed no middle way
plore it. between park purchase and laissez-faire, the
Not enough park officials do, and thereby they blight has begun. The Philadelphia Electric
are missing a great opportunity. Frequently a Company has strung high tension lines along
large landowner will offer to leave his property the very edge of the Brandywine; here and
to a park commission if he is given assurance there, a developer is nosing about.
that it won't be developed with benches and In contrast, there is Monterey County, Cali-
such into a park. Many park people feel they fornia. Armed with the easement tool, a group
cannot properly guarantee such a provision of its citizens have been soliciting gifts of ease-
would be fulfilled, and there the matter has ments from landowners, and gifts of money to
rested. Somewhat ironically, in one eastern buy easements as well. The campaign started
county a local park commission was recently in June (1959) ; by August 10th gifts of 4,000
created largely because the citizens had heard acres had been pledged. One gift will save part
that a wealthy woman wished to leave her land of the most magnificent stretch of coastline in
for the public. She did, but when the park the world, the Big Sur.
commission came to her, she said a park was
the last thing she was thinking of; she wanted 29 This is true of land given as wild land also. John
it left as a natural preserve. There was no H. Baker, president of the Audubon Society, points
machinery for this, and the park commission, out that "there is a disposition, in some quarters, to
not only receive it as a gift, but buy it, without any
which had no parks, has lapsed into inaction. knowledge or assurance of how it is going to be
Antithesis between parks and countryside is maintained properly, and by whom. Our society has
had quite a little experience with the management
unnecessary. To think of open space acquisi- of relatively wild land, and firmly believes that it is
tion only in terms of full title and formal park essential, if an area is to be truly 'saved', that there
be from the cutset sufficient funds available to prop-
development is to leave unexplored the great erly manage and maintain it." Letter to writer
chances for saving a complementary, and no 6/26/58.

38 U. L. 1. TECHNICAL BULLETIN NO. 36

SECTION SIX: THE TAX QUESTION
We have been saying that in asking land- require services so costly that the community
owners to keep their property open, the public pays out far more than it gains. It can also be
is looking for a benefit and that it must be pre- pointed out that his assessment policies may be
pared to give something in return. It may be negating many of the long-range plans the com-
money; or it may not be. If the landowner is munity is set on. To all of which the assessor
willing to forswear the just compensation the can reply that his job is to collect taxes; it's not
law entitled him to, the community will get the to do the master planning; and until the public,
easement free. through its state government, changes the rules
But this is only part of the bargain. In every for him, he has to keep on doing just as he's
case there is one thing the public must give, been doing.
and for the landowner it is probably the most Legally, the uniform taxation clause gives
important quid pro quo of all. He must be him considerable leeway. Some assessors have
given a guarantee of fair tax treatment. If he been almost vengeful in their interpretation of
has given up the right to make an extra profit it, but they can always invoke the idea of fair
by selling his land for subdivision, the commu- play; they don't want to tax any land into de-
nity must recognize this in the assessment of velopment, they can say, but they take their
his property. It should be taxed on the basis orders from the state constitution, and what-
of fair market value, no more, no less. ever the exact wording from state to state, it
This is hardly a new principle. It has long tells them to assess a property at its fair market
been public policy that land should be taxed at value. It may be that a particular farm will
fair market value. But how do you gauge it? fetch only $1,000 an acre if it is sold for farm-
Practice varies widely. In one county, the as- ing, but if comparable property nearby is fetch-
sessor won't raise the valuation of farmland, ing $2,000 an acre from developers, that is its
even if it's next to a Levittown, until the owner fair market value.30 The assessor may sympa-
sells it. In another, the assessor will raise it to thize with the landowner who wants to keep
the value of adjacent developed land whether his acreage in farming but he can plead that
the owner plans to sell it or not. But the drift the law directs him to raise the valuation; the
is unmistakable; as the money pressures on taxation is obviously not uniform if he assesses
local governments mount, the assessor is in- one property at one figure, a comparable prop-
creasingly raising valuations on open land to erty at a much lower one.
that of comparable land that is being devel- Thus we come to the critical importance of
oped. This, he says, is its fair market value; a binding easement. If a property isn't legally
and whether the owner wishes to realize it or available for subdivision, it isn't comparable to
not is beside the point; he could get this price properties that are. (See Appendix A) The
right now, and the assessor must take this into very constitutional provision that assessors have
consideration. followed to raise valuations now becomes the
The effect is to tax land into development, landowner's shield. No new legislation is
and there is a pronounced spiraling effect. As needed on this point; if the assessor disregards
more land is developed, the more the commu- the easement and values the land on its market
nity needs money to meet the new burden of value as subdivision land, the landowner has
services, and thus the more it needs to raise clear legal redress; since he cannot market
taxes. Result; more scatteration. The assessor it as subdivision land the going rate for such
has become de facto a master planner, and the land is patently not its fair market value. This
fact that it is by inadvertency only makes the is why the easement must be binding. Many
problem worse. landowners I have talked to would love to have
It can be pointed out to him that the "highest it both ways; that is, have the easement apply
and best use" of land is often not residential
subdivision; that open land frequently returns 311 In estimating the pros and cons of using a por-
tion of its property for development, Stanford Uni-
benefits to the community out of all proportion versity found that at current tax rates the property
to the services it requires; conversely, the de- would cost the community more in services than it
gained in taxes unless the land were developed with
veloped land which yields higher taxes may I-acre lots and $50,000 houses.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 39

and save them from higher taxes-but always valuation basis, means estimated market values
with an easy loophole in case they change their of $5,000 to $10,000 an acre.)
minds. There must, of course, be a reversionary The golf clubs organized in self-defense and
clause in the easement; it must have flexi- in 1958 went to the county supervisors, who
bility so that it can be adapted to future serve as the Board of Equalization. Among
conditions we may not be able to foresee now. other things, the golf clubs pointed out that
But basically it must be a deed in perpetuity, for the public at large these green spaces
and rather than soft-pedal this fact, it should were a benefit and were they subdivided over-
not only be made plain to landowners but used all' land values would be hurt, rather than
as a selling point. The perpetuity feature is increased. (One industrial development man
to their advantage; without it, they have no attributes the closing of two important site
real tax protection. purchases to the amenity provided by the near-
In many semi-rural areas, landowners don't by Menlo Golf and Country Club.) The super-
realize that they will eventually need this pro- visors backed up the assessor's valuations.
tection; there may not yet have been sufficient The golf clubs, in the meanwhile, had had
development to set the spiral off, or, as I have another idea. Taking a cue from Santa Clara
sometimes been told, "we have a very under- County's agricultural zoning, they figured that
standing assessor here and, for heaven's sake, if they could have the golf clubs incorporated
don't upset the applecart." In such communities as exclusive recreational zones, they might have
the citizens have been rather apprehensive lest the makings of a fence against the assessor.
too much discussion of the open space tax To lay the groundwork they went to the state
question give the assessor ideas. (I must con- capital in Sacramento and, with some other
fess that in talking to some civic groups on the groups, got through an amendment to Section
matter I feel uncomfortable when the assessor 402.5 of the California Revenue and Taxation
is present. "Ah, so they're raising valuations Code. It read:
on farm properties up in X County!" he will "In assessing property which is zoned and
comment, obviously stimulated.) used exclusively for agricultural or recrea-
tional purposes and as to which there is
Let me now illustrate the foregoing points no reasonable probability of the removal
by telling a story. It is the tale of the fight or modification of the zoning restrictions
between the assessor and the golf clubs of San within the near future, the assessor shall
Mateo County, the great bedroom community consider no factors other than those rela-
tive to such use."
just south of San Francisco. For communities
yet to feel the full impact of development, it But when they sat down with the assessor
provides a clear warning of the tax dilemmas to talk over the zoning plan, he told them,
in store for them. sorry, but even if they did zone he still wouldn't
Several years ago one of the eight private lower their valuations. Both the county's
golf clubs sold off a small bit of its property counsel and the state's attorney general (now
when it was re-locating a hole. The fact that Governor Brown) had advised him that the
it got a very nice price for the piece drew the amendment made no change in preexisting law.
assessor's attention. He proceeded to raise the Under zoning there would he a reasonable prob-
valuation on the club's remaining acreage up to ability that the zoning could be changed, and
the value of the residential land around it. so long as this was true, the uniform taxation
The club protested. It didn't want to sell its requirement forced him to take this into con-
land for subdivision; it was going to keep it sideration.
open. The assessor replied, in effect, that this There is a new assessor now, Mr. Ralph
Woodman, but he takes the same position. In
is what they said but there was nothing to sum, he holds that the golf clubs want it both
prevent them from selling it, and he had to ways: to escape full valuation While they're
recognize this in his valuation. He proceeded using the land for golf, but not,-to bind them-
to raise the assessments on the other eight selves so they can't sell out for a killing if they
clubs. (Currently, they range between $1,254 ever are of a mind to. The golf clubs are now
to $2,500 an acre, which, being on a 25 percent thinking of restrictive covenants, for' a given

40 U. L. 1. TECHNICAL BULLETIN NO. 36

period of time, that would guarantee to the there wasn't any development next to the zoned
assessor that the land wouldn't be subdivided. land yet, but just as soon as there was, he
Mr. Woodman is not impressed; the covenants, would be raising assessments on adjacent prop-
he believes, wouldn't give the assurance that erties, zoning or no zoning. And, incidentally,
his office needs, and he would continue to tax he will soon have to raise the assessments on
the clubs' land on the basis of their highest and the golf clubs another notch.
best use-i.e., subdivision.
I asked him what he would do if they severed The easement device, of course, is only one of
the development rights by giving an easement several possible approaches to the tax problems
to a public agency. Yes, he-said, then he would of open space conservation. Another possibility
have to lower the valuations to their worth as is the use of a "severance tax," by which an
open land. He was, I should point out, by no owner pays a low rate so long as he keeps his
means enthusiastic about the idea and empha- land open, but must pay up the accumulated
sized that the easement would have to be for differential between the low tax rate and the
perpetuity, and with no reversionary clause. full one if he exploits the land commercially.
(On the latter point, of course, the courts and In Wisconsin and New Hampshire the severance
not the assessor,would be the judge.) Anyway, tax device has been very helpful in taking pres-
he said, the clubs probably wouldn't take such sure off landowners to cut their trees pre-
a step; that way, they couldn't have the loop- maturely. Some planners feel that the same
holes he plainly believes they want. basic device could be adapted to provide a
He raised two objections that are likely to positive inducement to landowners in metro-
occur to assessors elsewhere. One was the politan areas to keep their land open.
knotty question he would face in determining In Indiana, for example, a legislative pro-
the market value of such properties, surrounded posal now being considered for rural area con-
as they are in most cases by developed land. servation would use the severance tax procedure
(He's paid to worry about such problems, the to forestall premature development. Following
golf clubs can point out.) A second was the the pattern of forestry classification laws, it
possibility that the easement device would open would allow planning commissions to designate
the door to every Tom, Dick, and Harry who uses for particular areas-farming, recreational,
wanted to get his taxes reduced. He cited the flood plain, industrial and residential. If a
Elks Club, whose assessment he's going to have landowner agreed to keep his property unde-
to raise: what would prevent them from giving veloped, the local taxing unit could grant him
up an easement and demanding a lower valua- an annual tax deferral of from 10 to 30 per
tion? The answer is that there are two parties cent of the property taxes due. He would pay
to the easement; the "dominant tenement"' the accumulated tax deferred only if he devel-
would be a public agency, and it could not ac- oped the land. The proposed bill also provides
cept the easement unless there was a clear for an assessment to be levied against devel-
public benefit involved. opers-the assessment to cover a share of the
On the basic issue, however, people every- cost of new public facilities and to be paid to
where who are concerned about open space the local government. This, it is hoped, would
would do well to heed the lesson of San Mateo allow the local, governments to build their new
County. At a time when some communities sewage systems and such with cash instead of
are just begining to hear about exclusive agri- having to float bonds.
cultural or recreational zoning, the study of While it is not in the compass of this report
assessment practice in an area like San Mateo to explore the many possible variations of tax
County may prevent many a fool's paradise. policy, two points should be made: (1) most
Such zoning can be very helpful, but if it leads tax experts do not feel the tax power should
to complacency, it is likely to be short-lived. be the principal instrument of open space con-
I end this tale with my last question to Mr. servation; (2) the tax power should comple-
Woodman: in the coast area of the county, ment the positive measures.
zoned exclusively for agriculture, wasn't he The easement principle may furnish the best
still assessing the properties only as farmland? entering wedge into the tax problem. It cer-
Yes, he replied, but not because of the zoning; tainly can't do very much to overhaul our

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 41

bewildering assessment procedures, but it can as high as those on similar property open to
be used now; it requir 'es no amendments to development, but by the same token neither
state constitutions, it is simple, and it is equit- are his demands for municipal services; indeed,
able. To be sure, legislation is needed if there most current studies of real estate taxation
is to be any major open space program, but it is indicate that the community will probably net
well to remember that on tax policy a state bill much less-if it doesn't suffer an actual loss-
can only be advisory. The pertinent legisla- from the subdivided property than the open one.
tion as far as the tax aspect of easements is And the landowner's taxes are by no means
concerned exists in our state constitutions: the frozen at a low figure. Simply because his
uniform taxation clause that has been, by land won't be subdivided doesn't mean it won't
default, allowed to work against open space. increase in market value; if it does, his assess-
To sum up: If a man severs his development ment quite properly should go up.
rights through an easement accepted for the No selling program is easy, but on this point
public benefit, he is guaranteed by his state
constitution that his land cannot be taxed as we have the great advantage of simplicity.
though it were available for development.. This However many the details, the basic point is
is fair to him and it is fair to the public. He one the public can well grasp: Fair market
gets no special favor; his taxes may not be value, no more, no less.

42 U. L. I. TECHNICAL BULLETIN NO. 36

SECTION SEVEN: THE COSTS TO THE PUBLIC

The matter of total costs is closely related to the present cost of only one super highway
the public purpose; quite naturally, in the pub- interchange.
lic reaction to such a program, two questions It should also be noted that such a program
will frequently be asked: (1) What will be the does not, like a highway project, require a
direct costs to the public of development rights certain minimum expenditure to be effective;
purchase? (2) How much will it cost the com- initially, the program will cost what we want
munity in reduced taxes? (A third question, to spend on it, and it may be that a fairly
how the costs can be apportioned between the modest sum can get the thing rolling. First
various governmental levels, will be discussed things first: If there's only so much money
later.) available, it can be concentrated in particular
The question of direct costs, of course, will areas that the people feel should get priority,
depend upon the size of condemnation awards, and in a cumulative process other areas can
number of gifts and such considerations, spoken be picked up subsequently. By the same token,
of previously. We must assume that, on the there is nothing in the world to prevent the
average, the per acreage costs will not be ex- public from enlarging its concept of the areas
cessive, for otherwise there would be no further that should be saved.
point in discussing the program. Even if we Some people object that so much land might
err on the conservative side, however, and be conserved that not only would the com-
assume that the acreage costs will be consider- munity have to pay too much but that no
able, it need not follow that the total cost will room would be left for housing. The argu-
be uneconomic. ment is rather unrealistic. By every rule of
In an open space plan, only a relatively small thumb for open space needs we are so far be-
portion of the total area will be subject to devel- hind that the problem of getting too big a
opment rights purchase; the idea is to secure proportion can be tabled for quite some time.
the rights for the key areas which, though only For the Baltimore area, to cite an example,
a fraction of the total, tend to set the char- the Baltimore, Regional Planning Council pro-
acter of the whole. Chester County, Pa., for posed these standards: Per 1,000 of population,
example, covers 760 square miles, yet the core 4 acres for neighborhood parks and play-
of the Brandywine Valley could be encompassed grounds; 10 acres for urban parks; 10 acres for
by securing easements to acreage total,'ng regional and state parks. For open space it
roughly twelve square miles. In almost every proposed 33 acres and noted that this standard
county on the edge of the metropolitan area might have to be raised; much of the open
there are similar points of leverage; the physical space people assumed would remain is held
features which make up the framework of the by institutions, many of which might soon
area's beauty often take as little as 5 per cent sell and move away.
of the total. The question of what it will cost the com-
Let us assume, for the moment, that the price munity in loss of taxes is not, strictly speaking,
per acre would range from nothing, thanks to a fair question, but it is one that certainly is
gifts, to $300 an acre and average out to $50 an going to be asked. For this reason it is vital
acre. The cost would come to $32,000 a square that there be commenced a continuing evalua-
mile or a total of about $400,000. This figure, tion of the economic importance of open space
to repeat, is entirely hypothetical. Time is reservation in the area. Such an evaluation
critical; if the waiting period is long, costs can would be helpful not only from the standpoint
mount geometrically. But the order of magni- of establishing such a program in the first
tude we are talking about depends on what instance, but also in the valuation process
other things cost too; even if the cost of involving the acquisition of the development
securing our twelve miles were $800,000, and rights. If, for example, it could be demon-
it could turn out to be considerably lower or strated that proximity to an extensive open
higher, it would compare very favorably with space reservation would make residence or

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 43

recreation facilities more desirable there,"' it development of parks, and, as the system
might be possible to acquire easements at a grows, the values produced will be even
lower figure than might be possible without larger."
such a demonstration.
The kind of economic approach here con- One has reason to hope that study will demon-
templated is similar to the one being used in strate that an intelligently planned open space
connection with expressway development, iden- program will not hurt the community's tax
tified in technical circles as highway economic base. It is true that the landowners who have
impact research. given up their rights should not be taxed at
A similar study was made some time back in the going market value for surrounding land
connection with parks .32 The Union County available for development, but let it be noted
Park Commission (New Jersey) reported a that, if they don't pay the higher rate, it is
631.7 per cent increase in assessed valuations because they will not saddle the community
on properties adjacent to Warinanco Park, for with the demand for new services. Balancing
the 17-year period from 1922 to 1939. This was costs and receipts, the community will have
nearly fourteen times the average increase of just as good a deal with the open space land-
46.4 per cent for the entire city during the same owners as it will from the owners of land given
period. A similarly spectacular increase is over to development-and to new roads and
reported for Elizabeth, New Jersey, adjacent new schools. This is a point that should not be
to the park, where property assessed in 1922 at too difficult to demonstrate; as many a resident
$703,155 rose to $5,144,980 in 1939. The study is very much aware, the kind of hit-or-miss
also cites Washington, D. C., as an illustration: development that is now taking place requires
more in services than it pays in taxes. Nor is
"In 1937 the increase in real estate values the land "frozen" at its current value simply
which could be attributed to the parks of because it cannot be developed; as noted earlier,
Washington, D. C., was $339,300,000. The it seems highly likely that much of the land
tax rate was $1.50 per hundred dollars, and
the taxes collected on these values were in such areas will greatly increase in value
$5,090,000. During the previous ten years because of the supply and demand situation
the maximum annual expense for park for the remaining "estate" land.
maintenance and operation was a little over This is not to slight the many financial ques-
$2,000,000 and the average annual expendi- tions that such a program will pose. If it can
ture for these purposes was a little over
$1,500,000. Therefore, if the tax returns be demonstrated that an open space program
produced by the parks were to be expended improves the value of the surrounding land, for
in the park system, there would be a fund example, we will have the rather interestin(f
of $2,500,000 to $3,000,000 which could be question to resolve of whether or not the com-
expended each year for the expansion and munity should not require some quid pro quo
:11 Stuart Walsh, of Industrial Planning Associates, from developers for the unearned increment of
points out that private industry well knows the ad- the value of their land because of its proximity
vantage of adjacent open areas. "The owners of a
number of extensive properties we know about are to an open space reservation. Current thinking
reserving large areas for parks and open spaces in about land values in highway programs sug-
their development plans not because they are na-
ture lovers but because they are profit seekers." gests that the community could assert a right
32The Planners' Journal, October-December, 1939, to recapture some of its investment in the
"The Effect of Parks Upon Land and Real Estate open space program.
Values," by Charles Herrick, page 89 et seq,

44 U. L. I. TECHNICAL BULLETIN NO. 36

SECTION EIGHT: THE DEED

The document which is the fulcrum for all (5) Restrictions against the display of out-
the questions we have been discussing is the door signs, billboards or any other form of
easement deed itself. In brief, it provides that outdoor advertising;
the owner of the land, the grantor, conveys to (6) Prohibitions against dumping of trash,
the public agency an easement on the property, wastes, or unsightly or offensive materials of
the easement to be for perpetuity and to "run any kind; I
with the land", whoever may subsequently (7) Other kinds of restrictions consistent
own it.33 with open space preservation and reservation.
The purpose must be stated clearly. In the After the restrictions are set forth, it is
case of open space easements, it is, simply, the vital to note that, aside from these, the owner
preservation of open space for the public bene- continues to enjoy all the present uses of the
fit, but it will be wise to buttress this statement property and any future ones that don't conflict
with notation of all the benefits that may be with the restrictions. It is important that this
involved-the preamble of the California bill is be made abundantly clear; where there has
an excellent model in this respect. The writer's been trouble negotiating scenic easements, one
feeling is that, in both the legislation and the reason has been ignorance on the part of owners
deed, the purpose should be broadly construed; as to just what they might be giving up. Am-
49scenic easements," which rest the case briefly biguity can be far more of a deterrent than
on aesthetics, have been successful, but they the restrictions themselves.
have been used largely in areas not subject to Yet the deed must be flexible; we cannot now
the pressures of suburbanization. It would be foresee the conditions of, say, 1975, and there
much better if the whole constellation of bene- must be some way of allowing owners to adjust
fits were stated, and this is why I suggest that to them. How to do it? This is the key problem
44conservation easements" may be both the most in writing the easement, and it is no easy one.
accurate tag, and the most persuasive. On one hand, there is the necessity to stipulate
Next come the specific provisions of the ease- precisely what the owner cannot do. If this
ment. They may include one or more of the is not done; if, for example, there is a clause
following: which says the restrictions can be altered from
(1) Prohibitions against erecting buildings time to time, or new ones issued, by the public
or other structures; agency, the courts might hold that the owner
(2) Restrictions against constructing or alter- is giving up too much. It may be that the pub-
ing any private drives or roads; lic agency has the best of intentions, but the
owner has now let himself in for continuous,
(3) Prohibitions against the removal or de- and unspecified control. Equally important,
struction of trees, shrubs, or other greenery; because of the ambiguity involved, in condem-
(4) Restrictions against uses other than resi- nation proceedings there would be no way to
dential or agricultural, for public utilities, and assess accurately the damages to the owner.
existing uses; Just what is he giving up? If the threat of
further restrictions hangs over the property,
33 "Perpetuity" tends to scare some landowners the courts might well agree, the easement is
a bit. They might with equanimity consider giving not a true easement.
some acres outright-which is quite a perpetual ges-
ture-but the initial thought of deeding an easement How, then, can the necessary flexibility be
for perpetuity upsets some of them. Talks with such incorporated into the easement? In one re-
people convince me that the perpetuity aspect should
be brought up right away, and forcefully. It is to spect, a clause customary in all easements gives
the benefit of the landowner; as noted in the tax the owner assurance that he won't be had. If
section, an easement which isn't binding could be
disregarded by the assessor on the grounds that the the purpose for which the easement was se-
owner was getting a temporary tax haven while cured is abandoned, the easement becomes null
waiting to make a killing later. The owner should
not be allowed to think he's going to have it both and void and all the rights specified in it revert
ways; the law gives him fair reversionary privileges, to the owner. If, say, the public secured the
but it is a real commitment he is being asked to make
and any muffling of the fact will boomerang. easement to protect the flanks of a park and

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 45

then sold the park, the easement would be space program, there's very little we can do
automatically void; the public went back on now about that. We must go on faith and
one part of its bargain, and the law is that the provide an instrument that will allow for
landowner should therefore no longer be bound adjustment to changing conditions; at the same
by it.34 time - the present time - we must be specific
But the owner will want more flexibility about the bargain we are making with the
than this. Suppose he wants to build a small landowners. It is not an easy balance to strike,
guest house for his children? Suppose that and one could debate around the nice points
twenty years from now dairy farming is no involved for some years to come; the necessity
longer profitable and he wants to tear down the for writing an actual document for an actual
barn and put up a greenhouse? There are all landowner is the discipline we need.
sorts of possibilities; common sense tells us ,
that there may be many changes in use which Let us assume that a good easement has been
the owner might want to make in the future drawn, that the local public agency is con-
and which would not offend the basic purpose scientious and that the public and the owners
of the easement. are all for the program. One big danger will
The public agency, as noted before, should still remain: Eminent domain by another
not be able to lay down new restrictions, but public agency. Many landowners I have talked
it would seem reasonable to have a clause in to raise the point forcefully; "If I deed such an
the easement by which it could allow changes easement," the question is generally put, "won't
requested by the owner if it deemed them in I make myself a sitting duck for the highway
conformity with the purpose of the easement. department?" They have good cause to raise it;
The danger here, of course, is the one so present many highway departments have been showing
in zoning matters; variances can make a sieve a great propensity for running rights of way
out of a community plan, and this could be the through park land, and quite conceivably they
case with easements. Professor Paul Mishkin might be attracted to land kept green by ease-
of the University of Pennsylvania Law School ments, not only because it's easy to build over
puts the problem clearly: "It would be un- but because it shouldn't cost as much as nearby
desirable," he notes, "to attempt to freeze the land that is developed. Even if the easement
development rights completely against any had been acquired through eminent domain by
future adjustment. At the same time, I think the local government this would not necessarily
it imperative that controls be worked out to stop the highway department; it would have
minimize un 'Justified reverses. Much money the dominant right of eminent domain. Nor
and other power may be involved and the would it prevent another state agency from'
temptations will be great . . . at the very taking the land if either program gave it
least, procedures should be specifically provided authority to take such land."'
-to require notice, for example, and public One safeguard can be written into the ease-
hearings before any such action may be taken." ment: It can be stipulated that if there is
Even with these safeguards, of course, the later condemnation of the property for another
public agency might get away with murder purpose, the easement becomes null and void;
and not only grant outrageous variances, but in other words, the agency must pay the going
sometimes give up the easement and let the market price for the land without restrictions;
owner build away. To say all this, however, is it can't seize the land with the idea that it's
to say that we live in a democracy; if in the going to get it cut rate.",
years ahead the public becomes so supine it 35 "A corporation which has taken land by eminent
doesn't care what its officials do with an open domain under legislative authority and devoted it to
public use has thereby acquired no immunity from
the condemnati,)n of such property for some other
34 "It is well settled that when an easement has public use which a subseauent legislature may deem
been taken by eminent domain for the public use, or of greater importance." Nichols, Ch. XIX, Sec. 251.
has been acquired by purchase, prescription, or dedi- M "If the public easement is discontinued or aban-
cation ... if the public use is subsequently discon- doned, the land reverts to the owner of the fee free
tinued or abandoned, the public easement is extin- . of the easement and a new public use cannot be sub-
guished and the possession of the land reverts to the sequently imposed upon it without paying the owner
owner of the fee free from any rights to the public." full compensation." Miller v. C. C. C. & St. L. RR.
Nichols: Ch. XXIX Sec. 512. Co., 43 Ind. App. 540, 88 N.E. 102.

46 U. L. I. TECHNICAL BULLETIN NO. 36

This would only be a negative safeguard, it flicting programs. There is no satisfactory
must be pointed out; there seems no question solution to this danger; as with parks, securing
but that any open space program, whatever the the land will be only the first part of the fight,
tools used, will always be in danger from con- and the fact should not be under-played.37

3-1 The case of Glen Helen is instructive. This is Now a greater threat looms. The Yellow Springs
a 1,000-acre nature preserve next to Antioch College council plans to build a sewage disposal plant and
in Yellow Springs, Ohio, given by a man who felt run a mile-long trunk main through the heart of
deeply about the land and administered by people the area. Again, the friends of Glen Helen have
who feel the same way. Several years ago the state gone to battle. They should win-but even if they
highway department decided to run a highway do, they know there will be other threats in the
through it; the friends of Glen Helen raised a terrific future. People who think open space is a do-good,
fuss, and by dint of hard work, finally got the Gov- non-controversial cause should know about these
ernor to announce that Glen Helen would be spared. fights.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 47

SECTION NINE: THE FINANCING

Where is the money going to come from? Adjunct to other public programs. Given
Since the basic premise of this report is that specific authorization, the provisions of open
ope n space is a public benefit, the following spaces may be financed out of the appropria-
section will deal primarily with public money. tions made available to other public improve-
It should be noted, however, that in many ways ment programs, such as parks, recreation, high-
private money can be of importance out of all ways, housing, slum clearance, urban renewal,
proportion to the sums involved, particularly airport development, and others. The justifica-
in the early stages of getting a program going. tion for so doing, of course, may be found in
The Trustees of Reservations in Massachusetts the interrelationship between the provision of
is a good example. This group of citizens open spaces and the public improvement
stimulated many gifts of land, money to main- program involved. Almost without exception,
tain the land, and money to buy land. The such programs would benefit over a long period
acres they have saved as a consequence are of time by the provision of open spaces. (A
considerable; more important than the actual little study will indicate in more detail why
land acquired, however, has been the public this is true-with housing, for example, the
programs, such as the Bay Circuit, that have open space would provide more air and light
been established through the leadership of this and view; with airports, added protection in
group. The money involved in the public the landing and take-off of aircraft; with high-
programs is far greater than the total of all the ways, less possibility of early functional obso-
private funds given to Trustees for a half lescence, better sight-distance, more pleasant
century, but the latter was seed money-and travel, etc.)
with a good climate this can be very potent. Many of these public improvement programs
Eventually, however, the public must help already permit, at least partially, the use of
pay for the benefits it wants and the provisions their funds for open space development of a
of open spaces could follow some of the more sort. The expanding concept of "highway use"
orthodox methods, and, conceivably, some right now permits the use of highway funds
rather unique techniques. Here are the prin- for roadside rest areas in such States as Cali-
cipal alternatives. fornia, Ohio, and others. So that a cleverly
Appropriations from general funds. The most contrived open space program of reasonable
direct method of providing the money is to get magnitude could possibly make use, on its
a legislative appropriation from the general financing side, of a portion at least of the
funds of the state or community involved. With authorizations for the programs involved, if
so many demands upon a limited resource, this authorized. "Oil and Gas Lease Funds", as in
method may not be easiest to tackle. California, are available for park and open
Special or benefit assessments. This involves space programs.
the determination of special benefits to abutting In Pennsylvania, for example, the Depart-
owners, and the levy of assessments com- ment of Forests and Waters got the legislature
mensurate therewith. Under the laws of many
states, a sItipulated percentage of the landown- to set up an "Oil and Gas Lease Fund", and
ers must consent to the levy, and without fur- stipulate that all the royalties from state-
ther promotion it may be impossible to convince owned gas and oil lands (now about $4 million
annuall ) were to be used by the Department
the requisite number of owners that they will y
benefit to any appreciable degree from the of Forests and Waters. In this little gem of a
provision of open space. Moreover, if eminent bill, the purposes were defined simply-and
domain is to be used, the money will be taken very broadly: ". . . for conservation, recrea-
out of the pockets of some owners and put right tion, dams, or flood control, or to match any
back in when development rights are pur- Federal grants which may be made for the
chased or condemned. In any event, the aforementioned purposes." It should be noted
incidence of the benefits are likely to be so that though the determination of the projects
broadly diffused that the equity of this financial is up to the head of the department, continued
device may be seriously questioned. legislative support is vital; a disgruntled legis-

48 U. L. 1. TECHNICAL BULLETIN NO. 36

lature can easily reduce the department's used, under which more land than is needed or
regular appropriation. provided for could be acquired for open spaces,
Land acquisition funds already established- with the idea that some of the total could be
state, county, or township-could easily be resold later on, with appropriate restrictions
adopted to purchase of conservation easements. protecting the remainders, and with some re-
In San Mateo County, California, for example, coupment objectives in mind. While this
the county charter adopted in 1932 set up a concept has not enjoyed a very enthusiastic
land acquisition fund; by this the county reception by either state legislatures or the
officials were able to acquire over the years courts, it has some possibilities, if cleverly put
many tracts, and without having to go to the together, for open space acquisition. Inciden-
voters for special appropriations. When the tally, eleven state constitutions already author-
charter was established, it specifically provided ize excess condemnation for limited purposes.
that easements and rights in land could be pur- General obligation bonds. These instruments
chased as well as land in fee simple. may be authorized for open space uses and the
Installment plan financing. Another device general faith and credit of the state are pledged
which may offer promise, especially now that to pay the interest charges and eventually
the demands on the tax and public dollar are repay the principal investment. Some states
so great, is a plan to finance open space have constitutional restrictions on the total
acquisition or reservation on the installment amount of debt that can be so created. Accord-
plan. If a modest appropriation is made avail- ingly, it may be unavailable for this purpose in
able annually, the sum could be spread over a every state, even if the legislature were willing
much larger area than otherwise, if the in- to authorize it.
stallment. basis is used. Not only is the idea Miscellaneous. There are other methods of
practicable from the public point of view, but financing, of course. These might include
the landowners involved might find the tax revenue bond financing; but this, by definition,
implications entirely to their advantage, if would be almost impossible, because there
they were enabled to report gains-as they would be little or no revenue that investors
most frequently would be-on the installment could hope to look for from the open spaces,
basis, over a period of years; their taxes- unless recreation objectives were implemented
capital gain, income, or what have you- at the same time, or concessions were involved
would be at a minimum. Moreover, the pro- from which some current income could be
vision of the investment, from a public point derived.
of view, would be more consistent if done in Federal participation. An interesting prec-
installments, with the rate of benefit the public edent for a Federal grant and loan program
derived from open spaces. This scheme has a for local jurisdictions is provided by the work-
lot of interesting possibilities. (Note: The ings of the 1929 Capper-Crampton Act for
lease-lend concept which the Federal govern- parkways and parks in the National Capital
ment has used in the provision of public build- area. Among other things, for the purchase
ings is somewhat akin to this.) of stream valley parks in Maryland and
Revolving fund and excess condemnation Virginia it set up $3 million for loans, and $1.5
concept. The acquisition of open spaces is bound million for grants (to be matched $2 for $1 by
to result in investments that grow in their local jurisdictions).
capital elements. This means that if, in a par- Despite the fact that the acquisitions have
ticular instance, it is possible to acquire, let saved many hundreds of acres and have in-
us say, 500 acres at a given price, five years creased overall values enormously, Congress
later it may be possible to sell off, say, 100 seems restive over the idea of the Federal
acres at a handsome profit; the resources so government spending money for park land in
provided could be used to buy open spaces else- local jurisdictions. As a possible nex@ tack, the
where, etc. A given annual appropriation for National Capital Planning Commission has
open spaces, accordingly, could assume the been considering the merits of a Federal loan
character of a revolving fund, which is de- program to local governments. Writes the
pleted and restored over a succession of years. Commission's director, W. E. Finley: "A park
Or the excess or marginal land idea could be authority, city or county, could buy open space

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 49

now and repay the cost over a 15 or 20-year facilities as sewage disposal plants, water
period . . . It occurs to me that this experi- systems, etc. There are even outright grants
mental approach might be tried where we have in some fields and the Community Facilities
some precedent and might in a few years be Administration of the HHFA lends money for
broadened into a nationwide one. Cities and
counties and single purpose authorities now are all kinds of public works . . . So the pattern
able to borrow (Federal) money for such of such a program is already well established."

so U. L. 1. TECHNICAL BULLETIN NO. 36

SECTION TEN: THE AGENCIES

Who's to be in charge? There are many until very recently. Now the cycle seems to be
kinds of agencies, existing or potential, which coming round again and there is a notable rise
could handle the program, and since so much of citizen interest in the planning commissions'
depends on the political realities from state to open space programs.
state, it would be foolhardy to suggest there Which brings us to the knotty governmental
is any one "right" approach. In dealing with problem of City vs. Suburbia. The suburbs
.enabling legislation, we will speak of several which are rousing themselves to action are
specific administrative set-ups, but this is doing it, in most cases, with no idea in mind of
meant only for example. The goal of this helping solve the metropolitan area's open
section, simply, is to suggest the range of pos- space problem. Quite the contrary; the
sibilities and certain legislative proposals that citizenry's impulses are frankly protectionist.
would buttress them, whichever approach were They want to save their areas from the city,
used. or, more accurately, from city people. They
Local agencies: The most obvious starting wish to the devil they'd go somewhere else to
point is local government, boroughs and cities, live. More immediately, they wish they'd go
townships and counties. It is surprising how somewhere else to play.
much authority many of these governments This protectionism does have the good effect
have already been given-and how little some of driving people to support plans they should
of them recognize the fact. In some areas, long ago have supported, and perhaps for
local governments have full authority for better reasons. But it also can have a very
purchase of rights in land as well as the fee inhibiting effect. One of the deepest fears of
simple for such purposes as open space con- Suburbia about park and open space plans is
servation; some have funds available for this, rarely voiced out loud, but it is quite power-
and, in a very few cases, some have had the ful: Fear of attracting the city's poor. Talk
will and energy to actually use them for this to many a county politician, and after giving
purpose. you all sorts of reasons for delay on land
As far back as 1932, San Mateo County, acquisition, he may blurt out what's really on
California, incorporated in its charter a pro- his mind. If they get these open spaces, his
vision for a land acquisition fund "which shall constituents contend, he says, that it'll just
be used solely for the purchase of land, rights bring out all the "wrong" people. This fear,
of way, easements and rights in land, as recom- or rationalization, is found in semi-rural areas
mended by the Master Plan." Under this almost as much as in suburbs next to the city,
provision much park land was bought in the and it is a problem that is going to be a tough
thirties; the easement device was never one to deal with for a long time to come-"
applied, for there seemed no need for it. Today, There are many other suburban-city conflicts
however, there is: the county's new master of interests that do not make for easy action
plan proposal includes a series of "finger on open soace, and despite the city's great
parks" along streams and canyons, and recom- equity in the surrounding area, few have the
mends the use of easements as a complemen- machinery for a regional attack on the prob-
tary way of conserving buffer areas and scenic lem. Indianapolis, through its Metropolitan
lands. The authority, in short, exists, and so Planning Commission, which has jurisdiction
does the plan; political support is the crux. over a considerable area around the city, has
Characteristically, the local governments
which have done the most in land acquisition 38 It would be much better if the matter were
are found in the earlier settled, relatively openly stated, for then rational argument could be
well-to-do suburban areas; Westchester County, used, but communities are offended if it is brought
up. In one meeting with officials and citizens of a
New York, is a conspicuous example. Their large urban county, I cited th@ fear of a negro "inva-
open spaces, it should be noted, are largely the sion" as one of the main problems that ought to be
discussed; individually, all I had spoken to had
heritage of a boldness exhibited quite some brought it up (not that they shared the fear, under-
years ago, for common to most of these areas stand, but you know how people are). As a group,
they were very annoyed that it was cited. It was in
has been a comparative public complacency very bad taste, I was told.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 51

had some success in securing open land; such tackling the flood problem, they set aside great
examples, however, are few. Many planners tracts of land for recreation, and the result is
feel this is the root difficulty, and they argue a measurably better standard of living for the
that without a regional body, or, preferably, people of the area. The famous Forest
a metropolitan government, it is futile to tackle Preserve District, Cook County, Illinois, is
open space conservation through local govern- another fine example. In this case the land-
ments. Open space, it is further argued, is owners of the District coincide with a political
only one of many interrelated problems, and boundary. But both Districts have in common
to tackle it except as part of a broad scale a firm base of local support.
approach on all the other ones would be hope- Before going on to the problem of basic
lessly piecemeal. The effort, furthermore, enabling legislation, let us note a few of the
would divert energies that more properly ways the state itself can take the initiative. In
should be focussed on getting a metropolitan many states there are long established means
approach. for getting an open space program going. Offi-
This big picture view has much to commend cials tend to suffer from the historic rural bias
it, but it can also be enervating. There should of state governments. State park commissions,
be no antithesis in working for the long-range for example, have an understandable tendency
regional approach and at the same time getting to by-pass the thorny job of acquiring land in
something done on the spot, now. As far as high-priced metropolitan areas and tend to
selection of land goes, the danger that com- concentrate on the more easily assembled
munities will secure too much land too soon tracts of rural areas. It might also be noted
does not seem a pressing one. Nor is the that in many cases the governments within
selection likely to be in conflict with metro- metropolitan areas have not shown much dis-
politan needs; whatever the motives of the position to work effectively for a common
communities involved, the chances are rather effort with the state agency. Nevertheless,
strong that the land secured would be land these agencies have the machinery, and with
marked on any plan, regional or otherwise, as intelligent political pressure from within the
top priority.311 metropolis, a good bit of advance land acquisi-
This point made, it must be said that though tion could be achieved fairly soon.
communities can take first steps, there can be In Pennsylvania, for example, the Depart-
no large-scale open space program unless there ment of Forests and Waters could be an
is a cooperative regional effort, whatever the excellent vehicle, and its work could greatly
mechanics. And this means that the role of complement a regional planning effort. The
state government is critical. The communities Department has very broad powers, and it also
are its creatures; it has the power of eminent has a sizable annual fund with which it can
domain; its tax powers, direct or bestowed, secure land for purposes related to conserva-
provide one of the best ways of fairly appor- tion. In 1955, in a splendid bill, it got from the
tioning the costs. The state may pass on its legislature an ever-replenished fund consisting
powers to local agencies; it may create new of all the oil and gas royalties from state-
ones; it may execute and administer an open owned land; currently, this provides about
space program directly-in any event, for the $4.5 million a year, and thanks to the felicitous
long pull good state legislation is a must. wording of the act, the money can be used for
An excellent example of special districts are just about anything the Secretary of Forests
the Ohio Conservancy Districts. These were and Waters thinks it should be used for.40
set up originally as the result of common pro- State legislature, of course, have a habit of
tective efforts by flood-orone communities. taking away with one hand what they give
Today, the districts are full-scale enterprises with the other, and can offset the fund with a
that have more than paid for themselves. In cut in the regular appropriation. Com-

390ver the past three decades there have been a 4011... which funds shall be exclusively used for
succession of studies of the Philadelphia metropolitan conservation, recreation, dams or flood control or to
area's open space needs. Put all the maps on top match any Federal grants which may be made for
of each other and you'll see pretty much the same any of the aforementioned purposes." Section 1: Act
areas marked. on each. Stream valleys, in particular, 256. Commonwealth of Pennsylvania: Dec. 15, 1955.
are earmarked as reservations. See Appendix F.

52 U. L. I. TECHNICAL BULLETIN NO. 36

munities which would like some of the oil and other special purpose authorities and commis-
gas fund money would have to go to bat in sions which could purchase easements in con-
support of the department's regular appropria- nection with their regular programs. Water
tion, but this seems a fair quid pro quo. As in authorities, for example, could use easements
California, which has a similar fund, the money to keep important ground water recharge
may not be anywhere near the amount desir- areas in farming, forest cover, or marshland;
able, but it has the considerable advantage of watershed districts could use them so that low-
being available now. lands could be conserved for their natural
A state program would have to be jointly function of flood water storage; state game and
planned with the communities involved. Dr. fish departments could use them to insure an
Maurice Goddard, the Secretary of Forests area's remaining in good condition for game
and Waters, Commonwealth of Pennsylvania, and available for public hunting (for this
would insist that no easements would be purpose they should be able to use the arms
acquired for open space conservation unless and ammunition tax money given the states
the community wanted such a program in its by the Federal government under the Pittman-
area. The necessary joint planning should be Robinson Act).
done with regional agencies or districts, rather
than with the separate governments within Private agencies can also play an important
it. In most areas, unfortunately, effective role. They are no substitute for a public
regional agencies remain on paper, and there agency, but in the initial stages they can per-
would be no action at all if the program bad form an essential function; if their charters
to await their birth and maturation. Some- are broad enough and they rate tax exemption,
body has to negotiate the easements, to hold they can, on their own, purchase land and
them, and to enforce them. The state govern- easements, receive gifts, and until such time
ment can go ahead on this, and while it may as there is an effective public agency, hold title
eventually be better to vest the easements in to the deeds. From such an effort, indeed, may
special districts or regional authorities, it come the public program.
would help if somebody took the first steps. For a precedent, consider the chain of con-
The great value of a state program, it seems sequences started by the Trustees of Reserva-
to this writer, is the pressure of immediacy it tion in Massachusetts. This was set up in
could apply to communities; until somebody 1891 by a group of citizens (themselves mem-
with the authority makes a specifle move, open bers of yet another group, the Appalachian
space plans will tend to remain abstractions. Mountain Club). Supported by private sub-
But there is nothing like the imminence of scription, the Trustees secured full title to
action (and/or funds), as the highway program many historic or scenic areas, some by pur-
has often Droved, to stir communities to long- chase, most by gift. By 1957 they had
deferred thinking, and sometimes, cooperation accumulated some 4,355 acres; they had also
with other communities. They have to make been active in securing some prime park land
up their minds; do they want to take advantage and holding it until the state would accept it
of the chance off ered them to save open (notably, the 2,000 acres of dune land on the
spaces? Which ones? Why? What about the tip of Cape Cod, which was sewed up in 1893).
invasion of subdividers? What about the But most important was the legislation they
valley that runs through the next county? inspired. Soon after they were formed, they
These are tough questions, and the citizenry helped push through the legislature the act
won't face them unless there is an issue. For setting up the Metropolitan District Commis-
the citizen, I suggest, the issue will not be an sion which put together Boston's fine park
abstract one of regional planning; it will have system. More lately, they lobbied successfully
to be immediate and tangible. for the "Bay Circuit" act; the actual greenbelt
So far, we have been talking of governments, envisaged is more a promise than a reality at
but there are many special purpose bodies present, but the enabling legislation provides
which could act also. Park commissions are a magnificent tool. See Appendix H. (The
the most obvious vehicle, but there are many Trustees also provided the model for Britain's

SECURING OPEN SPACE FOR URBAN. AMERICA: CONSERVATION EASEMENTS 53

National Trust, and this, in turn, inspired the Department of Agriculture, the Bureau 'of
creation of our own National Trust. )41 Public Roads, the Sewage Treatment Plant
There are organizations set up for the Program under Public Law 660,, the National
express purpose of showing local communities Park Service, the armed services' various land-
how they can set' up their own programs. buying activities-is to suggest the scope of
Nature Centers for Young America, Inc., is an the problem, and many pages could be filled
excellent example. Based in New York, it does with examples of how one activity can cancel
not use its endowment money for land pur- out another. How to resolve the conflicts? The
chase, but rather to support the work of writer detests studies which conclude by ask-
Director John Ripley Forbes and his staff in ing for more studies, but on this particular
stimulating local groups and leading them problem he throws in the towel; we certainly
through the legal maze of getting nature need a lot of study on this one.
preserves set up. The work of Richard Pough Question: how can the Federal government's
of the Natural Area Council is another agencies, existing and new, support an open
example; again, the emphasis is on showing space program for metropolitan areas?42 Should
citizen groups what kind of machinery can there be a coordinating agency? Special legis-
work best-and how many more gifts of land lation? Such questions will be difficult to an-
can be stimulated than most people realize. swer; they will be impossible unless there is an
open space program to be coordinated with.
What about the Federal government? It is This is the vital part of the equation. The bur-
difficult to see, let alone anticipate the possibili,- den of getting Federal support, in shortj rests
ties of the Federal government being the prime to a very large degree on the states and the
mover in an open - space program for our communities within them.
metropolitan areas. In a negative, as well as
a positive sense, however, the many Federal 42 One suggestion: The National Park Service has
programs affecting land will have a great im- used easements to complement its parkways. Could
pact on local open spaces, and some kind of not Congress extend the principle to -protect scenic
and historic areas that should be kept. "alive" rather
coordination is desperately needed. Merely to than made into a conventional park? Cape Cod is
name some Of the Federal programs-the an urgent case in point: the Great Beach, as several
bills propose, should certainly be secured as a park
for it will be desecrated if it is not. But what about
41 A 'Smaller, but spirited, effort is that of the Sud- the nearby' towns? There is an understandable
bury Valley Trustees Inc. In 1953, a group of citizens furor among residents of Wellfleet and Truro over the
in Wayland, a Boston suburb, got a charter from the prospect that many properties.will be declared within
state enabling them to secure land for conservation the proposed park. Would not use of easements
purposes. Two years later the U. S. Internal Revenue temper the conflict? Fee simple should be used for
Service, which does not move with blinding speed the beaches and the dune areas, but many adjacent
on such matters, certified that gifts to the Trustees areas could be conserved by securing easements. The
would be deductible. The group still had. rough charm of the lower Cape lies in lived-in-houses as
going: It wanted to save swamp land as well as well as in the dunes. Quite aside from the feeling
hills and ponds, and local people had to be sold hard of local property owners, the public-at-large would
on the idea that wetlands are w6rth saving. In the be well served by a park plan which, with suitable
first fund-raising campaign they pled for money to restrictions, allowed people to go on living in the
buy a piece of ground a developer had plans for. area around. As one who spent his boyhood sum-
In several months they raised $7,500. Since then mers making bad maps of,_the paths around Gull
they've successfully persuaded a number of owners and Great Ponds and Cahoon's Hollow, the writer
to give land free. All in. all, they now have 400 can assert that, save for the dunes, most of the area
acres, which is pretty good for a small suburb. would be pretty nondescript without the houses.

54 U. L. I. TECHNICAL BULLETIN NO. 36

SECTION ELEVEN: LEGISLATION

Is legislation necessary? In many states tives, says is a public benefit. It cannot be by-
authority already exists for the purchase of passed, and the sooner, and more forcibly, the
easements for open space conservation. It matter is taken to the public, the better.
would also seem obvious that local govern- Speaking personally, I don't think public "edu-
ments empowered to buy the fee simple for cation" is the answer; innocuous campaigns to
public land uses should be able to buy less than enlist people for abstract good draw out the
the fee simple as well, and in theory, at any same well-meaning people time after time, pro-
rate, further legislation would be somewhat duce unexceptionable resolutions and the like,
redundant. but the people with power, save for honorary
Nevertheless, most people who are working appearances, remain uninvolved. This problem
for an open space program feel strongly that, needs closure, the discipline of having to amass
legislation should be sought. The particular a brief for legislative committees, the necessity
machinery provided by the legislation is not of rousing support and asking people to stand
the crux; from state to state the possible varia- and be counted. For effective public "educa-
tions are many. What is important is a clear tion," there is no substitute for a good old-
statement by the legislature that open space is fashioned fight. And the obstacles may prove
a public benefit. This may seem only a nice far less imposing than many people now sup-
preamble to the guts of a bill, but it is the vital pose.
part. Many subsequent court decisions may When this report. was first written, there
hinge on it. were only proposed bills. Now there is an Act.
Even without it, many courts would undoubt- The history of it is instructive.
edly approve open space conservation as a On May 4th, Senator Fred Farr of Monterey
valid purpose for the expenditure of funds and County, California, introduced a bill into the
for eminent domain, but to leave the matter legislative hopper in Sacramento. It was a
there to rest is an unnecessarily large burden modest one, but it was the last day any bill
on the courts. With a clear. legislative state- could be introduced and the legislature would
ment, however, the courts are more likely to soon adjourn for two years. The object, sim-
accept open .space conservation as a valid pub- ply, was to have an enabling act that -would
lic purpose. The statement, furthermore, would allow Monterey County and its cities to acquire
remove much of the hesitancy many public offi- open space easements. Thanks to the efforts of
cials feel about using their authority to buy leading citizens, a campaign was getting under
easements. They know well that purchase of way to solicit gifts of easements and money to
land for parks is a public purpose, but they buy more. In Pennsylvania, at the behest of
argue that buying rights in land which the Lower Merion Township, a similar bill had just
public will not necessarily set foot on may not been introduced.in the legislature; this sug-
be approved as a public purpose. In more cases gested to the Monterey people that while legis-
than not this point is raised only as one more lation might not be needed, it would be very
excuse for inaction, but at the very least a leg- helpful to have it. And good if Monterey
islative statement would remove an alibi. County were first.
In seeking legislation, it is true, a hornet's Over the next few weeks,Farr and planner
nest may be opened. Under existing statutes, William Lipman of the State's Finance. Depart-
much open space could be conserved now, ment went to work improving the bill. After
quietly, and a full scale debate, with cries of some forced draft study, they expanded the
"socialism," and the like, might well endanger section on legislative intent, phrased a clear
present, more modest efforts. This is indeed a definition of what the easements would pro-
danger, yet the postponement of the inevitable vide, and, for good measure, tucked in a pro-
debate is a much greater danger. To return to vision for public purchase of the full fee and
the basic premise of this report: An open space subsequent leaseback to private owners, sub-
program must be sought as a public benefit, ject to open space restrictions.
and the essence of the law is that a public ben- When the bill was referred to the Senate's
efit is what the public, through its representa- Judiciary Committee, it came in for trouble.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 55

There was no great antagonism to the idea of purpose of illustrating some of the general
the bill but there was considerable unfamiliar- legal questions that must be faced.
ity with the easement device, and in short or-
der the bill was amended into a very frail vehi- In drafting enabling legislation, the follow-
cle indeed;- among other things, it was made to ing points will have to be noted:
apply only to Monterey County, and not all of . (1) Public use or purpose: That the taking
it either. of protection easements for open space reser-
The limited bill would undoubtedly pass. vations is a taking for a public use will have
Should they take half a loaf, or try again? to be established. The taking of protective
Farr decided to go for broke. As the legisla- easements for highway purposes, for parkway
ture was about to close up shop, he introduced purposes, and to protect other kinds of public
the previous, unamended version. The timing improvements have been sustained by the
was fortuitous; there was also a feeling among courts. Presuming an adequate presentation
many of the legislators that "it's Fred's turn court, little difficulty should be encountered
now'@-a bill for billboard control he had earlier on this point.
pushed had been narrowly beaten, and there
was so .me contrition about it. (2) Authority to undertake the program: In
On June 17th the Assembly, by unanimous general, there must be either express or im-
vote, ap.proved the bill. The next day the Sen- plied authority to take property or interests in
ate did so, too, by unanimous vote. On July property for this purpose. It would be much
7th, the Governor signed the bill. safer (from a legal point of view) if the au-
Like the bill originated by Pennsylvania's thority is express, particularly if the power of
condemnation is to be exercised. A general
Lower Merion Township, the California Act rule of law is that the power of eminent do-
does not provide for eminent domain; the feel-
ing of its proponents being, that hurdle can main is seldom implied. The enabling act must
come later. As a first step, however, the Act be so written that all of its major elements are
is of great significance. For the first time, a clearly and adequately spelled out. A well
legislature has clearly defined open space con- written, broadly conceived act is the best* in-
servation as a valid public purpose, and in surance against legal difficulties on this point.
comprehensive terms. Definition of the tools- (3) Payment of just compensation: In the
whether easements, purchase, or purchase and acquisition of conservation easements, the
leaseback-is in this respect a secondary con- established ruIL-s of just compensation must be
sideration. Whatever framework other bills adhered to, and the current market value of
the rights sought to be acquired must be of-
may have, their authors can profit greatly from fered by the condemnor of the rights. This
the California Act's statement of intent, and does not have to be delineated in the bill, but
they might do well to swipe it word for word. before the first court test, supporters of the
Eventually, eminent domain will be neces- program should be ready with a thorough re-
sary, and so will involvement of the state's port on the effe .ct easement .s have on land
money and help. In the appendices (see Ap- values.
pendix B) is a proposed bill providing for emi-
nent domain and the machinery for securing (4) Stewardship of the development rights:
easements. It was tailored to the specific needs The enabling act should spell out a public and
of Pennsylvania, but the main intent was to get legslative policy with respect to the govern-
some kind of model down on paper. The mental body which will hold the easements.
writer, who worked up the bill in collabora- This will be a continuing and sometimes vexa-
tion with a top authority on eminent domain tious responsibility, because of the constant
(who, unfortunately because of his official posi- pressures that inevitably will be brought to
tion, must remain unnamed) is sure better bills bear against the continuation of the open space
could be'drafted; for one thing, the statement areas. Consistent with the enabling act, how-
of legislative intent is inferior to that in the ever, the public body must be given enough
California Act, and the latter could be substi- leeway to meet new conditions as they arise.
tuted for it to good effect. But it is something (5) Offenses and penalty provisions: -VioIa-
to shoot at, and in this report can serve the tions of the integrity of the open space reser-

56 U. L. 1. TECHNICAL BULLETIN NO. 36

vations should be specifically spelled out in the space reservations, their financing, acquisitioa,
statute, and appropriate penalties provided for. management, policing, the avoidance of conflict-
These constitute the only effective means of ing exercises of eminent domain by other agen-
enforcing the open space reservations. The na- cies-the Highway Department, for instance.
ture of the offenses and the penalties must both It would be of the utmost importance that,
be reasonable in scopt@ if they are to be sus- for the first legal challenge of a program, a
tained by the courts. thorough legal and economic analysis and pres-
(6) Intergovernmental relationships: If the entation should be made. for court purposes,
program involves more than one governmental lest any lesser effort result in an adverse find-
jurisdiction, the intergovernmental relation- ing by the judiciary. A "Brandeis" type of
ships should be appropriately spelled out in the brief, with a full analysis of existing legal au-
statute, in general terms; the execution of this thorities directly in point as well as those ap-
aspect of the program must jibe with the exist- plicable by analogy, should be contemplated,
ing body of law relating to the several juris- with an ample documentation of the economic
dictions involved. The interrelationship ques- and social implications of an adequate program
tions would involve joint planning for open. of open space reservations.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 57

APPENDIX A

PURCHASE OF INTERESTS AND RIGHTS IN REAL PROPERTY
(State of California)

CHAPTER 1658, STATUTES, 1959 ing or leasing said property back to its original
owner or other person under such covenants or other
An act to add Chapter 12 (commencing at Section contractual arrangements as will limit the future use
6950) to Division 7 of Title 1 of the Government of the property in accordance with the purposes of
Code, relating to the purchase of interests in real this chapter.
property by counties and cities and to the preser-
vation of open spaces and areas for public use and 6954. For the purposes of this chapter an "open
enjoyment. space" or "open area" is any space or area character-
ized by (1) great natural scenic beauty or (2) whose
The people of the State of California do enact as existing openness, natural condition, or present state
follows: ' of use, if retained, would enhance the present or
SECTION 1. Chapter 12 (commencing at Section potential value of abutting or surrounding urban de-
6950) is added to Division 7 of Title 1 of the Gov- velopment, or would maintain or enhance the con-
ernment Code, to read: servation of natural or scenic resources.

CHAPTER 12. PURCHASE OF INTERESTS AND
RicHTs IN REAL PROPERTY

6950. It is the intent of the Legislature in enacting The following ruling by legislative counsel of the
this chapter to provide a means whereby any county State of California is so important that it is repro-
or city may acquire, by purchase, gift, grant, bequest, duced here verbatim. This ruling so buttresses what
devise, lease or otherwise, and through the expendi- might seem otherwise to be only a hope. It relates
ture of public funds, the fee or any lesser interest or to the point made earlier in this report that an ease-
right in real property in order to preserve, through ment would protect an owner from having his land
limitation of their future use, open spaces and areas taxed as its subdivision potential.
for public use and enjoyment.
6951. The Legislature finds that the rapid growth State of California
and spread of urban development is encroaching Office of Legislative Counsel -
upon, or eliminating, many open areas and spaces
of varied size and character, including many having 3021 State Capitol. Sacramento 14
significant scenic or esthetic values, which areas and 311 State Building. Lo-; Angeles 12
spaces if preserved and maintained in'their present
open state would constitute important physical, social, Sacramento, California
esthetic or economic assets to existing or impending October 15, 1959
urban and metropolitan development. Honorable Fred S. Farr
6952. The Legislature hereby declares that it is Box 3305
necessary for sound and proper urban and metro- Carmel, California
politan development, and in the public interest of
the people of this State for any county or city to "Scenic View" Property-=674
expend 'or advance public funds for, or to accept by, Dear Senator Farr:
purchase, gift, grant, bequest, devise, lease or other- Question
wise, the fee or any lesser interest or right in real
property to acquire, maintain, improve, protect, limit You ask whether the State or local governmental
the future use of or otherwise conserve open spaces agencies may acquire "scenic v;ew" property and
and areas within their respective jurisdictions. lease it back to the person from whom it was
acquired on an assignable lease basis, with a provi-
6953. The Legislature further declares that the ac- sion that the lease is terminable if any attempt is
quisition of interests or rights in real property for the made to use the property for any purpose other than
preservation of open spaces and areas constitutes a farming that will not impair the view.
public purpose for which public funds may be ex-
pended or advanced, and that any county or city may Opinion and Analysis
acquire, by purchase, gift, grant, bequest, devise,
lease or otherwise, the fee or any lesser interest, We are unaware of any provision in the law under
development right, easement, covenant or other con- which the State may acquire "scenic view" property.
tractual right necessary to achieve the purposes of Such property may, however, be acquired by coun-
this chapter. Any county or city may also acquire ties and cities (Stats. 1959, Ch. 1658; Senate Bill No.
the fee to any property for the purpose of convey- 1461 of the 1959 Session; Gov. -C. Sees. 6950-6954).

58 U. L. 1. TECHNICAL BULLETIN NO. 36

Furthermore, the law contains this provision (Gov. it back to the person from whom it was acquired on
C. Sec. 6953): an assignable lease basis, subject to the condition
that the lease is to terminate if any attempt is made
... Amy county or city may also acquire the to use the property for any purpose other than farm-
fee to any property for the purpose of conveying ing that will not impair the view.
or leasing said property back to its original owner
or other person under such covenants or other Very truly yours,
contractual arrangements as will limit the future RALPH N. KLEPS
use of the property in accordance with the pur- Legislative Counsel
poses of this chapter" (i.e., the chapter contain-
ing Gov. C. Sees. 6950-6954). By sl J. GoULD
J. Gould
We believe that this provision authorizes a county Deputy Legislative Counsel
or city to acquire "scenic view" property and lease JG: 1z

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 59

APPENDIX B

A PROPOSED BILL ON CONSERVATION EASEMENTS
(Commonwealth of Pennsylvania)

An ACT to enable the Department of Forests and Section 4-Acquisition of Conservation Easements:
Waters (Pennsylvania) to acquire easements The Secretary of Forests and Waters may acquire, in
for the conservation of open spaces; and for the name of the Commonwealth, conservation ease-
other purposes. ments in private or public property, by gift, devise,
Section 1-Statement of Legislative Purpose: The purchase, or condemnation in the same manner as
the State and its agencies are now or hereafter may
Legislature hereby finds, determines, and declares be authorized by law to acquire property or inter-
that it is in the public interest to conserve key tracts ests in property for conservation, recreation, dam,
of open countryside in its natural state to facilitate or flood control purposes. All property rights ac-
the protection of natural streams, flood control, soil quired under the provisions of this Act shall be
conservation, preservation of amenities generally. It deemed to be in the nature of easements that "run
could also supplement, in the public interest, pro- with the land."
grams involving public parks, forests, reservoirs, wild
life preserves, and other public properties and reser- Section 5-Tax Policy: It is the intention of the
vations. This Act is declared to be necessary for the Legislature that property covered by conservation
preservation of the public peace, health, and safety, easements be assessed on the basis of fair market
and for the promotion of the general welfare. value. For purposes of local taxation, accordingly,
assessments made on such property should reflect the
Section 2@Definition of Conservation Easements: fact the property is not available for tract housing
For purposes of this Act, conservation easements are or commercial development. Conservation easement
defined as an aggregation of easements in perpetuity rights, as such, shall no longer be the object of local
designed to preserve in their natural state lands of property taxation, anymore than other property
cultural, scenic, historic, or other public significance. which has been publicly acquired.
Such easements could include restrictions against
erecting buildings or other structures; constructing Section 6-Unlawful Use of Conservation Easement
or altering private roads or drives; removal or Areas: It is unlawful for any person to exercise any
destruction of trees, shrubs or other greenery; chang- of the conservation easement rights in conservation
ing existing uses; altering public utility facilities; easement areas after the Department of Forests and
displaying of any form of outdoor advertising; dump- Waters has duly acquired such rights, as indicated in
ing of trash, wastes, or unsightly or offensive mate- Section 4 of this act. Any person who violates any
rials; changing any features of the natural land- of the provisions of this act by the erection of struc-
scape; and any changes detrimental to existing drain- tures in the conservation easement areas or by per-
age, flood control, erosion control, or soil conserva- forming any other act contrary to this act or the
tion; any other activities inconsistent with the con- rules and regulations promulgated by the Depart-
servation of open spaces in the public interest. ment of Forests and Waters, shall be deemed to have
Conservation easements will permit all present nor- created a nuisance, subject to public abatement with-
mal and reasonable uses, not conflicting with the out any compensation whatsoever. Any other en-
purposes indicated above, to be engaged in by the forcement powers now lodged with the Department
landowners, their heirs, successors and assigns. of Forests and Waters with respect to any kind of
facility or activity under its jurisdiction shall be
Section 3-Authority to Designate and Acquire available to the Department in conservation easement
Conservation Easements: The Secretary of Forests areas for purposes of this act.
and Waters, acting alone or in cooperation with any
Federal, State, or local agency, is hereby authorized Section 7-Severability: If any section, provision,
to plan, designate, acquire, and maintain conserva- or clause of this act shall be declared invalid or in-
tion easements in appropriate areas wherever and applicable to any persons or circumstance, such in-
to the extent that the Secretary is of the opinion that validity or inapplicability shall not be construed to
the same will be in the public interest, by serving the affect the portion not so held or persons or circum-
objectives of this act, indicated in Section 1 of this stances not so affected. All laws or portions of laws
Act. The Secretary is authorized to issue appro- inconsistent with the policy and provisions of this
priate rules and regulations governing the care, use act are hereby repealed to the extent of such in-
and management of areas where conservation ease- consistency in its application to conservation ease-
ments have been acquired. ments provided for in this act.

U.L.I. TECHNICAL BULLETIN NO. 36

APPENDIX C

SCENIC EASEMENT DEED*
(State of California)
*Approved as to form interest, easement and servitude will result from the
by Attorney General restrictions hereby imposed upon the use of said
October 23, 1946 property of said Grantors, and to that end and for
the purpose of accomplishing the intent of the parties
THis INDENTURE, made this 'day of hereto said Grantors covenant on behalf of them-
, 194 , by and between selves, their heirs, successors and assigns, with the
as Grantors and State of California, Grantee, said Grantee, its successors and assigns to do and
refrain from doing, severally and collectively, upon
WITNESSETH: the Grantor's said property, the various acts herein-
WHEREAS, the said Grantors, are the owners in fee after mentioned it being hereby agreed and expressed
of the real property, hereinafter described, situate in that the doing and the refraining from said acts,
Tuolumne County, California, in the Town of Colum- and each thereof, upon said property is and will be
bia, and within the boundaries of the proposed Town for the benefit of the said State Park hereinbefore
of Columbia State Park; and mentioned, of the State of California, and will help
preserve the Town of Columbia as a Historic Site.
WHEREAS, the said State of California owns certain The restrictions hereby impose upon the use of said
real property adjoining the said property of the said property of the Grantors, and the acts which said
Grantors, or adjacent thereto, which property con- Grantors so covenant to do and refrain from doing
stitutes a portion of Town of Columbia State Park, upon their said property in connection therewith are
and which park is a part of the State Park System of and shall be as follows:
the State of California; and
WHEREAS, the State Park Commission of California 1. That no structures of any kind will be placed
has determined that the greatest use and benefit to or erected upon said described premises until appli-
cation therefor, with plans and specifications of such
be derived from said State Park by the people of the structures, together with a statement of the purpose
,State of California is through the maintenance and for which the structure will be used, has been filed
preservation of said State Park and the surrounding with and written approval obtained from the said
area in its present natural state of scenic and his- State Park Commission;
torical attractiveness; and
WHEREAS, the said land of said Grantors likewise 2. That no advertising of any kind or nature shall
has certain attractive scenic features; and be located on or within said property without written
approval being first obtained from the State Park
WHEREAS, it has been determined by the said State Commission;
Park Commission of California that the preservation
and conservation of the scenic and historical area 3. That no painting or exterior surfacing which, in
adjacent to lands owned by the State in the park and the opinion and judgment of the said State Park
the securing, by the State, of a scenic easement, over, Commission, are inharmonious with the landscape
across and upon the said lands of the said Grantors and general surroundings, shall be used on the ex-
is necessary to the extension and development of terior of any structures now located. on such prop-
said State Park System; and erty, or which may, is hereinbefore provided be
constructed thereon;
WHEREAS, the said Grantors are willing, for the 4. That no structual changes or additions shall be
consideration hereinafter named, to grant to the made to any of the buildings on said property until
State of California the scenic use as hereinafter ex-
an application therefor has been made to and written
pressed of their said land and thereby the protection approval thereof obtained from said State Park
to the present scenic attractiveness of said area which Commission;
will result in the restricted use and enjoyment by the
Grantors of their said property because of the im- 5. That all new plantings by the Grantors shall
position of the conditions in connection therewith be confined to native plants characteristic of the
hereinafter expressed; Columbia State Park region, except flowers, vege-
Now THEREFORE, for and in consideration of the tables, berries, fruit trees and farm crops;
premises and the sum of One Dollar to the Grantors . 6. That .the general topography of the landscape
in hand paid, the receipt whereof is hereby acknowl- shall be maintained in its present condition and that
edged, said Grantors do hereby grant and convey no excavation or topographic changes shall be made
unto the State of California, an estate, interest and without the written approval of the State Park
scenic easement in'said real estate of said Grantors, Commission;
of the nature and character and to the extent herein-
after expressed to be and to constitute a servitude 7. That no use of said. described property, which,
upon said real estate of the Grantors, which estate, in the opinion and judgment of said State Park

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 61

Commission, will or does materially alter the land-
scape or other attractive scenic features of said land, STATE OF CALIFORNIA SS.
or will be inconsistent with State Park rules and COUNTY OF
regulations, or with the proper operation of a State On this day of ------- 19
Park, other than those specified above shall be done before me, ----------------- a Notary Public
or suffered without the written consent of the said in and. for said County, duly commissioned, personally
State Park Commission. appeared -----------------------------------------
8. The land of the Grantors, hereinabove referred --------------------------------------- -------------
to and to which the provisions of ffiis instrument -----------------------------------------------------
apply, is situate in the County of Tuolumne, State known to me to be the person ---- whose name
of California, and is particularly described as follows, ---------------- subscribed to the foregoing instru-
to-wit: ment, and acknowledged to me that ---- he ----
executed the same.
EXCEPTING AND RESERVING to the Grantor:
WITNESS my hand and official seal:
a. The right to maintain all of the buildings now
existing and if all or any of them shall be destroyed ------------------------------------------------
or damaged by fire, storm, or other casualty, to re- Notary Public in and for the County
store the same in conformity with the design and of -------------- State of California.
type of building of the historic period which the
State Park has been established to commemorate; BE IT RESOLVED, that Newton B. Drury and Everett
the plans to be submitted and approved by the State E. Powell be, and they are each hereby, authorized
Park Commission as provided in Paragraph 1 hereof; to accept in writing deeds or grants conveying to the
b. Nothing in this instrument shall be construed. State of California, as Grantee, real estate or any
to affect the right of the Grantors to construct on interest therein, or easeme ints, thereon, the purchase
said premises wells, cistern, cellars, and septic tanks of which is authorized by the State Park Commission
necessary to the maintenance of the property now and thereby consent, for and on behalf of said
being constructed or may hereafter be approved for Grantee, to the recordation thereof in accordance
construction by the State Park Commission. with the provisions of Section 27281 of the Govern-
ment Code of the State of California.
c. If at any time the State of California shall
abandon the Town of Columbia State Park, then on I HEREBY CERTIFY the foregoing is a full, true and
the happening of such event all the rights and correct copy of the resolution adopted by the Cali-
privileges and easements by this instrument granted fornia State Park Commission at its meeting held
and given to the State shall cease and determine to August 36, 1952.
the same effect as though this instrument had never
been executed by the Grantors. ------------------------------------
Executive Secretary
To HAVE AND To HOLD unto the said State of Cali-
fornia, its successors and assigns forever. This grant
shall be binding upon the heirs and assigns of the In accordance with the foregoing resolution, I, the
said Grantors and shall constitute a servitude upon undersigned, hereby accept the conveyance hereto
the above described land. attached from ------------------------------------
IN WITNESS WHEREOF the Grantors have hereunto to the State of California ------------------ day of
set their hands the day and year in this instrument --------------------------------------- 19 ------
first above mentioned. -------------------------------------------

62 U. L. 1. TECHNICAL BULLETIN NO. 36

APPENDIX D

TYPICAL OHIO RESERVATION AGREEMENT

HIGHWAY RESERVATION AGREEMENT --------- or any lesser interest therein, such disposal
State Highway No - ------------ Section ----------- shall be subject to the terms of this agreement.
--------------------------- County, Ohio. 4. The State agrees that the owner shall have the
These articles of agreement entered into in this full right to use or cultivate said Parcel No. - - - -
in any manner not inconsistent with the terms and
-------- day of ---------------------------- 194---, purposes of this highway reservation agreement.
by -----------------------------------------------
and the Department of Highways, State of Ohio, 5. The State agrees to make payment for a per-
WITNESSETH: petual easement deed for highway purposes for
Parcel No - -------- upon the award of a contract
That -------------------------------------------
for and in consideration of the sum of ------------- for the construction of the highway improvement as
-------------- Dollars ($ ------------ ), to --------- called for by the plans hereinbefore referred to.
paid by -the State of Ohio, do -------- hereby re- 6. The State agrees to negotiate with said owner
serve, as hereinafter provided, for the future use of for a perpetual easement deed for Parcel No - ------
the Department of Highways, the following described at the time the State finds it necessary to 'make use
lands, situated in -------------- County, Ohio, ____ of said parcel in the completion of the ultimate pro-
-------- Township, Section --------- Town --------- posed highway improvement.
Range --------- and bounded and described as fol-
lows: 7. The Director of Highways shall have the right
Parcel No - ---------------- to cancel this highway reservation agreement in the
as shown by plans on file in the office of the De- event that the project is removed from the highway
partment of Highways, Columbus, Ohio. program, or subsequent changes in alignment or
grade line require modification of the description of
h It is the -intent of this highway reservation said Parcel No - -------- herein.
agreement to permit the State to conserve its funds
by eliminating expensive building, public utility, and 8. The State agrees to furnish the owner with a
other rearrangement costs, pending the availability copy of this agreement, receipt of which is hereby
of funds for the construction of the proposed im- acknowledged.
provement, and to permit the owner, in the mean- Signed this ------ day of ---------------
time, to utilize the land, hereinbefore described, in 194-_ in the presence of:
all normal ways not inconsistent with the purposes ------------------------------------
and terms of this agreement. --------------- 7 -----------------------
2. The owner agrees that within the limits of said STATE OF ------------
Parcel No - --------- he will not construct or permit ------ ss
to be constructed any building or structure which -------------------- COUNTY
can not be removed within 10 days, without cost to Before me, a ------------ in and for said County
the State, upon order of the Director of Highways, and State, personally appeared the above named -_
and further that he will not undertake, or -permit to ---------------------------------------------- who
be undertaken, any plantings of a permanent nature, acknowledged that ---- he ----------- did sign the
such as orchards or other growths, which will inter- foregoing instrument and that the same is
fere with the ultimate use of said parcel for highway free act and deed..
purposes.
IN TESTIMONY WHEREOF I have hereunto set my
3. The owner agrees that he will neither lease hand and official seal at ----------------------- this
nor convey an easement in any way affecting said ---------- day of -------------------- A. D. 194---.
Parcel No - --------- without first securing the
written approval of the Director of the Highways, -----------------------------------------
and further that should he dispose of said Parcel No. My Commission Expires ---------- 194_

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 63

APPENDIX E

EXCERPTS FROM THE CONSERVANCY ACT OF OHIO

Chapter Eleven, Title Three, Part Second of public corporations to install, maintain and oper-
of the General Code ate sewerage systems and water works systems as
To prevent floods, to protect cities, villages, farms otherwise permitted by law; but the board of direc-
and highways from inundation; to authorize the tors of the district shall have full power to require
organization of drainage and conservation districts, the use of the improvements, constructed or acquired
water supply districts and to provide for the disposal by the district for the purpose of water supply or
the collection and disposal of sewage and other li4uid
of liquid wastes. I
wastes, by the public corporations and persons,
Passed February 5, 1914 within the district, for which such improvements
Amended April 19, 1937 were installed.
Sections 24a, 36a, 50a, 55a, 55b, 55c added (d) To afforest lands owned by the district.
Effective July 19, 1937 (e) To install improvements, on lands owned or
Sub-section (i) of Section 2 added by amendment controlled by the district, for the proper maintenance
effective September 4, 1947 thereof or for the purpose of preventing or minimiz-
ing damage to the works and improvements of the
Article II, Section 36 district.
The Constitution of the State of Ohio (f) To construct connections to the works of the
CONSERVATION district for the delivery of a water supply therefrom
Laws may be passed to encourage forestry, and to or for the delivery of sewage and other liquid wastes
that end areas devoted exclusively to forestry may thereto.
be exempted, in whole or in part, from taxation. (g) To construct or enlarge or cause to be con-
Laws may also be passed to provide for converting structed or enlarged any and all bridges that may be
into forest reserves such lands or parts of lands as needed in or out of said district.
have been or may be forfeited to the state, and to (h) To construct or elevate roadways and streets.
authorize the acquiring of other lands for that pur-
pose: also, to provide for the conservation of the W To construct any and all of said works and
natural resources of the state, including streams, improvements across, through or over any public
lakes, submerged and swamp lands, and the devel- highway, canal, railroad right of way, track, grade,
opment. and regulation of water power and the for- flll, cut, or other public or private property located
mation of drainage and conservation districts; and in or out of said district.
to provide for the regulation of methods of mining, (j) To remove or change the location of any
weighing, measuring and marketing coal, oil, gas and fence, building, railroad, canal, or other structures or
all other minerals. (Adopted Sept. 3, 1912.) improvements located in or out of said district; and,
See. 6828-15. In order to accomplish the purposes in case it is not feasible or economical to move any
of the district, the board of directors is authorized building, structure or improvement situated in or
and empowered: upon lands required by the district and if the cost
to the district is determined by the board to be less
(a) To clean out, straighten, widen, alter, deepen, than that of purchase or condemnation, to acquire
or change the course or terminus of, any dite 'h, drain, land and construct, acquire or install, therein. or
sewer, river, water course, pond, lake, creek or upon, buildings, structures or improvements, similar
natural or artificial stream located in or out of said in purpose, to be exchanged for the aforementioned
district. buildings, structures or improvements under con-
(b) To fill up any abandoned or altered ditch, tracts entered into between the owner or owners
drain, sewer, river, water course, pond, lake, creek thereof and the district.
or naturul or artificial stream, and to concentrate, (k) To hold, encumber, control, acquire by dona-
divert or divide the flow of water in or out of said tion, purchase or condemnation, construct, own, lease,
disrict. use and sell real and personal property, and any
(c) To construct, acquire, operate, and maintain easement, riparian right, railroad right of way, canal,
main and. lateral ditches, sewers, canals, levees, dikes, cemetery, sluice, reservoir, holding basin, mill dam,
dams, sluices, revetments, reservoirs, holding basins, water power, wharf, or franchise in or out of said
floodways, wells, intakes, pipe lines, purification district for right of way, holding basin, location or
works, treatment and disposal works, pumping sta- protection of works and improvements, relocation of
tions and siphons, and any other works and improve- communities and of buildings, structures and im-
ments deemed necessary to accomplish the purposes provements situated on lands required by the district,
of the district or to construct, preserve, operate or or for any other necessary purpose, or for obtaining
maintain such works in or out of said district. Pro- or storing material to be used in constructing and
vided that this chapter shall not limit the authority maintaining said works and improvements.

64 U. L. I. TECHNICAL BULLETIN NO. 36

(1) To replat or subdivide land, open new roads, See. 6828-19. In order to accomplish the purposes
streets and alleys, or change the course of an existing ..Of the district, to protect the works, improvements
one, and install therein improvements to replace and properties, both.real and personal, of the district,
those in the former roads, streets or alleys. to secure the best results from the construction, oper-
(m) To procure insurance against loss to the dis- ation, and maintenance thereof, and to prevent dam-
trict by reason of damage to its properies, works or age to the district by the misuse of any such works,
improvements resulting from fire, theft, accident or improvements, or properties or by the pollution or
other casualty or by reason of the liability of the misuse of the waters of the district or of any water
course
district for any damages to persons or property occur- therein, the board of directors. shall have
ring in the operation of the works and improvements authority to make and enforce such rules and regu-
of the district or the conduct of its activities. lations as they shall deem necessary and advisable:
(n) And to do all things necessary or incident to (a) To protect and preserve the works, improve-
the fulfillment of the purposes for which the district ments and properties owned or controlled by the
is established. district, prescribe the manner of their use by public
See. 6828-16. When it is determined to let the corporations and persons, and preserve order within
work by contract, contracts in amounts to exceed and adjacent thereto; -
one thousand dollars shall be advertised after notice (b) To prescribe the manner of building bridges,
calling for bids shall have been published, once a roads or fences or other works in, into, along or across
week for five consecutive weeks completed on date any channel, reservoir or other construction of the
of last publication, in at least one newspaper of district;
general circulation within said district, where the (c) To prescribe the manner in which ditches,
work is to be done, and the board may let said sewers, pipe lines, or other works shall be adjusted
contract to the lowest or best bidder who shall give to or connected with the works of the district or any
a good and approved bond, with ample security, water course therein and the manner in which the
conditioned on the carrying out of the contract. Such water courses of the district may be used for sewer
contract shall be in writing, and shall be accompanied outlets or for disposal of waste;
by or shall refer to plans and specifications for the
work to be done, prepared by the chief engineer. (d) To prescribe the permissible uses of the water
The plans and specifications shall at all times be supply provided by the district and the manner of
made and considered a part of the contract. Said its distribution, and to prevent the pollution or
contract shall be approved by the board of directors unnecessary waste of such water supply; and
and signed by the president of the board and by
the contractor, and shall be executed in duplicate. (e) To prohibit or regulate the discharge into the
Provided, that in case of sudden emergency when sewers of the district of any liquid or solid wastes
it is necessary in order to protect the district, the deemed detrimental to the works and improvements
advertising of contracts may be waived upon the of the district.
consent of the board of directors, with the approval Such rules and regulations shall not be inconsistent
of the court or a common pleas judge of the county with the laws of the state of Ohio or the rules and
wherein, the office of the district is located. regulations or requirements of the state department
See. 6828-17. Said board, where necessary for the of health, and shall be published in the manner pro-
purposes of this chapter, shall have a dominant right vided by section 6828-1 before taking effect.
of eminent domain over the right of eminent domain Whoever violates any rule or regulation adopted in
of railroad, telegraph, telephone, gas, water power accordance with this section shall be guilty of a
and other companies and corporations, and over misdemeanor and upon conviction shall be punished
townships, villages, counties and cities. by a fine of not more than one thousand dollars.
In the exercise of this right due care shall be taken The directors shall have authority to enforce by
to do no unnecessary damage to other public utilities, mandamus or otherwise all necessary regulations
and, in case of failure to agree upon the mode and made by them and authorized by this chapter, and
terms of interference, not to interfere with their may remove any harmful or improper construction
operation or usefulness beyond the actual necessities or obstruction or may close any opening or con-
of the case, due regard being paid to the other public nection made improperly or in violation of such
interests involved. rules and regulations, and they are authorized to
Sec. 6828-18. Said board shall also have the right bring such suits in mandamus in the court of appeals
to condemn for the use of the district, any land or in the first instance, if &4@med advisable by them.
property within or without said district not acquired Any person or public corporation wilfully failing to
or condemned by the court on the report of the ap- comply with such rules and regulations shall be liable
praisers, according to the procedure provided by law for damage caused bysuch failure, and for the cost
for the appropriation of land or other property of renewing any construction damaged or destroyed.
taken for telegraph, telephone and railroad rights of No person or public corporation shall erect within
way, instead of having appraisals and assessments the drainage area of the district any dam or reservoir
made by the board of appraisers. upon any stream or water course . . .

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 65

APPENDIX F

OIL AND LEASE FUND
(Commonwealth of Pennsylvania)
Harrisburg

No. 256 dams, or flood control or to match any Federal
AN ACT grants which may be made for any of the afore-
mentioned purposes.
Requiring rents and royalties from oil and gas leases Section 2. It shall be Within the discretion of the
of the Commonwealth land to be placed in a special Secretary of Forests and Waters to determine the
fund to be used for conservation, recreation, dams, need for and the location of any project authorized
and flood control; authorizing the Secretary of by this act. The Secretary of Forests and Waters
Forests and Waters to determine the need for and shall have the power to acquire in the name of the
location of such projects and to acquire the neces- Commonwealth by purchase, condemnation or other-
sary land. wise such lands as may be needed.
The General Assembly of the Commonwealth of Section 3. All the moneys from time to time paid
Pennsylvania hereby enacts as follows: into the "Oil and Gas Lease Fund" are specifically
Section 1. All rents and royalties .from oil and appropriated to the Department of Forests and
Waters to carry out the purposes of this act.
gas leases of any land owned by the Commonwealth,
except rents and. royalties received from game and APPRovEi)--The 15th day of December, A. D. 1955.
fish lands, shall be placed in a special fund to be
known as the "Oil and Gas Lease Fund" which fund GEORGE M. LEADER
shall be exclusively used for conservation, recreation, Governor

APPENDIX G

FEDERAL "RIGHTS IN LAND" ACT

[PUBLic-No. 646-70TH CONGRESS] by said reserved rights and that there is a substantial
[S. 41261 saving in cost by acquiring said land subject to said
limited rights as compared with the cost of acquiring
An Act Authorizing the National Capital Park and unencumbered title thereto: (2) permanent righ .ts
Planning Commission to acquire title to land subject in land adjoining park property sufficient to prevent
to limited rights reserved andlimited rights in land, the use of said land in certain specified ways which
and authorizing the Director of Public Buildings and would essentially impair the value of the park prop-
Public Parks of the National Capital to lease land erty. for its purposes: Provided, That in the opinion
or existing buildings. for., limited periods in certain of said commission the protection and'maintenance of
instances. the essential public values of said park can thus be
Be it enacted by the Senate and House of Repre- secured more economically than by acquiring said
sentatives of the United States of America in Congress land in fee or by other available @ means: Provided
assembled, That the authority of the National Capital further, That all contracts for acquisition of land
Park and Planning Commission, established by the subject to such limited rights reserved to the grantor
Act approved April 30, 1926 (Statutes at Large, and for acquisition of such limited permanent rights
volume 44, page 374), is hereby enlarged as follows: in land shall be subject to the approval of the
President of the United States.
Said commission is hereby authorized to acquire,
for and in behalf of the United States of America, Sec. 2. The Director of Public Buildings and Public
by gift, devise, purchase, or condemnation, in accord- Parks of the National Capital is authorized, subject
ance with the provisions of the Act of June 6, 1924 to the approval of the National Capital Park and
(Statutes at Large, volume 43, page 463), as amended Planning Commission, to lease, for a term not ex-
by the Act of April 30, 1926 (Statutes at Large, vol- ceeding five years, and to renew such lease, subject
ume 44, page 374), (1) fee title to land subject to to such approval, for an additional term not exceed-
limited rights, but not for business purposes, re- ing five years, pending need fo)r their immediate use
served to the grantor: Provided, That such reserva- in other ways by the public, and on such terms as
tion of rights shall not continue beyond the life or the director shall determine, land or any existing
lives of the grantor or grantors of the fee: Provided building or structure on land acquired for park,
further, That in the opinion of said commission the parkway, or playground purposes.
permanent public park purposes for which control
.over said land is needed are not essentially impaired Approved, December 22, 1928.

66 U. L. 1. TECHNICAL BULLETIN NO. 36

APPENDIX H

AN ACT PROVIDING FOR THE' ESTABLISHMENT AND
DEVELOPMENT OF THE MASSACHUSETTS BAY CIRCUIT

ACTS OF 1956-CHAPTER 631 subject to the provisions of its charter, may acquire
by eminent domain on behalf of the commonwealth
Be it enacted, etc., as follows: such property or such interest in p .roperty as may be
SECTION 1. The Massachusetts Bay Circuit is hereby required for the purposes of this act. The commis-
established as a system of privately and publicly sioner may by negotiation and agreement acquire
owned open spaces, including parks, forests, reser- such rights as he'may deem necessary for the pur-
voirs, wild life preserves, scenic and historic sites poses hereof in property within The Bay Circuit and
and other properties or reservations, surrounding may enter into contracts and leases therefor on
Metropolitan Boston, located in the cities and towns behalf of the commonwealth.
of Newbury, Rowley, Ipswich, Essex, Hamilton, Wen- SECTION 4. Any department of the commonwealth
ham, Topsfield, Boxford, Middleton, North Reading, and any political subdivision thereof may by agree-
North Andover, Andover, Wilmington, Tewksbury, ment with the commissioner and 'with the approval
Lowell, Chelmsford, Billerica, Carlisle, Bedford, of the governor and council transfer to the depart-
Concord, Lincoln, Sudbury, Wayland, Framingham, ment of natural resources the care and control of
Natick, Ashland, Holliston, Sherborn, Medfield, any lands and rights or easements therein owned
Millis, Norfolk, Walpole, Wrentham,' Foxborough, or controlled by it within The Bay Circuit upon
Sharon, Easton, Stoughton, Brockton, West Bridge- such terms and for such period of time as may be
water, Abington, Whitman, East Bridgewater, agreed upon; or may enter into an agreement with
Bridgewater, Hanson, Halifax, Pembroke, Plymp- the commissioner for joint care or preservation of
ton, Kingston, Duxbury and Marshfield, as shown such lands. The commissioner may, upon request,
by the shaded area in. Exhibit A of the report of a and upon such terms as may be agreed upon, and
joint board for the study of The Bay Circuit con- with the approval of the governor and council trans-
tained in House Document, No. 2608 of nineteen fer to any city or town within The Bay Circuit the
hundred and fifty-six. In order to preserve said care and control of any land or property of the
open spaces and make them available for the use, department.
enjoyment, exercise and recreation of all the people
of the commonwealth and visitors thereto, said SECTION 5. The commissioner shall make a survey
spaces, scenic and historic sites, and reservations of all lands held by the commonwealth or by any
shall be connected by a tourist route to be known political subdivision thereof and located within the
as The Bay Circuit, to be established and designated area designated in section one as the Massachusetts
by the department of public works in accordance Bay Circuit. Thereafter he shall designate any
with the provisions of chapter one hundred and ten property so held that may be necessary or useful
of the resolves of nineteen hundred and fifty-five. to accomplish the purposes of this act, and shall
notify the agency of the commonwealth or the politi-
SECTION 2. The commissioner of natural resources, cal subdivision concerned.. Such agency or political
hereinafter called the commissioner, is hereby au- subdivision shall not sell or lease any such designated
thorized and directed to initiate, forward and ad- property until the expiration of one year after it
minister the development of The Bay Circuit as has notified the commissioner of natural resources
hereinafter provided and for such purposes may of its intention to sell or lease such property.
expend such sums as may be appropriated or received
as gifts therefor. SECTION 6. Said commissioner is hereby author-
SECTION 3. The commissioner shall prepare such ized and empowered, with the approval of the gov-
project area plan-, for sections of The Bay Circuit ernor and council, to receive and hold in trust for
as he may deem advisable and shall designate thereon and on behalf of the commonwealth and for the
those areas which he proposes be acquired by the purposes of this act any grant or devise of land. Said
commonwealth or any political subdivision thereof commissioner may, in like manner, receive and hold
and those areas which he recommends should be in trust for like purposes any gift or bequest of
subject to a restrictive agreement, easement or other money or other personal property. Said moneys and
control in order to preserve scenic or historic features property sh@all be known as The Bay Circuit Trust
thereof. Said plans shall indicate the general char- Fund, and shall b -e managed and expended under
acter of use and development proposed for major the direction of said commissioner.
portions of said project area. The commissioner, SECTION 7. Said commissioner may acquire, main-
after public hearing in a city or town within that tain and care for historic buildings, monuments or
portion of The Bay Circuit which will be affected sites in The Bay Circuit, and may erect and maintain
thereby and with the approval of the board of natural such other structures as may be necessary, for the
resources and approval in a town by vote of the proper administration of lands under its control or
selectmen and in a city by vote of the city council, for the convenience of the public.

SECURING OPEN SPACE FOR URBAN AMERICA: CONSERVATION EASEMENTS 67

SECTION 8. Said commissioner may accept any preceding the date when the property is acquired
deed to the commonwealth containing reservation of for public use, and that from the annual receipts
easements, rights of way and life estates and estates from any such lease a sum in the amount of such
for years; may execute leases or. permits in, upon, real estate tax shall be paid annually by the treasurer
under, and over any portion of the lands now or of the commonwealth to the city or town in which
hereafter acquired by the commonwealth, within The the property is located to help compensate such city
Bay Circuit, including rights to hunting; may grant or town for the loss of taxes occasioned by the taking-
easements for public utilities, including gas meters, or acquisition of such property, and provided, fur-
electricity and water or other activities over such ther, that no such lease shall be for a period longer
lands with conditions fully safeguarding the public than the life of the donor of the property involved,
interest in the scenic and historic features of the or, in the case of other persons for a period longer
area; all for such consideration or rents and upon than ten years.
such terms, restrictions, provisions or agreements as
said commissioner after consultation with the board SECTION 9. In designing, constructing or recon-
of natural resources may deem best; provided, that structing roads within The Bay Circuit, the depart-
no such lease or permit shall be entered into for ment of public works shall, so far as possible, pre-
payment of less per year than the amount of the serve and enhance the scenic features of the area.
average annual real estate tax levied on the prop-
erty concerned during the five years immediately Approved August 8, 1956.

OTHER PUBLICATIONS OF URBAN LAND INSTITUTE
Technical Bulletins-Issued Periodically

(Numbers not listed are out-of-print)
No. 3 1. The New Highways: Challenge to the Metropoh- No. 48. Buried Cables, A Survey of Buried Electric Dis-
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No. 33. A Re-examination of the Shopping Center Market, George C. Bestor, $3.00.
by Homer Hoyt, $2.00. No. 49. Planning and Developing Waterfront Property, by
No. 34. The Challenge of Urban Renewal, by Carter William B. Rick, $3.00.
McFarland, $3.00. No. 50. The Homes Association Handbook,.by Byron R.
No. 35. Banking Expansion-New Frontiers Ahead, by Hanke and others, $10.00.
Robert H. Armstrong, $3.00. No. 5 1. Baltimore's Charles Center-A Case Study of
No. 36. Securing Open Space for Urban America: Con- Downtown Renewal, edited by Martin Millspaugh,
servation Easements, by William H. Whyte, Jr., $5.00.
$3.00. No. 52. Legal Aspects of Planned Unit Residential Devel-
No. 38. The Urban Real Estate Cycle-Performances and opment, by Jan Krasnowiecki, Richard F. Babcock
Prospects, by Homer Hoyt, $2.00. and David N. McBride, $6.00.
No. 39. Investors and Downtown Real Estate-Opinion No. 53. Parking Requirements for Shopping Centers, A
and Comment, by Arthur M. Weimer, $3.00. Survey, $4.00 '
No. 40. New Approaches to Residential Land Develop- No. 54. Downtown Denver-A Guide to Central City De-
ment, A Study of Concepts and Innovations. Har- velopment, edited by Mechlin D. Moore, $5.00.
man, O'Donnel & Henninger Assoc., Inc., Tech- No. 55. Where the Rich and the Poor People Live, by
nical Advisors, $6.00. Homer Hoyt, $4.00.
No. 41 Industrial Districts Restudied, An Analysis of No. 57. Open Space Communities in the Market Place,
Characteristics, by Robert E. Boley, $5.00. by Carl Norcross, $6.00.
No. 44. Industrial Districts: Principles in Practice, by No. 58. The Boom in Office Buildings-An Economic
Robert E. Boley, $10.00. Study of the Past Two Decades, by Robert Moore
No. 45. The Patio House, by William K. Wittausch, $5.00. Fisher, $5.00.
No. 47. Innovations vs. Traditions in Community Develop- No. 59. New Engineering Concepts in Community Devel-
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Use. Harman, O'Donnell & Henninger Assoc., No. 60. The Changing Principles of Land Economics, by
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No. 61. Apartment CommLinities-The Next Big Market
by Carl Norcross and John Hysom, $6.00.

Research Monographs-issued Periodically

Single Copies $4.00
No. 1. Urban Real Estate Research, by David T. Row- No. 10. Urban Real Estate Research-1963, by Jerome P.
lands. Pickard and Gene C. Tweraser.
No. 3. Urban Real Estate Research-1959, by David T. No. 11. Urban Real Estate Research-1964, by Jerome P.
Rowlands. Pickard and Gene C. Tweraser.
No. 4. Property Taxation and Urban Development, by
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No. 5. Urban Real Estate Research-1960, by Jerome ban America, by Jerome P. Pickard.
P. Pickard and Arlene G. Balaban. No. 13. Urban Real Estate Research-1965, by Gene C.
No. 6. Changing Urban Land Uses as Affected by Taxa- Tweraser.
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No. 7. Property Taxation and Urban Land Use in North- P. Pickard.
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No. 8. Urban Real Estate Research-1961, by Jerome P. No. 14-A. Dimensions of Metropolitanism - 1968, by
Pickard and Arlene G. Balaban. Jerome P. Pickard.
No. 9. Urban Real Estate Research-1962, by Jerome P. No. 15. Do Single-Family Homes Pay Their Way?-1968,
Pickard and Arlene G. Balaban. by Ruth L. Mace and Warren J. Wicker.

The Community Builders Handbook
A textbook covering all phases of residential community and shopping center developmen ,t.
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Standard Manual of Expense Accounts for Shopping Centers.
The working manual for specialized accounting techniques fitted to the needs of shopping center operations.
Single copies $5.00.
Operation Shopping Centers, by Donald L. Curtiss.
The guidebook to effective management and promotion of shopping centers. $15-00 per copy; $10.00 to ULI members.
The, Dollars and Cents of Shopping Centers-Part II: Tenant Characteristics. $10.00 per copy; $8.00 to ULI members.
The Dollars and Cents of Shopping Centers-1963. $16.00 per copy; $12.00 to ULI members.
The Dollars and Cents of Shopping Centers-1969. $16.00 per copy; $12.00 to ULI members.

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