Open space planning for rural, growth-impacted Colorado counties

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Open space planning for rural, growth-impacted Colorado counties
Parker, Bill
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76, [24] leaves : maps ; 28 cm


Subjects / Keywords:
Land use, Rural -- Planning -- Colorado ( lcsh )
Open spaces -- Colorado ( lcsh )
Land use, Rural -- Planning ( fast )
Open spaces ( fast )
Colorado ( fast )
bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )


Includes bibliographical references (75-76).
General Note:
Submitted in partial fulfillment of the requirements for the degree, Urban and Regional Planning (presently Planning and Community Development), College of Design and Planning.
Statement of Responsibility:
Bill Parker.

Record Information

Source Institution:
University of Colorado Denver
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Auraria Library
Rights Management:
All applicable rights reserved by the source institution and holding location.
Resource Identifier:
09246285 ( OCLC )
LD1190 .P377 ( lcc )

Full Text
Master's Proj ect
Submitted in partial fulfillment of the requirements for a Master's Degree in Urban and Regional Planning.,
University of Colorado at Denver
Bill Parker
April 1980

Dedicated to Mark Murphy
Special thanks must be extended to Sharon Menard for her help, to Joan Buttery and Anne Gilmore for their extraordinary typing assistance, to the powers that be in the Douglas County Planning Department, and for unfailing support from Kathy.

...the rural environment is increasingly appreciated for its contribution to mental health, for its aesthetic values, and as a locale for recreation, and refreshment apart from the noise, pollution, and constructed environment of cities. It seems of supreme importance to preserve and enhance areas where the rural amenities can be enjoyed in the context of a delightful, natural setting.
- William R. Lassey in Rural Environmental Planning
Tire next ten years are going to see this area pushed to the breaking point, and it is going to take all our diligence, integrity, and ambition to gather the facts and muster the force to walk the line between necessary progress and unnecessary imperilment of the quality of life.
- Editor's Notes,
Rocky Mountain Magazine April 1980

Table of Contents
Introduction 1
Chapter 1 4
What Open Space Is Acquiring Open Space
Chapter 2 Methods of Open Space Acquisition 9
A. Acquisition of Open Space by Government Jurisdictions 9
B. Land Use Controls to Provide or Protect Open Space 24
C. Tax Incentives for Open Space Preservation 27
D. Gifts of Land for Open Space Purposes 32
Chapter 3 Open Space Planning in Colorado 41
Chapter 4 Open Space Planning in Rural Counties 45
Chapter 5 Open Space Planning for Douglas County 49
Postscript 71
Notes 72
Bibliography 75
A. Colorado Land Use Laws A-l
B. Highlands Ranch Conservation Easement B-l
C. Federal Agency Open Space Programs C-l
D. Examples of Open Space Policies: Boulder County D-l

It is a common belief that the State of Colorado has been facing and will probably continue to face an unprecedented period of growth, both in economic and population terms. This continual growth and development will not be localized in one area of the State, but will impact many Western Slope locales as well as the Front Range corridor. Many rural counties will inevitably experience the process of urbanization, and comprehensive planning must be undertaken in these areas to guide this growth.
One critical element in any comprehensive planning effort is open space. The fact that Colorado still has an abundance of open space is causing much of the growth and development in rural areas. There is room for urban expansion and many people are moving to Colorado because of its environment and desirability as a place to live and work. Ironically, many of the wide open spaces which have drawn people to Colorado are being consumed to provide for the land use needs of the existing and proposed population. This ever-expanding development can destroy fragile ecosystems and take away large areas of valuable and treasured environmental, economic, recreational, and historical resources if left unchecked. As the environmental planner Ian McHarg asks, "In areas where land is abundant, yet awaiting development, how can growth be guided in such a way as to exploit this abundance for the maximum good?"'*' Thus, every rural town or county, especially those with mounting growth pressures, should plan for its jurisdictional open space needs.

Pattern of Urban Development
Urbanization in rural areas is usually due to nearness to metropolitan areas and/or a new economic stimulus which encourages the growth process. Growth generally begins with people leaving urban areas to seek a rural life-style, moving into scattered, single-family housing on relatively large lots, along county roads. Small subdivisions are then created, with larger housing developments at higher densitiesfollowing, often locating in or near scenic areas. Tract developments vail generally situate where the land is plentiful, generally flat, and not too expensive.
When the residential development forms a sufficient market and labor force, then corrmercial and industrial development begins, or bedroom corrmunities are created. Major industrial development usually takes place in industrial parks where there is adequate accessibility and utilities and other necessary services. Coranercial development often locates in diversified shopping centers or in newly formed cormiercial strips. This growth seldom follows an orderly, concentrated pattern, but instead skips around some distance from existing urban areas in a leap-frog manner. One reason for this is that some of the most scenic and attractive (and most salable) residential areas can be far from the existing areas.
Land located away from existing development is generally cheaper, which is of prime importance to speculators. Once speculators own land, the pressure begins on local governments to rezone to a more intensive use, thus increasing the land value. Small, rural ccmnunities are victims of this pressure, mainly because their ccmnunities may lack a comprehensive plan or sufficient land use ordinances, or because they are naive to any potential problems from increased growth. Rural towns and counties can then find themselves hard-pressed to provide additional, expected and needed services. When an "economic boom" suddenly hits a conmunity, the problems of growth can be of even greater intensity.

The purpose of this study will be to provide a starting point from which rural municipalities can initiate open space planning, with the emphasis on the county level of administration and government. What "open space planning" is and involves will be discussed, as well as means for rural counties to acquire and maintain open space under the restraiits of limited staff, limited financial resources, and development pressure. Experiences from national and Colorado programs will be drawn upon in order to develop a practical approach which rural Colorado counties might use. Finally, methods reviewed in this study will be applied to a representative rural, growth-impacted Colorado area Douglas County.

Chapter 1
The term "open space" is defined in many different ways. Simply speaking,
open spaces are areas which are not built up and are usually intended for
recreational, agricultural, or scenic uses. To carry this definition further,
Schomon states:
any space in urban America which promotes or has a tendency to enhance the natural environnent; any area of land or water or air, whether reserved or unreserved, any green area, any view horizontal or vertical which improves the appearance of the natural scene or the natural environment, can be considered open space.3
Although this definition is biased towards "urban" open space, it can be expanded
to apply to rural areas as well, especially when considering agricultural lands,
natural resource areas, and envirormental hazards areas.
Perhaps the best way to define open space is through the functions it serves.
In the Denver Regional Council of Governments, Region III, Regional Parks,
Recreation, and Open Space Development Plan, the purposes and functions of
open space are fourfold: 1) for urban shaping and buffering open space can
preserve the geographical integrity and distinctiveness of cities and towns,
separate various land uses, concentrate growth within prescribed geographical areas,
and control or discourage sprawl; 2) for recreational, cultural, and historic uses
and values open space can provide for urban regional parks, preserves, special
use areas, and trail networks; 3) for conservation of natural resources soils,
water, vegetation, wildlife and forest areas; 4) for regulation of environmental
tiazards such as flood plains, steep slopes and faults. McHarg emphasizes that
development should occur generally where it will do as little damage as possible to
the natural environment and ecological system. He categorizes open space into
three classifications: firstly, those land or water areas most critical to the
systan which should be kept as open space in a natural state; secondly, areas which

can stand limited development without major inpact on natural processes; and
lastly, those critical areas whose development would not appear to significantly
affect natural processes.
When considering open space, there are many functions and land uses, ranging from large parks to military reservations to prime agricultural land. The following is a list of many of these different types of open space, broken into three categories:
Reserved Lands:
Parklands- areas set aside primarily for recreation. Administration of parks can include private, semi-private, quasi-public or entirely public.
Native Centers- special use land areas, usually undeveloped and for the most part 50 acres or more, reserved primarily for outdoor education and training.
Wildlife Refuges and Sanctuaries- usually small to medium sized land areas, either publically or privately owned and specifically set aside as habitats for wildlife.
Arboretums, Outdoor Laboratories, Outdoor Schools- primarily urban-oriented areas, set aside for education.
Established Natural Areas- natural land areas set aside for their unusual scientific, ecological, conservation, or aesthetic value.
Sard-Reserved and Restricted Land:
Military Reserves
Airports, Railroads, Highways
Golf Courses
Several of these, especially golf courses and military reservations, are subject to development pressure: golf courses are if the development pressure is strong enough to warrant a change in land use, and military reservations if military needs change and the area is taken out of military ownership and placed into the private market.

Unreserved Land: lands most readily susceptible to encroachment or development and sale on the open market.
City and Suburban Undeveloped Lots- prime for development
Small to Large Family Estates- prime for development, especially when property owners of estates can no longer afford the property taxes and are forced to sell.
Historic Sites
Scenic Areas
Prime Agricultural and Range Lands
Undeveloped Natural Landscape- including native forests, shorelines, river bottoms, ridges, mountain areas, swamps, marshes, native prairies, deserts, sagelands, rain forests and artic-alpine land.^
Planning for open space is an enormous and difficult undertaking by any level of government. It is almost overwhelming for rural governments to even consider. It becomes even more difficult when growth pressures are placing strain on an already limited ability to provide services. The open space which exists in rural environments and is generally considered to be worth keeping may not be kept as such because the rural community may not effectively be able to develop a means to prioritize, require and maintain an open space system.
Acquiring Open Space
The quantity of land available for all uses is fixed, and competition for this land is keen, especially in urbanizing areas. To acquire open space for the public good has often meant that the land acquired is often the "leftovers" from other land needs. Generally speaking, there are four kinds of open space available: agricultural land, managed forest, pasture or rangelands, and natural or wild lands (i.e. .mountains, wetlands, dunes). A community must determine for itself not only how much of these lands are needed, but to what degree of usability and quality there is to be. In addition, reasons to preserve open space have also been changing. At one time recreation was considered the prime reason for acquiring lands, now the conservation of natural resources or buffer-zones between

communities can be of equal importance.
Major problems involved in land acquisition are several. The first is availability unless the land is available not much open space planning or acquisition can be done. For what land is available, it becomes imperative that the best and most essential use is provided for. Legal bottlenecks provide another stumbling block. These can vary frcm problems of ownership and the restrictions on land use to such factors as legal clauses prohibiting sale to certain groups, or lawsuits pending in the courts prohibiting transfer of title until technicalities are straightened out. The ownership of land and the degree of control which the owner exercises is a third consideration when acquiring open space. There are three basic levels of control: high (government agencies), moderate (public and quasi-public institutions), and low (private owners and developers). Perhaps the single greatest factor controlling the acquisition of land for any open space program is cost. It can simply stretch too far the financial resources of any governmental entity desiring an open space network, if indeed the money is available in the first place.
There is a myriad of means which can be used by local governments to acquire open space or to foster open space by private landowners. These range from outright purchase of land in fee simple to requiring developers to dedicate land to the municipality through subdivision regulations requirements to encouraging donating easements for public use on private lands. Four major classification can be used: l)Acquisition of Open Space by Government Jurisdictions, 2) Land Use Controls to Provide or Protect Open Space, 3) Tax Incentives for Open Space Preservation, and 4) Outright Gifts of Land. (See Table I). Chapter 2 provides a more in-depth look at each method and summarizes the pros and cons of each individual approach.

A. Acquisition Of Open Space By Government Jurisdictions: Purchase Direct, In Fee Simple
Eminent Domain
Partial Purchase With Options Lease or Sale Arrangements Acquisition of Rights Conservation Easements Installment Purchase Land Banking Right of Pre-emption
B. Land Use Controls To Provide Or Protect Open Space:
Zoning: Agricultural, Floodplain, Natural Resource, Large-Lot
Subdivision Regulations/PUD
Transferable Development Rights
Compensatory Regulation
Contract Clustering
C. Tax Incentives To Preserve Open Space:
Preferential Assessment
Deferred Taxation
Restrictive Agreements
Sales Tax
D. Gifts Of Land:
Donations Bargain Sales

Chapter 2
Purchase of Land in Fee Simple: Public purchase of the fee simple means an outright purchase of the land parcel or trail corridor at the fair market priced This method is one of the most common and simplest to conduct, however, it has several inherent problems. The cost factor can be a considerable burden on local governments and because of the large expense involved, this type of open space acquisition is often hard to justify to the citizens of the conmunity. Outright purchase by governments also can burden the local government by taking land off the taxrolls and lessening the tax base. Property taxes are a major source of revenue for any government and for this reason also, direct purchase of land in fee simple can run into considerable opposition if another source of revenue isn't found to offset the loss from community taxrolls. Continual, on-going maintenance costs also stretch financial capacities too far.
Eminent Domain: Eminent domain is the right of a government or other entity to acquire private property for public use upon payment of just compensation to
the owner. The reasonable market value of the property is established by appraisal. The courts have supported the taking of land for parks, flood control, irrigation, prevention of soil erosion, wildlife management, recreation, and the public purpose of urban renewal. However, there are two major problems with the use of eminent domain. The first is that the cost of just compensation makes this method prohibitive for widespread use. The second is that much land used for open space
is agricultural and productive and best kept in private hands rather than public.
Partial Purchase and Options: This method involves the acquisition of one parcel of a tract at a time by the community with the option to buy the ranaining

parcels incrementally. The city of Boulder, Colorado has used this system to attain much of their open space acquisitions. The city agrees to purchase a parcel and receives a deed for that portion of the property in the first year and at the same time obtains the option to acquire another portion the following year, and so on. Usually a substantial option payment is made in the year the agreement is made. The option money isn't taxable income until the options are exercised. Throughout this contract-option period, a portion of the money is allocated to the number of acres acquired at each option date. The City also obtains a lease on the entire property being leased back to the property owner.^
Lease or Sale Agreements: Lease or sale agreements are variations on purchase of fee simple. The public buys the desired open space land and then leases it back to the original owner or seme other user with certain restrictions as to its development and use. If the rent is reasonable, the renter can use the land in a profitable way and the public can receive a return on its investment while the open space nature of the land remains protected through an appropriate use such as agriculture. Similarly, the public could purchase the land and then sell it with the particular use restrictions tied to the deed. This method demands high initial monetary spending by the public agency, which can be recovered either gradually through the leasing payments or all at once by reselling. A major benefit from this method is that the public retains firm control over the use of the land but without full ownership or management.'*''*'
Acquisition of Rights: Acquisition of rights is the direct purchase of development rights by a public agency. The original owner retains the title to the land but the right to develop is owned by the buyer in perpetuity. Unless a right-of-way easement is purchased in addition to the development rights themselves, the owner can exclude any public access. State enabling legislation must exist in order to make this method of open space preservation possible.
A major user of this method, particularly for agricultural land, has been

Suffolk County, New York, which has defined development rights as the
"permanent legal interest in the use of agricultural lands and the right to
restrict, prohibit, or limit the use of lands for any purpose other than
agricultural production". This county has allocated sixty million dollars from its capital budget for the financing of this program during the period 1974-1977, with the revenue to be used through the sale of thirty year municipal bonds and possibly through a real estate transfer tax.
The program is strictly voluntary in Suffolk County. The landowners submit offers to the county to sell their development rights, which may or may not be on the full extent of their holdings. Suffolk County makes the final decision cn whether to buy the rights or not after considering the soils, price, pressures for development and the contiguity to other farmland.
There are several benefits to both the landowner and the public buyer in purchasing the development rights. Farmland cannot be sold for any purpose other than farming once the development rights are owned by the buying agency. This restriction helps to alleviate pressures at a higher intensity use and for non-farm use of the land. Property taxes based on potential development of the farmland are no longer a problem since the land can only be assessed at agricultural value once the development rights are sold. Another important factor is that pride of ownership is maintained. The farmer or rancher owns the land and the agricultural rights and is free to sell that land and those rights at fair market value.
There are drawbacks to the purchasing of development rights, not the least of which is the high cost of the purchase program. It can be extranely difficult to fund such a program out of the county or city general fund, and an additional revenue source would have to be obtained.
Conservation Easements: Similar in nature to acquisition of development rights and often used interchangeably are conservation easements. These are defined in Colorado as:

a right in the owner of the easement to prohibit or require, a limitation upon, or an obligation to perform, acts on or with respect to a land or water area or air space above the land or water owned by the grantor appropriate to the retaining or maintainingof such land, water, or air space, including improvements, predominantly in a natural scenic, or open condition, or for wildlife habitat, or for agricultural,horticultural, recreational, forest, or other use or condition consistentwith the protection of open land having wholesome environmental quality or life-sustaining ecological diversity, or appropriate to the conservation and preservation of buildings, sites, or structures having historical, architectural, or cultural interest or value.
Any government agency or public trust, with the proper legal authority, may accept or buy conservation easements. Mien acquiring the development rights to a property through a conservation easement, the landowner can continue to use the land for whatever low-intensity, open space-type use is possible. The landowner may also transfer the property to another private owner at any time, subject still to deed restrictions.
Conservation easements may either be positive or negative. Positive easements give the public certain rights to use the land for designated purposes. Examples of positive (sometimes called affirmative) easements are:
1. Hunting, camping, hiking and fishing rights- it is a limited right by the public to use privately held land for these purposes.
2. Highway easements- these can be accomplished as an alternative to condemning land in fee simple.
3. Flowage easements- these easements provide for the right to flood privately owned land, either temporarily or permanently.
4. Aviation corridor easements plus trajectory and electronic easements.
5. Conservation easements- can include hunting rights, the right to enter and manage water, the right of access to lakes or reservoirs, the right to insist that vegeation and habitat remain undisturbed.
Negative easements, however, limit the owners use of the land, usually by
removing the development rights.
Examples of negative easements are:
1. Easements against development- which can include the right to prohibit development in a flood plain or wetlands.

2. Clearance easanents- or "obstruction restrictions" which can include height limitations around airports.
3. Scenic easements- are the maintaining of "the view. The terms of the easement can vaw but in general prohibit any activity by a landowner which mil inter fete with scenery, such as cutting trees or erecting billboards. Scenic easements sometimes have positive easements attached to allow for public entry to enter for public inspection and maintenance.
Both positive and negative easements are binding on present and future property 14
Easements are beneficial to the property owner who sells or donates the land for open space. The landowner who sells the easement is compensated by payment or tax benefit for the difference between the fair market value and the reduced value of the property under the easanent restrictions. When the property owner donates an easenent, he or she is entitled to a charitable deduction on income taxes. Perhaps the greatest benefit for either selling or donating is the reduced real estate taxes which must be paid, for land with an easement restriction on it has taxation based on the value of the property with the easanent restrictions rather than at fair market value. The assessment of the underlying fee simple for property tax purposes should reflect both the decrease in current fair market value and, in seme instances would mean the difference for the landowner between maintaining ownership of the land in its rural state or being forced to sell because taxes have become too much of a burden.^
Conservation, development, or scenic easanents have not been widely used by local governments until the last few years. State and fedoaral agencies have used easements in the past, usually in rural areas where growth pressure has been light, on several programs with mixed results.
The National Park Service initiated a scenic easanent along the Blue Ridge Parkway in Virginia and North Carolina, and the Natchez Trace Parkway in Mississippi, Alabama and Tennessee. The combined area of both easanents is 6200 acres. The Park Service is no longer purchasing easements, more because of the costs of

enforcing the easement restrictions than for any other reason. The Park Service has in fact been in court several times over enforcement problans.
There are four major reasons why the National Park Service hasn't been too
successful with their easement purchase program. First, the easements were acquired
in the 1930's when states were interested in getting as much land as possible under
easement while not fully explaining the easement restrictions to the landowners.
Secondly, since the easements were conferred, seme properties have been
transferred to two, three or more property owners. Enforcement problems, such as
cutting trees that weren't to be cut, or building where it wasn't allowed, have
mainly come frem the newer landowners who may not have understood the easement
restrictions at the time of purchase or who had felt their current needs and rights
on the property weren't to be hampered by past decisions. Thirdly, as a follow-up
to the previous reason, many landowners never had any reason to doubt that they
weren't able to do as they chose on their own land, because any kind of regulation,
even zoning, was unknown in the rural areas in which the National Park Service was
operating. A fourth reason, and a reason applicable to many open space
acquisition methods, was that the easements didn't take into account the fact that
a private owner must be allowed seme sort of economic return on his land. In sane
areas, even agricultural uses were being restricted.
The New York Department of Environmental Conservation has been somewhat unsucessful with its scenic easement program along the Adirondack Northway. These restrictions have served to prevent commercial development, yet people are still cutting trees and building structures. The reason for this situation is that the specifics of the easements were not spelled out in the easements.
Two successful programs with scenic easements include Piscataway Park, administered by the National Capital Parks Carmission, and the Wisconsin Division of Highways program along the Great River Bend. Outside Washington, D.C., in Maryland, the Piscataway Park easement has been successful because the local

landowners have played a major part in cooperating in and enforcing of the program. Donations of land to the program are camion, and new land buyers are informed by the homeowners association of the scenic easements as well as the protective covenants on the involved properties. Landowners in the Wisconsin program have also been cooperative, with any violations having been mainly unintentional. Flexibility has been built into this program through a variance procedure which allows negotiation to relax restrictions on the property owner as long as his or her intentions on the land don't conflict with the overall goals of the program.
Private groups such as the Nature Conservancy nationally, and the Colorado Open Land Foundation locally, have had success with the conservation easement concept, especially in the preservation of ecologically sensitive lands. The Colorado Open Land Foundation's role will be further explained in the chapter on open space preservation in Colorado.
Much of the recent literature on open space preservation techniques deals with development rights, easements, and conservation easements. According to Charles E. Roe, the major advantage to development rights easements are the specificity of regulation. For example, land use restrictions, through the use of negative easements, can be adapted to the natural, cultural, or agricultural values to be protected. The public body can determine a classification system which would specify certain environmental characteristics to be saved and protected. Easements can thus be flexible legal documents which can be tailored to the interests of the individual property owner in order to protect the natural or cultural aspects of the property.
No condemnation is necessary when using developments rights acquisition, only the purchase of rights. A landowner who wants to keep the rural uses of his or her property could donate or sell certain development rights to preserve the rural characteristics and thus achieve reduced tax rates. 17

Additional conditions for success of easement programs are addressed by
Coughlin and Plaut. Their general conclusions are several:
1. A development easement program which has been initiated by the local property owners to preserve the landscape will be a success, such as the program in Piscataway Park, or if there is good cooperation between agencies and landowners.
2. It is vital to educate the property owners on the easement restrictions both at the time of acquisition and transference. There should be extensive documentation of existing land uses at the time of acquisition In areas where there already are land use controls, explanation may not be as difficult as where there are none.
3. Program administrators should get early notice of any proposed construction within the area under easement restrictions. Positive rights should be given to program administrators to enter land in order to determine whether the restrictions are being followed. Easements restrictions should be considered also before issuing building oermits.
4. An easement program must be flexible enough to fit local needs and land uses, and flexible over time to meet changing requirements and environments. Variance procedures, if any, should not be abused. When variances are granted, additional rights should be negotiated for the public.
5. There must be support from program administrators and they must understand the system.
6. Easements may not always be used to preserve an environment in the natural state and some reasonable economic benefit must be received by the property owner, otherwise there may be an unjust taking of land by a public entity. 18
Roe's research determined that there are four principal limitations to public or quasi-public acquisition of development right*and conservation easements.
1. Legal: major legal problems raised by these methods are mainly constitutional and statutory, questioning distinctions between appurtenant easements and easements in gross. Appurtenant easements are those which are connected with and attached to the ownership of the nearby land. An example would be a right-of-way across one piece of land owned by the owner of another piece of nearby land. This type of easement is personal and there is some authority that an easement in gross is not inheritable or assignable, and cannot extend beyond the life of the owner of the easement. Some states have passed enabling legislation designed to give clear authorization for acquisition of conservation easements for open space.

2. Acquisition Costs: conservation easements or development rights costs will vary according to the location of the land and how subject to development it is. Development rights are relatively inexpensive in areas where growth pressures are not great, but in high potential development areas the costs of acquisition and the tax losses from reduced land on the tax rolls become inflated. In these situations,
if the local government wishes to buy land it might become more practical to buy the land in fee simple.
3. Financing: according to Roe is the greatest obstacle to public acquisition of conservation easements. In a modest program, acquisition of a few selected areas can be financed by appropriations from the general budget
or by encouraging donations by the landowner. A large scale program has considerably greater costs for purchase, administration and management.
Much of the major funding for local programs in the past has been from federal and state programs; however, many of these programs have fallen on hard times. When funds for acquisition are depleted, other methods can be used, such as general obligation bonds, revolving funds, or special taxation such as a specific sales tax or increased capital gains tax on land sales.
There are impacts of public acquisition on local governments. The tax base may be reduced, which can be problematical since local governments may rely heavily on property taxes. Roe states, "While property owners will continue to pay taxes on the agricultural or natural value of their land, the property encumbered by an easement will receive reduced tax rates according to the degree of use restriction." However, lowered taxes on properties with easements don't always represent a loss of revenue because the value of surrounding properties may go up because of the restricted uses on easement properties and the assurances of staying that way. If the burden on the local tax rolls becomes too great, there may be ways to gain state renumeration or in-lieu-of tax payments to the local governments.
In suntnary, a study for Boulder County, "Methods of Preserving Open Space in Boulder County", concludes that development rights and conservation easements:
- are legal agreements which can include a variety of restrictions for the purpose of preserving open space.
- make the most sense when applied to an overall program, such as protecting a stream, valley, or the protection of the natural environment

which surrounds or is within view of an already existing public open space.
- can be more easily acquired by gift than by purchase, if the land in question has speculative value.
- when sought over large areas of buildable land, the chances are that term agreements rather than agreements which run with the land in perpetuity will probably be more acceptable.
- the cost (or value deducted for income tax purposes) is the value of the land in its present use subtracted from the value of the land if sold for development as estimated by a qualified appraiser.
- the assessment of land from which development rights have been severed should be reduced by an amount corresponding to the value of the development right. 19
Installment Purchase: The installment purchase method of open space acquisition is used when a public agency does not have the total amount of money necessary for a large land purchase. Through this method it is possible to arrange purchase over a number of years with part of the land being paid for each year. For example, if a five year period is agreed upon, then the public will acquire one-fifth of the total acreage each year. The landowner receives his capital gains over five years instead of one, and does not have to pay property taxes any more since the public agency took title to the land at the beginning of the sale. He can also continue to use the land until the entire parcel is purchased. The public agency benefits from smaller expenditures each year, and the cost of purchase of the last parcel remains the same as the first since the price was fixed at that time. ^0
Land Banking: Land banking involves public acquisition either by condeimation or voluntary purchase of land in fee simple title for some future development (with planning controls) as it is needed. Land banicing can be both small scale and large scale. Small scale usually involves the acquisition of small sites which will eventually be used for public facilities. Large scale land banking is more concerned with acquisition of extensive undeveloped land, either for permanent public ownership of areas for parks or

for the resale of parcels and tracts to developers in a manner that may effectively control the rate and pattern of growth.
In the United States, large scale land hanking has been reserved primarily for assembling land for public purposes or for the development of new communities. This practice goes back to the nineteenth century when it was used widely by governmental jurisdictions but its use has since given way to private enterprise and speculation. Land banking has had widespread use in Europe for years, primarily in Sweden, the Netherlands, and France. Insomuch as those countries have different property laws and traditions concerning land use, their experiences may not have much relation to the use of land banking in the United States.
As with any other method of preserving open space, there are both benefits and reservations to land banking. The benefits are many. Firstly, land can be acquired well in advance of need, when prices are low. Secondly, the public investment in infrastructure can proceed efficiently, unimpeded by negotiations for land acquisition. Thirdly, the costs of acquisition and development can be averaged out over a large area, making possible the use of specific sites for the most appropriate use rather than a use dictated by cost. The fourth reason is that land can be offered for development in an orderly sequence, by the public. Finally, if the sites are leased, the public can continue to benefit from their increasing value. 21
To accomplish these objectives, however, a public land bank must have the financial capability and legal authority to purchase or condemn land throughout a wide area. If eminent domain is to be used to assemble large tracts and overcome property holdouts, it isn't legally clear yet whether this constitutes an appropriate public purpose for the use of eminent domain. Thus, some of the reservations regarding land banking are several: the financial limitations of high public acquisition costs, the foregone taxes and interest costs on the land,

the legal questions regarding eminent domain, whether the public agency could bear the cost of holding these lands, and whether the land banking concept is
too complex a method for local governments to implement and achieve public and
political support.
A variation on direct acquisition of property through land banking is the revolving land bank. Through this method, a private agency such as the Nature Conservancy, or in Colorado, the Colorado Open Land Foundation, can purchase a piece of land with its ready financial resources. The private agency can then manage the land itself or rent it out with use restrictions until the public agency can afford to purchase that land at cost from the private group. Land can be purchased through these arrangements as soon as it comes on the market, thus helping to avoid the problem of speculation increases in price.
Right of Pre-emption: Since conservation and open space values are generally realized when land is kept in rural uses and unless rural land is in danger of being developed, it isn't always necessary to acquire parcels except for recreational needs. The right of pre-emption allows the local government the right to pre-empt the sale of the land, or the "right of first refusal" when the land has been designated as desirable for open space. The local government can then decide to buy, keep, resell, or lease the land with restrictions. Since the public purchases only some of the properties on the market, only a portion of the properties designated might ever be acquired and transactions will be over a long period of time, depending on when properties go on the market. This can be both an advantage and a disadvantage, for if land values appreciate substantially before properties are put on the market, the real costs could be greater than if all designated properties were bought at the outset of the program.
The use of the right of pre-emption requires enabling legislation which

states that the use of this method for acquisition of land for open space does indeed serve a public purpose.
Transferable Development Rights: (TDR) Transferrable development rights recognize that development rights are separable from land ownership and thus can be sold or traded from one property to another. This system was originally used to save urban landmarks which were located on property which had intense development pressure. In order to preserve these landmarks, the development rights which would have been allowed on these particular pieces of property if the structures were not there, were transferred to another property which could then develop at a greater intensity of use. Thus, there were no unjust takings of the development rights and the landmarks were saved. This system is gaining more and more use in urban areas.
In order to apply these to a rural open space program, the TDR system would involve the sale of development rights from restricted "preservation districts" to another area of land more suitable for development. The second area could then be more intensely developed, and the first vrould stay in its natural state. The program would require that the responsible government establish districts into which development rights could be transferred, determine the amount of rights which can be transferred, set a maximum density permitted on any one tract, provide for variances from the zoning ordinance, and permit condemnation of development rights if owner doesn't voluntarily comply.
The owner of a privately held area which is designated for open space can, instead of getting government compensation for the regulation, be permitted to sell or transfer his development rights to areas where development is permitted.
A rural conmunity wbLshing to institute a TDR system should first determine the desired development intensity and designate which land is to remain un-

developed. This should be part of the adopted zoning ordinance. The local government should allocate development rights to owners of land which is to remain undeveloped with the number of development rights based on the proportion that the property contributes to the total assessed value of all undeveloped land in the area. The owner of land zoned for development who wishes to develop his land more intensely must then buy additional development rights on the open market from a holder. The development rights would be subject to ad valorem property taxation. The types and numbers of TDRs could be adjusted according to changing corrmunity policies.
This method is not yet widespread in the United States, but there are several areas which are using TDRs to protect environmentally sensitive areas: Collier County, Florida, (beaches, estuaries, wetlands); Stowe, Vermont (agricultural districts); Sunderland, Massachusetts (agricultural land, environmentally sensitive lands); Suffolk County, New York (agricultural lands); Buckingham Township, Pennsylvania (agricultural land, critical environmental areas); and Chesterfield and Hillsborough Township, New Jersey, (agricultural areas and environmentally sensitive areas); and in Puerto Rico.
The attractiveness of TDRs in rural areas is based on their ability to satisfy the legal rights of private landowners while allowing for flexibility to protect areas where public funds aren't available to purchase lands in fee simple or less-than-fee simple. But there are several concerns regarding transferrable development rights. Since there is a high level of complexity involved in using this system, it may not be practical to use in rural areas without the necessary planning and administrative expertise. TDR "certificates" (assigned rights to be used for selling) may not be considered by the courts as
enough just compensation for very restrictive land use regulations. The use of
TDRs might also require additional state enabling legislation.

Zoning: Zoning can be defined as a means of segregating and specifying particular land uses to different land areas. Of all methods available to municipalities and counties, zoning can offer the broadest range of opportunities for preserving open space. In addition to being one of the most widely used methods of land use control, zoning is varied in its application and can be tailored to meet the needs of individual localities. Two major types of zoning are commonly used, development zoning (industrial, commercial, residential) and natural resource zoning.
Natural resource or conservation zoning can keep land in open space by presenting areas for the specific purpose of protecting floodplains, preserving farmlands, regulating development on hillsides, and for other conservation purposes. Large-lot development zoning (minimum lot size of at least one acre) will also bring about a measure of private open space because the cost of large lots mil discourage development. This type of zoning can have its best effects when used in areas where development pressure is slight. However, in areas where pressures are strong, it has had only a moderate degree of success, especially when there is a discrepancy between the productive value of the land for conservation purposes and its realizable development vaLue When a reasonable return cannot be made, then such zoning can be considered an unconstitutional taking of property without just compensation. This type of zoning is not necessarily permanent, but can be an effective method when used in conjunction
with acquisition and easement programs.
Zoning has inherent problems which have been well-documented. Its enforcement can be poor and arbitrary and unrelated to community and regional plans and objectives. Often any regional open space planning is precluded due to the

fragmented structure and local views of zoning. Natural resource zoning also
cannot be considered permanent, for if development and/or political pressures
are strong enough, the zoning can be changed to a more intensive use.
Subdivision Regulations: Subdivision regulations are another form of regulation used to protect the general public welfare in regard to use of the land. An important implementation device which can permanently establish the character of the conmunity, they can be written so as to require a minimum of open space dedication or cash-in-lieu of open space from the developer of a subdivision. The amount of required open space dedication will vary from regulation to regulation. This form of regulation will always provide at least a certain amount of new open space for the local citizens and may either stay in private ownership or be dedicated to the public. These regulations can be especially effective if the land to be dedicated can be based on a local or regional open space plan which they can be tied into, and if the local zoning and subdivision regulations are strong enough to require preservation of environmentally hazardous and critical lands.
Planned Unit Development: (PUD) These regulations combine zoning and subdivision regulations to allow for increased densities in areas to be developed, as long as these densities are offset by a corresponding increase in total amount of open space. If properly designed, these developments can create a desirable living environment, preserve natural resources, and aid in controlling development. Drawbacks of PUDs include the resistance of many small developers who would rather build conventional subdivisions (and thus provide less open space) and by many local officials who would rather deal with
conventional subdivisions where existing standards can be easily applied.
Comprehensive Plans: Comprehensive Plans are officially adopted guidelines to help guide a municipality's or county's growth and development. If an

open space element is contained within the comprehensive plan then there is an official statement regarding the community's goals and policies concerning open space. In addition, if the comprehensive plan has been totally and consistently applied, including the open space element, there are legal precedents which will help to enforce the community's wishes when using its plan to further its open space objectives. An aid to the enforcement of the comprehensive plan objectives regarding open space is an official map showing lands which the community has designated as desirable for an open space system. The official open space map does not serve as a zoning map, locking parcels of land into open space. Instead, it serves only as a guide to help the local decision-makers in determining what future land use should be.
Compensable Regulations: The basic concept behind ccmpensable regulations
is that the public has strict control over land use by providing compensation
for property value losses due to regulations. Thus, in an open space acquisition
program, these regulations would limit the use of the land to open space uses.
A specifically designated greenbelt or conservation area would be restricted
to uses such as agriculture, recreation, or resource conservation. In a program using compensable regulations, each parcel is assessed a "guaranteed value" before any land is regulated. After regulations are imposed, the land-owner is immediately compensated if and to the degree that the regulation reduces the value of the land for uses actually in effect at the time the regulation is imposed. A landowner can be compensated by the public agency when he sells the land if the price received is less than the original guaranteed value. Increases in real estate value and inflation after the regulation is imposed are not considered part of the general value. Throughout this program the land subject to compensable regulation remains in private ownership, continues to yield tax revenue, and requires no public maintenance expenditures. At this

time, the program has not been widely used.
According to Roe, it is possible to over-compensate landowners for valid
restrictions, especially with land use law beginning to favor stricter controls
for the public good. Also, if development is indeed about to take place, it
may be no more expensive for a state or municipality to acquire the property
rights than to compensate for strict regulations. Another dilerrma regarding
compensable regulations is whether the local government would be able to
adequately administer such a program. The cost of providing compensation might
also be prohibitive in undertaking compensable regulations.
Contract Clustering: As proposed in Rural Environmental Planning, this method is perhaps especially suited for rural areas. It involves a contract between the landowner and the local municipality or county, signed voluntarily by the landowner. For example, such a contract would contain three agreements:
1. It would state that the farmer agrees to deed to the public the development rights on 90% (or other agreed upon percentage) of all prime agricultural land in the ownership unit for $1.00.
2. The farmer's remaining land will be rezoned for a total number of dwelling units equal to the total number permitted by the zoning ordinance on his contract covered land, plus a 20% bonus in units.
3. Hie prime agricultural land will be classified as pastureland and taxed as such until development takes place.
Advantages of contract clustering are several. The development rights will gradually be removed from the prime agricultural land, preventing a non-reversible change in land use as well as providing open space. The prime agricultural land and open space will be protected at little or no cost to the taxpayer, and the farmer's rights to develop his land for intensive nonagriculture uses aren't lost.
The farmer has some additional incentives. First, much of his prime agricultural land is less suitable for development than the non-prime land

because of the high water tables. Second, cluster development reduces the developers costs of building and supplying services. Third, the farmer will be taxed at use value, not appraised value. And fourth, the farmer receives a 10% increase in allowed dwelling units.
This method need not be restricted to agricultural land as the literature suggests, but could also be applied to natural resource areas and environmentally sensitive areas which are in private ownership.
An effective yet usually temporary tool for preserving open space is property tax relief for property owners. Methods to achieve this take several forms:
Preferential Assessment: Preferential assessment differs from the standard ad valorem assessment of real property in that the assessment for farmlands and other rural uses is based on the current use of the land rather than its value on the open market.
Preferential assessment of open lands requires State enabling legislation.
The first state to adopt such a program was Maryland in 1956 for preservation of
agricultural land. Called the Maryland Use Value Assessment Act, it states,
"...lands which are actively devoted to farm or agricultural use shall be
assessed on the basis of such use, and shall not be assessed as if sub-29
divided." The law also provided for the Maryland State Department of
Assessment and Taxation to establish criteria for determining whether lands are actual working farms. Colorado's Preferential Assessment Program is based on a use-value formula.
Connecticut also has a preferential assessment 1aw, the Connecticut Open Space Act, in effect since 1963. Its focus is on land use, with only the

agricultural income from the land itself and not the owner's income from other sources considered for tax relief. As a land use control, however, this program has no control over the ultimate fate of the land, even with a 1972 conveyance tax amendment. In reality, any holder of agricultural or forest land (including individuals, corporations, resident or absentee) may apply to the local assessor for preferential tax treatment. There is no contract between the property owner and the public agency which restricts the owner's changing the use of the land. ^
The property owner receives several benefits from preferential assessment, as well as the surrounding property owners, and local, and national economy. An assessment based on current use enables the landowner to continue farming or ranching rather than being forced to sell because of the tax burden. The agricultural economy of the area can be maintained, with residents being able to buy locally grown produce and people can enjoy the rural and scenic character of the area.
Negative aspects are a part of this system as they are of any other. It has
been argued that the money lost in local property taxes due to the lower
assessment could instead be used to purchase open land. Abuses of the spirit and
purpose behind this method have also occurred, as farmland has been purchased by
speculators and have kept land in agricultural use and then sold when devleopment
pressure has raised the market value of the property. Another problem rises
when the preferential assessment method isn't used comprehensively by all
agricultural property owners. Leap-frog development can thus occur, with new subdivisions or other uses being platted here and there on land which isn't in the program, skipping over areas which are. This can lead to costly sprawl.
Perhaps the greatest weakness of preferential assessment is its lack of permanency. This method may delay development for a time, but the local jurisdiction has little

say over when or where the development should occur unless other methods are used in conjunction with it. Success of this program is very dependent on how willing both the local property owners and government are to see that it is successful.
Deferred Taxation: Deferred taxation is a variation on preferential assessment, adding a built-in penalty for a change in land use, usually in the form of a tax rollback. Several states have adopted this method of open space preservation.
The current New Jersey open space law allows land in the program to be not
less than five acres in size and it must be actively devoted to an agricultural
use for a minimum of two years prior to the tax year in question. Any change
in the use from the agricultural use would result in a rollback tax being
assessed to the property owner equal to the amount of tax saved during that year
and the two preceeding years. There were, as of 1975, eighteen states with
deferred taxation procedures.
Oregon's deferred taxation methods include the charging of interest on the
deferred tax when the land use changes. In addition, Oregon considers comparative
sales (market value) when assessing the characteristics of the agricultural land,
but only if those sales are found to be "under the conditions that justify the
purchase of such agricultural land by a prudent investor for farm use."
Deferred taxation as a means to preserve open space is plagued by the same problems as preferential taxation, such as loss of potential property taxes, speculation, and permanency. Another problem which concerns both preferential assessment and deferred taxation is how to define the uses permitted on the land being given special tax consideration. Some acts list the permitted uses compatible with agriculture and others define agricultural uses. Often the local assessor has discretionary power to determine who should get any sort of preferential taxation. ^

Restrictive Agreements: In this form of open space preservation, the community or state can choose which lands will receive preferential taxation, as opposed to the voluntary methods of preferential or deferred taxation. This approach could work well in a broad land use planning program and its success is dependent on the attitudes of participating jurisdictions.
When using restricted agreements, the property owner agrees to limit the uses allowed on his land for a specified number of years (usually ten) in exchange for certain tax concessions. If the land use is planned for a change, several years notice must be given. If the land use is changed without proper notice, penalties are assessed.
California's program has been the most studied. In 1965 the Land Conservation
Act was passed which authorized counties to designate "agricultural preserves"
or agricultural districting. Landowners could enter into contracts with the
local government to place land use restrictions on their agricultural or open
space land for extendable terms of up to ten years in exchange for property tax
benefits. However, those properties entering the program must complement an
existing town or regional master plan. The penalty for withdrawing land from the
program is a tax rollback and a fine equal to half the full cash value of the
land in its unrestricted use. The state helps local governments financially
with payments for the coverage of administering the program.
Preferential assessment, deferred taxation, and restrictive agreements are all programs employing tax incentives to maintain open space. Analysis of these programs has yielded the following results: that these programs have not significantly deterred conversion of open lands to other uses; that they have caused a substantial loss of local government revenues; that they have raised property taxes for other landowners; and that may have stimulated leap-frog development. The goal of achieving open space has only been realized where

property owners are already inclined to keep their land in agricultural and
rural uses and need the tax breaks to be able to do so.
According to Roe, the tax incentive programs can be a good tool with the following inclusions:
1. There must be strict regulations which prevent further land conversions.
2. Tax incentives must be specifically linked to areas and uses publically acceptable. For example, instead of including all farmlands, they should be limited to areas officially designated as prime agricultural lands.
3. Capital gains taxes or betterment levies should be adopted to recapture private windfall profits from rural land conversions, particularly when the gains result from public investments in the area.
4. It is recommended that state governments must be responsible for administering the program and agreements. Local governments may not be able to adequately do the job. 38
Grants: Another possibility to aid open space owners pay property taxes is the use of direct grants. The concept behind grants is if increasing property taxes are a major cause of forcing people to sell their land for development, then local, state, or federal government should help to subsidize their costs.
The amount of the grant could be only enough to cover the cost of the increased property taxes or the grant could even be somewhat higher in order to provide an incentive for the owner to keep his land open.
Increase of Existing Sales Tax: An increase in sales tax can provide the needed monies for open space acquisition. This can be done at the state and local levels or both. The city of Boulder, Colorado presently has .4% sales tax designated strictly to support its open space program, in effect since 1963. Jefferson County, Colorado also uses a sales tax of .570 to support its open space efforts.
In order to institute an increase in the local sales tax, it takes a vote by the public. A public constituency which supports this added taxation shows the necessary comnitment towards establishing and maintaining open space

preservation. The money obtained through this method can then be used to acquire land through use of any number of methods.
Donations and Dedications: Landowners who want to encourage open space
can insure that their land will be preserved in its natural or agricultural state
by donating it to public or private agencies. Because these agencies seldom have
enough money to purchase the land they desire, private owners play a major role
in providing this land. Some citizens may be eager and willing to donate
property, but cannot unless there is a legal authority of some type to accept
the donations for park, recreation, and open space purposes.
It is easier now for property owners to donate land through federal, state,
and local governments than ever before. There is also great flexibility as to
how donations can be accomplished. Benefits for the property owner include
substantial tax advantages, capital gains savings, estate tax benefits, and
eliminated or reduced property taxes.
The method in which gifts can be made depends primarily on the uniqueness
of the individual situation, based on extent and type of interest, the conditions
involved in the conveyance, the completion time and whether the transfers are
by deed or bequest. Sufficient legal counsel is always necessary to help
facilitate donations.
Major groups or agencies in Colorado through which open space can be donated are the Federal Heritage Conservation and Recreation Service, the Colorado Division of Parks and Outdoor Recreation, and private foundations.
The Heritage Conservation and Recreation Service is the Federal agency which assures recreation responsibilities and undertakes the role of identifying and conserving the cultural and natural resources of the nation. This agency works

closely with the Colorado Division of Parks and Recreation, primarily be appropriating money from the Land and Water Conservation Fund Program. This program provides matching funds which can be used to purchase additional land or develop the donated property in accordance with the donor's wishes. For real property being donated to a state or local agency to qualify for a matching share of L&WCF monies, the following criteria must be met:
1. The property must be made available for public outdoor recreation use.
2. There should be no inconsistent reversionary clause in the deed of conveyance.
3. The appraisal of the property must be approved by the Heritage Conservation and Recreation Service prior to the donation.
4. The land donation must not be accepted prior to project approval or a grant of waiver of retroactivity.
5. Appropriate state and federal regulations must be adhered to.
The State Division of Parks and Outdoor Recreation is authorized to acquire by gift, transfer, lease, purchase, or long term operating agreement any land or water or interest in land or water which the director feels is necessary and/or suitable for outdoor parks and recreation, preservation and conservation of sites, scenes, vistas, and open space of public interest. This agency is responsible for allocating Colorado's share of the Land and Water Conservation Funds.
The third important group involved with facilitating land donations for open space are the private foundations. One of the most important at the national level is the Nature Conservancy, a private conservation organization whose resources are devoted to preserving ecological diversity through protecting significant natural lands. The Nature Conservancy acquires threatened natural areas in four ways:
1. By using privately contributed funds to purchase land through its offices or volunteer entities

2. By accepting gifts of natural areas
3. By assisting other conservation groups in their acquisition efforts
4. By acquiring and later transferring selected lands at the request of local, state, or federal agencies in advance of their abilities to do so.
The primary methods used by the Nature Conservancy have been fee-simple acquisition
and easements or other partial rights.
Hie Colorado Open Land Foundation, established in 1974 under Colorado law is a private foundation with the goal of preserving historic and natural resources, open space, plant and animal life and the visual environment. The statewide scope of the foundation allows it to become involved in local and regional as well as state efforts to preserve open space. The COLF uses several means in aiding the acquisition of open space, including fee-simple and then reselling back to the local jurisdictions when the jurisdiction is able to pay, and through the development of conservation easements between private landowners
/ Q
and the local government.
Much of the open space preservation which the aforementioned agencies and private groups are involved in does deal with land donations from private owners. These landowners stand to benefit from outright property and state and federal income tax breaks when they donate. As a rule, gifts to governmental bodies and qualified charitable organizations are deductible for income tax purposes. In order to qualify for a deduction the gift must be made to an appropriate recipient, such as qualified public agencies and charitable, nonprofit groups. These gifts can be in the form of cash, securities, outright gifts of the owner's entire interest of land, and undivided portion of that interest such as a conservation easement in perpetuity, or bargain sales of land.
Donations of personal residences or farms subject to a reserved life estate are 44
also included.

Outright Gifts: Outright gifts is the simplest method of giving land and
involves conveyance in fee-simple title. This approach will result in the greatest
tax benefits to the donor and allow the recipient the greatest use of the land.
Bargain Sales: Bargain sales are sales of property to a qualifying organization or government body at less than full market value. This method is used when the landowner wishes to have land protected and wishes to make a donation but cannot afford a complete donation. The landowner receives from this an actual
cash amount, a capital gains tax deduction, avoidance of brokerage fees, and a
charitable contribution reduction.
Conservation Easements: As previously mentioned, conservation easements are created by an agreement between the title owner of the land a qualified agency, under which the owner conveys to the holder of the easement the right to prevent certain uses of the land or to use it only for specific purposes. The owner voluntarily creates a legally enforceable interest in the land by which he or she promises to keep the land substantially free of future development or other injurious activity. The title or right of possession to the land is not conveyed to the public, allowing the owners to use, sell, lease or convey the land. However, the easement will always be carried with the deed, and will either be in perpetuity
or for a stated number of years.
Gifts of easements in perpetuity are deductible in the same manner as other gifts of land. The value of the easement is determined as the difference between the appriased market value of the property before and after the granting of the easement. This should theoretically reduce the owner's property tax burden by reducing development potential of the land, thus reducing the full cash value to the owner and its assessed value for property tax purposes.

Donations of land provide a needed mechanism to effect local or state open space programs, while providing benefits for the donor. In several instances, where the public takes over the title to the land, there may be problems with management and maintenance of the land, which could still place a heavy burden on the local municipalities' resources. However, as in the case of conservation easements, title is not conveyed to the public but stated restrictions and/or uses could still allow for preservation of the land while letting the public have limited access compatible with conservation goals.
Table II sunmarizes the methods which have been discussed. For each method, there are benefits and constraints listed which should help rural communities determine which approaches may be practical in their efforts to undertake an open space program.

TABLE II: METHODS OF ACQUISITION: Benefits and Constraints
METHODS Benefits Constraints
Direct Purchase -direct and simple -commonly used -public owned, will thus usually have some permanence -costs can be high for large parcels -takes land off tax rolls -continual maintenance
Eminent Domain -can be used or justified for protection of "public purpose" -commonly used for small tracts -high costs of compensation to landowners -removal from private to public hands can take land out of productive uses -not too practical for obtaining large areas
Partial Purchase and Options -carmunity can spread out cost over number of years -property owner sells, and then can lease property back from public -local government gets additional income from leasing -high initial costs
Lease or Sale Agreements -public buys and then can sell or lease back to private owners -public can put deed restrictions on property to preserve open space -public has firm control without full ownership or managanent -high initial costs
Acquisition of Rights -right to develop is owned by the public, can hold in open space -farmland is preserved -property taxes no problem since land is assessed agriculturally -private owner free to sell at any time -high costs -ability of local governments to manage such a system -public may not be able to use directly

Land Banking
Right of Preemption
-land stays in private ownership
-public makes sure land is kept as open space through deed
-public can use in same instances
-landowner benefits from either cash or tax benefits -becoming more commonly used by local governments -provides economic return on land for landowner -specificity of regulation -no condemnation necessary -can apply to large areas
-landowner receives reduced -costs can be spread out over period of years
-land can be acquired well in advance when costs are relatively low
-costs can be spread out over a period of time -public infrastructure can be provided for efficiently on large pieces of land -sites can be leased -large tracts can be offered for development in best planned way
-can use revolving land bank concept
-allows local government "right of first refusal" on land up for sale which is designated as potential open space
-may be expensive if land is not donated
-enforcement may be difficult -can have legal problems in regards to types of easements -potential local tax base may be reduced
-costs can be high -local government may have to assume maintenance
-public incurs high cost of acquisition and holding -land must be condemned, legality not clear
-foregone tax revenues -may be too complex for local governments
-high costs

TABLE II. (cont.)
METHODS Benefits Constraints
Planned Unit Developments
Compr ehens ive PTans
-can transfer development rights from areas which should be preserved or protected to areas suitable for more intense development -being used more and more -satisfies legal rights of private landowners while allowing for flexibility of preservation -doesn't require public funds
-widely used -flexible
-can have best effects where development pressure is slight
-effective when used with other programs
-makes open space dedication mandatory
-can be especially effective when tied in with local or regional open space plans
-allows flexibility for more open space within a devel-ment
-official policy which could include open space goals and objectives
-serves to guide decisionmaking on land use -legally enforceable if consistently applied
-land remains in private ownership
-contrives to yield tax income
-requires no public maintenance expenditures
-creates permanent open space -little or no cost to the taxpayer
-landowner able to continue using land in agricultural uses
-clustering reduces development costs
-high level of complexity -legal questions as to just compensation
-subject to rezonings where growth pressures are strong -subject to arbitrary enforcanent
-not effective if loosely enforced -requires specific wordings as to amount and kinds of open space which will meet local requiranents
-resistance from developers and local officials who prefer conventional design
-subject to lack of consistent application -not considered law
-high costs of compensation -possible over compensation to landowners
-may be less expensive to purchase land directly
-may be too complex for rural governments
-voluntary- no guarantee that landowners will participate in program

TABLE II. (cont.)
Sales Tax
-offers taxation on "use" of property as opposed to 'developmental potent ial'' -maintains agricultural economy
-may increase surrounding land values
-already exists in Colorado
-only temporary preservation of open lands, has no control over ultimate use of lands -money lost from assessment could be used to purchase open lands -abuse frcm speculation -may cause leapfrog development -voluntary
-may keep land in open space longer because of penalties if land is converted
-speculation occurs -property taxes may be lost -voluntary
-may stimulate leapfrog development
-state chooses which lands get preferential assessment
-sufficient notice must be given before any land use change
-properties entering program must be complimentary to local or regional open space plans -the state helps in administration costs
-not permanent
-could result in substantial loss of property taxes
-may stimulate leapfrog development
-helps open space owners pay property taxes
-provides neede revenues for acquisition
-income tax benefits -no local or state acquisition costs
-flexibility of methods private landowners can use -can be used to apply for matching grants
-not enough money to go around -few existing programs
-not possible unless public supports the use prescribed for the additional tax
-maintenance costs may be prohibitive

Chapter 3
Many counties and towns in Colorado have included open space policies in their master plans. Few of these places have instituted active programs where there are definite means and actions for acquiring open space for their jurisdictions. Those that have and are considered here are the City and County of Boulder and Jefferson County.
The City of Boulder is blessed with a unique natural setting at the very point where the high plains of Colorado meet the Rocky Mountains. The City lies right against the foothills in an area of unqualified natural beauty. As with other Colorado Front Range conmunities, Boulder has experienced rapid growth since the early 1950's. In order to cope with this increase in population and preserve the natural environment, a charter amendment was passed in 1958 by the conmmity which established a "blue line" elevation above which the city would not provide water for development. Nine years after this, in 1967, Boulder citizens voted to increase their sales tax by 1.0% of which .4% of this would be designated for acquisition and protection of open space lands. A 1970 Boulder Valley Comprehensive Plan designated large expanses of open space which sales tax funds would be directed towards, an area of approximately 16 square miles.
Because the sales tax wasn't raising quite enough revenue to completely implement all the open space acquisition desired by the community, a new charter amendment was passed in 1971 allowing for the city to issue bonds earmarked for acquisition of open space. In 1974 a comprehensive open space plan was adopted which established the parameters for open space acquisition. These parameters include land to be preserved as natural areas, passive recreational uses, agricultural uses, and urban growth shaping. Guidelines and priorities were also established. Their first priority in acquiring land was that for which aggressive

action should be taken. Second and third priority areas were those which would be pursued only in response to a direct need caused by impending development. However, a priority rating does not mean that any particular property will actually be acquired. ^
According to Donald Walker, at one time director of Real Estate Services/ Open Space for Boulder, it is most important for the city to maintain flexibility in order to compete with a private purchaser in land acquisition. Creating needs for specific properties creates an unsatisfactory atmosphere for negotiating, and the city could be forced to use funds which were to be used for other purposes. Sound financial planning and management are necessary because of the fixed revenues and limited bonding capacity of the city. Computer facilities help administration to achieve this.
Through 1978, the city had acquired or contracted purchase for 8000 plus acres of land, with total cash expenditure of around $9,500,000. The sales tax had created $6,773,000. The primary methods of acquisition have been scenic easements, development rights, and mostly "rolling-option agreements". Through "rolling-option agreements" the city agrees to purchase the property, and then receives a deed for a portion of the property the first year while obtaining options to acquire other portions in succeeding years. Throughout the contract-option period, a portion of the money is allocated to the number of acres acquired at each option date. The city also obtains a lease on the entire property to be bought with leasebacks comnon. Long-term option contracts provide tax benefits to the seller.
At present, the emphasis of the program is no longer as strong for acquisition of mountain property as it is on the farm and range land buffering the city. One goal for these areas is to raise sufficient revenue from leases on the forms to raise sufficient revenue from leases on the farms to make the

open space program self-sufficient.
Boulder County, faced with very rapid urbanization, also has a strong open space element as part of its comprehensive plan. Operated as part of the Land Use Department, the Open Space Department also has a priority wish list for areas to be preserved as either urban shapers, wildlife habitats, places of historical significance, or scenic areas. An Open Space Advisory Conmittee works with the county.
The County tried in 1978 to get a positive vote on the use of a sales tax
to aid in open space acquisition efforts. This measure was defeated for several
reasons, such as no desire for any additional taxation and reluctance of the
farming community to see any more restrictions put on their rights to use their
land as they see fit. Because there is no continual source of revenue for
acquisition, Boulder County relies primarily on the requirements of their zoning
and subdivision requirements, Federal revenue-sharing funds, and Land and
Water Conservation grants.
Jefferson County is another Colorado area whose growth and development has
spurred its citizens to support an open space acquisition program. In November
of 1972, the voters of the county voted to adopt the Open Space Program, to be
supported by "a one-half percent sales tax on retail sales in Jefferson County
to be used exclusively for the planning for, developing necessary access to,
acquisition, maintenance and preservation of open spaces real property for the
use and benefit of the public." Prior to this time there were no financial
allowances for open space acquisition from the county general fund.
Since 1972, approximately 12,000 acres of parks and open space have been obtained, 7300 acres of which are mountain areas. The acquisition process includes leasing, easement acquisition, and gifts of land. Direct purchase is the most often used method.

The process in Jefferson County begins with a proposal being made by an interested party, be it the owner, a local government, or a private group. The proposal is then analyzed according to its contribution to the Open Space Master Plan by staff and an advisory committee. If the proposal is approved by the County Commissioners, then the Open Space Director proceeds into appraising and negotiating for the property.
The Jefferson County Open Space Study/Master Plan contains goals, objectives, and policy statements to guide the program. All incorporated communities as well as the unincorporated portions of the county benefit from the program. Often, funds from the Open Space Program buy sites which are then turned over to the community or special district to develop and maintain them.

Chapter 4
Open space planning for rural counties is a relatively new concept. Almost all literature concerning open spaces and the means to acquire these lands seems biased towards urban and suburban areas, areas which have a large population and are now finding the need to preserve some of the land within and bordering their jurisdictions. This is land still possible to save from development, such as agricultural lands, floodplains, waterways, and places with unique environmental characteristics. Two examples are the City of Boulder and Jefferson County. These areas have been growing rapidly and the threat of no more open space separating built-up areas has become very real. These municipalities have either a population or financial base which can support an aggressive open space planning program. Many of the methods developed and used by urban areas are prohibitively costly or complex for the limited financial and administrative means of rural areas. Perhaps because rural counties are inherently "open" there appears to be no actual need for an open space preservation program.
This would be true for counties which are so isolated from major population centers and so lacking of any economic development potential that growth is either at a standstill or a continuous decline. However in many rural Colorado counties, primarily along the Front Range, in the mountains, and on the Western Slope, new economic factors are causing increased growth which might last for quite some time and permanently impact many land areas which should be preserved and protected.
These are the counties for which open space planning will become important, both to maintain the desired rural life style for present and future residents and to conserve increasingly valuable natural resources.
In order for open space programs in rural counties to be effective, they must be firmly supported by the residents of that county. Any planning proposal must answer the following questions:

- Does it violate custom?
- Is it financially feasible?
- Does it contribute toward public goals?
- Is it legal? 54
If the open space program doesn't qualify under these questions it will have trouble from the start. What is most important however is that the public must initiate and carry through with the program. Citizen participation is a necessity. If public goals are drawn up by the community then the open space program must compliment these goals. If an aggressive acquisition policy for open space doesn't violate local customs (which it very well may) and is financially feasible (which is highly possible) then each acquisition method should be explored to determine its acceptability for use. If the method isn't acceptable or if the need to acquire open space just isn't there, then there is no reason to pursue a program. This must be determined by the community.
If a need is found to be present, then the community should begin to lay the groundwork for open space planning through comprehensive goals and policies which can be built upon later. Sample goals and policies for a comprehensive open space plan could look like the following:
PARKS, RECREATION, AND OPEN SPACE: Goal- To create a permanent land -water open space system, together with interrelated recreation areas and parks:
Policies: 1) new approaches
2) a balanced system
3) ridges, water edges, floodplains
4) paths of development and movement
5) land acquisition
6) holding patterns and interim uses
7) community recreation
8) schools and parks
9) other multiple-use opportunities
10) environmental characteristics.
ENVIRONMENTAL PROTECTION: Goal- To prevent the degradation of the earth, air, water, natural systems, or man-made environment:
Policies: 1) ecologic survey
2) evaluation of capacities and tolerances
3) design a total program
4) standards and criteria
5) monitoring

6) recotrmended procedures
7) review of land use proposals
8) assessment of impacts
9) regulation and control
10) reclamation and restoration
11) research
12) public education 55
After goals and policies for open space have been formulated, then the conmunity must look for means to implement them. Table III attempts to look at each method from the viewpoint of the local rural government.
Not included in Table III is the legality of each method and the acceptability to both the public and to private landowners. Legal questions regarding each of these is full study in itself and must be undertaken with continual legal counsel by a conmunity. A section on land use laws in Colorado is in the Appendix. The conmunity must also determine its own degree of acceptability for each method, and this can only be done when the situation arises and public input is sought.

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Chapter 5
Douglas County is situated in the path of least resistance to the burgeoning Denver metropolitan area. The County's northern boundary lies approximately fourteen miles south of downtown Denver. On the southern border of the County is El Paso County with the fast growing Colorado Springs area. At present, the population of Douglas County is close to 25,000 people living in an area of 844 square miles. This amounts to about 30 people per square mile. Most of the people live in the northern half of the County, with the major population centers being Castle Rock, (one of two incorporated towns in the County), The Pinery, Parker, Acres Green, Sedalia, and Louviers. This part of the County is slated for dramatic population increases due to the approved plans for Highlands Ranch, which is to house approximately 90,000 people by the year 2000 in 30,000 dwelling units. In addition, Castle Pines, Parker City, Rampart Range, Lone Tree, Parker North, Lincoln Park East, Roxborough Park, Park Meadows, and Cottonwood are all developments now being planned. The total dwelling units of these projects ranges from 300 to 7100. Many smaller subdivisions dot the landscape or soon will.
The southern half of the County at present is seeing a less dramatic but nonetheless apparent development pressure. Existing developed areas include tiny Larkspur, a just incorporated conmunity of less than a hundred people, and the Perry Park area with a little less than a thousand residents. Several large developments are also in the planning stages in the southern part of the County.
If all approved dwelling units in the County were built out with no more approved, the County could house approximately 270,000 people within its borders, over ten times what it now has. In comparison, the 1979 populations of Adams, Arapahoe, and Boulder Counties were respectively 245,000, 275,000, and 196,000. The forecasted population for which planning in the County is being

Map I.

based on is 121,000 people by the year 2000.
Over half of the County's land is range, forest, and barren land. Another 287o is included as lands for parks and recreation, primarily within Pike National Forest. Eleven percent of County land is used for agriculture, with only 5% of the land developed. (See Table IV) The County has had a long history of agricultural and ranching uses, and the wide expanses of open lands reflect this.
Type Acres % of County % of Developed
Slgle family residential 24,920 5 93
Multple family residential 75 * *
Commercial 814 * 3
Industrial/transportation/ 737 * 3
communlcatlon/utllltles Publlc/quasl public 352 * 1
DEVELOPED TOTAL 26,898 5% 100%
Irrigated cropland 7,427 1
Non-lrrlgated cropland 43,197 8
Other land In agricultural use 10,012 2
TOTAL COUNTY 540,000 100%
Negligible percentage.
Pvt>mi Pfixft fZ&ji0r\al pYWttx and Development Plan -for ifie- Dexwer flexion gx tendon To tCcvnUj pmjX?.

However, the old character of the County is fast changing as is evidenced by
the already mentioned population forecast. The recently finished "Douglas County
Comprehensive Survey" supports this. Results from the survey indicate that almost
(487o) of the workers in the County work in Denver, showing that Douglas County is
somewhat of a bedroom community. Sixty-eight percent of the residents have lived in
the County for less than ten years. The median household income is between $30,000
and $40,000. These people indicated the County's rural character and clean air as the
major reasons for moving there. Of the respondants, 607, indicated that there should be
a limit on the County's population, with half of those people suggesting 50,000
people as the limit.
The survey brought out strong sentiment for the importance of protecting scenic views, historic preservation, a greenbelt program, parks, environmental protection,
recreation, natural resource management, and land use planning with citizen parti-
cipation. The following table from the survey demonstrates this:
37 How Important are each of the following County Issues to you?
Countv Very Important Number Percent Some Important Number Percent Not Important Number Percent Total Response Percent of Total
Enforce Bldg. Codes 1692 74X 511 22X 81 41 2284 100%
Enforce Zoning Codes 1815 79X 406 18X 67 3X 2288 loot
Protect Scenic Views 1717 74% 511 22X 83 41 2311 100X
Historic Preservation 1279 57* 796 36X 149 7X 2224 1001
Greenbelt Program 1178 54X 786 36X 215 10X 2179 loot
Parks Program 1058 49* 896 41X 224 10X 2205 loot
Land Use Planning 1670 75X 456 21X 97 4X 2223 loot
Citizen Participation 1n local planning 1510 68X 643 29X 75 3X 2228 loot
Environment Protect. 1319 59X 779 35X 137 61 2235 loot
Recreation 1036 47X 954 44X 197 91 2187 loot
Nat. Resource Mngmt. 1289 62X 690 33X 110 5X 2089 loot
Existing County Open Space
The largest amount of open space in the County is owned by private landowners. Homeowner's associations also own and maintain a considerable amount of land within
individual subdivisions. A homeowner's association is defined as a group of residents in a given subdivision organized to represent that said comnunity. In Douglas County, with its desireable rural character evident in the great number of large-lot

subdivisions, trails and easeinents are often included for the subdivision residents' use. Several developments within the County have, or will have private golf courses which are also open space uses. These developments are Roxborough Park, The Pinery, Perry Park, and Castle Pines.
Other open space areas in the County include Roxborough and Castlewood Canyon State Parks and Chatfield State Recreation Area. Approximately 120,000 acres of Pike National Forest lie within Douglas County. The City and County of Denver owns Daniels Park. Douglas County, itself, owns and maintains several
comnunity park and recreation facilities. (See Map 2)
Developing an Open Space Strategy
Douglas County is beginning the process to develop a County Comprehensive Plan. Because of the importance of planning and the environment to County residents, an open space element to the plan should be included. Douglas County should develop an open space framework. This framework could include:
1. Inventorying the land and water base of the County. This entails plotting on a suitable base map with a manageable scale the topographical features and environmentally significant areas. The Denver Regional Council of Governments (DRCOG) has defined these as being (See Maps 3-14):
-sand, gravel, and aggregate resources
-prime agricultural resources
-aquifer recharge areas
-wildlife hazard areas
-landslide areas
-subsidence areas
-shrink-swell soil potentials
-wildlife habitats
-coal, oil, natural gas deposits
-forest lands
-special situations
2. Locating and mapping the major public and private facilities:
-park and recreation areas -trails
-conservation areas -schools
-private holdings such as industrial parks, institutions, cemeteries, campgrounds, golf courses, and other recreational uses.

Mflf 7.. County g 1. Roxborough State Park
2. Chatfleld State Park
3. Daniels Park
4. County Fairgrounds
5. Castlewood State Park
6. Acres Green District
7. McArthur Ranch District
8. Plum Creek El. School
9. Acres Green El. School
10. Parker J.H.
11. Pine Lane El. School
12. Sedalia El. School
13. Northeast El. School
14. Douglas County H.S.
15. Castle Rock J.H.
16. Castle Rock El. School
17. South Street El. School
18. Cherry Valley El. School
19. Larkspur El. School
20. Louvlers County Park
21. Parker County Park
22. Franktown County Park
------Proposed Trails
Schools fl Public Parks A Park Districts

3. Locating and mapping transmission-transportation corridors and other easements.
4. Locating dedicated open space belonging to the County and to homeowner's associations.
5. Synthesizing all the mapping and data to:
-establish an open space policy -survey existing conditions -project future needs -plan a coordinated open space plan
-act to accomplish the plan through the setting priorities for open space needs and acquisitions and developing the tools to accomplish these priorities.
Goals and policies regarding open space preservation in Douglas County should be developed at the community meetings to be held for the county-wide Comprehensive Plan. Task forces can be set up to draw up the strategy to undertake an open space plan and to help in its implementation if officially adopted. These goals and policies should be tailored to meet the needs and concerns of area citizens, meet county-wide open space objectives, and relate to policies set at the regional (DRCOG) and state level (Human Settlements Policies). Only through a coordinated, multi-leveled approach with strong local initiative and support, can an open space program be truly successful. (Sample policies from the Boulder County Open Space Plan are included in the Appendix)
Past open space planning efforts in the County consisted mainly of a section in the 1974 Land Use Plan for Douglas County. This plan was never adopted as official policy by the Board of County Commissioners. However, the need for policies regarding open space and parks was included in the plan. It stated,
"It is of primary importance to Douglas County to provide areas of low-density development with basic greenbelt concepts to preserve the natural features of the mountains and terrain, to encourage development of parks, use of open space, and other public recreational facilities within the County. Development of recreational areas and greenbelts shall be urged in conjunction with public areas such as



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school sites." The County goals included the need "to protect and preserve open space resources within the County. Where identified, open space uses shall be recognized as the highest and best use of the land," and "to define, analyze, and evaluate open space values by establishing their relationship to the total desired county environment and lifestyle." Thus, through past planning
efforts and present citizen input, there is a clear desire to develop a set of open space goals and policies and determine means of implementation.
Tools for Open Space Planning
If Douglas County decides to pursue an active open space preservation and acquisition program, it will have to look into means to either acquire the land to keep in public hands or encourage more efficient use of private open space. Other than through existing zoning and subdivision regulations the County has no way to acquire open space, other than the use of eminent domain. Eminent domain is a last resort in acquiring open space for private landownership is a fundamental institution in rural areas serving many purposes; such as a place to keep savings, an inflation-proof way of storing wealth, a medium of transferring economic gains to succeeding generations, a measure of social standing in the
conmunity and a natural resource which supports the rural way of life. Thus,
eminent domain can be very unpopular when forcing land from private hands.
Zoning and subdivision regulations are also often mistrusted, for the ageless axiom "nobody likes to be told what they can or cannot do with their land" is understandably evident in rural areas. When rural areas are growing rapidly and an influx of people with different ideas, customs, and needs make their voices heard, conflicts can result between the old and the new values. As the population grows and the responsibility of local government expands to try to meet increased needs such as police protection, transportation and circulation, social services, and land use controls, the bureaucracy grows too. At the same time, the financial

and administrative capacity of local governments often fails to keep up with increased demands.
Douglas County is in the above situation. Being at the southern fringe of the Denver metropolitan area and growing closer to Colorado Springs, its growth is inevitable. The County presently does not have a strong conmercial and industrial tax base which provides increased property tax revenues. The County fund is heavily dependent on new development and construction, and thus is closely tied to any cycle which the national or regional economy is in. In general, the County does not presently have enough money to initiate any kind of active open space acquisition.
Thus, to plan for an open space program in Douglas County, these constraints must be kept in mind: the desire to keep land in private ownership and the ability of the County government to finance and administer programs.
At present in Douglas County, land use is regulated by zoning and subdivision regualtions. The three member Board of County Caimissioners has the final say on any land use decision, being advised by the appointed Planning Corrxnission and the Planning Department staff. All the residential districts (excepting agricultural zones of 35 acres or more) require some land dedication for public use ranging from 67% to 30% depending on the zoning classification. Table VI shows the various requirements.
The County might consider several additions to the zoning and subdivision regulations, such as floodplain and natural resource zoning. Protection of these lands is critical both for human and environmental considerations. By not allowing platting and building in designated areas this could be possible. Negotiations would have to take place with landowners, perhaps by allowing increased densities on other parts of the property to be developed;
In addition to the zoning and subdivision regulations as a means of pre-

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serving open space for the County, a technique which has just recently been used is the conservation easement, having just been officially adopted by the County for the first time. This easement involves restricting over 500 acres of privately held land to agricultural uses, as specified in the deed. The Mission Viejo Company voluntarily donated this easement to the County as part of the nonurban open space program required for the Highlands Ranch new community.
(See Appendix for a copy of the easement.) This area will serve as a private working ranch, thus offering economic return for preservation of open space and serve as a rural buffer between much of the suburbanizing northern part of the County and the Castle Rock area. Other easements like this one should be encouraged with new developments. They could serve to protect environmentally critical areas, keep land in agricultural use, or allow public access to

recreational resources, while not burdening the County with acquisition and maintenance costs. The landowner will also gain from property and income tax advantages.
By having strong yet flexible zoning and subdivision regulations, by allowing for negotiations and tradeoffs on where land development can take place, and to what intensity, and by using conservation easements, Douglas County could have the means to implement a comprehensive open space plan if there is strong public support and participation. Working with regional, state, and federal agencies to accomplish open space goals is of prime importance.
As financial and administrative resources develop, other means involving public expenditures for open space preservation could be feasible, such as lease or sale agreements, and partial purchase with options, and even direct acquisition. Funding will continue to be a major problem. The Douglas County Comprehensive Survey showed 537, of the respondants opposing a sales tax earmarked for acquisition of open space. Before any of these methods are used however, the County should have developed a comprehensive open space and parks plan to list priorities and guide the decision-making.
It is the hope of the author that this report will be of seme help to local rural governments in determining if there is a need for open space planning, how to begin the process, and how to achieve an open space program. Many questions will undoubtedly arise, especially regarding the technicalities of each method of acquisition and the legal parameters under which local governments mist operate. This document will hopefully serve as a first step in aiding the protection and preservation of Colorado's invaluable open space.

1. David A. Wallace, ed., Metropolitan Open Space and Natural Process, p.15.
2. J. Robert Dumouchel, Dictionary of Development Terminology, p.170.
3. Joseph James Shoman, Open Land for Urban America, p.12.
4. Wallace, opcit., p.4.
5. Shoman, op.cit., p.13-18.
6. Ibid., pp.47-53.
7. Janet 0. Schroeder, Larimer County Plan for Open Space and Outdoor Recreation, p.29
8. Dumouchel, op.cit., p.81.
9. Charles E. Roe, "Innovative Techniques to Preserve Rural Land Resources",
Environmental Affairs, Vol.5, Summer 1976, p.427.
10. Donald V.H. Walker, "Boulder Preserves Open Space", Management and Control of
Growth: Techniques in Application, Vol IV, ed. by Schnidman and others., p.149
11. Robert E. Coughlin and Thomas Plaut,"Less-Than-Fee Acquisition for the Preservation
of Open Space: Does it Work?", Journal of the American Institute of Planners, Vol. 44, October 1978, p.453.
12. Schoeder, op.cit., p.33.
13. Glenn F. Tiedt, Conservation Easements in Colorado, p.l.
14. Roe, o£. cit., pp.429-430.
15. Idem.
16. Coughlin and Plaut, oj>. cit., pp.458-459.
17. Roe, oj). cit., p.430.
18. Coughlin and Pleut, o£. cit., p.460.
19. Subcommittee on Methods of Preserving Open Space, Parks and Open Space Advisory
Committee, Methods of Preserving Open Space in Boulder County, no page number.
20. Schroeder, o£. cit., p.30.
21. Coughlin and Pleut, o£. cit., p.454.
22. Roe, op.cit., p.445.
23. Ibid., p.441.
24. Subcommittee on Methods... o£. cit., p.48.
25. Roe, o£. cit., p. 422.

26. Gunnar Isberg, "Controlling Growth in the Urban Fringe", Management and Control
of Growth, Vol.IV: Techniques in Application, ed. by Schnidman, p.327
27. Frederic 0. Sargent, Rural Environmental Planning, p.61.
28. Roe, o]D. cit., p.429.
29. Dallas D. Miner, "Agricultural Lands Preservation, A Growing Trend in Open Space
Planning',' Management and Control of Growth, Vol.Ill: Techniques in Application, pT56.
30. Ibid.,p.57.
31. Schroeder, o£. cit., p.32.
32. Miner, on. cit., p.57.
33. Idem.
34. Idem.
35. Ibid., p.58.
36. Idem.
37. Roe, oj3. cit., p.425.
38. Idem.
39. Glenn F. Tiedt and Tim Fox, How to Donate Land in Colorado, p.l.
40. U.S. Department of the Interior and Heritage Conservation and Recreation Service,
Land Conservation and Preservation Techniques, p.37.
41. Tiedt, o£. cit., p.2.
42. U.S. Department of the Interior and Heritage Conservation and Recreation Service,
op. cit., p. 41.
43. U.S. Department of the Interior and Heritage Conservation and Recreation Service,
Foundations...A Handbook, p.23.
44. Tiedt and Fox, o£. cit., p.3.
45. Ibid., p.5.
46. Ibid., p.6.
47. Ibid., pp.6-7.
48. Ibid., p.7.
49. Walker, o£. cit., p.148.

50. Idem.
51. Ibid., pp. 149-150.
52. Nancy Day, Boulder County Parks and Open Space Department, April 15, 1980.
53. Jefferson County Open Space Program 1979 Report to the Public, p. 1.
54. Sargent, ojd. cit., p.142
55. John 0. Simonds, Earthscape: A Manual of Environmental Planning, p.291.
56. Douglas County Planning Department, Douglas County Housing/Population Potentials
by Planning District.
57. Denver Regional Council of Governments, 1979 Annual Report on Regional Growth
and Development, p.5.
58. Denver Regional Council of Governments, Draft Regional Growth and Development
Plan for the Denver Region: Proposed Extension to Douglas County.
59. Douglas County Planning Department, Ccmprehensive Survey Results.
60. Subcaimittee on Methods..., 0£. cit., no page number.
61. Douglas County Planning Department, Land Use Plan, Douglas County, Colorado.
62. Ibid., no page nunber.
63. Sargent, o£. cit., p.140.
64. Douglas County Planning Department, Douglas Zoning and Subdivision Regulations,
with Amendments.

Buechner, Robert D., ed. National Park, Recreation, and Open Space Standards. Washington, D.C., National Park and Recreation Association, 1971.
Cranston, Mary and others. A Handbook for Controlling Local Growth. Stanford Environmental Law Society, 1973.
Dumouchel, J. Robert. Dictionary of Development Terminology. New York, McGraw-Hill Book Company, 1978"!
Lassey, William R. Planning in Rural Environments. New York, McGraw-Hill Book Company, 1977.
Sargent, Fredric 0. Rural Environmental Planning. University of Vermont, 1976.
Schnidrnan, Frank, ed. and others. Management and Control of Growth: Techniques in Application, Volume III. Washington, D.C., Urban Land Institute, 1975.
Schnidrnan, Frank, ed. and others. Management and Control of Growth: Techniques in Application, Volume IV. Washington, D.C., Urban Land Institute, 1978.
Shoman, Joseph James. Open Land for Urban America: Acquisition, Safekeeping, and Use. Baltimore, The Johns Hopkins Press, 1971.
Simonds, John 0. Earthscape: A Manual of Environmental Planning. New York, McGraw-Hill Book Company, 1975.
Smith, Edward Ellis and Riggs, Durward S., eds. Land Use, Open Space, and the Government Process: The San Francisco Bay Area Experience. New York, "
Praeger Publishers, 1974.
Magazine Articles
Coughlin, Robert E. and Plaut, Thomas. "Less-than-Fee Acquisition for the
Preservation of Open Space: Does it Work?" Journal of the American Institute of Planners. October 1978, Vol. 4, No. 4.
Journal of Soil and Water Conservation. September-October 1976, Vol. 31, No. 5.
Parks and Recreation: Official Publication of the National Recreation and Park Association. October 1978, Vol. 13, No-10.
Roe, Charles E. "Innovative Techniques to Preserve Rural Land Resources", Environmental Affairs. Summer 1976, Vol. 5.
Denver Regional Council of Governments. Draft- Regional Growth and Development
Plan for the Denver Region: Proposed Extension to Douglas County. January 1980
1979 Annual Report on Regional Growth and Development. August 1979.
Region III Regional Parks, Recreation, and Open Space Development Plan. 1977.

Douglas County. Comprehensive Survey Results. March 1980.
Douglas County Housing/Population Potentials by Planning District. April 1980.
Douglas County Zoning and Subdivision Regulations, with Amendments. 1972
Land Use Plan, Douglas County, Colorado. 1974
Larimer and Weld County Planning Offices. Larimer-Weld Regional Open Space Study and Comprehensive Plan. April 1973.
Schroeder, Janet 0. Larimer County Plan for Open Space and Outdoor Recreation.
June 1976.
Subcommittee of Methods of Preserving Open Space in Boulder County, Parks and Open Space Advisory Committee. Methods of Preserving Open Space in Boulder County. February 1976.
Healy, Robert G. "Rural Land: Private Choices, Public Interests", Conservation Foundation Newsletter. The Conservation Foundation, August 1977T
Jefferson County Open Space Program 1979 Report to the Public.
Peterson, James A. and Schroth, Richard J. Guidelines for Evaluating Public Parks
and Recreation. West Lafayette, Indiana, Purdue University Cooperative Extension S< Extension Service, no date.
Tiedt, Glenn F. Conservation Easements in Colorado. Reprinted from The Colorado Lawyer. September 1976.
Tiedt, Glenn F. and Fox, Tim. How to Donate Land in Colorado. Colorado Open Land Foundation, U.S. Department of-the Interior, and Colorado Division of Parks and Outdoor Recreation, 1979.
Mr. Ben Green Boulder County Parks and Open Space
Ms. Nancy Day Boulder County Parks and Open Space
Mr. Bart Hoag Colorado Open Land Foundation
Mr. Bemie Goetze Colorado Division of Wildlife
Mr. Dan West Colorado Division of Parks and Outdoor Recreation
Mrs. Sharon Menard Boulder County Citizen's Advisory Committees on Open Space
and Long-Range Planning

Laws presently available to county qovernments.
I. Regional Planning Commissions
Formation-: Cooperation or combination of counties and/or
municipalities CRS § 30-281D5 (1973)
Powers: "-..a body politic and corporate with power to sue
and to be sued. ..specifically empowered to receive and expend all grants, gifts, and bequests, specifically including state and tederal funds and other funds available for the -purposes for which the commission exists, and to contract with the state of Colorado, the United States and all other legal entities"
Purpose: "It is the duty of a regional planning commission
to make and adopt a regional plan for the physical development of the territory within the boundaries of the region... GRS 530-2 8-106 (1973)
.Revenue: Appropriations from members, CRS 530-28105 (1973)
Other forms, e.g., grants, etc. .§29-1203 (1973)
Cooperation: "Governments may cooperate or contract with
one another to provide any tunction, service, or -Facility lawfully authorised to each of the cooperating or contracting units, including the sharing of costs, the Imposition of taxes, or the incurring Df debt---" CRS 529-1-203 (1973)
ZH. County Government .
ZTdoIs In General: Taxation, types allowed by enabling legislation --------------------- General sales, ad -valorem property,
service -user fees. (Much less than a statutory or home rule city)
Condemnation interests in land may not be taken or damaged for public use without gust compensation. Colo. Const. Art II, § 15
Police Power Regulation must bear some relation to the public health, safety, morals or general welfare
County Planning Commission:
General Powers: preparation and adoption of county master
plan; preparation and recommendations to the county commissioners on the comity's zoning plan, subdivision regulations and building code.
County Master Plan: Guides physical development of the county's
unincorporated areas, in a coordinated, adjusted and harmonious manner. CRS $30-28-107 (1973)

zoning i'ian: -ir.ciuaes tne 2orung resoiuuDn tin a zoning ** *-maps
regulates by districts or zones; structures, locating height, hulk and size; lots, size and percentage occupied; population, distribution and density; use or buildings and land for trade, industry, residence, recreation, public activities and a].3 purposes; flood hazard. -Adopted by the County Commissioners -Amendments accomplished upon application of county or landowner and a showing that conditions have so changed that an amendment is required Id enhance the public health, safety, convenience or welfare CRS §30-78-116 (1973) -Enforcement by building permit system; prosecution fox commission of a misdemeanor; action for injunction, etc.
County Board of Adjustment: hears appeals concerning the
administration of the soning resolution; decides about variances and exceptions CRS S5302B1.17 and 118 (1973)
County -Subdivision Regulations: Senate Bill No. 35
Subdivision regulations adopted by the County Commissioners
minimum material to be submitted: ",.-require subdividers to submit to ite board of county commissioners data, surveys, analyses, studies, plans, and designs, in the form prescribed by the board of county commissioners------" CRS §30-28-133 (1973)
See Subdivision Regulations for the County of Boulder
Minimum Standards and Technical Procedures CRS §30-
28-133 (4) (1973)
Regulations shall include as a minimum, provisions for ""Sites and land areas for schools and parks when such are reasonably necessary to serve "the proposed subdivision and the future residents thereof. Such provisions may include; reservation of such sites and land areas, for acquisition by "the county; dedication of such sites and land areas to the county or the public or, in lieu thereof, payment of a sum of money not exceeding the full market value of such sites and land areas. Any such sums when required, shall be held by the board of1 county commissioners for the acquisition of said sites and land areas; dedication of such sites and land areas for the use and benefit of the -owners and future owners in the proposed subdivision
Guarantee of Public Improvements: CRS §30-28-137 (1973)
No final plat approval until one of the following:
"A subdivision improvements agreement agreeing to construct any required public improvements shown on the final plat documents, together with collater-

al which is sufficient, in the judgment of said board, to make reasonable provision for the completion of said improvements in accordance with design and time specifications; or "Dther agreements or contracts setting forth the plan, method, and parties responsible for the construction of any required public improvements shown in the final plat documents which, in the judgment of said board, will make reasonable provision for completion of said improvements in accordance with design end time specifications
Boulder County-
-4-3 Community Facilities and Services F- Recreation & Open Spaces
1. The effect of the proposal on recreational facilities and open spaces in and available to the immediate area shall be determined.
2. The relationship of Open space trails, Hike and pedestrian ways in the proposal to similar or contiguous spaces or corridors in the surroundinc area shall be detailed.
-4.-9 Subdivision Design
C- Public Sites and Open Spaces (Attch 1)
5-5 Access Systems
D. Pedestrian, equestrian and Bikeway Facilities 5- 6 Storm Drainage
Flood Plain coning Geological hazard areas
Casements; rroad, drainage, utility, landscape, etc- .
Natural hazard areas
County Building Codes CRS §3028101 (1973)
Matters of State interest include areas of state interest and activities of state interest CPS § 24 65.1-201 and 203 (1) (1973) xespectively
H.B. 1034 CRS §§29-20-101 et seq'. (1973) ' "
"The local Government Land Use Control Fnabling Act -- of 1974" ; .
Specific powers to local governments and Otherwise planning for and regulating the use of land so as to provide planned and orderly use of land and protection
H.B. 1041 CRS §24-55-1-1D1 et seq- (1973)
local.governments regulate, by issuance of permits, matters of state interest after -the localities themselves designate those matters and issue guidelines and ^regulations for their administration. t

of the environment in a manner consistent with constitutional rights.
-Intergovernmental cooperation Receipt of funds
H.B. 1395-Providing for Additional Powers for the Boards of County Commissioners
CRS $29-7-101 (1973)
"Any...county...may acquire, sell, own, exchange, and operate public recreation facilities, open space and parklands, playgrounds...; acquire, equip, and maintain land, buildings, or other recreational facilities either within or without the corporate limits of such city, town, village Dr county; and expend funds therefor and for all purposes connected therewith.11
Material tor this outline compiled largely from:
White, Colorado land Use law (Birchwood Press 1975)

Be it enacted by the Gen-.,al Assembly ^f the State of Colorado:
SECTION 1. Chapter 106, Colorado Revised Statutes 1963, as amended, is amended BY THE ADDITION OF A NEW ARTICLE to read:
Local Government Land Use Control Enabling Act
106-8-101. Short -title. This article shall be known and may be cited as the "bocal Government band Use Control Enabling Act of 1974".
1068102. Legislative declaration. The general assembly hereby finds and declares that in order to provide for planned and orderly development within Colorado and a balancing of basic human needs of a changing population with legitimate environmental concerns, the policy of this state is to clarify and provide broad authority to local governments to plan for and regulate the use of land within their respective jurisdictions. Nothing in this article shall serve to diminish the planning functions of the state or the duties of the division of planning.
1068103. Definitions. As used in this article, unless the context otherwise requires:
(1) "bocal government" means a county, home rule or statutory city, town, territorial charter city, or city and county.
106-8104. Powers of local government. (1) Without limiting or superseding any power Dr authority presently exercised or previously granted, each local government within its respective jurisdiction has the authority to plan for and regulate the use of land by:
(a) Regulating development and activities in baxardou^ areas;
(b) Protecting lands from activities which would cause immediate or foreseeable material danger to significant wildlife habitat and where an activity would endanger a wildlife specie;
(c) preserving areas of historical and archaeological
importance; . '
Capital letters indicate new material added to existing statutes; dashes through works indicate deletions from existing statutes and-

(d) Regulating, with respect to the establishment of, roads
on public lands administered by the federal government; this authority includes authority to prohibit, set conditions, or require a permit for the establishmenl of any road authorized under the general right-of-way granted to thn public by 43 U-S.C. 932 (R.S. 2477) but does not include authority to prohibit, set conditions, or require a permit for the establishment of any road authorized for mining claim purposes by 30 U.S.C. 21 et seq. Dr under any specific permit or lease granted hy the federal government;
(e) Regulating the location of activities and developments which may result in significant changes in population density;
(f) Providing for phased development of services and facilities;
(g) Regulating the use of land on the basis of the impact thereof on the community or surrounding areas; and
(h) Otherwise planning for and regulating the use of land
so as to provide planned and orderly use of land and protection of the environment in a manner consistent -with constitutional rights.
106-8105. Intergovernmental cooperation. Without limiting or superseding any power or authority presently exercised or previously granted, iocal governments are authorized and encouraged to cooperate or contract with other nnits of government pursuant to article 2 of chapter 88, CRS 1963, for the purposes of planning or regulating the development of land, including but not limited to the joint exercise of planning, zoning, subdivision, building, and related regulations.
106B1D5. Receipt of funds. Without limiting or superseding any authority presently exercised Dr previously granted, local governments are hereby authorized to receive and expend funds, from other governmental and private sources for the purposes of planning for or regulating the use of land within their respective juris dictions.
106-8-197. Compliance with other requirements. Where other procedural or substantive requirements tor the planning for or .
regulation of the use of land are provided by law, such requirements shall control. -
SECTION 2. 106-2-20, Colorado Revised Statutes 1963, is
amended to read: .t-i-v, .
106-220. Temporary regulations. The board of county commissioners Df any county, after appointment of a county or district planning commission and pending the completion ADOPTION by such commission of a zoning plan, where in the opinion of the board conditions require such action, may promulgate, by resolution without a public hearing, regulations of a temporary

nature, to be effective for a limited period only and in any event not to exceed six months, prohibiting or regulating in any part or all of the unincorporated territory of the county or district the erection, construction, reconstruction, or alteration of any building or structure used or to be used for any business, RESIDENTIAL, industrial, nr commercial purpose.
SECTION 3. Safety clause. The general assembly hereby finds, determines and decides that this act is necessary for the immediate preservation of the public peace, health, and safety.

HOUSE DILL 130. 1395
Be it enacted by the General Assembly of the State of Colorado:
SECTION 1. 29-7-1D1, Colorado Revised Statutes 1973, is
amended "to read:
29- 7-101. City or county may own and operate. (1) (a) Any
city, town, village, county, or metropolitan xecreational district organized under article 2 of title 32, C.R.S. 1973, may ACQUIRE, SELL, own, EXCHANGE, and operate public recreation facilities,
OPEN SPACE AND PARKLANDS, playgrounds, and television relay and translator facilities; acquire, equip, and maintain land, buildings or other recreational facilities either within or without the corporate limits of such city, town, village Dr county; and expend funds therefor and for all purposes connected therewith.
SECTION 2. 30-2B101 (11), Colorado Revised Statutes 1973,
30- 2 8-101. Definitions. (11) "Subdivision improvements
agreement" means one or more security arrangements which a county shall accept to secure the actual cost of construction of such public improvements as are required by county subdivision regula- -tions within the subdivision. The "subdivision improvements agreement" may include any one or a combination of the types of security or collateral listed in this subsection (11), and the subdivider may substitute security in order to release portions of the subdivision for sale. The types of collateral which may be used as security under the "subdivision improvements agreement" are as follows: Restrictions on the conveyance, sale, or transfer of any
lot, lots, tract, or tracts of land within the subdivision as set-'-'
Capital letters indicate new material added to existing statutes; dashes through works indicate deletions from existing statutes and such material not part of act.

forth on the olnt or os recorded by separate instrument; performance or property bonds: private or public escrow agreements; loan commitments; assignments of receivables; lions on property; letters of credit; deposits of certified funds; or other similar surety agreements. Security, other than plat restrictions, required under the "subdivision improvements agreement" shall equal in value the cost of improvements to be completed, but shall not be required on the portion of the subdivision subject to plat restriction.
The county shall not require security arrangements with collateral arrangements in excess of the actual cost of construction of the public improvements- The amount of security may be incrementally reduced as subdivision improvements are completed.
SECTION 3. 3028-237, Colorado Revised Statutes 1973, is
30-28-1.37- Guarantee of public improvements. (3) The board Df county commissioners or any purchaser of any lot, lots, tract, or tracts of land subject to a plat restriction which is the security portion of a subdivision improvements agreement shall have the authority to bring an action in any district court to compel the enforcement of any subdivision improvements agreement on the sale, conveyance, or transfer of any such lot, lots, tract, or tracts Df band or of any other provision of this article. Such authority shall include the right to compel rescission of any sale, conveyance, or transfer of title of any lot, lots, tract, or tracts of land contrary to the provisions of any such restriction set forth on the plat Dr in any separate recorded instrument, but any -such action shall be commenced prior to the issuance of a building permit by any county where so .required or otherwise prior to commencement of construction on any such lot, lots, tract, or tracts of land-
SECTION 4- Safety clause. Hie general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.

i iopti l J
tvwul UIIW
title to such interest shall be conveyed, encumbered, leased, or otherwise dealt with in the name of the joint venture by an instrument executed by each of the joint venturers named in the affidavit or by his attorney-in-fact; but the individual interest of any joint venturer in the property may be transferred voluntarily or involuntarily or otherwise dealt with in any manner recognized by law.
(5) The provisions of this section shall affect only the manner in which property may be acquired, conveyed, encumbered, leased, or otherwise dealt with by trusts and joint ventures and shall not alter or affect the nature or character of the ownership of such property. The validity of transactions described in subsection (1) of this section entered into prior to June 1, 1977, and the rights, duties, and interests flowing from them shall remain unimpaired and may be terminated, completed, consummated, or enforced in accordance with the statutes, common law, or custom in effect prior to June 1, 1977, or pursuant to the terms of this section. Every existing transaction consummated in substantial conformity with this section is validated and confirmed.
Source: Added, L. 77, p. 1714, § I.
Conservation Easements
Legislative intent.
Conservation easement in gross.
Nature of conservation easements in gross.
Creation of conservation easements in gross.
Residual estate.
Recordation upon public records.
Release termination. Enforcement remedies. Taxation.
Other interests not impaired.
38-30.5-101. Legislative intent. The general assembly finds and declares that it is in the public interest to define conservation easements in gross, since such easements have not been defined by the judiciary. Further, the general assembly finds and declares that it is in the public interest to determine who may receive such easements and for what purpose such easements may be received.
Source: Added, L. 76, p. 750, § 1.
38-30.5-102. Conservation easement in gross. "Conservation easement in gross", for the purposes of this article, means a right in the owner of the easement to nrnhihit or require, a limitation upon, or an obligation to per-form, acts on or with respect to a land or water area or airspace above the land or water owned by the grantor appropriate to the retaining or maintaining of such land, water, or airspace, including improvements, predominantly in a natural, scenic, or open condition, or for wildlife habitat, or for agricultural, horticultural, recreational, forest, or other use or condition consistent with the protection of open land having wholesome environmental quality or life-sustaining ecological diversity, or appropriate to the conservation and preservation of buildings, sites, or structures having historical, architectural, or cultural interest or value.
Source: Added. 1.. 76. n. 750. § I.
38-30.5-103. Nature of conservation easements in gross. (I) A conservation easement in gross is an interest in real property freely transferable in whole or in part for the purposes stated in section 38-30.5-102 and transferable by any lawful method for the transfer of interests in real property in this state.
(2) A conservation easement in gross shall not be deemed personal in nature and shall constitute an interest in real property notwithstanding that it may be negative in character.
(3) A conservation easement in gross shall be perpetual unless otherwise stated in the instrument creating it.
(4) The particular characteristics of a conservation easement in gross shall be those granted or specified in the instrument creating the easement.
Source: Added, L. 76, p. 751, § 1.
38-30.5-104. Creation of conservation easements in gross. (1) A conservation easement in gross may only be created by the record owners ofThe surface of the land bv a deed or other instrument of conveyance specifically stating the intention of the grantor To create~such an easement under this article^
(2) A conservation easement in gross may only be created through a grant to a governmental entity or to a charitable organization exempt under section 501 (c) (3) of the "Internal Revenue Code of j954^asamended, which orga-nizatiorTwas created at least Jwo years prior to receipt of the conservation
. easement.
(3) A conservation easement in gross is void if, at the time it is granted, a substantial purpose fuTfilIed~5ytts.creallonjs already required by an existing statute^ fiLdinance^ruleT_or-regulation_pf .the federalgovernment, the state of Colorado, or a political subdivision of the state of Colorado.
(4) Conservation easements relating to historical, architectural, or cultural significance may only be applied to buildings, sites, or structures when the state historical society of Colorado certifies that such a building, site, or structure is listed in the national register of historic places or the state register of historic properties or has been designated as a landmark by a local government or landmarks commission under the provisions of the ordinances of the locality involved.
Source: Added, L. 76, p. 751, § 1.
38-30.5-105. Residual estate. All interests not transferred and conveyed by the instrument creating the easement shall remain in the grantor of the easement, jncluding the right to engage in all uses of the lands affected by the easement whichareriot inconsistent with the easement or prohibited by the easemenTof by lawl
Source: Added, L. 76, p. 751, § I.
38-30.5-106. Recordation upon public records. Instruments creating, assigning, or otherwise transferring conservation easements in gross must be recorded upon the public records affecting the ownership of real property in order to be valid and shall be subject in all respects to the laws relating to such recordation.
Source: Added, L. 76. n. 751 6 l

8-3< 7 iper eal 'ers
38-30.5-107. Release termination. Conservation casements in gross may, in whole or in part, be released, terminated, extinguished, or abandoned by merger with the underlying fee interest in the servient land or in any other manner in which easements may be lawfully terminated, released, extinguished, or abandoned.
Source: Added, L. 7r>, p. 751. 5 !.
38-30.5-108. Enforcement remedies. (1) No conservation easement in gross shail be unenforceable by reason of iack of privity of contract or lack of benefit to particular land or because not expressed as running with the land.
(2) Actual or threatened injury to or impairment of a conservation easement in gross or the interest intended for protection by such easement may be prohibited or restrained by injunctive relief granted by any court of competent jurisdiction in a proceeding initiated by the grantor or by an owner of the easement.
(3) In auuition to the remedy ot injunctive relief, the holder of a conservation easement in gross shail be entitled to recover money damages for injury thereto or to the interest to be protected thereby. In assessing such damages, mere may be taken into account, in addition to the cost of restoration and other usuai rules of the law of damages, the loss of scenic, aesthetic, and environmental values.
Source: Added, L. 76, p. 752, § 1.
38-30.5-109. Taxation. Conservation easements in gross shall be subject Reassessment, taxation, or exemption from taxation in accordance .with.gen-eral laws applicable to the.assessmenl_and taxation_of interests in real prop-erty^Real property subject to one or more conservation easements in gross shaM be assessed jiowey£jg_with due regard to the restricted the property may be devoted. The valuation for assessment of a conservation easement which is subject to assessment and taxation, plus the valuation for assessment of lands subject to such easement, shall equal the valuation for assessment which would have been determined as to such lands if there were no conservation easement.
Source: Added, L. 76, p. 752, § I.
38-30.5-110. Other interests not impaired. No interest in real property cognizable under the statutes, common law, or custom in effect in this state prior to July 1, 1976, nor any lease or sublease thereof at any time, nor any transfer of a water right or any change of a point of diversion at any time shall be impaired, invalidated, or in any way adversely affected by reason of any provision of this article. No provision of this article shall be construed to mean that conservation easements in gross wei;e not lawful estates in land prior to July 1, 1976. Nothing in this article shall be construed so as to impair the rights of a public utility, as that term is defined by section 40-1-103, C.R.S. 1973, with respect to rights-of-way, easements, or other property rights upon which facilities, plants, or systems of a public utility are located or are to be located.
Source: Added, L. 76, p. 752, § 1.
Solar Easeme
Joint Tenancy Proof of death 38-31-101. Joint tenancy expressed in instrument when.
Major distinguishing characteristic o( joint tenancy, as opposed to tenancy in common, is right of survivorship in each of the cotenants. Bradley v. Mann. 34 Colo. App. 135, 525 P.2d 492 (1974). aff'd, 188 Colo. 392, 535 P.2d 213 (1975).
Action by joint tenants inconsistent with survivorship right destroys tenancy. In ascertaining whether a joint tenancy has been
destroyed, resulting in a tenancy in common. Colorado has recently adopted the modern test which focuses on the intent of the parties with regard to the right of survivorship characteristic. Actions by the joint tenants which are inconsistent with the right of survivorship operate to terminate the joint tenancy. Mangus v. Miller. 35 Colo. App. 115. 532 P.2d 368 (1974).
ARTICLE 32 Estates Above Surface
38-32-101. Estates may be created.
Legislative Intent. The intent of the general assembly in providing for the establishment of estates in airspace was to subject all such estates to those legal provisions historically
and by statute applicable to the traditional estate in real property. Association of
Owners, Satellite Apt., Inc. v. Otte. _________
Colo. App.______. 550 P.2d 894 (1976).
ARTICLE 32.5 Solar Easements
38-32.5-101. Solar easements creation.
38-32.5-102. Contents.
38-32.5-101. Solar easements creation. Any easement obtained for the purpose of exposure of a solar energy device shall be created in writing and shall be subject to the same conveyancing and instrument recording requirements as other easements.
Source: Added, L. 75, p. 1430, § 1.
38-32.5-102. Contents. (1) Any instrument creating a solar easement shall include, but the contents shall not be limited to:
(a) The vertical and horizontal angles, expressed in degrees, at which the solar easerpent extends over the real property subject to the solar easement;
(b) Any terms or conditions or both under which the solar easement is granted or will be terminated;
(c) Any provisions for compensation of the owner of the property benefitting from the solar easement in the event of interference with the enjoyment of the solar easement or compensation of the owner of the property subject to the solar easement for maintaining the solar easement.
Source: Added, L. 75, p. 1430, § 1.

AfTiSMDlX fe-

o O lj {1 (T- F |j"N
(Highlands Ranch)
This is a grant of a perpetual conservation easement in gross ("Conservation Easement") made this day of
April, 1980 between MISSION VIEJO COMPANY, a California Corporation ("Mission"), and the County of Douglas, State of Colorado ("Douglas County"), acting by and through its Board of County Commissioners.
1.1 Highlands Ranch Development Plan. Mission is the owner of a compact parcel of land in the unincorporated area of Douglas County, Colorado, known as Highlands Ranch, containing approximately 21,437 acres. Mission prepared a comprehensive development plan for the property and submitted the plan for approval by Douglas County as a Planned Community District under the Planned Unit Development Act of Colorado and the Douglas County Zoning Resolution. The Mission plan provided that a significant portion of the property would be developed as a new town accommodating a balanced mix of residential, commercial, industrial and other land uses. The Mission plan also included provisions that at least 30% of the total area of the property, or approximately 6,431 acres, would be open space, publicly owned or devoted to community use, as required for a Planned Community District under the Douglas County Zoning Resolution. In addition, the Mission plan included provisions, not required under the Douglas County Zoning Resolution, that an additional area, over and above the area required to be publicly owned or devoted to community use, consisting of approximately 5,146 acres or 24% of Highlands Ranch, would be retained in private ownership but would be restricted by a perpetual conservation easement in gross, as provided under Colorado statutes.
1.2 County Approval of Plan. By resolutions adopted September 17, 1979, Douglas County approved a New Communities Permit for the New Town of Highlands Ranch, approved rezoning of Highlands Ranch as a Planned Community District and approved a Planned Community District Development Guide for the New Town of Highlands Ranch. These resolutions grant development rights to Mission for its Highlands Ranch property sufficient to economically and otherwise justify the creation of this conservation easement in gross affecting a significant portion of the Mission property.
1.3 Purpose This Conservation Easement grants an easement which will restrict uses of certain land owned by Mission to predominantly agricultural and nonurban uses and certain incidental uses as more particularly set forth hereinafter. The specific purpose of this grant is to provide a large area in Douglas County, which is intended to be a buffer between the urban and rural portions of Douglas County.
2.1 Highlands Ranch. "Highlands Ranch" is that portion of the real property owned by Mission Viejo Company in Douglas County, Colorado, containing approximately 21,437 acres, which constitutes the New Town of Highlands Ranch under the New Communities Permit, the Rezoning and the Planned Community District Development Guide for the New Town of Highlands Ranch approved by the Board of County Commissioners of Douglas County on September 17, 1979.

2.2 Urban Areas. "Urban Areas" are those portions of Highlands Ranch to be developed under the Planned Community District Development Guide for residential, commercial, industrial and other urban uses. The Urban Areas are expected to contain approximately 8,530 acres or 40% of Highlands Ranch. The Urban Areas will lie in the Northerly part of Highlands Ranch.
2.3 Nonurban Areas. "Nonurban Areas" are those portions of Highlands Ranch to be devoted under the Planned Community District Development Guide principally to nonurban use. The Nonurban Areas are expected to contain approximately 12,907 acres, or 60% of Highlands Ranch. The Nonurban Areas will lie largely in the Southerly portion of Highlands Ranch, but will include some areas in the Northerly portion
of Highlands Ranch. The Nonurban Areas will include Community Related Nonurban Areas, Rural Nonurban Areas, Ranch Homesite Parcels and Restricted land as described below.
2.4 Community Related Nonurban Areas. "Community Related Nonurban Areas" are those portions of the Nonurban Areas of Highlands Ranch which are to be devoted to open space as part of the 30% of Highlands Ranch required to be publicly owned or devoted to community use. Community Related Nonurban Areas are expected to contain approximately 3,349 acres, or 16% of Highlands Ranch. Community Related Nonurban Areas will be in the Northerly portion of Highlands Ranch within and surrounding Urban Areas.
2.5 Rural Nonurban Areas. "Rural Nonurban Areas" are those portions of the Nonurban Areas of Highlands Ranch which are also to be devoted to open space as part of the 30% of Highlands Ranch required to be publicly owned or devoted to community use. Rural Nonurban Areas are expected to contain approximately 3,082 acres, or 14% of Highlands Ranch. Rural Nonurban Areas will be in the Southerly part of Highland' Ranch, Easterly of Restricted Land.
2.6 Ranch Homesite Parcels. "Ranch Homesite Parcels" are those portions of the Nonurban Areas of Highlands Ranch, more specifically defined hereinafter, which can be developed under the Planned Community District Development Guide for Ranch Homesite purposes. Ranch Homesite Parcels are expected to contain approximately 1,330 acres, or 6% of Highlands Ranch. Ranch Homesite Parcels will be chiefly in the Southerly portion of Highlands Ranch within and near the Restricted Land but some will be in the Northerly portion of Highlands Ranch.
2.7 Restricted Land. "Restricted Land" is that portion of the Nonurban Areas of Highlands Ranch, more specifically defined hereinafter, which is to be retained in private ownership but which is to be restricted by this Conservation Easement. The Restricted Land is expected to contain approximately 5,146 acres, or 24% of Highlands Ranch. The Restricted Land will lie in the Southerly portion of Highlands Ranch.
3.1 Consideration for Easement. This Conservation Easement is granted in consideration of the approval by Douglas County of the New Communities Permit for Highlands Ranch, the rezoning of Highlands Ranch, and the Planned Community District Development Guide for the New Town of Highlands Ranch and in consideration of future authorizations of development of Highlands Ranch in accordance with the same.

3.2 Grant of Easement. Mission hereby grants to Douglas County a non-exclusive, perpetual conservation easement in gross with respect to the Restricted Land under the provisions of Sections 38-30.5-101 through 110, Colorado Revised Statutes, 1973, ("Conservation Easement Act") which easement shall restrict the uses of the Restricted Land in accordance with the particular characteristics of the easement as hereinafter set forth.
4.1 Restricted Land. "Restricted Land" shall mean all of the real property in the General Conservation Easement Area as hereinafter defined except those portions thereof which become Ranch Homesite Parcels as hereinafter defined.
4.2 General Conservation Easement Area. "General Conservation Easement Area" shall mean the real property which is described on Exhibit A attached hereto, which is depicted specifically on Exhibit A-l attached hereto and which is depicted generally, in relation to the balance of Highlands Ranch, on Exhibit B attached hereto.
4.3 Ranch Homesite Parcel. A "Ranch Homesite Parcel" shall mean any portion of the General Conservation Easement Area which is described and depicted upon a subdivision plat hereafter approved by Douglas County for development of ranch homesites consistent with the Planned Community District Development Guide for the New Town of Highlands Ranch approved by Douglas County by resolution adopted September 17, 1979. Upon the recording of a subdivision plat approved by Douglas County for a parcel of Land within the General Conservation Easement Area, this Conservation Easement shall automatically terminate with the respect to all of the real property described and depicted upon such subdivision plat and such real property shall no longer be subject to this Conservation Easement.
5.1 Particular Characteristics of Easement. The uses of the Restricted Land shall be limited in accordance with the provisions hereinafter set forth which shall constitute the particular characteristics of this Conservation Easement.
5.2 Agricultural and Nonurban Restriction. The Restricted Land shall at all times be held and kept for predominately agricultural and nonurban purposes, including, but not limited to, ranching, farming, production and sale of crops, raising, breeding, feeding and selling livestock, gardening and horticulture, open space and forests together with structures, buildings, residences and other improvements related to such agricultural and nonurban purposes.
5.3 Uses to Support Development of other Land and Interests Portions of the Restricted Land may be devoted to uses which may be necessary, appropriate or desirable to support or facilitate development of the New Town of Highland! Ranch consistent with the Planned Community District Development Guide for the New Town of Highlands Ranch; to support or facilitate development of property outside of Highlands
Ranch; or to permit development of non-agricultural resources which may exist on or under the Restricted Land. Such uses may include, but are not limited to, the following:
(a) Roads and public transportation facilities.
(b) Utility lines, systems and facilities including, but not limited to, electricit. .

gas, telephone, telegraph, communications and cable television.
(c) Water lines, systems and facilities including, but not limited to, water wells, storage reservoirs, and water treatment plants.
(d) Sanitation lines, systems and facilities including, but not limited to, sewage treatment and reclamation plants.
(e) Drainage discharges and drainage and flood control lines, systems and facilitiei including, but not limited to, impoundment reservoirs and retaining basins, ditches, conduits and culverts.
tf) Public facilities, including, but not limited to, facilities for fire and police protection, public and governmental buildings and facilities, and radio, television and communication transmission and reception facilities.
(g) Mining, oil and gas drilling operations, thermal energy development, production and transportation and similar extractive land uses and energy resource development uses.
(h) Signs identifying property, the owner thereof or the use thereof, or advertising uses on the Restricted Land or nearby land, or warning or cautioning of danger, or giving directions, or as may be required by law.
(i) Accessory structures or uses which are customarily incident or necessary to any permitted use.
Any such use shall require site development plan approval by Douglas County.
6.1 Title to Easement. The Conservation Easement granted hereby is and shall be subject to all rights and interests presently existing or which may hereafter be created, granted, excepted or reserved, provided that any rights and interests hereafter created, granted, excepted or reserved shall be consistent with the purposes of this Conservation Easement and the uses permitted by the provisions of this Conservation Easement. Rights and interests presently existing or which may hereafter exist include, but shall not be limited to, easements, rights of way, mineral rights, leases, liens and other encumbrances.
6.2 Residual Estate of Mission. As provided in the Conservation Easement Act, all interests in the Restricted Land not transferred or conveyed by this Conservation Easement shall remain in Mission, its successors and assigns, including the right to engage in all uses of the Restricted Land which are not inconsistent with this Conservation Easement or prohibited by this Conservation Easement or by law.
6.3 Successors and Assigns. The terms "Mission" and "Douglas County" as used in thisConservation Easement shall each include successors and assigns.

6.4 Binding Effect. The terms and provisions of this Conversation Easement shall be binding upon and inure to the benefit of Mission and Douglas County.
6.5 Assignability. Mission may transfer, convey or assign, grant easements in, lease or encumber all or any portion of the Restricted Land subject, however, to this Conservation Easement. Douglas County may transfer, convey or assign its rights under this Conservation Easement to the State of Colorado, a political subdivision of the State of Colorado, a political subdivision of Douglas County or a municipal, quasi-municipal or other governmental body, but the rights granted to Douglas County under this Conservation Easement shall not otherwise be transferred, conveyed or assigned without the prior written consent of Mission.
6.6 Amendment and Termination. This Conservation Easement may be amended or terminated, in whole or in part, only with the approval of Douglas County, acting by and through its Board of County Commissioners and of Mission.
This Conservation Easement shall not be terminated except after review by the Douglas County Planning Commission and a public hearing and a finding by Douglas County, acting by and through its Board of County Commissioners, that there has been a significant change in circumstances so that the continuation of this Conservation Easement is adverse to Douglas County as whole. Notwithstanding the foregoing, this Conservation Easement shall automatically terminate and be of no further force and effect if the New Communities Permit for the New Town of Highlands Ranch, the rezoning of Highlands Ranch or the Development Guide for the New town of Highlands Ranch, as approved by resolutions of the Board of County Commissioners on September 17, 1979 are set aside, altered or modified without the consent of Mission.
6.7 No Third Party Beneficiaries. None of the terms or provisions of this Conservation Easement shall be deemed to be for the benefit of any person or party other than Douglas County.
6.8 No Public Trespass. Nothing herein contained shall be deemed to authorize any person or party, other than Mission to enter upon the Restricted Land or use the same.
6.9 Condemnation Awards. In the event of any taking of the Restricted Land or any portion thereof as a result of the exercise of the right of condemnation or eminent domain or a transfer or conveyance made under threat of such taking, the entire award or consideration received shall be payable to Mission including any portion thereof which may be deemed an award or consideration for the rights of Douglas County under this Conservation Easement.
6.10 Headings for Convenience. The headings and captions herein are for convenience only and shall not be considered in the interpretation hereof.
IN WITNESS WHEREOF, this Conservation Easement is executed as of the day herein first above written.
MISSION VIEJO COMPANY, a California corporation
Vice President

Assistant Secretary
COUNTY OF DOUGLAS, STATE OF COLORADO, Acting By and Through Its Board of County Commissioners
Clerk and Recorder of Douglas County
County Commissioner
County Commissioner
County Commissioner
) ss.
The foregoing instrument was acknowledged before me
this _______ day of ___________, 1980 by _____________________
____________, as Vice President, and _________________________
_________, as Assistant Secretary of Mission Viejo Company,
a California corporation.
Witness my hand and official seal.
My commission expires: ____________________________
Notary Public"
) ss.
The foregoing instrument was acknowledged before me this _______ day of __________, 1980 by _____________________
____________, _____________________________, and _____________
____________, as members of the Board of County
Commissioners of Douglas County, Colorado and by _________
__________________________, as Clerk and Recorder of Douglas
County, Colorado.
Witness my hand and official seal.
My commission expires
Notary Public

Development Plan
l than L Residential
. I OrnuH
p M.rimm In. On
r Mrchum Omul,
-s M-* (>eiMn
(wnmwniH An
- l^lu.irMl i\.h
" C rvrnnwl P --- t> Umf Annul Street
iM'n Cnnnunlt Trmi|
Sianon St(i N Ridf R- Apur
30 rx GRA
4o m r.RA
il\ Center
Nonurban Up*
Nonurhan Elemental Srhool Junior I lijh Sc Knol M*|H School
Hiionq and Biking Trail Eouririan Trail Community Parle
___ Ranch Mometitea
Hnmrif al Site
Highlands Ranch *&*
URBAN AREAS 8,530 acres
1 1 Urban Areas 8,530 acres
NOIIURBAN AREAS 12,907 acres
Community Related Nonurban Areas 3,349 acres'! Total 6,431 acres
1*414 1 Mritiili 1 a h Arctic ? HO? nrrecJ 30' rrn rpqulrempnt
Ranch Homer.Ite Parcels 1,330 acres
Restricted Land(Conservation Easement)5,146 acres

Federal Agency
pt. of Agriculture; deral Extension rvice
Type of Lands Affected, aid received, U3e of aid Owner- ship
Land in urban areas "to be state,
used as permanent open regional
space'' defined as "any metropol.
undeveloped or predominate- tan,
ly undeveloped land in an county,
urban area which has value munici-
for: pal, or
a. park and recreational other
purposes public
b. Conservation of land body
& other natural resources estab-
c. historic or scenic lished
purposes by state or local
law or by interstate compact
> 1 ! vV,
Conditions ' ,
pot to exceed 20% of the cost of land or interest acquired therein, exception 30% of grant ''to public body which
a, exercises responsibilities consistent with the purposes of this title for urban area as a whole.
b. exercises or participates in the exercise of such responsibility for all or a substantia: portion of an urban apea pursuant to interstate pr other intergovernmental compact or agreement
I ' 4
educational" activities, recreation, zoning, land use

r'deral Agency
jpt. of Interior; \tional Park Service
?pt, of Interior;
.3. rich & Wildlife jrvice, Bureau of x>rt Fisheries & Lldlife
pt. of Interior'
Cor^er^/^hon. ^ fZejcrecchon -Seirvi
Type of Lands Affected, aid received, use of aid
Park, historical, recreational e.g. national parks, battlefields, historical parks, battlefield parks, battlefield sites, memorials, cemeteries, parkways, seashores and recreational areas memorial site historical sites
Fisheries, acquisition of lands & waters or interests therein (including land where angling waters can be impounded and land to provide public access to existing waters, management of fishery resources, maintenance of federally assisted developments, project coordination
Acquisition of land, development

"Conserve the scenery and the natural historic objects and the wildlife therein and to provide enjoyment in such manner and by such means as will leave them unimpaired for the enjoyment of future generations."
Contract for funds only between Dept, of Int. and state fish and game depts. State must enact legislation prohibiting use of hunting license fees for any purpose but the administration of state fish & game depts.
"insure the conservation of the nation's wild birds, mammals, and sport fish, both for their economic values with a view to preventing their destruction or depletion and to encourage the maximum present use of the nation's fish and wildlife resources.
50-50 matching funds with monies obtained from the sale of a Federal recreation area Passport (Golden Eagle), motor boat, fuel taxes, National Park revenues e taxes on
"encourage interstate & regional cooperation in planning, acquisition, and development of outdoor resources