Conservation Easements Are Scary - That's Why They Are the Right Thing To Do

“Motion made by Representative Niland, second by Representative Robinson, and carried to APPROVE, AS REVISED amending the El Paso Water Utilities Public Service Board Westside Master Plan . . . to include but not limited to the following: selection of a preferred development scenario for the area, authorization to process an amendment to ‘Plan El Paso’, and authorization to process an application for rezoning of the property within the [EPWU/PSB] Westside Master Plan area, Conservation easement by third easement [sic, ‘party’], bridges to be use [sic, ‘used’] to cross arroyo’s [sic, ‘arroyos’], more parks or small park, minimum encroachment into arroyos/no pocket parks, approve Scenario 1 and staff recommendations.”

So read a portion of the minutes for the City Council meeting of March 20, 2012 when City Council approved (5-3) Dover Kohl's Plan One, which called fro the preservation in perpetuity of the 837-acre Transmountain Scenic Corridor. The emphasis by italics is mine.

The motion made by Rep. Carl Niland and seconded by Rep. Robinson really instructs City staff to work on a conservation easement. That is not what staff did and not what they will bring to City Council next Tuesday, July 17.  Why not?

A staff recommendation normally holds great weight and power with City Council. Instead of coming back with a conservation easement document, they will come back with a half-baked plan to give the land to the State to be incorporated into the State Park with a reversion clause that, if the State should want to be rid of the land or begin using it for anything but recreation in a natural setting, then the land returns to the City to become a park.

The small group that worked out the proposal to go to City Council wasn't even made-up of City staff. Included on the committee were Pat Adauto, a hired consultant for EPWU, and Risher Gilbert the hired-gun attorney for the EPWU. Until the June vote by the PSB to recommend a conservation easement, nobody expected that board to buck the CEO of the EPWU who has fought open space preservation like an alley cat locked in mortal combat with another feline in the dark of night. Again, instead of working on a conservation easement, this little group worked on a separate plan. One would hope that some on City Council will ask what the heck they were doing.

As reported by Chris Roberts in his El Paso Times story, El Paso City Council's proposal would protect 800 acres near Trans Mountain, the best explanation of why the group didn't really want to consider a conservation easement comes from Pat Adauto: "'These easements are very difficult to remove once they're placed.' Adauto said. 'That's a strength if you're sure you're doing the right thing. It's scary if you're not totally sure.'"

She's absolutely right. Conservation easements are difficult to remove and that's exactly why they are perfect for this situation. The fact that City Council  asked for a conservation easement should mean that staff must treat it as the right thing. 

It's about control and giving up control. By saying this I don't mean to suggest that someone necessarily is power-hungry. It just means that we humans like to keep control. Losing or changing a job, selling a home, retiring, losing a loved one - these are hard because these mean giving up security, routine, control. I never ever got comfortable flying until the day that it hit me that I wasn't in control and might as well enjoy the ride. I've love flying ever since.

Putting the 800 or so acres under a conservation easement then handing it over to the State is scary. Control is given up - which is exactly the right thing to do in this case. The State has taken land before with conservation easements. Privately the Superintendent of the Franklin Mountains State Park, Dr. Cesar Mendez, has said that he prefers that the land come with an easement. 

One more thing to think about: in order for the land to be given to the State, the Texas legislature must agree. They don't even re-convene until next January and there is no guarantee that they will take it. If it goes back to the City, then we are back to square one. Dedicating the land as a park won't cut it because an election later can overturn the dedication or shenanigans over time can change the intent. Witness Blackie Chesher. If the land goes back to the City, then preserving it becomes a matter of keeping trust. The best way to secure that trust with the people now is to put a conservation easement on the land from the very beginning. 

For God's sake. Lose control. Stop fooling around and just make love.