BACKGROUND PAPER RE CONSERVATION EASEMENTS - Dr. John Bacher 08/05

The need for a long-term plan to protect Niagara fruitlands “permanently” and how it may be accomplished through a combination of strong land use planning and the purchase of easements.

Some History-the US Experience

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Throughout the democratic world there is a complex relationship between the planning tools of zoning and conservation easements in protecting the predominately agricultural rural landscape. Frequently the complexity of this relationship is obscured by a nationalist Canadian presumption that the generally inferior planning systems in the United States, are rooted in a legal transformation that had its beginnings in the American Revolution of 1776. The folly of this assumption lies in the fact that there were no effective land use planning controls through zoning anywhere within the British empire at this time, or soon after American independence was recognized by the crown in 1783. At this time the horse and buggy nature of the economy, before the development of rail and steam boat transport, meant that urban sprawl was not a serious concern.

Although right wing anti-planning advocates in Canada frequently cite American examples in their defense, zoning has similar legal powers in both the United States and countries that are part of the British Commonwealth. Zoning began in both Great Britain and the United States in the 1880s, but evolved very differently. This difference has been one of political choice, not constitutional or legal dogma.

Until 2005, the American state of Oregon had a land use planning model that was quite similar to the recent spate of reforms in Ontario, which restored the natural areas and farmland protection goals of the 1994-1996 Planning Act . Was Oregon’s planning system destroyed through an application of constitutional enshrinement of property rights, or other peculiar republican principles of the American constitution? The answer is no.

It was not the courts citing the principles of the American declaration of independence and constitution that undermined Oregon’s strict agricultural planning laws. What occurred was a right wing, property rights political backlash. It was cleverly exploited by the pro-sprawl land development industry, capable of mobilizing public opinion against effective land use planning.

More specifically, the demise of Oregon’s planning laws took place when a farmer was refused the right to build a home for a dependent relative on the family farm. Under normal good planning procedures this should have been permitted without the creation of an additional lot. The refusal of this single application was cleverly orchestrated by those interested in promoting sprawl through an expensive advertising campaign.

The Oregon property industry’s clever advertising crusade was tied to a legal

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instrument which does not widely exist in Canada and other Commonwealth countries, the ‘popular initiative’. This allows citizens to by-pass elected legislatures entirely in the formation of laws, and is accomplished through the placement of new laws on the ballot after petitions are successful in gathering a sufficient number of signatures. [1]

The demise of Oregon’s planning laws tells us much about the dangers of unrestricted political advertising and the ‘popular initiative’ as well as the virtues of the tradition of British

parliamentary supremacy. It does not however, indicate that deeply rooted legal concepts in Canada and the United States were behind this dramatic shift in land use policy.

While the demise of Oregon’s land use planning system does not show inherit differences in legal philosophy between Canada and the United States, it does reveal the dangers of relying exclusively on zoning as a planning tool. This was the basic approach taken in Oregon. Unlike other American states, it did not seek to compliment land use planning with state programs that encourage the purchase of conservation easements. Such an approach is deliberately calculated to make land use controls through zoning more politically acceptable.

In States with programs for the purchase of easements, land owners who are on the urban fringe may be quite unhappy about being zoned away from developing their land. Nevertheless, the prospect of an eventual sale of a conservation easement to a publicly funded authority after waiting for a few years in a backlog, removes most of their zeal to organize politically to wreck the land use planning system. In Oregon the absence of such easement carrots to compliment the zoning stick, created conditions for a political backlash which destroyed the land use planning system .

Oregon creates a lesson for Ontario. The protection of the rural countryside in privately owned and predominately agricultural landscape of southern Ontario faces many challenges. While eastern Ontario has relatively fewer development pressures and a good balance of between agricultural and forest lands, the rest of the southern province, particularly Niagara, face pressures of urban sprawl and the destruction of tiny remnant natural areas.

High minded public goals such as those of the Greenbelt Act cannot be realized without a strong complementary system of both land use planning and conservation easements. New goals of the Greenbelt legislation and the Provincial Policy Statement to permanently protect the Holland Marsh and the Niagara Fruit Belt from urban sprawl, may well be undone through a political backlash if landowners who are upset about it are able to mobilize popular support, or if a new, less committed , government is elected in the future.

The American states that have had the most enduring success in protecting land have relied upon the reinforcement of land use planning through the purchase of

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conservation easements, with priority being given to land immediately on the urban fringe to secure a permanent urban boundary. This has been most successfully applied in the predominately Amish farming region of Lancaster County, Pennsylvania, where easements ( as the 1994-5 Tender Fruit Land Program originally intended to do in Niagara) protect a designated permanent urban boundary. This pattern has served to channel development in desired directions, away From productive farmland. Such zoning is not understood as “compensation”, but as serving to “soften opposition to agricultural zoning.” [2] 

 If conservation easements are purchased without a strong system of land use planning

being in place, the situation can result in “preserved” farms- entirely surrounded by urban development- becoming in essence, large urban estates for millionaires. If on the other hand, as in Oregon, easements are taken out of the land protection tool kit, the political will to

apply strong zoning measures to protect farmland will simply evaporate.

Part of the opposition to conservation easements on agricultural lands is the belief that the most modest application of them would undermine zoning by establishing a costly precedent that would compel expensive compensation for agricultural zoning. Such arguments ignore the fact that Ontario has already recognized the complimentary nature of zoning and conservation easements.

When the Oak Ridges Moraine Conservation Act in 2002 was passed through the provincial legislature, it was complimented by provincial funding for the purchase of conservation easements through the newly created Oak Ridges Moraine Foundation. With a staff of four persons it is aggressively acquiring easements with the help of provincial funding in the predominately agricultural protected landscape of the Oak Ridges Moraine. Priority for protection is determined by an Oak Ridges Moraine Strategic Plan.

A key principle of the Oak Ridges Moraine Conservation Act was that there would not be any expansion of urban zoned land within the plan area for a decade. The political backlash against landowners for the ten year freeze on urban expansion on the Oak Ridges Moraine was eased by a fund to acquire conservation easements. They account for the majority of the 1,700 acres of land protected through the acquisition of land rights.

Millions of dollars in provincial funds have been dedicated for the acquisition of conservation easements on the Oak Ridges Moraine Given this precedent, it is certainly logical that the similar Greenbelt Foundation, created as a compliment to the new Greenbelt Act, should use some of its allocated $25 million purchase easements on the lands which are to be protected forever against urbanization. This most clearly applies to the Niagara Fruit Belt. Here unlike the rest of the “protected countryside” of the new Greenbelt Protection Act, the land is to be protected from urban development forever. [3]

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Conclusion

It is imperative that there should be permanent protection for Niagara fruit lands. Experiences in the USA and in Ontario, with the Oak Ridges Moraine Foundation work, show that lands under significant urban pressures can be protected permanently through the combination of zoning and the purchase of conservation easements. This protection for a precious public resource must be translated to the Niagara experience, where these irreplaceable scarce lands will continue to be threatened by urbanization over the long term, should a future government give in to development and political pressures, and loosen, or scrap, the Greenbelt Act.

          Notes.

          [1]

          The demise of Oregon’s agricultural land zoning system was recently outlined at a speech at the Farmland Preservation Conference 2005 Meeting the Challenge of Farming on the Urban Shadow, by Dick Esse4ks, Center for Great Plains Studies, University of Nebraska.

          [2]

          Tome Daniels, Deborah Bowers, “Holding Our Ground: Protecting America’s Farms and Farmlands”, (Washington: Island Press, 1996), pp. 119-121, 237-40.

          [3]

          The only other area in the Greenbelt to be protected permanently in addition to the fruitbelt is the Holland Marsh, which is not experiencing comparable pressures for urban expansion. The Greenbelt Protection Act extended the 10 year freeze on the Moraine for another three years. The work of the Oak Ridges Moraine Foundation in acquiring easements helped prevent a backlash from this initiative.