When a conservation easement includes the goal of preserving desirable views of an area, it is said to have a scenic conservation purpose. If preservation of scenic resources is the sole purpose of the conservation easement, it may be referred to as a scenic conservation easement or simply a scenic easement. The precise title and scope, however, can vary depending on the authorizing law of the state in which it is created and the relevance of any particular resource protection program. Regardless of title, the federal Uniform Conservation Easement Act expressly allows conservation easements that retain or protect natural, scenic, or open-space values of real property. As of 2000, the laws of at least 24 states expressly allowed conservation easements that protected scenic values, with many more allowing them as part of common law practice.
Overlap with Other Conservation Goals: The Mixed-Purpose Easement
Scenic protection is a popular conservation goal in and of itself. Scenic views and roads were among the conservation values expressly protected by 56 percent of land trusts examined in one recent study. The goal of scenic protection, however, often overlaps with other popular conservation goals such as protection of open space, wildlife habitat, forests, or wetlands. Given the overlap, many conservation easements are drafted not as single-purpose scenic easements but as mixed-purpose easements. This approach has the benefit of ensuring that if a conservation easement fails to qualify for scenic purposes under the Internal Revenue Service’s definition, it can still be supported under the definition of another permitted conservation value. Nevertheless, there are drawbacks to creating a mixed-purpose conservation easement when a sole-purpose scenic easement would suffice. Mixed-purpose easements are often more complex and difficult to understand. The tendency to list every possible applicable value can occasionally lead to an inadequate description of some values. If mixed-purpose conservation easements are viewed as nothing more than a litany of conservation values borrowed from boilerplate language, a reviewing judge may consider some values less important and interpret a related prohibition accordingly. This problem is exacerbated if the activities prohibited on the property do not logically follow or connect to convincing conservation values. To avoid this danger, it may be advisable to rely on the simplicity of a single-purpose scenic easement when that is, in fact, the sole or primary value the landowner seeks to protect.
The Role of Scenic Easements in Comprehensive Scenic Protection Programs
Scenic easements are one tool among many used by both government and non-governmental organizations to protect the visual environment. The federal government traditionally has been at the forefront of scenic protection, but states and local governments have also enacted many important measures. Since the 1960s, a number of new national programs have authorized and funded a variety of approaches to protect the beauty of designated highways, rivers, trails, and other recreational areas. Many states have created similar programs, often modeled on their federal counterparts. Organizations at both the federal and state level tend to rely on a combination of regulation, land acquisition, and conservation easements to meet their goals.
Local governments, in contrast, generally have much less funding available for land acquisition. Instead, they tend to rely on land use regulations (e.g., zoning) and strategic uses of capital improvements programs to reach their scenic protection goals. For example, a local government might create a zoning overlay district restricting tall buildings in a scenic corridor, or it might withhold extension of public infrastructure into sensitive viewsheds in order to discourage development.
Non-governmental organizations involved in scenic protection, including land trusts, may collaborate to support one or more of these governmental programs, or may choose to work independently by making targeted land acquisitions. The decision by any of these organizations to use scenic easements, as opposed to another approach, is generally made on a case-by-case basis.
Americans are blessed with an abundance of natural beauty and distinctive communities. While scenery is important to the overall quality of our communities, scenic vistas and viewsheds are often destroyed during rapid change, both in the natural and built environments. Identification and protection of these assets is an important component of smart growth and scenic stewardship.
Scenic areas endow communities with substantial benefits, such as higher property values and increased tourism revenue. Protecting scenic vistas and viewsheds from the effects of haphazard development allows a community to preserve its unique charm, build civic pride, and attract positive growth to the area.
The following strategies can help your community anticipate development and ensure the protection and management of your scenic vistas and viewsheds.
Educational and Voluntary Conducting a visual assessment is one of the best ways to begin to identify what is at risk in your community, so you can protect it from loss, and better manage growth. Encourage private citizens, school groups, local leaders, and business owners to participate in a visual assessment to identify the community’s assets and liabilities. This will provide the basis for identifying and discussing the future of your most treasured visual assets.
Following the visual assessment, use the information you have gathered to develop activities such as community walks, photographic exhibitions, or slide presentations to inform citizens of the importance of scenic vistas and viewsheds to your community’s quality of life, and to encourage voluntary protection of scenic areas.
Incentive-Based Incentives can provide significant motivation for preserving scenic vistas and viewsheds. Grants to community groups to conduct education programs for local landowners on the benefits of viewshed protection or to establish a local land trust, can help preserve scenic quality. Other strategies include providing tax breaks for property owners who donate land or easements, and establishing an awards program to honor successful scenic conservation efforts.
Land Purchase Although purchasing parcels of land or easements is among the most expensive options, outright purchase is sometimes the only way to permanently protect scenic vistas and viewsheds from development. One method of accomplishing this is to establish a land trust. Land trusts are private organizations at the local, state, or regional level that hold land and partial interests in land for the benefit of the public. Some land trusts use “revolving” funds to purchase threatened land and then resell it at cost to buyers who agree to specific land use restrictions. Land trusts also use their resources to educate property owners on the benefits of voluntary land or easement donations.
Transfer of Development Rights Transfer of Development Rights (TDR) is an alternative strategy to purchasing land. TDRs preserve scenic areas by transferring, or “sending,” development rights from sensitive lands to “receiving” areas marked for growth. Most TDR programs offer incentives such as increased density, faster permit processing, less stringent design review, or tax breaks to encourage developers and landowners to take advantage of the program. Monterey County, CA and Burlington County, NJ are just two of the more than 50 areas nationwide that have successfully used TDR programs to protect their unique character from the development pressure of nearby cities.
Establish design guidelines and design review that limit the impact of development on scenic vistas and viewsheds. Clear design guidelines and design review gives communities a chance to decide how development will affect their neighborhoods and countryside. Responsible control of elements such as height, bulk, design, materials, color, landscaping, and siting helps a project blend with its surroundings.
Implement zoning and land use ordinances for view protection. Zoning laws that limit the height of buildings based on their proximity to a designated viewshed are an effective way of preserving scenic vistas. Other types of legislative protection include overlay zoning and the creation of view corridors. Overlay zoning places additional restrictions on zoned areas and is often used to control density, grading, ridgeline development, and vegetation. View corridors are planned openings in the built environment that allow views of scenic vistas and viewsheds.
Pass legislation to establish a greenbelt. Greenbelts are open tracts of land that create a scenic buffer between developed areas and the surrounding countryside. Most greenbelt ordinances allow only agricultural activities on designated lands – eliminating land speculation and development pressure.
Enact strict billboard controls. Billboards, also known as off-premise signs, block out scenic beauty and blight the countryside. Banning billboards ensures that the unique beauty of scenic vistas and viewsheds remains unmarred by intrusive and unnecessary signs.
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