Thursday, December 8, 2016

'Perpetuity' Is Not Forever in Palm Beach County

        'Perpetuity" is defined as an agreement lasting forever or of unlimited duration, but when it comes to environmental easements or recreational land use deeds in Palm Beach County, forever often has a much shorter life span.
        In the business world, and extending to the political halls of local government, there tends to be a bias against land use contracts written in perpetuity. To developers, their lobbyists, and receptive elected officials and judges, perpetuity hinders commerce and is an impediment to the profitable circulation and development of property.
        In recent years, the public has observed conservation easements "exchanged" or removed by both county and municipal governments. Often this is done by a simple majority vote.
        In at least two cases, homeowner associations also were surprised to learn perpetuity in their deed covenants offered no protection from the development of their golf courses. Both the county and local courts sided with developers in their efforts to build more homes on recreational property.
        The use of conservation easements by government became  widespread during the 1980s and 1990s as an effective and less expensive method of land preservation. The easements are often self-supporting and benefit government through fees or tax revenue.
        In a best case scenario, conservation easements are designed to allow maintenance and the compatible use of  property in exchange for the "permanent" removal of development rights.
        According to a report entitled "The Future of Perpetuity: Conservation Easement Concerns in the 21st Century," published by the Oregon Bar Association, it is estimated that at least 12 million acres of private lands are currently protected by conservation easements held by nonprofit land trusts, and "many more millions" of acres are protected by easements held by government entities.
        However, the report concludes that conservation easements, perpetuity and development rights are issues that inevitably interact "for better or for worse," with land use and zoning processes in local government.
        Many unit owners at the Century Village in West Palm Beach thought they controlled the land use of their unused golf course site "in perpetuity". The developer and the county did not agree.
        In 2011, the Palm Beach County Commission approved the building of 689 homes on the overgrown, weed-infested golf course. The court ruled in favor of developer and the county's action in February 2015.
        In the same year, the Boca Del Mar community lost a court decision to prevent the building of 252 more homes on the 130-acre Mizner Trail Golf Club. Once again, a perpetuity clause in their master plan failed to provide land use protections.
        The uncertainty of perpetuity in conservation easements also is impacting future sale and land use of the 571-acre McMurrain Farm property, part of the county's Agricultural Reserve.
        The South Florida Water Management District (SFWMD) wants to sell its share of the property to the highest bidder. The county is seeking a formula to protect environmentally sensitive land adjacent to the Loxahatchee National Wildlife Refuge.
        At a Dec. 6 public hearing, the County Commission, SFWMD staff and local conservationists discussed using a conservation easement as a solution. That is until the issue of perpetuity in its land use arose. It seems no one has much faith in perpetuity these days.
        Action on the McMurrain Farm property was postponed until a future meeting between the Commission and SFWMD board can be arranged.  In intergovernmental affairs, delays are perpetual, but many conservation easements are not.
(c.) Davidsson. 2016.

Note: See additional articles below and in Older Posts.