October 12, 2003

Pushing the Sprawl Back: Landowners Turn to Trusts


THE actress Zoe Caldwell has been eloquent about her love for the land near her home in Pound Ridge. So it was no particular surprise this year when she and her two sons put half of their 60 acres of land into a conservation program after the death of her husband, the actor Robert Whitehead.

The 30-acre strip of donated land, a wing-shaped wedge of new-growth woods that borders on the giant Ward Pound Ridge Reservation, has huge boulders, craggy ridges and caves where the Whitehead boys, Charlie, now 31, and Sam, now 34, played growing up, and where the family used to take long walks together. The land will now be known forever as the Robert Whitehead Preserve.

In return for the donation, which preserves a precious piece of land from being developed - forever, it is presumed - the family received great praise from conservationists, a tax break and the assurance that their view from the back porch will be undisturbed for the foreseeable future, and even beyond.

"We never considered selling it," said Charlie Whitehead. "We never wanted to see it developed." The decision was logical financially, too, he added. "Taxes are quite considerable. This relieves some of the burden."

Despite the pressures of development in the suburbs, where land is increasingly precious and the city's sprawl pushes ever outward, landowners are quietly pushing back. Aided by new tools, the preservation movement has been gaining momentum in northern Westchester, where well-to-do residents with a love for the land, especially in the less densely settled reaches of the county, see an urgent need to protect their neighborhoods and their beloved meadows and trails.

Across America, the movement to preserve unspoiled land has been steadily snowballing. Land trusts have increased the acreage in protective stewardship to 6.2 million in 2000, from 1.9 million in 1990, according to a National Land Trust Census. To that total, the 72 land trusts in New York State contribute 552,220 acres (second only to California's 1.25 million acres and just ahead of Montana's 505,659 acres).

In Westchester, donations have accumulated rapidly. For the 11 years after its founding in 1988, the Westchester Land Trust took 900 acres in seven communities into protective custody (an average accumulation of 80 acres a year). In the last three years, that rate has climbed to 386 acres a year and the trust now has 2,230 acres in 21 communities. This year it is on pace to log in a record 750 new acres.

Paul Gallay, the executive director of the Westchester Land Trust, said: "There has never been such a convergence of interest and accomplishment for land preservation in Westchester. We've harnessed the energy that's been out there all along for a more balanced approach to land preservation and development."

While there is considerable excitement among nature lovers about the trend, there are at least some who question the wisdom of locking up land in perpetuity, setting restrictions on land use that might actually benefit present generations at the expense of the future. Others fault the "last man in pull up the ladder" attitude. There is potential for unwise conservation; as one official conceded, anyone can set up a land trust to get a bad easement. Beyond that, it is very often only the rich who can preserve the views outside their house, while reaping tax breaks, even though it can be argued strongly that the greater good is well served despite a whiff of inequity.

But for the most part, there is unanimity on the value of preserving land. And one of the newest and most common methods is the conservation easement. A relatively new and untested tool created by tax laws, conservation easements allow landowners to keep their raw land but donate its development rights to a neutral land trust that will keep it locked up forever, taking a tax credit for a percentage of the value. Those who make conservation easements do not give their land away or give blanket permission for the public to use it. Rather, they simply make the promise never to build there.

BARELY two decades old, the conservation easement already accounts for more than half of the entrusted land in New York State; 280,499 acres, according to the Land Trust Alliance. (In Montana, 88 percent of the preserved acreage is similarly locked up). Environmentalists, lawyers and editorials across the board give it high marks.

Conservation easements have become the weapon of choice in the battle to block urban sprawl. Pockets of nature are sealed off from development while environmentalists plot strategies to link them to one another and create webs called "greenways."

Three projects in the last year demonstrate the broad flexibility conservation easements give preservationists in protecting land. Totaling nearly 200 acres in Yorktown, Lewisboro and Pound Ridge, the deals struck will not only rescue threatened land but will also provide housing for the elderly and those of moderate income, nature hikes for county residents, drinking water for New York City, and give a certain pack of wolves a little more breathing room.

It all comes down to changing the definition of "land use" in people's minds, Paul Gallay explained, leading the way through the undergrowth of a swath of land used in Yorktown. "It's not about development only," he said.

For years the 51-acre wooded parcel tucked into the northwestern corner of the Taconic Parkway/Route 6 was stuck in development limbo. Zoned for office and light industrial, the land was scheduled by the owners for a Home Depot store in 1989. But the town rallied and blocked it, noting that traffic on Route 6 was already a nightmare.

In 1998, the developer, Cappelli Enterprises, bought the land for $1.7 million and tried to change the zoning to housing for the elderly. Its studies showed that older people didn't drive as much and when they did, they did so in off-peak times.

Then began the long road of tradeoffs and compromises to gain approval. Both the Westchester and Yorktown land trusts stepped in and offered to help negotiate and move the process through in exchange for what Joseph V. Apicella, senior vice president of Cappelli, described as "a significant amount of open space." That was, 39 of the 51 acres had to be no-build, a conservation easement forever.

The number of independent living units for the elderly was bartered down to 208 from 300 and the developer agreed to ante up another $650,000 to link 62 neighboring homes to the new sewage system. The town planning board got four of the open acres set aside for a town park and gazebo.

"It was a very fair and reasonable solution," Mr. Apicella said. "One of the most unique partnerships we've ever been in."

Judy Shepherd, the Yorktown Land Trust president and a key engineer of the deal, said the compromise shows "how to continue to develop and not create a parking lot."

Another partnership is the Houlihan Project in Lewisboro. The 111 acres of vacant land had been owned for years by an absentee landlord who didn't give it much thought. By default, its expansive meadows, dotted with wildflowers and fringed with towering woods, had become something of an unofficial town park, situated as it was at the hub of a trail system used by hikers and backyard horsemen. "It was a place kids could go to learn to ride their pony," said Jim Nordgren, who was on Lewisboro's planning board at the time. Its wetlands and scrub also was host to a stunning array of wildlife: 33 species of reptile and amphibian; 66 species of birds observed in single afternoon survey. It was one of Lewisboro's best-kept secrets.

Then in 1997, the developer Glickenhaus-Doynow proposed putting up 13 mansions and building a road through the area. The sentiment in town was: we're losing our trails, something has to be done, Mr. Nordgren said.

In 2000, voters approved by a ratio of 4 to 1 a referendum for $2 million to acquire open space. By then the developer's plans had been whittled down to eight large mansions. He wanted $5.5 million to walk away.

Mr. Nordgren huddled with two other concerned citizens: Susan Henry, who lived next door to the land, and Henry Fair, who lived at and ran the Wolf Conservation Center, which also abutted the land. They set out to raise the money.

They laid out their case: the 111 acres was a keystone in a network that would link Ward Pound Ridge Reservation to the south to Mountain Lakes Camp to the north. In all, 10 miles of fragmented trails would be woven together to connect three schools with five nature preserves. Homeowners, strategically situated, agreed to let trails wend through their property to complete the system.

"Talk is cheap," Mr. Nordgren said. "Unless you produce, people stop listening." In October 2001, the town came up with one-quarter of its $2 million open space war chest to buy the land, on the condition that a discount could be negotiated. The Wolf Center added $100,000, as did its founders Mr. Fair and his wife, the concert pianist Helene Grimaud. Ms. Henry's family put in $50,000. Richard Handler, a financier, pledged $250,000.

In February 2002, the county agreed to put in $1 million of county money, if the town promised to follow a timetable to create more affordable housing. That led to another wave of private donations, totaling $300,000.

By October 2002, Gov. George E. Pataki was sold on the project. The state kicked in $1 million, prompting the last spurt of private money and bringing it up to the negotiated price of $4.2 million. In the end, 200 private donors contributed $1.5 million to save the land, 100 acres of which is now owned jointly by the county and town, with the hanging on to the conservation easement.

The remaining 11 acres went to the Wolf Conservation Center to make room for a new pack of Mexican wolves and to expand the center's educational programs.

A third project is the Whitehead one. Last December, Ms. Caldwell, the actress, spoke at the banquet the Westchester Land Trust holds every year to thank its donors. She talked off the cuff of her love for the area and for the land she and Mr. Whitehead bought years ago in tandem with their friends, Hume Cronyn and Jessica Tandy. She said she was impressed by the dedication of the people involved in the movement, even though, she admitted, she wasn't quite sure she completely understood what a conservation easement was.

"Who knows," she told an audience transfixed by her stage presence, "maybe someday I'll ease my land."

Chris Kuehne, president of the Pound Ridge Land Conservancy, said: "Conservation easements are one of the few really good tax breaks left for landowners in the U.S. The I.R.S. hasn't really challenged any of the ones in this area yet."

WHILE all of the people who have contributed the 230 acres to his stewardship want to help Pound Ridge keep its rustic, rural charm, Mr. Kuehne said, "Eighty percent are also interested in what's in it for them."

Conservation easements allow donors to deduct up to 30 percent of their adjusted gross income in the year of the donation and, if the value of the gift exceeds that deduction, it can be carried forward for up to five years.

But it is the consequences of conservation easements five generations from now that have some legal scholars worried. As Prof. Julia D. Mahoney of the University of Virginia School of Law said, it is an "illusion" that preservationists "can save nature through calculated efforts to restrict the options of future generations."

Professor Mahoney said: "Future generations either will be stuck with the land preservation choices made by their forbears, which will almost certainly fail to reflect contemporary cultural values and advances in ecological science, or will have to expend resources to extinguish, or at the very least renegotiate" the restrictions.

On the other hand, she continued, the present generation reaps significant benefits, including tax breaks and "emotional satisfaction."

James Burling at the Pacific Legal Foundation added that trusts can be changed by courts. He wondered about the long-term unintended consequences. "Will it lead to an ever diminishing supply of land for new home construction," he asked, "driving up the price of housing?"

Mr. Kuehne argued that "for generations and generations, people have been developing vast amounts of land."

"What people find gratifying about conservation easements," he added, "is that it is a small step to counterbalance the years of development."

Stephen J. Small, a lawyer who wrote the federal income tax regulations on conservation easements and now advises on estate planning, summed it up: "Most people who donate conservation easements do so for three reasons: they love their land; they love their land; they love their land."

Copyright 2003 The New York Times Company