The 837-acre West Transmountain Scenic Corridor Land: Why a Conservation Easement Is Necessary

(1) On June 13, 2012, the Public Service Board voted unanimously for it. (See #1, next page.) (2) City Council Resolution 10B (March 20, 2012) specifically mentioned a conservation easement. (See #2, next page.) (3) A 501(c)3 land trust can hold a conservation easement on City land. (See #3, next page.) (4) The Texas Parks and Wildlife Dept. (owner of the Franklin Mountain State Park) has sold, transferred, exchanged or otherwise gotten rid of 57 park parcels since 1995, so parks need protection. (See #4, next page.) (5) The City of El Paso has transferred part of at least one City park since 1995, so City ownership is no guarantee either. (See #5, last page.) (6) Conservation easements can be deployed on Texas Parks and Wildlife land. We know of at least five. (See #6, last page.) (7) El Pasos only 501(c)3 land trust, the Frontera Land Alliance, is not broke, as has been charged. (See #7, last page.) (8) If Frontera were ever to dissolve, many years from now, its obligations would be transferred to another land trust. (See #8, last page.) (9) Fronteras fees for managing an easement are not exorbitant. (See #9, last page.) (10) TxDoTs plans for the West Transmountain Loop 375 include frontage roads on the 837 acres. Frontage roads mean access to business and commerce. (See #10, last page.)

Deploying a conservation easement on the 837-acre West Transmountain Scenic Corridor land
(1) On Wednesday, June 13, 2012, the Public Service Board unanimously approved the Scenic Corridor resolution written and read by Mayor John Cook. That resolution, which wrapped up Item 11 on the PSBs agenda, reads: To approve the [Technical Working Group] Committees recommendations that if the [West Transmountain Scenic Corridor Utility Green Space] land reverts to the City, it will come back with a conservation easement if that is legally possible. Subsequent to the June 13 PSB meeting, three of the Frontera Land Alliances attorneys were consulted and all agreed that a reversiontriggered conservation easement was indeed legal. One attorney referred to it as a springing conservation easement; two others spoke of it as an agreement triggered by a later event; both have ample legal precedent. (2) On Tuesday, March 20, 2012, El Paso City Council approved (5-3) Dover Kohls Plan One, which called for the preservation, in perpetuity, of the 837-acre Scenic Corridor land. (The three nay votes came from Representatives who spoke in favor of Dover Kohls Plan Two, which would have preserved an even greater amount of the West Transmountain Scenic Corridor property.) The March 20 resolution reads thus: 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 arroyos [sic, arroyos], more parks or small park, minimum encroachment into arroyos/no pocket parks, approve Scenario 1 and staff recommendations. (3) A 501(c)3 non-profit land trust such as the Frontera Land Alliance can indeed deploy a conservation easement on land that is owned by a city. At the present time, Frontera holds the conservation easement on the 26-acre Thunder Canyon property, located just west of Upper Stanton Street three blocks to the north of Festival Hills in the Dales neighborhood (Sharondale, Irondale, etc.). In May of 2007 the City approved the creation of a PID (Public Improvement District) on Thunder Canyon. The City bought TC from a local developer after the TC neighbors agreed in writing to a surcharge on their property taxes enabling them to pay off the City for the purchase price within 30 years. Frontera negotiated a conservation easement with the City and the neighbors; Frontera holds that easement in perpetuity (which is how all conservation easements are held). (4) From 1995 through the present time, the Texas Parks and Wildlife Department (TPWD) disposed of 57 parcels previously forming part of Texas state parks. Seventeen of those parcels were sold, fifteen were transferred, eight were exchanged, five were traded, control on two was relinquished, two were disposed to another party, two more were deeded without warranty, two were conveyed, and one each was quit-claimed, or deeded and assigned, or relinquished to the Texas General Land Office; one more was subjected to a taking (by the federal government for the border fence). By comparison, in

that same time period TPWD added just nine parcels to its state park system. So the precedent clearly exists: TPWD can and will dispose of state park land. (5) We know of at least one City of El Paso park whose land has been disposed ofthe formerly 75-acre Blackie Chesher Park (northeast corner of Escobar Drive and Zaragoza Road). Despite the fact that the Blackie Chesher land when gifted to the City in the early 1960s contained several deed restrictions forbidding all but parkland use, about fifteen acres were detached from the park in 1996 so that the present El Paso Police Department Mission Valley Regional Command (9011 Escobar Drive) and the adjacent El Paso Municipal Court Mission Valley Substation could be constructed on them. The Regional Command building was inaugurated on Feb. 27, 1998 and the Municipal Court building shortly thereafter. Thus there exists a precedent for the disposition of City parkland. (6) Conservation easements can indeed be deployed on TPWD-owned land. At present, at least five TPWD properties carry conservation easements in full or in part: Black Gap Wildlife Management Area (Brewster County [Alpine]), Devils River State Natural Area (Val Verde County [Del Rio]), Devils River Ranch State Natural Area (Val Verde County), Government Canyon State Natural Area (Bexar County [San Antonio]), and Caddo Lake Wildlife Management Area (Harrison and Marion Counties [East Texas]). (7) The Frontera Land Alliance, the El Paso areas only 501(c)3 non-profit land trust organization, is not broke, as has been charged. Frontera presently has $100,000 in the bank, and thanks to on-going supplementary donations Frontera routinely consults with its traditional law firm and also hires attorneys from smaller firms as the need arises. Frontera will also be able to request matching donations from the El Paso Community Foundations Richard Teschner Fund for Land Conservation, an entity legally established and funded in February of 2012. (8) In the unlikely event that Frontera ceases to exist in fifteen, thirty, forty-five years or more, it has engaged in a partnership with the older Texas Land Conservancy (Austin) for back-up and continuity. (9) Fronteras fees for monitoring a conservation easement are not exorbitant, as has been charged. As Fronteras Executive Director Janae Reneaud Field noted at one of the several meetings of the Technical Working Group (chaired by Mathew McElroy, Director, City Development Department) that she was invited to speak at, easement monitoring costs depend entirely on the details of the easementsuch things as appraisal, survey, title, Environmental Phase One and so forth. To quote Janae, the direct cost to Frontera to hold a conservation easement is just the annual site visit, which on the average is $500. However, Frontera has stated that it itself will pay, indefinitely, all monitoring costs for the 837-acre property. (10) A very important reason why the specifics of a conservation easement must be worked out as part of a transfer by the City of El Paso of the 837 acres to the state park can be summed up in two words: frontage roads. According to TxDoTs plans for the West Transmountain part of Loop 375, frontage roads will run about 300 yards to the east of the Paseo del Norte interchange, now under construction. Both the interchange and the frontage roads will lie just adjacent to sections of the 837-acre Scenic Corridor Utility Green Space property. Frontage roads have one main purpose: to provide access to stores, restaurants and other commerce. The temptationfifteen, thirty, forty-five years from nowto sell off part or all of the 837 acres will remain strong; a conservation easement is the firmest guarantee that no voter referendum can ever allow such a sale.