By David M. Greenwald
Executive Editor
On Monday, the Vanguard reported on a proposed housing project that would develop housing on the northern half of the Wildhorse Golf Club.
This would convert 74.6 acres of the golf course which is in the city limits into 500 to 750 homes of varying sizes and affordability levels.
Given that the land is zoned “Park” and located within the city, the city believes that the project would not be subject to a Measure J vote.
However, additional questions have arisen about the nature of the conservation easement that was agreed to and recorded in March 1998 by the city and developers in the development agreement. That was executed in September 1994 by the Duffels.
According to the easement, “Grantor (Wildhorse Project) intends to grant a conservation easement to the Grantee for the exclusive purpose of assuring that the open space character of the Easement Area will be conserved and maintained forever (emphasis added), and that uses of the land that are inconsistent with these conservation purposes will be prevented or corrected.”
They also stipulate that the proposed use of the Easement Area as a public golf course “are consistent with the conservation purposes of this Easement.”
The agreement goes on to list prohibited uses of the land which would include any residential development rights not explicitly permitted by the agreement.
Under section 13.3, Amendment: “Any amendment to this Easement which would change the use or nature of the Easement shall be subject to review and approval by Grantee (the city) at its respective public meeting and if approved, shall be in writing and shall be recorded against the Easement Area.”
In a note to the Vanguard from the city, it notes that this is not a typical conservation easement held in perpetuity by a third party such as the Yolo Land Trust. Instead, the Grantor here is Wildhorse Group LLC and the Grantee is the City of Davis.
In responding to the Vanguard’s request for documentation, City Manager Mike Webb noted the Zoning designation is PD3-98, subsection J “Golf Course.”
Measure J applies to GP designated properties of “Open Space” or “Agriculture” or “Urban Reserve” and proposals to convert those to any urban land use designation. The GP designation of the Golf Course is “Park” (even though it is privately owned).
Measure J requires: “Voter approval of changes to land use designations on the land use map from agricultural or urban reserve to urban land use designations or from agricultural to urban reserve land use designations.”
Mike Webb added that the City Attorney “is currently undergoing review of the proposed project and the related easement and measure J/R/D language below to determine applicability of process and whether the proposal can be considered, and if so, what the review process would be.”
In a separate note, he indicated that he wouldn’t expect to hear anything from the City Attorney until next week.
The city also noted, just because the city council might have the ability to review the proposal and approve it doesn’t mean that they will.
Recall that originally Wildhorse, while not a Measure J project, did go to the voters in a pre-Measure J referendum and while the council might not be obligated to bring any future proposal before the voters, they may choose to do so.
This is all reminiscent of the often quoted statement from Bill Clinton’s grand jury testimony where he questioned the precise use of the word “is”. Clinton said, “It depends on what the meaning of the word ‘is’ is. If the—if he—if ‘is’ means is and never has been, that is not—that is one thing. If it means there is none, that was a completely true statement.”
The City appears to be questioning what the meaning of the word “forever” which appears in the first sentence of section (C) of the Deed of Conservation Easement.
Well stated!
The issue actually appears to be it’s a two party agreement with no mechanism to prevent changes to it.
Are there other conservation easements of this type around town? Or was this one unique?
From what people know, this appears to be unique.
David, I don’t think you are correct. Paragraph 13.2 clearly does provide for modification … with limitations.
13.2. Modification of Easement, The parties may make modifications to this Easement in writing so long as the modifications are consistent with the use of the Easement Area for the purposes allowed by this Easement. Modifications, as referred to in this paragraph, shall be limited to review and approval or disapproval of any proposals by Grantor for use of the Easement Area to determine if the proposal(s) are consistent with the terms of this Easement.(emphasis added) Grantee may delegate the authority to consent to such modification to an employee or officer of Grantee.
… and those limitations (the terms of the Easement) are clearly spelled out in the Deed
Now, therefore, for the reasons given, and in consideration of their mutual promises and covenants, Grantor hereby grants and conveys to the Grantee, its successors and assigns, and Grantee hereby accepts a perpetual (emphasis added) “conservation easement” as defined by Section 815 of the Civil Code of California, of the nature and character described in this Easement.
1, Prohibited Uses,
Grantor promises that it will not perform, nor knowingly allow others to perform, any act Or use on or affecting the Easement Area that is inconsistent with open space nature of the Easement Area as described in the recital paragraphs and the covenants below.(emphasis added) Grantor authorizes Grantee to enforce these covenants in the manner described below (…)
Grantor understands that nothing in this Easement relieves it of any obligation or restriction on the use of the Easement Area imposed by law.
2. Consistent Uses and Practices,
The following uses and practices, though not an exhaustive recital of consistent
uses and practices, are consistent with Grantor’s intent and the purpose of this Easement and are not precluded, prevented or limited by it:
(A) To develop, construct, maintain, repair and replace a public golf course and driving range, including without limitation construction of a golf clubhouse and related structures and improvements, and all related uses permitted by applicable zoning regulations and in accordance with the Development Agreement;
(B) To develop and maintain those water resources on the Easement Area that are necessary or appropriate for the purposes permitted by this Easement; and
(C) To bury or otherwise camouflage all utility systems or extensions of existing
utility systems constructed in the future,
3. Inconsistent Uses and Practices,
The following uses and practices, though not an exhaustive recital of inconsistent uses and practices, are inconsistent with Grantor’s intent and the purpose of this Easement and are, therefore, prohibited by it:
(A) Any commercial, residential, industrial or development rights, (emphasis added) use or activity on the Easement Area, other than the uses and activities specifically permitted by Paragraphs 2 and 4 of this Easement;
(B) The establishment of any feed lot;
(C) The dumping or other disposal of non-compostible refuse on the Easement Area except in sites approved by Grantee:
(D) The construction, maintenance or erection of any signs or billboards on the Easement Area (except those related to the public golf course and driving range which are approved in writing by Grantee); and ,
(E) The use or transfer of any interest in the Easement Area inconsistent with the permitted uses of the Easement Area as described in this Easement.
4. Reserved Rights.
Grantor reserves to itself, and to its personal representatives, heirs, successors and assigns, all rights accruing from its ownership of the Easement Area, including the right to engage in or to permit or to invite others to engage in all uses of the Easement Area that are not prohibited herein and are not inconsistent with the purpose of this Easement, including, but not limited to the full enjoyment and use of the property for the purpose of developing, constructing and maintaining a public golf course and driving range, including related structures and improvements, and for related uses permitted under applicable zoning regulations and for the exploration, development and production of all oil, gas, minerals and other hydrocarbon substances of every kind provided that Grantor’s enjoyment and use shall be in such a manner as to minimize interference with Grantee’s rights hereunder.
Trust.
If the City Council is willing to entertain changing a conservation easement on the Wildhorse Golf Course will it make people trust the Council more or less?
If the City Council is willing to use technicalities to render a conservation easement meaningless will it make people trust the Council more or less?
If the City Council proposes changing or repealing an initiative that past only a few years ago with over 80% of the city wide popular vote will people trust the council more or less?
If the City Council wants to pass a tax measure that can be spent on anything the Council chooses, (not a specific program or programs), how much trust does a voter need to have in the City Council to vote yes?
Well said Colin.
“Trust” has to be earned.
Not just city counsel, but if the Wildhorse conservation easement was gutted, then the city’s open space program is totally at risk! Who would want to sell the city land under a conservation easement (at a lower price – less than what it would be sold for if developed; see city’s open space page – conservation easements are their preferred process) if the city plans to gut it at a later date for development or trade it for $$ or a different property (not what the original sellers intended).
OMG! You guys are confusing perpetuity with forever. They are not the same thing and acting as if they are is naive. Don’t take my word for it watch how he perpetuity issue plays out.
There is a part of the proposal where in exchange for development rights, conservation easements, or under other arrangements such as “purchase in fee” other land will be preserved as open space.
I can see a scenario where the we get both housing and land added to the city open space goals that has greater habitat value than the habitat provided by a golf course.
OMG!
What does it mean when someone says in perpetuity?
In perpetuity means forever. For example, someone may have the right to receive the profits from land in perpetuity. The term is also commonly used in the context of copyright. A perpetual copyright grants one the right to use the copyright indefinitely.
I’m not an attorney either but I found the following information about conservation easements in Analysis of Property Tax Assessment, “conservation easement is an enforceable restriction. Lands subject to the grant of an open-space (i.e., Conservation) easement shall be deemed to be enforceably restricted within the meaning of Section 8 of Article XIII of the constitution of the state of California. “Conservation easement” means any limitation in a deed, will, or other instrument in the form of an easement, restriction, covenant, or condition, which is or has been executed by or on behalf of the owner of the land subject to such easement and is binding upon successive owners of such land, and the purpose of which is to retain land predominantly in its natural, scenic, historical, agricultural, forested, or open-space condition. It shall be perpetual in duration.”
What appears to be different about this particular easement is that normally a third party, in Yolo County usually Yolo Land Trust will hold the easement and this case, that’s not true, it’s the city.
One of the intriguing questions is, “Why is this easement different? What set of events came together to make this easement be so different from all the other easements?”
There is a clue in Section E of the Deed document, which reads as follows:
The language of that section itself is very clear and unambiguous; however, the question that language raises is, “Is/was the City of Davis actually a ‘qualified conservation organization’?” That same issue came up during the Mace 391 controversy when the handling of the USDA grant money was questioned. If I remember that controversy correctly, the City was not a “qualified conservation organization” and that meant the USDA grant money for the easement could not go to the City (and then be passed on to the landowner), so a qualified organization was added to the transaction just for the purposes of receiving the money. Then moments later, once the easement was established, the easement was transferred to the City and Yolo Land Trust and the money flowed through the City to the landowner. There were people who argued that the City was “Playing fast and loose” with the rules, and should never have been considered for the USDA Grant … but that died down after a USDA manager came to the public comment lectern at the Council meeting and assured everyone that everything was above board.
So, if the City is/was not a “qualified conservation organization” why did the City not bring in a third party to the Wildhorse Easement in order to be compliant with the Law? As Yul Brynner would say, “It’s a puzzlement!”
.
“Grantee accepts the responsibility of enforcing the terms of this Easement and upholding its conservation purposes forever”
Grantee is City of Davis.
I guess “forever” doesn’t mean what it used to.
I’ve seen this before in California where property held in perpetuity got sold. Just saying.
I think this one is going to be fun to watch. It will be the silliest political battle since the campaign to save the parking lot forest from solar panels.
If we can get both housing and preservation of better wildlife habitat I look forward to listening to your arguments to do neither.