[From the U.S. Government Printing Office, www.gpo.gov]
1"WV 416- -.2on e,- f C ente@... Modern methods of land preservation ward" landowners used by "good ste --@,J-w 'N"Id 'Ala ;- Ig RR f,5N,TmR-.;,rC!'0 m -00, 'R R-A-111,51-WH Ax A.- 0 01 MAI - 70; -AW91,U KIM -4q- M, HD 205 .S84 ,V1 1965 Pubfished@3 by the Open Space- Institute COASTAL ZONE INFORMATION CENTER STEWARDSHIP Modern methods of land preservation., used by "good steward" landowners Property of CSC Library Prepared for concerned landowners in suburban and rural areas subject to the land consuming pressures of urbanization U S DEPARTMENT OF COMMERCE NOAA COASTAL SERVICES CENTER 2234 SOUTH HOBSON AVENUE CHARLESTON SC 29405-2413 Open Space Institute (formerly the Open Space Action Committee) 145 EAST 52nd STREET, NEW YORK, N.Y. 10022 Tel. 212-421-0732 THIS BOOK IS A REPRINT NOT A REVISION OF THE ORIGINAL TEXT Ten thousand, copies of the original edition of -STEWARDSHIP were exhausted Several months ago. When we had 'only -a few hundred copies left. we decided to do, a full scale revision of the book but it became increasingly 'apparent that continuing demand for STEWARDSHIP made it essential that we go to reprint rather than wait for almost a year for a complete revision. Therefore, it is important to point out that the appended material con- cerning CHARITABLE DEDUCTIONS - FEDERAL INCOME TAX is now superseded by the Tax Reform Act of 1969. While many of the provisions of the 1964 Act are still in effect, landowners contemplating gifts of land - in fee or via easement - should have their attorneys and/or tax advisors check their preservation plans against the 1969 Act. Moreover, many new books on environmental protection and land preservation have appeared since the original edition of STEWARDSHIP came off the . press. Three that deserve special mention are: CHALLENGE OF THE LAND by Charles E. Little. A case-history book on land preservation methods written for municipal officials an& civic leaders. Its appendix includes a wide range of ordinances, laws and deed forms dealing with open space preservation. $3.75 each (10 or more copies, $3.00 each). OPERATIONS MANUAL FOR A LOCAL LANDOWNER PROGRAM - An Open_,Space Institute Staff Re ort. Detailed procedures including sample P andletter, concerning organization and operation of a local Landowner v-_ z Program based on the Institute's own highly successful Stewardship Program. Includes discussion of advantages (especially tax advantages) of preserving open space via donation and allied methods; how to deal with prospective land donors; a glossary of terms and selected bibliography. Single Copy, $4.00 each, 2-9 Copies, $3.00 each. CONSERVATION COMMISSIONS IN MASSACHUSETTS - IDEA ON THE MOVE, by Andrew J. W. Scheffey, Director of Williams College's Center for Environmental Studies, and William J. Duddleson, Director of Policy Studies at the Conservation Foundation. Scheffey analyzes the Massachusetts experience and Duddleson reports on variations of the Massachusetts invention in six other Northeast states and shows that these new kinds of local govern- ment agencies tested in more than 500 communities are effective instruments for open land protection and environmental improvement. Available through the Open Space Institute at $3 per copy. Finally, it should be noted that there are at least two incorrect addresses in the list of "PRIVATE ORGANIZATIONS INTERESTED IN LAND". The correct address of The Natural Area Council is 145 E. 52nd Street, New York, New York 10022 and that of The Nature Conservancy is Suite 800, 1800 N. Kent Street, Arlington, Virginia 22209. Copyrightl@l 1965, Open Space Action Committee - Library of Congress Catalog Card Number: 65-28206 FOREWORD Our burgeoning metropolitan areas are now a stage on, which a new conservation drama is unfolding.. No matter how urbanized, we .may become, we recognize the need for a contact with nature as the touchstone that gives meaning to our lives and purpose to our enterprise. In our cities great and small, it is. apparent that we must take action to save woods and streams, mea.do';vs an ,d. ponds, undolated. seashore and salt marsh, green hills and green vistas. In other. years these, parcels of wild land where nature holds sway will be irreplaceable human anchors in a surrounding "sea" of man-made objects. Whether such open spaces as these will be our conservation legacy to future generations is a test of our national values and our civic pride. The preservation of urban open spaco admits to no simple solution. A good part of the solution, it is true, 'must come from an enlarged public purse for the acquisition of recreation and conservation areas, wildlife refuges and natural and civic parks. But no one should for a moment believe that a green and pleasant city is something that can simply be purchased if only funds were available. The essential ingredient in the preservation of open space must be a heightened sense of stewardship on the part of those of us who use the land and those of us who own the land. And while for each American this is a responsibility, it is a demand- ing challenge for those who are the private owners of open land-which taken together constitutes the largest conservation reservoir in and around our cities. This book is written about these owners and for these owners. They are the stewards of most of our open land: the estate, the farm, the vacant land on which the most arresting feature is the primacy of nature itself. I commend this book to those of you who believe that every @ land owner is a trustee for tomorrow. Here you will find creative ways to exercise a vital stewardship. STEWAiRT L. UDALL Secretary United States Department of the Interior iii When a piece of work gets done in the world, who actually does it? Whose eyes and ears do the perceiving, whose cortex does the thinking, who has the feelings that motivate, the will that overcomes obstacles? Certainly not the social environment; for'a group is not an organism, but only a blind unconscious organization. Everything that gets done within a society is done by individuals. -ALDOUs HuXLEY CONTENTS FOREWORD I. STEWARDSHIP:'An Introduction 11. METRO NEW YORK The Quality of a Region 5 The Value of Open Space The Problem The Search for Solutions III. THE STEWARDS A Casebook 15 Brinton Brook A Hilltop Heritage Village Green The Dream Merchants Sharpe Reservation A Total Concept of Conservation The William L. Hutcheson Memorial Forest Shared Stewardship "Chelsea" Public Rights to Private Property Teatown Lake Help for Complex Problems The Bantam River Accumulating Value by Covenant Leonard Park to Byram Lake The Momentum of Open Space Preservation IV. LAND PHILANTHROPY 41 Estate Management: The Forms of Giving What Kind of Use? Public Body or Private Group Deed Restrictions and Watchdogs The Community Response V. NEW DIRECTIONS IN DEVELOPMENT 57 A Homely Example The Rights of a Seller The Principles of Cluster The Land-Seller's Role VI. THE MIDDLE GROUND Open Space Easements 65 A Quid Pro Quo A Public Benefit: The "Quid" Assessment: The "Quo" Decision for Stewardship .71 APPENDIX 72 A. Organizations B. Statutes and Rulings C. Bibliography 9MV! S, pry- A, 'i pa RAW go @"K 4M "N' eRAR AHIC, T' "'g @V' :1, 3U ZR' JiMf Ae kW."i 101 'vr raw 4 -Z@' A A MEN= The opportunity for land stewardship pertains to those@who own what is left of the woods, fields and streams in the metropolitan region. Their options for the preservation of the natural landscape can range from rational self-interest to outright philanthropy. STEWARDSHIP: An Introduction THE IDEA OF THIS BOOK IS SIMPLE. In the New'York Region, there is and will continue to. be a Severe shortage of permanently preserved. open space - the land . needed for recreation, the preservation . of natural processes, and sheer visual amenity. While various levels of government can be expected to put more,, and more money into'the acquisition- of open. space" such, funds, will.,..' continue to fall far short of the mark even as they increase. The public response to the need for open space is almost by definition, too late; if is', missed only after it is gone. And the cost of land is bound to rise more steeply than the governmental appropriations for its purchase. But there is a unique opportunity for private action which, if seized, can powerfully augment governmental Ppen space programs, and just might make it possible for this generation to pass along to its children a region approaching what we would like it to be. This opportunity could be called "Stewardship." It is an oppor- tunity available to a very small fraction of our metropolitan population -probably no more than 10,000 individuals, .06%. These are the private owners of what is left of the open land in this region, land which comprises most of the remaining woods, fields, streams, lakes, seashore and salt marsh. In twenty-five years, the use patterns of this open land- will have been set. The look of the region, depends on the decisions its owners make today. "Stewardship" may seem an abstract concept, but there are many means for its concrete expression. An' owner 'who is philanthropically inclined might donate land for open space use to a park authority or a conservation organizat Ii.on. A person who wishes to sell his land might Tarticipate in the design of a subdivision to assure that some valuable - open space remains. The'estate owner who would like to continue to live on his property just as it is or.bequeath. it intact to his heirs, might convey an 11 open space easement 11 to preserve the open, character of his land, remove the pressure for development, and stabilize his taxes at a level he can afford. Although the exercise of stewardship may bring ancillary rewards, the real purpose here is to show that landowners, as a group, have a capability to affect the appearance and liveability of the region that simply cannot be matched by the public purse no matter what its size. It is to this capability that this book appeals. Only one assumption is made: that most of the owners of open land in this region already have a senseof stewardship. One might think it necessary to except from this the land speculator to whom a quick profit may be most important, but even among speculators, both professional and amateur, there are many with vision who would like to see the land used properly as well as profitably. The ensuing. pages, then, rely on a pre-existing sensitivity toward V F.0 Y:v p FM C The public response to the loss of open space is usually too late. Private act'i 2 the land. They presume to be specific about the mechanics of steward- ship. Beginning with an outline of the nature of the open space problem (Chapter 11), the book then illustrates by example how precedents for stewardship decisions have been set (Chapter III), and concludes with brief summaries describing how land may be donated (Chapter IV), developed (Chapter V) or lived on (Chapter VI) by owners who serve their own interests and the public good by making a decision for stewardship. Hopefully, this volume will help to make such decisions common- place and in the making, produce a region worthy of our aspirations as a civilized people. P 3; 1" )f stewardship are needed to insure a livable region for coming generations. 3 POUGHKEEPSIE BRIDGEPORT* ENGLEWOOD 0 METRONEW YORK The Quality Of A Region THIS Is A BIC, REGION. Its 22 counties and 17 million people reach up the Hudson to Poughkeepsie, sprawl along the Connecticut shore beyond Bridgeport, pierce the Atlantic on Long Island, spread across nearly half the State of New Jersey. And yet, the region cannot be found in statistical tables, nor per- ceived in a map. Its essential quality is basically subjective. For the commuter, it's a backyard in the suburbs and a commercial eyrie in the city connected only by a railroad ride or a ribbon of crowded concrete. For the elite, it is holing up for the winter in a park-view cooperative apartment, fleeing to the country in the summer. There are others for whom the region is only four blocks square in a Manhattan neighbor- hood, or four miles square in a suburban town whose link to the city proper seems only theoretical. But the region is still there. It might be valuable to take a good, hard look at it. Take a look at it along the old roads. Here, the forces of a s.urging population, a flight to the suburbs, a policy by default of land squandering and unrestricted profiteering, a lack of architectural taste, an insolent disregard for natural features, amenity, safety, human health and welfare ... here they all converge into a mindless pollution of the human environment. But this is not the whole story. There are breaks here and there, even vast @acreages unfouled by the dynamics of unplanned growth. There are residential areas - not always the most expensive ones - which are pleasant to drive or walk through. Side by side with the blight, the majestic Hudson Highlands co-exist There is an Englewood, New Jersey -green and pleasant-to balance the parched, massive post-war sub- divisions of Long Island. There is a wild salt marsh at Quogue offsetting seaside shanties, chromium diners.and beflagged gas stations. There is still a place fifty minutes from Grand ,Central where you can catch a nativebrook trout and manage to get lost in the woods. 5 4> t4z ,@W!j, 0 The quality of the region is variable but redeemable. A pleasant suburban street offsets uncontrolled highway mess. The land itself is neutral. Human choices make the difference. N! jT TF-F-rM 'I" - -7 - -@-- J,!TX-gfMV7@w77-P, 7@e - 7 Wtz a 04, UZI RD: WIP4,K g", -MW ENITW@ LOR 4 . . . ... ... . rn E---VAINT i@, TOYS," @RK@,,APPVANdE @'WPFM@REPAIRED,', Ann A41C THE VALUE OF "OPEN SPACE" The Hudson Highlands, Englewood, Quogue and places like them constitute the redeeming features of this region's landscape. It is these we would like to remember and hope to be remembered by. We like better those places where nature is given a chance-we despise those places where the natural landscape has been extinguished. A break in the phalanx of development-a streamside preserved-is better than solid housing, streets and culverts. A need to preserve open space in our urban region can be justified for reasons of taste and aesthetics or perhaps even reasons that transcend cultural considerations and emerge as a kind of ethical proposition. Do we deny "nature in metropolis" to future generations, or do we pass it along as part of the legacy we bequeath? Still, there remain concrete and urgent justifications for preserva- tion. Open space gives us a place to recreate-both in the active sense of sports and games as well as the passive pursuits such as hiking, observ- ing nature, or just finding a quiet place. Open space provides the basic environment necessary for the proper development of children. It helps instill in them a responsiveness and respect for nature that comes only through an intimate contact with it. Open space gives, free of charge, a place for water to purify and to be stored for our use. It provides, in the form of forests and marshes, swamps and other wet places a method of flood control more efficient and less expensive than any yet devised by man. Open space, whether a park, a nature sanctuary, a scout reser- vation or a buffer strip, adds to the value of private properties that touch its perimeters and increases the net value of an entire community as well. Thus we can defend the preservation of open space as a physical resource in our region not only for aesthetic and ethical reasons but also for hard-beaded economic and social reasons. THE PROBLEM Unfortunately, there are forces at work that would deprive us of this precious urban resource.'Singly, these forces are mostly innocuous; all are part of the urban traditions and urban economics. But in combina- tion, they are dangerous and wholly destructive of open space. it begins with population and the land that this population will require. In less than a ge.neration the New York City Region will increase by some six million people according to the Regional Plan Association. Before the century is out we will have grown by ten million. All of this increase will probably settle in the suburbs. The core of New York City has had a stable population since 1920. Statisticians at Regional Plan estimate that, if present trends con- tinue, we will use up more additional land in the next twenty-five years 7 1960 1965 1970 1975 1980 19 'p, xg-' Agg U., -4 1600 Or g jq - t 1"- .50 118 V11 "'NUM, j@z@"@ People of house buying age S' (30-34) in the Metropolitan E 0 , E, New York Region (thousands) AM "UM 1000 V4 , UA A F-1 16 MILLION 22 MILLION 26 MILLK Increase in population (millions) IMENEENNIN 4 WMI 1960 1985 2( The problem begins with population, particularly now as the post-war babies will soon reach house buying age. It proceeds to the massive destruction of the VearWr esid en t landscape even in distant suburbs. It comes to rest in the poignant plea of a child-such as the letter from VY e, H ve no Place 7 year old Scott Turner to President Kennedy in 1962. -to 0 V@@en we, Wa -f to 0 ouf Winn C- @ IV I Dec us e t da r% t 0 74 Ing k9uj ouses So codd)w 5etasde 50@ryle Coold 8 46 nke- y@ j @ 6 1 1z 0 1 /P Y6-0 7r V for urban purposes than all the land now occupied. The region's urban- ized area presently amounts to about 2,400 square miles. Before another generation -comes along, an additional 2,900 square miles will be urban- ized. Try to visualize a city 100 miles across, an interminable web of suburbia. Yes, the flight to the suburbs is quite real, but not just because subur- ban life has some sociological mystique for the young f amily. It so happens that the suburbs can provide physical safety, a good education, amenity, and raw square feet of living space at, apparently, bargain prices. And the motor car and modern roads have, in hardly more than a gener .ation, opened up a wider range of suburbia than railroads ever could. Making the problem even worse, home construction dynamics favor land-wasteful single family housing if only because 95-Yo of the vacant land is zoned that way. But it's profitable too, the easiest to finance and the easiest to sell. On a square foot basis, there's no better buy than a development house in the suburbs, and only a token cash investment is required. Yet, it is as inefficient a use of land for mass housing as the automobile is for mass transportation. The experts now realize the full tragedy of that frail defense against development called one acre zoning, as thousands upon thousands of acres go under the bulldozer's blade to serve fewer people than urban land has ever served before. Meanwhile, as the metropolitan countryside fills up with houses, the people in them soon realize that the services they require cannot be borne by themselves alone. Often it takes.a thousand dollars or more of locally raised tax money to educate a single child for a single year at a suburban school. Schoolmen have a rule of thumb that a new de- velopment.will average out to at least two school-age children per house. Obviously, most of the money for education and other municipal services has to come from some other source. The residents rightly enough call for new industry to share the load. The situation can become so desperate that citizens will often gladly choose an intrusion of unplanned industrial or commercial ugliness to the possibility of being taxed out of their homes. The cycle seems end- less, because as factories and facilities reach into the suburbia, so new housing developments emerge as their necessary complement, restoring the tax imbalance that started the frenzy in the first place, and reducing the landscape to a shambles in the process. THE SEARCH FOR SOLUTIONS SOMETHING HAS TO GIVE. But those who d 'eal with such problems realize that there is no swift and easy answer for building a decent urban environment. There is no single statute that can do it, no easy way to 9 change ingrained attitudes, no public purse large enough to solve the problem in one grand thrust. We are Lroing to have to solve this problem in bits and pieces. The question is, can we achieve enough of the bits and pieces in time, so that 7 U17 IMM I TY A1,11, nrl _4@11 "MN Iin @4 im"01100A tA IL Jp@ Kill The result of continuing uncontrolled growth is wholly predictable 10 at least soine vestige of @quality in our urban land- use pattern can,be provided. A coricern'o.ver wholesale landscape destruction is beginning to show up in'state and federal legislation. Among federalaccomplishme.nts N "N 0141% hZl"A.' ga H ST@ -Z@ 777@i 4- Z "A T" -now, VA Ail: as these before and after aerial photos show. Syosset, 1949 and 1965. -77-1.7 -11 qt Jo lay "WE, 41, gig nip, ,je@ eL - "-'LIN37 R6@ -1, P are the Land and Water Conservation Fund, the open space grants of the Urban Renewal Administration, plus specific acquisitions such as Fire Island and Tocks Island. New York State passed a $75,000,000 open space bond issue in 1960 and in 1962 added $25,000,000 to it. New Jersey voted $60,000,000 for its Green Acres Program. Connecticut sets aside several millions yearly for grants to municipalities for open space acqui- sitions. But, withal, such exciting developments will not in themselves regain a paradise, even if the metropolitan region got a share of the funds proportionate to its population, which it doesn't. The financial mathematics are grim. Planners estimate that ideally 25%' of the land in a given community should be in protected open space useg@ At the current rate of urbanization in the New York Region -some 2,000 acres per week-we will need then, at a minimum, some half mil- lion acres set aside in the next 20 years just to keep pace with new de- velopment. The cost, using a $1,000 an acre price as a nearly absurdly conservative average would be $500,000,000, and this doesn't count the. cost of bringing older communities up to standard. The Regional Plan Association suggests that altogether $1,900,000,000 is needed for open space in the metropolitan area. There may come a time when such funds will be available from local, state, and federal government sources. But the safest guess is that it won't be soon enough to insure the environmental quality we would want for future generations who seem fated to an urban life even more complex, unrelieved. and grinding than our own. Most observers believe that if the open space problem is to be solved, it will polarize on individual initiative at the local level. State and federal grants are a powerful impetus to public action, of course, but much of the origin of action must depend in large measure on the initiative of those who see the problem clearly and are in a position to do something concrete about it. Those who, in short, are able to act on the open space problem: those who, in fact, own the open space land. How many such people are there? And what will they do? The quality of a region depends on the answers to these questions. The preservation of open space in sufficient quantity, quality, and diversity is an answer that should require no defense, demand no precondition for action. Nature maintained within the metropolis -from core to outer fringe -can mitigate past mistakes and help prevent future ones by channeling development, preserving natural processes and providing recreation and amenity. 13 It At 4'-5i! r"r " M4 THE STEWARDS, A Caseboo"k THIS IS A CHAPTER ABOUT INITIATIVE, altruism, enlightened self-interest' and persistence. It is about the stewards: landowners who feel so keen a responsibility and affection towards land in their Aarge that they exercise their option to act in its behalf. The, future is,their focus, the.' land itself their object. Though the' landowners thems'elves,-may @benefit from the attention they give the land, all society inherits their enhanced estate., There is an antique quality about the word stewardship, suggesting' an ancient wisdom calling for the-caroful husbandry-of ancestra1a.creage. The alternative was the barren field. Today,,in a mechanistic, crowded, "urban age, the concept. of stewar,dshio has become broader,m6re com- prehensive; no' longer, concerned primarily with agricultural land, it embraces' the entire, landscape. Awarq how modern technology fueled by population pressures can.. so readily oblit eirate naturalness, today's steward is more apt to be concerned, with preserving the quality of the environment. Indeed, stewardship must now involve a more profound land ethic than ever before; one which "recognizes that land of itself; paitic U-1arly land in an open or natural. condition, is important, even essential, to pre- serve natural, processes, provide, opportunity for recreation, and maintain surroundings worth looking at,and living in., What follows is a casebook of decisions made.in the recent past by landowners in the New York Metropolitan Region. It demonstrates how the modern concept of stewardship can find exlressiowin a number of im aginative ways., ranging from, outright'philanthrophy to wise exploi- tation. BRINTON BROOK, A Hilltop Heritage :rhe.y found. it irf 1925. Mrs. Willard Cope Brinton clainns.that",it is the best hilltop' 'on the east bankof the Lower Hudson'. Few would argue. Following theirinitial. purchase, Mr. and Mrs. Brinton assembled adjacent- parcels into what becamea 150-acre tract. Over the next -three decades they explored their own land. Perhaps some would see the property as an abandoned farm with untrimmed apple trees,,,fields reverting to spindly second growth and a complex profusion of stone fences. But there was more to find if one would only look.- 15 4 ,ve Ze IF iA, zt rf, 7.0 47 @Xr, i,'@: -4 04 ra At Deer browsing at midday testifies to tranquility in the midst of suburbia. Mrs. Brinton donated this property to the National Audubon Society over a period of eight years. By conveying a fractional undivided interest each year she spread income tax deduction benefits. 16 "We were interested in the variety of trees growing there," reports Mrs. Brinton. "Seven varieties of oak alone. The rock formations show clearly the glacial action which had carved these hills and offered speci- mens of every kind of rock to be found in this part of New York. And all the creatures native to this part of the Hudson River have lived or visited here-including otter at the pond and bobcat on two occasions that we know -of. "There were some very large bass taken from the pond in the early days. The largest we know about weighed 8 pounds and measured 32V2 inches in length..." Mrs. Brinton's reminiscences are today all the more valuable, for in 1957 she opened over 100 acres of her land to the public to enjoy as she and her husband did for so many years. As she puts it herself: "People had approached us over the years about building. But the more we found of the rich natural endowments of our property, the more strongly we felt that it should be kept intact as a natural museum of the region. We talked about it for a long time. When my husband died suddenly in 1957, 1 took action." She decided that the National Audubon Society would be the best custodian. Since then thousands of visitors have come to Brinton Brook Sanc- tuary including school science classes, groups of Scouts and other youth organizations. Mrs. Brinton, who lives on an adjacent parcel, need hardly be aware of their presence. However, she says,*"I've made so many good friends because of this." In order to enjoy maximum tax benefits from her gift, Mrs. Brinton initially set up a schedule which called for the donation of a one-tenth undivided interest in the land every year. In 1964 when the Internal Revenue Code was revised, Mrs. Brinton (with three years to go on the schedule) was able to convey the remaining interest all at once. This was made pos 'sible by the new ruling which increases the allowable amount of charitable donations to organizations such as Audubon from 20 to 301-Yo of adjusted gross income. Further, the ruling allows that any excess over 3096 can be averaged over a period of up to five years. Pre- viously such excess in any one year would be lost as a deductible item. During the period of giving, Mrs. Brinton protected her intentions by providing through her will that any interest still held by her at her death would be devised to Audubon. There is no limit on deductibility from a taxable estate of bequests to a qualified charity. The same applies to the Federal gift tax. Now that all the land is owned by Audubon, Mrs. Brinton is relieved of property taxes on the parcel she donated. She might have requested that taxes be reduced as her interest was reduced. However, she elected to pay full local taxes and take this as an income tax deduction. 17 Brinton Brook is managed by a branch of National Audubon, the Saw Mill River Audubon Society, on a budget of around $800 per year, plus a good.deal of volunteer labor on the part of Saw Mill members. No caretaker seems needed. For the only professional service required, a f ee is paid to the district fish and game warden to patrol the area during the hunting season. Near the pond is a little cabin which contains an exhibit of birds' nests, @ lists of fauna and flora to be found in the sanctuary and other appropriate literature. "We used to keep the, shack locked," says William G. Fennell, past president of Saw Mill, 11 and occasionally kids would break-in and mess the place up a little.. Then we gave up locking it and have had no trouble since! Everybody now takes a proprietary interest in the place." J/ Trail map shows a minimum of development. Mrs. Brinton continues to live on a portion of the original tract. Her homesite is just off the map to the west. She is not disturbed by visitors to the sanctuary. "44OC KRAV,ArE, WOODLAND -4 4.41 IN, IV CABIN 0 C===== I C=== FIELDS ------ TRAILS STONE FENCES The woods at Village Greeii reinaiii as a natwal area for hikes, bird walks mid wildflower hunts. The inaititetiatice cost is zero, the valtie beyotid price. VILLAGE GREEN The Dream Merchants The firm of Halpern and Tuschak, Somerville, New, Jersey, has been in the drearn fUlfillment business for the past 15 years. Business has been good. Its clients number in the hundreds, able and%villing to invest some- thing between $20,000 and $40,000 to make the dream materialize. The dream: to own a house and plot of ground in the country. Halpern and Tuschak are developers. They have noted a market need and have filled a segment of it in Somerset County. They have helped fill the demand for housing created by the movement of two and one half million people into New York's suburbs in the single decade 1950-1960, a dernand that is increasing in the 1960s. Critics believe the dream has often turned into a living nightmare; the dream house has too frequently become part of a monotonous splat- ter of development that has eliminated privacy and obliterated nature. Like inany other builders and developers, Sidney Halpern tends to agree with ihe critics, but claims they rniss the poi'nt. How can the drearn'house be other than prosaic and unimaginative when the niles of development are prosaic and unimaginath.-e? Zoning regulations usually dernand a single farnily house on a lot. 19 P75 F*e, 4 R -P',f -3, AS@@; M R UiNiP@ 01 Village Green's recreation area. It's a bigger backyard than most small lot owners ever dreamed of. Small buildings in the background are dugouts for Little League games. W%h f 9,1011@ "'M Ea U NP, @5K !yN @^A@FtAIE,11, 5k, Conventional subdivision layout is shown on left in contrast to cluster plan actually used at Village Green which preserves 40 acres of open space. This has been supported by lending institutions 'and by Federal housing and finance policies. Escalating suburban1and values usually permit only intensive development of a site. What choice is there.except to create yow-house subdivisions, or a sea of roofs at best a hundred feet apart? There are alternatives, of course, but they have found little appli- cation in metropolitan New York. One that intrigued Sidney Halpern is the concept known as.clustering.@ The idea is to create a. more at- tractive subdivision by. reducing the size of individual lots, grouping the -houses, and keeping belts and pockets of open land for its natural quality and for recreation. Halpern was introduced to the cluster concept by Somerset.County .Planning Director William . Roach. It was after . Halpern and Tuschak had purchased a, 75. acre parcel of land in Hillsborough, and had pre- pared a conventional plat for approval by the planning board. Roach suggested theadvantages of clustering: a more congenial environment for the homeowner; lower construction costs for site and houses for the developer; less costs to the,community for snow-plowing and servicing the roads and for fire protection; @ and,. in this. case, public water and sewerage connections instead of private wells and septic tanks which ..had already, begun to, create a health problem in the community. This last advantage was the key. that persuaded the council and planning board, of Hillsborough to give clustering a try, and a required "density zoning ordinance" was passed. . Under standard zoning regulations, the 75 acres would support 72 houses. Density zoning allowed Halpern to arrange the same number of homes in three clusters of 24 houses each on half-acre lots. The remain- ing 40 acres of the parcel were donated to, the town for park and recrea- tion purposes. I The project was named Village, Green, and 'the fact that there was public green space just a few feet from every doorstep proved to be an almost overwhelming sales attraction. Somewhat to Halpern Is surprise, and to the town officials' consternation, the houses sold almost as fast as they could be constructed. This quick turnover of capital was wonder- ful for Halpern, and his associates, but it scared Hillsborough. With visions of dozens of cluster developments springing up and, an avalanche of school children descending on their limited school facilities, Hills- borough rescinded the "density zoning ordinance." That was, in. 1961. In 1965, the ordinance was reinstated. Develop- ment, in any case, was,inevitable, and clustering an obvious improve- ment over the conventional subdivision layout. For proof of the pudding, it might be noted that among the satisfied dwellers of Village Qreen are planner William Roach, and Sidney Halpern's mQther-in-law! 21 SHARPE RESERVATION A Total Concept of Conservation In his autobiography, Brain Surgeon, Dr. William Sharpe wrote, "Uh- doubtedly, our physical characteristics are the result chiefly of inherit- ance, but I am sure that our general behavior is more the result of en- vironment and the constant conditioning we are subjected to from the very beginning of childhood." For Dr. Sharpe, this was not a casual theory, but the basis for a total commitment which manifested itself not only professionally but throughout the entire range o f his life. One of the first to break'through the ugly crust of medical and popular ignorance encasing the victims of cerebral palsy, he developed new surgical techniques for treatment of children. With his wife he helped dispel the brutal "bad seed" belief that had for so long inhibited medical progress and a lay understanding of this affliction, so particularly hurtful to the underprivileged child of the city slum. I I These specific medical achievements were matched by a broader, human commitment toward children, deeply felt. All underprivileged youngsters, no less than the rest of us, and surely more so, need a periodic contact with nature intimate enough to provide some release from the crushing depression of the slum. Though Dr. Sharpe might not have classified himself as a conserva- tionist, it was a kind of total concept of conservation that led him to donate his thousand-acre retreat in Fishkill, New York to the Herald Tribune Fresh Air Fund, an organization which for nearly a century has provided almost a million underprivileged children of New York City the benefit of two weeks in the country. Dr. Sharpe died in 1960, but not before he saw the development of Sharpe Reservation and saw it grow from his initial donation in 1949 of the thousand acres to nearly three thousand acres as it is today. The essential meaning of two weeks in the country for an under- privileged child was personally understood by Dr. Sharpe and his wife: "What a thrill it would have been to Mrs. Sharpe as a youngster," he wrote, "when her only knowledge of grass and trees came from the weekly visit to Central Park! ... Although I myself did get away from the city streets at times during the summer months, how well I remem- ber my boyhood pals in Philadelphia just hanging around street cor- ners and railroad tracks, with nowhere to go!" A feeling for open land and a need to escape from time to time the exhaustive burdens of his profession caused Dr. Sharpe in 1933 to buy the tract in Fishkill-just fifty miles from the city-as a place for retreat and renewal. The cost was small for such an acreage, but its value so great that the thought of reaping a profit for a man so successful as Dr. Sharpe perhaps never even came to mind. That the land should be put 22 OPERATIONS CENTER CAMP PIONEER GREAT LODGE o"A MARY LOUISE LODGE CAMP ANITA now CAMP BLISS CAMP HAYDE CAMP CO.LER Dr. Sharpe's original philanthropy inspired others to contribute funds for the expansion and development of the reservation. Map shows the major facilities. to its best use, a use consonant with his beliefs and with the land itself- was paramount. The Herald Tribune Fresh Air Fund saw the donation, according to its executive director,.Frederick H. Lewis, as "an opportunity that comes to few non- governmental camping organizations interested in creating a new recreational area." Mr. Lewis pointed out further that the Fresh Air Fund "accepted Dr. Sharpe's grant with a deep sense of responsibility for preserving the natural beauty of the land. In preserv- ing an oasis of green amidst the urban sprawl, the Fresh Air Fund be- lieves it is performing a broad civic role even beyond that of providing 23 inspiratiqn,. education and fun to children of all races and creeds trapped in the.Stone caverns of New York City." This.sentiment is mutually shared by executives of scores of volun tary welfare agencies in New York City who maintain camps in the countryside surrounding the city, or who would like to if the property were available to them. These executives would like to find others like Dr. William Sharpe, who see, conservation as a kind of total concept, and w6ose'lands would be suited to such a purpose. As Governor NelsonA.. Rockefeller said at the dedication of one of the many camps now located on the tract, "These hills will mean sheer j6y to thousands of youngsters to come." F APP77-7 A MP Z@Py z5" or 41 go, 7 4 g, ",4M, A% -7r, U- _aAff-ITIN Al r4 iha 4's AUK @&M%' ftf''-A`Yj@ MA 1_@ V! Af MAN ff IAHKU "Q!," @4'4@ R q -M "r7777 % X-1 oi mly kh- V -P,`,AV@61P@ Y -h MW@ @Y;I_ -,M_;,,XnJFA A 4 IF, Swimming and boating suddenly became a miraculous reality to the slum-bound children of the city when Dr. William Sharpe'donated his 1,000 acre' Fishkill retreat tothe Herald Tribune Fresh Air Fund in 1949. 77r 24 THE WILLIAM L. HUTCHESON MEMORIAL FOREST Shared Stewardship In 1701, the first European settlers in Somerset County, New Jersey, began to fell a centuries-old forest of oak, beech, red hickory and white ash to make room for their homesteads and farms. The trees they cut were part of a mature and relatively stable community of vegetation and animals that might have persisted with little change for centuries more had it not succumbed to the inexorable expansion of migrants from the Old World. Two hundred and fifty years later, Mr. Thomas Mettler, a direct descendant of one of the original colonists of East Millstone in Somerset, surveyed hurricane damage in a woodlot that had been in the continuous ownership of his family for eight generations. He knew there was not another woodlot like "Mettler's Woods" in all the county, probably in all New Jersey, and his feeling was akin to that of a museum director towards a priceless and irreplaceable exhibit. Occasional hurricanes, natural fires and ice storms, abetted by the demise of old trees, had opened the canopy from time to time and provided room and light enough for the forest to regenerate. Later, periodic Indian burning had encouraged species resistant to fire. Here, since 1711, there had been no record of a damaging fire, nor bad a tree been felled by axe or saw. Now, in the aftermath of the hurricane of November, 1950, Thomas Mettler stood in the middle of a tangle of trunks and mounded roots of the wind-downed trees and wondered how long his woods could survive. Though many of the oldest trees remained, over 200 of them had fallen in this latest onslaught of nature. But a new set of forces far stronger than any of the hurricanes that had shaped the woods over the centuries now were poised, unseen but real, capable of leveling all that remained of the woods in an instant. These were the forces of suburban real estate economics, and for several years they bad been testing the strength of Thomas Mettler's sense of stewardship. It was the hurricane that provided the opportunity for the economic forces to make themselves fully felt. True, taxes on the land had been mounting steadily, making it less comfortable to hold onto land that produced no economic return. But when Mr. Mettler returned to the woods a few weeks later with, a saw mill operator to see. if he might not derive some compensationfrom the salvage of the downed timber, the pressure came to a head. The saw mill man saw beyond the salvage rights.. He saw the thousands of board feet of prime @standing timber, virgin timber in an areawheremost woodlots. had been lumbered over several times. How would Mr. Mettler like 'to sell the rights to the standing trees? 25 @:7 .4p In the William L. Hutcheson. Memorial Forest old trees die, new ones rise to take their place in a natural cycle uninterrupted for 250 years. Thomas Mettler, whose family owned this woodlot for eight generations, helped pass the woods on intact to a new set of stewards -Rutgers University -by offering the land at a reduced price and holding it off the market so that funds for its purchase could be raised. When the offer to purchase the timber rights was formally made, it was high enough to make the staunchest steward pause. Though born on the farm, Mr. Mettler was a business man so that his feeling for the land was tempered with practical considerations for financial matters. In the face of such an overwhelming inducement to escape from onerous taxation and to enlarge his estate in a dollar sense, it was fortunate that the tradition of stewardship was still strong. Mr. Mettler knew that he was in no position to hold onto raw, undeveloped land of such great value; nor could he aff ord simply to give it all away. Luckily, there were others anxious and able to take up the tradition and maintain it. 26 The threat of loss of so completely unique a forest community became the unifying factor that led to the permanent preservation of the woods. First to join were those who had in a sense already shared stewardship over the woods with Mettler. For years the botany depart- ment of Rutgers, now the. State University, had been using Mettler's Woods as a research area. Based at the University, a Citizens' Committee for Mettler's Woods began a campaign to raise sufficient money to purchase the old woods and a surrounding buffer of second growth and fields as a research station and "living museum." As a contribution to the cause, Mr. Mettler agreed to drop the price for the 136 acres to $75,000, far below the market value for timber and suburban develop- ment. More than that, he gave the Committee time in which to conduct their campaign. The coincidental death of one of the nation's great labor leaders just at the time the threatened sale of the land became known, and a year before the formation of the Citizens' Committee, turned out to be the key to the successful preservation effort. William L. Hutchesonwas a founder of the United Brotherhood of Carpenters and joiners and its president for 38.years. After his death in 1953, the Union began search- ing for an appropriate way to memorialize his long years of leadership and service. To the officers of a union whose membership each day worked creatively with wood, and whose livelihood depended on the renewal of forest resources, the preservation of a virgin woodland for university research and citizen. appreciation seemed to be an ideal memorial. The Union offered to share substantially in the tradition of stewardship with some 1400 other contributors of funds and agreed to transfer from their treasury the $75,000 needed to purchase the land. The $50,000 raised by the Committee from school children, housewives and businessmen as well as such organizations as New Jersey Audubon, The Nature Conservancy and the Butler Foundation went into a trust to create an endowment for research and maintenance. On October 15, 1955, title to Mettler's Woods was turned over to Rutgers University at dedicatory exercises, and its name was officially changed to the William L. Hutcheson Memorial Forest. The 250-year 'tradition of stewardship was passed on intact and strengthened. The opportunity to appreciate and to learn from its unbroken biological legacy was preserved. Today the professors, graduate students and undergraduates of Rutgers have begun the process of finding out the complex interrelation- ships that govern the growth and evolution of varied plant-animal com- munities in the fields, woods and brooks of the forest and its buffering fields. Thanks to the stewards, the process will continue, and its benefits will be distributed, for generations to come. 27 4 F Al. N 6 @@Nq- - @3\ __2 now _Ar A VA, 4 W_ iy, 4@@ hr, 4" IIHA R @Hd zk3a, 14 gir p ..... . zul, IN HE The preservation of these woods by Mrs. Robert McKay was made possible by the use of an easement to' Nassau County. An "open space' easement is a way that private open space can be maintained by reducing the property tax. liability that comes with, increasing development pressure. 28 "CHELSEA" Public Rights to Private Property A now statute and a "new" way of thinking about open space have helped make it possible for landstarved Nassau County on Long Island to preserve a beautiful estate-"Chelsea"-near Syosset@at no public cost for acquisition. The county will soon start developing the land as a nature center. The -statute is Section 247 of the New York General Municipal Law which officially sanctions a concept that the owner of a piece of land may parcel out to others any of the rights that ownership entails, yet still retain enjoyment and possession. Rights-of-way, hunting rights and mineral rights are familiar examples. Less familiar are the rights to undisturbed, unspoiled open land, known as conservation, scenic or open space easements or development rights. The agreement of December, 1964, between Nassau County and Mrs. Robert G. McKay of East Norwich serves to illustrate how gov- ernmental units and landowners in the metropolitan region can obtain mutual benefits through a sharing of the rights in land. The variations are infinite. The factor central to the legality of such a concept is this: open land may serve a public purpose regardless of who owns it and even inde- pendent of public use, so long as its open status is given some permanence by legal agreement. The benefit to landowners is that Section 247 also provides that, "After acquisition of any such interest pursuant to this act the valuation placed on such an open space or area for purposes of real estate taxation shall take into account and be limited by the limita- tion on future use of the land." Horace Kramer of the Board of Nassau County Assessors has remarked that the county would be interested in open space "if it merely provides trees and grass to keep aspects of nature in the suburbs." Other public officials elsewhere have agreed access is not essential. Mrs. McKay, however, was not satisfied just to have the land kept open. She wanted it used, and because of her interest in nature and children, she granted the county the rights to use 58 acres of her 95 acre estate if it would agree to develop a nature center there. The county readily agreed. It also agreed to consult her on plans for the center, including buildings and trails. Mature trees and shrubbery were not to be disturbed. Mrs. McKay granted the county an affirmative easement to use her land. An easement, ufflike a license or lease, has permanence. It is recorded with the deed and is normally binding on subsequent owners. While Mrs. McKay could have achieved her intentions with the ease- ment alone, it is her intention eventually to give the entire 95 acres for nature study and related purposes. A clause in the agreement binds the 29 county to accept the property and use it in this way. County ownership of land adjacent to the property under easement, it should be noted, strengthens the easement in a legal sense. ' donated the land through a testamentary Mrs. McKay could have gift, or she could have given it and retained the right to live on her land until her death. But the arrangement worked out under 'Section 247 has provided pers 'onal and financial advantages otherwise unobtainable. She now will continue to enjoy during her lifetime the, lovely property she has created. She is now sure thather land, will be used for public enjoyment and enlightenment in a predominantly undeveloped condi- tion. She now hasthe considerable pleasure in helping the nature center and its program take. shape. And *she is now able to donate her gifts of land at a rate permitti-ng her to take better advantage of income tax deductions without overbalanci-ng her other charitable interests. Nassau County officials are hopeful that other landowners will follow Mrs. McKay's example in applying Section 247 to suit their particular needs. "The arrangement may be an answer to the problems of large estate owners and possibly golf clubs," says Eugene H. Nicker- son, County Executive. He was referring to the fact that landowners who surrender some of the rights can be taxed only on the value of the rights they retain, whether, they grant a public agency the right to use their land, or may merely give up their right to develop it. As for Mrs. McKay@the first land steward to pioneer the use of Section 247-Nassau County officials have acted on her application for a reduction in the assessed value.of "Chelsea." They have reduced the valuation of the land under easement by approximately 75%. and in addition, have lowered the assessment on Mrs. McKays residence and its immediate grounds by 10%, because public use of the property entails some loss of privacy. The town of Syosset, to which the taxes are paid, and Nassau County feel they have made a good bargain. They hope their action will encourage other estate owners to consider the conveyance of open space easements to the county Iin order to ease their considerable tax burden and at the same time preserve Nassau, s diminishing green space. TEATOWN LAKE, Help for Complex Problems The exercise of stewardship. can be strenuous. Even the apparently simple act of transferring a piece of land from a philanthropic donor to a public or quasi-public agency is seldom swift or easy. But help is almost always available, if one knows where to look. Indeed,, there are a number of experts-groups or individuals-anxious to serve. Mem- bers of the Swope family of Ossining, New York, turned to Richard H. 30 r'N -N, R@ T@ a 12 V G"A Interlocking family ownership complicated the problem of finding a suitable. recipient of title to Teatown Lake. The Sujope family turned to Richard Pough, a conservationist who specializes in helping land philanthropists. He was able to help them bring the transfer to a satisfactory conclusion. Pough, a noted conservationist known to them for his broad experience in aiding in th6 transfer of land from private owners to non-profit or governmental agencies. The Swopes found that Mr. Pough's knowledge and insight gave direction to a problem made more complicated by the fact that it involved the title- to a single piece of property, five donors, and a family corporation. The question of philanthropic intent had been settled early. The 31 three Swope brothers, their sister and sister-in-law had all agreed they wanted to give, for public purposes, 193 acres of the estate near Ossining they had inherited from their family. They all felt sure a way could be found to blend their collective inclination towards philanthropy with. the highly specified personal. and financial needs of each individual. Family unanimity was, a tremendous advantage. There were no stubborn holdouts to deal with. No one wanted the land for personal use or speculation, despite its great beauty and prime location. And all of them shared a deep personal interest in making a park of the woods and fields they had explored and enjoyed so much during the years it was the site of the family home. Teatown Lake, created in 1926 by their father, bad become well known as a stopping place for waterfowl and shore birds, adding greatly to the attractiveness of the property. Half the problem was to develop a method of transfer that would enable each member of the family to give his share at a pace conform- ing to his special financial needs and responsibilities. An individual's philanthropic capabilities vary with his professional and.financial cir- cumstances, which may change from year to year. Clearly a flexible instrument was required in order that Henrietta Swope, an astronomer, Elizabeth Hubbard, a housewife, David Swope, a real estate investor, Gerard, Jr., a lawyer and John, a photographer, would be able to satisfy their dissimilar needs. The other half of the problem was to find a recipient. In any philan- thropic transaction, the donee must not only be capable of carrying out the intent of the gift, but also able and willing to accept its terms. In land philanthropy, the search usually requires a certain amount of legal legwork and cross-country communication on the initiative of the donor, and this was the case with Teatown Lake. For the Swope family, the exercise of stewardship involved an exploration of a variety of means of transfer in the company of the family's legal and financial advisors, as well as a search for a recipient under the guidance of Dick Pough. A tentative offer to Westchester County was unsuccessful: a legal obstacle was discovered that precluded acceptance of the land by the means proposed. But the Brooklyn Botanic Garden, an institution the Swopes would probably have overlooked because of its urban head- quarters and horticultural program, expressed great interest. The Garden was already operating a research field station at Kitchawan, only a few miles from the Swopes' land and it was anxious to broaden its educa- tional program. The Teatown Lake property was ideal for its purposes. Nor would the method of transfer that had now been decided upon create any problems. Shares in the family corporation owning the land were to be distributed equally to each member, who in turn would 32 transfer them to the [email protected] over a period of time. It was the inability to accept corporate' sh a'ies that had removed Westchester County from the picture (a failing since remedied by an act of the Legislature). During the transfer, the family and the Garden would share administration of jhe property. And should the Garden ever find it necessary to dispose of the. land, 'a prospect Director George Avery feels is extremely remote, the- agreeme' tchester County and nt gives Wes the Town of Yorktown the right.1o obtain it for public use. Today, the land is open to the@people of the metropolitan region for enjoyment in its natural state.' The Botanic Garden is busy with plans to make the area an educational and recreational. asset to' nearby com- Inunities. And the Swope familyi with professional help, has bad the satisfaction of completing its philanthropic stewardship. THE BANTAM RIVER Accumulating Value by Covenant The Bantam River is a prominent and lovely feature of the still rural countryside near: the village: of Litcbfield, Connecticut. Though it. cuts through -farmland and the residential area of the village,,the stream is generally wild,, unfettered, freefloWing. Its character varies according to the immediate terrain. Here it flolws past a small cattail marsh bordering a low" broad flood lain. Around the next bend, its banks become steep p and rocky, covered with a dense grove of mature hemlock. For fhe@ 'most part, the houses and other buildings of Litchfield do not intrude on the Bantam, but. are'set on the higher land some distance away. North, of the village, theproperty of Dr. Sydney R. Kennedy,.Jr. borders a quarter-mile stretch of the river. Woods and fields slope from his home to the East Branch. The' land is wild. Dr. Kennedy, an amateur botanist, writes: "The existence of.a 'wilderness area' even in miniature near to me seems to be close to ia@personal necessity and should it dis- appear 1thi.nk I would remove myself elsewhere." A half mile away, on the West Branch, Mrs. Charity Wilson has another reason for cherishing, her property. "My whole family, - children, grandchildren, and I get a great deal of pleasure from the river, through all the, sea sons of the year,"she says. Downstream, the channel of the Bantam cuts through the village, itself. Houselof's between South.Street and the river are not so generously proportioned as those upstream, but along the river the land has re- mained largely wild and natural. To Edward and Mary Hall, the woods behind their home are reminiscent of the kind of open country so easily accessible whenL the w n ring. y weregro ing. up a d now so fast disapppa' Says - Mr..'Hall: "I W'ould.like'my .grandchildren to have wilderness to ...'Walk in, solitude t6feel 'a little. bit frightened in, wild things to see and hear'.an.Jfee'l and make a little boY feel very little indeed." Remembering 33 L;_97 @,3;7 75XV52YI`2;@@,,__ 12 ari ItZ aa, 4L Zr 7' 4t Z;m 7@ -77,,-,- 7,-7 7-,-- Three scenes of the Bantam. As it winds through the town of Litchfield, Conn., the river passes from bright meadow to hemlock gorge to wide pools where children can swim. The Bantam is being preserved via convenants with The Nature C onservancy, Inc. of Washington, D.C. The agreements provide for permanent preservation but not public access. The owners are not sure whether theirs is an act of philanthropy or enlightened self-interest. Architect Thomas Babbitt who like the others has donated a 200 foot wide strip along his section says flatly, "I think it increases the value of my land." '7 MO-t 34 her own childhood, Mrs. Hall feels constrained to add, "Little girls may not go as deep into the woods, but I think they get just as much fun out of it." Obviously, these owners share more than a riparian location.-They share a common sense of stewardship, a feeling that their land should be preserved at least in part in a wild state. They also share the realiza- tion that their lands are linked by the,narrow stream valley in a common fate, even if they are not contiguous. The problem: How to take effective action. There are the complications that some of the holdings are small, most of the owners want to live on the land, some want to sell part of it, and few are in a position to give any away. Despite these and related difficulties, these three owners and seven others along the Bantam have acted to place permanent restrictions on a strip of the river valley so as to preserve its naturalness. They have retained possession of the land and all the rights to use it and enjoy it except for the few restricted actions: no tree cutting, no billboards, no removal of soil or gravel, no buildings or roads. These ten landowners have entered into a co m' mon -agreement, known as a covenant, with The Nature Conservancy, Inc., of Washington, D. C., under which they. have voluntarily given up these rights on a strip of land extending approximately 200 feet from the river's edge. Because the covenant "'runs with the land" and binds future owners, the agreement assures them that their stewardship will have some enduring significance. The fact is that none of the landowners feels he has sacrificed any- thing. Some, like Dr. Fowler F. White, rate their action as somewhat minimal when compared to large donations of land by philanthropists. Thomas C. Babbitt admits of a selfish motive, "I think it increases the value of my land. The river was one of the most important reasons for buying this particular piece of land, and anything that protects its natural state protects an asset of real value to me. I think it is also likely to be important to any future buy6r." A further reason, according to Mr. Babbitt, was that of setting a precedent. I hope that others may be persuaded by my example to do the same, which will protect the river on my land even more," he adds. Like the others, Mr. Babbitt's basic motive is one of preservation. "I enjoy the river now," he says. "I hope that future generations will have a chance to do so also." To increase the likelihood of his hope coming true, Mr. Babbitt has given the Bantam River project added legal strength by donating one acre to the Conservancy outright, while plac- ing the rest under the covenant. I Downstream, at the other end of the project, Mr. Sherman P. Haight, Jr. has donated a similar "anchor acre" to give the covenants longevity. Mr. Haight lives in the village, where already a few changes 35 tX 'e Z@ _7 71 Z: Re, T' All -J" IVA These two sanctuaries are part of a complex of private donations'in Northern Westchester, Butler.(right) is owned by The Nature Conservancy, Westmoreland by a private trust set up by the donor, Helen Frick. SMKW oF CogSERVANCY THE NATURE 4 FOR PLAXTSwWILq LIFE REFUGE 6 mo's USE MOSjUm F Q '4 4, 4k, _z *67 4A, 36 Z%_ f % have taken place along the stream in the commercial section. With the others, he could foresee a time when housing and commerce might eliminate what he believes to be the most precious natural asset of the Litchfield area. It now appears that a sense of stewardship and a corollary willingness to anticipate change is winning the battle of the Bantam even before the signs of war are much in evidence. LEONARD PARK TO BYRAM LAKE The Momentum of Open Space Preservation An act of stewardship is rarely isolated. Usually it stems from a previous incident. Often it leads to others. Sooner or later, here or elsewhere, an act of stewardship is bound to engender others. And often, in a single community, several deeds of diverse origin become physically or func- tionally related to provide an enrichment of the environment far greater than the separate parts. The community of Mt. Kisco, New York, has been immeasurably enriched by a series of land philanthropies both within the Village proper and in the towns immediately surrounding it. Since 1934, six landowners have made gifts of land to the Village and to private conser- vation organizations. By coincidence, the parcels all lie in a generally southeasterly direction from the Village, and their story can be told by a four mile bike from the Village Hall to Byram Lake. A scant half.mile from the steps of Village Hall is the entrance to Leonard Park. Come there on a pleasant weekend almost any time of year, and you will be impressed that a good proportion of the youngsters of the Village and not a few adults have found their way there too. Leonard Park is intensively used for many sorts of recreational activity, in accordance with the deed of the gift from Col. William H. Leonard. In 1934, Col. Leonard, whose family had lived in Mt. Kisco for many years, gave 78 acres of land "to perpetuate the memory of members of our family, William Henry Leonard who died in 1891, and son Robert Woodward Leonard, who died in 1929." The land just to the east of Leonard Park is undeveloped and relatively wild, lying in a large triangle comprised of Bedford Road, Byram Lake Road and Sarles Street. In 1955, a parcel of 27 acres along Bedford Road and contiguous to the park was given to the Village by its owner, the Reader's Digest. Behind the corporate facade, the gen- erous hand of Lila Acheson Wallace was a signatory to the grant. The land bears more than a physical contiguity to the Leonard gift. The wording of the deed is identical. The eastern portion of the park is still a woodland, a fine place to explore but not very deep. One trail extends out of the park clear to Sarles Street, roughly a mile. Part of this trail is on the nature reser- vation of Wildlife Preserves, a 26 acre property assembled by a com- 37 A!Il The pool at Leonard Park early on a summer morning. Col. Leonard started a chain of stewardship decisions with his gift of land to Mt. Kisco in 1934. 17- 1,77, 6 0 :',VU'g A-z"X" 'i 0, "l-, w5@ p"@ 4 The Cornelia Van Rensselaer Marsh 3" Av,"' Memorial Sanctuary abuts Leonard Park V 011 and coincidentally contains a marshland rich in wildlife. jill Rounding out the series of donations is Byram Lake, a gift of the late Eugene Meyer, publisher of the Washington 6EI, Post. Singly, each of the parcels is important. Together, they constitute the preservation of a good sized chunk of Northern Westchester. 38 mittee headed by Norman Marsh in order to prevent the destruction of the valley and a high quality marshland extending down its center. For the curious, the vegetation along the trail has been identified by markers. Because several kinds of habitat are traversed, including old fields, woods, shrub swamp and marsh, there is a great deal to observe and hear and enjoy, and all within a mile or so from the center of the Village. If one knows the way, bridle trails lead from the edge of Sarles Street up to Chestnut Ridge, another mile beyond. Here, side by side, on opposite sides of the road are the Butler Sanctuary of The Nature Conservancy, Inc. and the Westmoreland Sanctuary. The Butler Sanc- tuary was established in 1955 by a gift of 234 acres of wooded hillsides and a fine wooded swamp by Anna R. Butler. The trails of the Sanctuary are regularly used by school children and teachers of the Mt. Kisco and Bedford schools, guided by volunteers from garden clubs and other organizations. Adults seeking seclusion in a natural environment are welcome to wander the trails through the woods, fields and swamp. The Conservancy estimates that at least 4,000 people use the area annually. Mrs. Butler's gift engendered another soon after, when 20 adjoining acres were donated by Mr. Walter Huber. To the east, across Chestnut Ridge Road, lies the 105 acre West- moreland Sanctuary, given and maintained by Miss Helen Frick. Under the direction of a year-round resident naturalist, Westmoreland conducts a full scale nature education program for the schools of Mt. Kisco and neighboring communities. Each year thousands of school children of all ages are given an introduction to field biology and ecology. Older pupils participate in a.program of field research that is adding to the effectiveness and usefulness of Westmoreland to the community. Not far to the southwest of Westmoreland in a cleft in the ridges, lies a lake that now serves as a source of the water and-recreation for the Village of Mt. Kisco. Byram, Lake was given to the Village in 1958 by the late Eugene Meyer, publisher of the Washington Post, who main- tained a home nearby. This narrow strip of water, with its steeply sloped sides densely wooded, is a pleasure just to behold, whether in frosty mid-winter with a variety of diving ducks moving about'its sur- face, or in steamy mid-summer with swarms of water skimming swallows lacing the air. The Village sets'an excellent example in the varied use of a water supply by permitting boating and fishing on Byram Lake. - The obvious beneficiaries of all the aforementioned decisions are the people of the Village of Mt. Kisco and the area of northern West- chester where the land is located. Each succeeding decision enhanced and was enhanced by the others. 39 _7 Ob is)T, iW ARM slow Instead of selling unwanted land and then giving money to, say, his University, the philanthropist should consider using the land as a direct philanthropic tool. New organizations, new laws and new techniques have provided important estate planning flexibility for the land donor. 40 LAND PHILANTHROPY THE MOST DIRECT expression of stewardship, for, the private owner of land is to donate it to some agency of government or private organizAtion for public open space use. There are more cases of land philanthropy than one might expect, and it is for this reason Chapter III introduces so many examples of it. The last known national survey was made back in the early 1930's by the National Recreation Association. Their study showed that at that time something over 50% of all public or quasi-public parkland and-open space was being acquired through philanthropy. The Regional Plan Association calculates that 30% of all federal, state and, coUnty parkland in the New York region as of 1959 was donated. Local and quaSi-public open space was not included in the survey.These figures may be higher or lower today, but there is no disputing the fact that land philanthropy is a major. source of open space and.. probably will continue to be for the: foreseeable future. The primary motives for land philanthropy range from pure altru- ism to pure self-interest. An example of the former is the thousand acre donation by Dr. William Sbarpe to the Herald Tribune Fresh Air Fund which was treated in Cha ter III. An example of the latter is best illus- trated by land owners crippled by, taxes who must,dispose of their and, but who would give contiguous ':'back land" away in preference to having it developed if such development would devalue their retained holdings. In the course of doingthe research for this. book, many landowners were interviewed, and in a few cases, donors were more inc ined to describe themselves as hard-boiled businessmen than as philanthropists. But in every case, there was a feeling for the land and the splendor of nature. No matter how deep this feeling goes, land philanthropy is a com- plex affair, and involves a good deal more deep thought than the rela- tively simple process of putting acreage on the market and waiting for a good offer. Moreover, the potential land. philanthropist must be realistic about his own self-interest, whether this is a primary motive or simply a fringe benefit. 41 ESTATE MANAGEMENT: THE FORMS OF GIVING There are compelling arguments why certain landowners should con- sider the donation of their property for public-interest open space. And it should come as no surprise that almost all the compelling arguments revolve around one thing- taxes. Taxes have created a ripe climate for land philanthropy; riper in,'fnany ways than the more traditional phil- anthropy which involves the transfer of money or securities for a char- itable purpose. The increased market value of suburban land together with tougher assessment policies on the part of taxing authorities who somehow must find the money to provide for education and other com- munity services have produced onerous property tax levels for many landowners. Even the capital gains tax can take a hurtful bite when land value has increased manyfold since the purchase date. To these newer considerations can be added the traditional concern with income, estate and gift taxes that occupy the thoughts of those of relatively high eco- nomic status. There are instances where the giving away of land nets the owner's estate greater solvency. Even without this possibility, however, there are so many variations in land philanthropy-such flexibility in mode- that the owner might well ask his legal counsellor to study very closely indeed the tangible rewards of a gift of land. The owner of.a large suburban estate can sever a part of his prop- erty, for example, and by giving it to a municipality or conservation organization convert it into a nature sanctuary. He escapes property taxes which more and more are based on development potential rather. than existing use. No capital gains tax is assessed against appreciated property when it is.given to a tax-exempt body. But the value at the time of giving can be deducted from taxable income up to the limit for dona- tions (now 30% of adjusted gross income for education organizations such as Nature Conservancy, Audubon and others). This deduction can be spread over a period of years by donating an undivided interest serially. With the new tax regulations allowing for spreading deductions over a five year period, the whole interest in many properties might easily be conveyed at once, but the regulations don't prohibit partial donations at five year intervals so that the gift could be spread over ten, fifteen or even twenty years. To guard against premature death frustrat- ing the donor's intentions, he can will his remain .ing interest to the exempt organization. By the judicious selection of a recipient who will accept deed restrictions (more on this later), the donor has control over the future use of the land. A bird sanctuary-type use limitation is a popular idea with many philanthropists because even though the land has a public purpose and educational value, its actual use in terms of numbers of 42 AP, Aft 4", o@, Steeply mounting property taxes plus income and estate tax considerations have persuaded many landowners to. donate unimproved acreage for low intensity open space use - such as a sanctuary - in preference to having retained holdings devalued by adjacent development. visitors often is little more than what such a landowner would expect from trespassers. Moreover, the land he has given away might be safer from fires, littering, poaching and destruction of natural features than under any kind of protection he might be able to provide on his own. Another advantage is that in transferring proprietary feelings to the community or at least an effective segment of the community, the prop- erty is less susceptible to misuse and maybe even to condemnation for uses that would not make particularly good neighbors. Variations on this theme would include making a testamentary gift of both the house and grounds, or tenancy arrangements could be made for heirs through a leaseback at a nominal figure or some other means such as the withholding of an easement of use for a specified period of time. For lifetime gifts, a tenancy arrangement can be achieved by special agreement with a tax-exempt organization which could also provide an annuity during the donor's lifetime. When an owner cannot 43 AMENMORR aaa_ 2 a 05'7347 owl "Improvements" on sanctuary @V. VA grounds are usually limited to interpretive displays or a modest reception center -X such as this one at Butler Sanctuary. 91, N M @ P afford an outright gift or lacks enough philanthropic exemptions, he could elect to sell the property at cost to a tax-exempt. buyer. This elimi- nates capital gainswhile restoring original capital which is not taxed. However, the appreciation is a deductible donation. For the owner with a high order of 'noblesse and a large philan-m thropic capability, an endowment should be considered. With an en- dowment, a much wider variety of recipients is available among private organizations and the donor has a great deal more opportunity to dictate the conditions under which the gift is accepted. The endowment can be in'the form of:a gift or bequest of cash Or securities. A less common means of creating an endowment is the sale or lease of the house and its, immediate grounds, by the recipient organization. This is a perfect arrangement when the house.is at an edgeof the property, less. so when it is buried in the middle at7 the end-ofa long driveway. Endowment principal may. be managed by the recipient organiza- tion or by a trustee;. A trust, company - can manage, investments and remit income -under instructio ns as well as, in @ some instances, supervise themanagement of the property.. Indeed the use of trusts makes possible the widest range of,solutions1to estateproblems. The -catalogue of devices for land philanthropy is getting fatter by the minute as landowners, with the help of their@ legal advisers, discover new means by which they - can, best serve the: interest, of their overall estate as, well as act on their -inclinations toward, the landscape. For one thing, there"are simply too r many:cases where the giving away.of land with a.high.accrued book value might-had.it been considered-have obviated the sad. and frustrating experience, of heirs and trustees. forced.. 44 to sell the family acreage to the wrong people at the wrong price in order to pay taxes due. Even when this is not a factor, many owners are becoming convinced that their land-especially if it lies within a met- ropolitan area-has such intrinsic worth that it should be considered as a separate part of the estate with separate criteria and not lumped along with securities or other assets whose disposition is so often purely a matter of mathematics. Land is proving so flexible as a' direct philan- thropic-device that its simple conversion into cash can destroy not only the landscape itself, but lose the owner a unique opportunity in estate planning. WHAT KIND OF USE? Once the landowner has more or less,defined his philanthropic poten- tial in terms of estate management considerations, he can and should, turn his attention to the use of the land he is interested in preserving- or to put it more precisely, the non-use uses which are consonant with the preservation of land as open space pretty much left in a natural condition. There are infinite, variations and combinations of use. for public-purpose. open space whether the ownership is a unit of govern- ment or a private, non-profit organization. It might be helpful to identify some categories, however, if only as a point of departure for the thinking that the potential land donor must do. First, there, is the recreation park. Most of these, no. matter where they are, make provision for active recreation such as swimming, team sports and children's play areas. They frequently have such features as barbecues, picnic tables, planted areas, pathways, buildings and rest rooms. Recreation parks are usually thought to be an egregious intrusion when proposed but a thoroughgoing community asset when developed. A recreation park tends to stabilize the surrounding area into low- density, high-priced housing. In a relative way, this is as true of Central Conservation organizations like to have endowments with the acreage to provide for management. But a dependable cadre of volunteers can do it themselves or solicit funds. The remarkable Mianus River Gorge Committee has bought, begged and borrowed to assemble and maintain six wilderness miles of the river between Bedford and Greenwich. They are now accumulating endowment principal. 45 Park in New York- City as it is of county parks in the suburbs. There is always a brisk demand for adjoining property which is usuallybetter maintained than similar properties in non-parkareas. Probably, the most popular use-category for today's land donor is the natural park or sanctuary. Like the recreation park, it is open to the public, but there is little or no development of, the site. Recreation in any form, save hiking and. nature observation, is, usually banned. (Brin- ton Brook Sanctuary, described in. Chapter III, issues 12 fishing licenses in order to keep optimum pressure on the fish population in the pond. Getting one is like being tapped for knighthood.) A sanctuary is a kind of use which leaves the land in its original state except for trails, trail markers, sometimes a small exhibition area or building. S 'ome sanCtU7 aries have positive ecological management policies calling for selective cutting, burning or spraying, for example, to preserve a representative plant community. Others prefer to let nature take its course even though such a practice might force out desirable plant or animal species. A, concern with ecological policy is apt to be upperm ost in sanctuaries owned by non-profit private groups such as Audubon, Nature Conserv- ancy, Wildlife Preserves and others, while facilities are more elaborate at governmentally ownedareas. But most sanctuaries have a low incidence of public use, being attractive only to those who are sincerely interested in nature. An examination of guest books at almost. any sanctuary en- trance will reveal a small group of dedicated visitors returning again and again, each time pencilling in a field note or two on the location of an oriole's nest or the sighting of a red fox. A specialized or biologically unique property might suggest a use as a wildlife refuge or a scientific reservation. In these two instances, public a' ccess is either secondary or in some cases, prohibited. Large wildlife refuge areas are usually owned and managedby the,state or federal government departments, and typically, the wildlife they're interested in is game. Smaller refuges are often owned by national or local conservation organizations. A good example of a scientific reser- vation is Mettler's Woods, described in Chapter JIL Usuall s * entifi' y ci c. areas are selected because @of botanically unique vegetation or floral. variety and their existence has little or nothing 'whatsoever to.do with recreation. Indeed, the public is barred from many of them, orat least access is prohibited without express permission from the managing au- thorities. Virgin woodlands i or Very, vler old climax forest types should y be protected in this way. Also bogs, with theirunique plant community, ought to be restricted in use. One-of-a-kind plant communities, such as P the Sunken Forest on Fire Island, with its dense 'cover of ancient wind- pruned holly trees, should probably be co n*sidered scientific areas. An extension of the. scientific reservation category is the school 46 natural area, owned by a school. district, which can be lised, by science classes as an integral part of science education in the primary. and secr ondary grades as well as at the college level. These area 's, which are still few and far between, are beginning to gain.the interest of school administrators and curriculum specialists and -promise . to. become an important open space use in the future'. At the very edge of the metropolitan complex, and requiring larger acreages than any of the uses -mentioned so far are camping grounds and hunting and fishing areas. Both are found in state preserves, but,separate camping areas are sought as well by private organizations such as the Fresh Air Fund mentioned earlier, Boy and Girl Scouts plus a 'Wide variety of denominational and non-denominational welfare agencies located in New York City. There are, of course, many, many less common uses which are either variations on those listed above or could be creative new ideas. A Lyobd.' solid house', for instance, with a dozen-a"cre's of ground can becomea. natural history museum with outdoor exhibits. Some estates have be- corne arboretums. A country place with. cows, pigs, horses and some crops can become a model farm or an agricultural expieriment-facility for a college. An antique house and grounds canbecome a restoration. The. Van Co'rtlandt house in Croton-on-Hudson is a good example. The house.,. is not only a nearly, perfect example of early Dutch-En ish architec gl ture, but the, restoration, founded by John D. Rockefeller, Jr., owns, a good deal of the, Croton River Mar shes, protecting open space of inestimable importance. PUBLIC BODY OR PRIVATE GROUP In the world-that-ought-to-be, there is, forevery offer of land (x), a recipient,(y) whos e"public purpose is wholly suited to the inherent man a ement requirements of the land, and wholly suitabl6l on form, to the landowner. Then x+y - protected open space achieved with a mini- mum of effort'and'd maximum'of gratification for the donor. Someday this will be so. But not yet. There is case after case on record of land - offers either being spurned -or becoming so complex as to completely discourage the donor from completing the transfer. But many stick with it, in some cases for several years, seeing to it that the land will be properly and permanently cared for. While each, potential transfer of land to a unit of goverm-nent or a non-profit group has its unique features,. there: are some generalizations thatican be made on finding a suitable recipient for an offer of land for open -space. use. Usually, national or regional conservation organizations such, as, Audub@on Societies, TheNature Conservancy and,others, who own land in the "sanctuary" category, prefer to have an endowment so' that con-- 47 ITI Other uses for open space range from wildlife refuges ... h- 20 @7 T 41t A. ... Hunting and fishing preserves... to arboretums such as the Bayard Cutting in Islip, L. I. 7'. 7, -7 r@177 76, -YPT 77 7-N- 777 wn )* ... .. ... . - --------- "k VI -4A 47 A solid house can become a natural history museum... ... or a country place a model farm. it 49 GRUAtf! 4`2,;@`Oi' 4n, R A #64, :? J F Z, t 6 School natural areas are gaining the interest of administrators and curriculum specialists. The teacher here has even sparked the interest of the bus driver at extreme left. tinuous care for the land can be provided. In spite of the substantial contribution such organizations as these make to the open space prob- lem in general, their resources for land management are quite limited. These groups do make exceptions, of course; particularly The Nature Conservancy which has somewhat more flexibility. While standards are necessarily high, any offer of land with unusual wildlife or plant com- rhunities is of great interest to such organizations. Private welfare agencies and scout groups are interested mainly in larger properties in the hundreds of acres. While many of them are con- cerned with open space and conservation, their primary task is in pro- viding camping areas for youngsters or family groups. Some of these agencies. accept no limitations on their right to sell property given them. Others are more conscious of their conservation role and reflect this consciousness in their policy. Only close investigation will reveal the difference in outlook. Higher levels of government-state and federal-are interested in .wildlife areas, as mentioned earlier, which need not be of any particular size. National and State parks and forests presume, of course, large acreages. National monuments of natural,'historic, or geologic interest can be considerably smaller. New York's minimum park acquisition is 50 400 acres, unless the property is contiguous to existing State holdings. Lower levels of government-counties, cities, towns, boroughs, vil- lages and even school boards-can be excellent objects of land philan- thropy, or not, depending on their policies and on the outlook of the officials themselves. They have a good capability for providing manage- ment services, even if a park department as such is nonexistent. The road crew of the smallest municipality can do most of the maintenance work on a piece of community-owned open space. At the same time, the lack of interest on the part of some elected officials in a proffered gift of land can be nothing less than infuriating. In Connecticut an extension of town government-tbe Conservation Commissions-are always a good place to start. Connecticut towns are also pioneering the quasi-public local land trusts, which are often espe- cially established as an ad hoe response to an offer of land. Land trusts have proven to be particularly useful where authorities are dragging their feet, or where lands straddle municipal or county boundaries. In New Jersey, county and municipal government has to be relied on to a greater extent than in New York or Connecticut, since private, non-profit organizations cannot hold tax-exempt more than five acres per building. In the other two states of the region, there is no acreage limit for bona fide non-profit groups. In most cases, the potential donor of land will probably find himself dealing either with non-profit groups such as The Nature Conservancy or the land trusts in Connecticut, or with county or municipal govern- ment. The non-profit groups need money to manage the land, or at least its equivalent in a dependable and stable cadre of civic volunteers who will do the management job for nothing. County or municipal govern- ment has a greater management capability over the long pull, but offers of land are or can be full of short-run frustrations. One presumption that is simply not true is that counties and municipalities are interested only in recreation parks. Some may be, but there are a great many sanctuaries and low intensity recreation areas in local government ownership in the region. And it is expected that municipal 'governments will become in- creasingly solicitous of land donations in this category as time goes by and open space needs become more apparent. In any case, the land philanthropist would be well advised to let his lawyer, a responsible civic leader or an informed friend take his part in the initial offer of land to a potential recipient. Negotiations are some- times stalled because either the recipient or the donor is too sensitive to be candid and lay his cards on the table. It is better to find out quickly whether there is a good match of "x+y" rather than to let misunder- standings develop. A John Alden, in this case, can speed up the process considerably. 51 401 4MA6 MIR This swampland is part of a ten acre gift of Mrs. Dudley Wadsworth which sparked the development of a $1,000,000 Regional Nature Center in Westport, Conn. This donation plus an option on additional land was enough to inspire the formation of a local, non-profit group which raised the funds and planned facilities. The Mid-Fairfield Youth Museum and the associated Wadsworth Wildlife Sanctuary now have an annual operating budget many times greater than the original value of the land initially given. DEED RESTRICTIONS AND WATCHDOGS Most landowners who are inclined toward the donation of their land for open space use would like to insure that the recipients do not treat the gift as a negotiable asset. There isn't much inducement for land philanthropy if the philanthropist can't be assured that the general in- tentions of his gift have a reasonable chance of being carried out. A suspicion of bad faith has always been lurking beneath the sur- face especially in respect to gifts of land to county and local government: not so much that they would sell it, but that they would convert it to a use inconsistent with the objectives of the philanthropist, such as a park taken over for a school site or a waste disposal plant. The actual incidence of bad faith is a good deal less than what is implied by the vocal critics of municipal government; and one suspects 52 it is simply an extension of the folklore that all local officials are shady characters and there isn't a genuine public servant in the lot. News of municipal malfeasance is like news of an airplane crash: it is sensational and frightening, and for the moment one forgets the incredibly good record of safe miles logged. But even one lapse-by either a municipality or a private organiza- tion-is probably too much; and, luckily, there are ways of minimizing the risk. On the most elementary level, the deed itself can record the inten- tion of the transfer, and certain restrictions as to the use of the property can be covenanted between the grantor and the grantee. An agreement might be made, for example, that the land is to be used for nature study and that no development will be undertaken that is inconsistent with this use. Some covenants can be quite specific, spelling out in detail agreements about land clearing, fencing, the management of any surface water and the like. The more specific a covenant is, the greater the chance that intentions will be upheld unless, of course, implemen- tation would be so complicated, costly or unfeasible (in the event, let us say, of a change in use of surrounding property) that the grantee would have to make a case for vacating all of them. Certainly, a land- owner's attorney should be given the responsibility of interpreting his client's intentions through an instrument that would be defensible over the long pull. Such agreements as these can turn out to be merely formalities unless there is some provision for their enforcement. One way to accom- plish this is to establish an interim owner who would have the capability of enforcing deed restrictions from an administrative -standpoint, as well as legally. For example, if a property were first given to an organization such as The Nature Conservancy, they (the Conservancy) could in turn re- transfer the land to a municipality (at the same closing session), and withhold a "right of reverter." This would provide that if the conditions or restrictions set forth in the deed were not honored, the property would automatically revert to its previous owner. It is important that the pre- vious owner not be the landowner himself since this would weaken his ability to take income tax deductions. When it is a non-profit group such as the Conservancy, the donor not only establishes a clear-cut deduc- tion, but has set up a watchdog with legal teeth: the power to enforce the intentions of his gift. A less formal variation on this idea is simply to insert a clause which, in effect, assigns the right of reverter to a third party without the rever- tee first establishing actual ownership. Such a clause would state that if such and such conditions were not carried out, the title would auto- 53 matically be vested in the designated third party. The Nature Con- servancy is written into many deeds in this fashion, and the deed to Mettler's Woods shows a long list of organizations designated serially so that little is left to chance in providing for permanent care of the woods as an irreplaceable natural heritage. Whether the watchdog is established directly through interim ownership or takes on this function by a special provision in the deed, a "reverter clause," as it is commonly known in either case, is not always acceptable to a potential recipient. Some private organizations understandably resist the inclusion of a reverter clause. They want the freedom to sell the property in the unhappy event that they might not be able to care for it properly in the future or if it no longer suited their purpose. Others are less concerned about this. In any case, policies are usually bendable if the recipient wants the land badly enough. Likewise, some units of government will not take anything except an unrestricted title, stating that 'their public purpose, in the case of 7 say, a park department, is sufficiently clear to -obviate the need for a reverter. An investigation into the present status of properties donated to them should prove them right or wrong in their assertions. @ But just as often, public officials may be positively delighted to have restrictive clauses with reverters in the deed, for it binds the hands of their successors, forcing them into the public glare of condemnation pro- ceedings if they want to change the use. No official is particularly anxious for a successor- particularly of the opposite political party-casually to undo what he has accomplished. And many non-profit groups welcome a reverter as a protection of their own interests.. The trustees of Connec- ticut College were pleased to be able to point out to a firm which had offered an extravagant price for its natural area on Mamacoke Island that the land would revert to The Nature Conservancy the moment it was di- verted to another purpose. It should not be assumed, though, that provision for a reverter should always be insisted upon by the donor. For one thing, it can severe- ly limit the range of potential recipients. Moreover, many have argued that reverters might in some cases frustrate the essential purposes of a charitable donation. For example, a municipally owned sanctuary might some day have its value as a wildlife area severely limited by nearby incursions of industrial or commercial land-use or perhaps superhigh- ways. In such a case, the original owner might well have agreed that the town should sell it for a high commercial price and buy more suitable land elsewhere. If there were a reverter clause and if the deed other- wise made no provision for such a situation, the community could be forced into a dilemma not intended by the philanthropist. 54 ";40@4 W qV @, W_f, e,4 Ui_ A new park or sanctuary soon takes its place as a permanent fixture in the community. New stewards can maintain a legacy of nature. While there should be no hesitation on the part of the landowner in exploring the subject of a r'everter to enforce specific conditions or restrictions, this is not the only means by which he can protect his philan- thropic purpose. By spelling out this purpose in the deed, by insisting on public dedication of the land, by making it clear that the new owners a hold it in trust, or in short, by any method his legal counsellor advises to clarify his intentions for all time-then he is on sound ground. He has made a solid effort to see that his donation is going to remain as open space if not for perpetuity then at least for a good long time. THE COMMUNITY RESPONSE Any public action-land philanthropy included-usually gets a pub- lic response. There are always those who want to know "What's in it for him?" Others complain about, more property going off the tax rolls, little realizing that a pack of houses would have raised their taxes more. Because land philanthropy is a'more visible form of charitable giving, than the quiet transfer of securities, say, to one's college, there will al- ways be an element in the community making horrible noises. But the land philanthropist also comes in for a good share of praise from civic leaders and editorial writers, for most of them realize that protected open space is a great community asset. By and large, however, the hullabaloo quickly dies down, and even in the case of a memorial bearing the same name as the donor, the new park or sanctuary takes its place as a permanent fixture. The verbiage of praise or-blame soon gives way to a more lasting kind of satisfaction to the donor and a more meaningful expression of gratefulness from the public, for it becomes their land, which they will enjoy... and protect as well. 55 j g Q U R g S@,T i'? V @,;R@yt @-M N g NO: gg Hpq-, 3 "A @4', 711 Bulldozers usually run rampant, but by working with planning officials, consultants, landscape architects or others, a land seller can preserve segments of his property as undisturbed open space. Such a procedure needn't reduce his ability to get a top-of-the-market price for the land. 56 V NEW DIRECTIONS IN DEVELOPMENT Few landowners possess the rare blend of economic capability and philanthropic temperament required to produce donations of land. For the most part, open space in the New York Region is owned by people who have a financial stake in their land. Eventually they will make the often difficult decision to sell. For many, the disposal of their land to the' highest bidder will at best be a pretty dismal affair. Their reluctance to give up their acreage may include a deep regret that a landscape they love may soon be con- verted to an undistinguished housing development. The trouble is, these owners seem to believe that their self-imposed responsibilities as stewards must be wholly abrogated the moment they put their land on the market. It is as if such an abrogation were a condi- tion for selling at an attractive price. The burden of this chapter is to show that "it ain't necessarily so." The hand and spirit of the landowner can remain with his land if he employs his sense of stewardship constructively in the process of trans- ferring title. A HOMELY EXAMPLE Let's take the case of a man with a two acrehouselot plus a need to come up with some more money to send his son to college. Fortunately his house is so situated that he can subdivide his property and sell off an acre, which might produce, with a little luck, say $6,000. At the same time the thought occurs to him that unless some re- strictions are imposed on the sale he might wake up one morning to find an architectural horror being assembled some ten feet from his lot line-the legal minimum in his town. A prudent man, he sells his lot with conditions spelling out the setback, whether or not the house can be one or two stories, a minimum cubic footage or cost requirement, a landscaping agreement or any of a number of potential requirements that must be met by the buyer of thelot. Perhaps it is a little more com- plicated to sell the lot, but he doesn't run the risk of devaluating his own home in the process. His $40,000 house .devaluated 15% would com- pletely wipe out any financial gain in the sale. An analogous but less common practice, just as sensible and just as possible, would be the selling of an entire tract for development with 57 AMP 4rx 777,7-w J -MER --4-J Most site plans don't do justice to the houses, the people in them or the former owner of the land. The sale of property doesn't have to be an abrogation of stewardship. 77 7@ P6% 6", Stewardship and the profit motive come together in cluster planning. The view Wk from this window will always remain since meadow and woods are protected open space in this Sayville, L.I. development. Lot sizes were reduced to achieve a usable piece of common open space. 'A 40V 4@ ;0R, 58 s6li ne kind of arrangement to see that it would be developed properly. The b6neficiaries would be the people who bought houses in the new subdivision, of course, but more broadly and perhaps more importantly the entire community would be benefited in exactly the same way as the man in 'the, example. The real and aesthetic value of a -community p is not depreciated by creative housing development, but an unimagma- tiviE@ subdivision-the "ticky-tack" in a standard treeless grid-tends to pull dow' n the surroundinjZ area, to its own' hack nieyed level. THE RIGHTS 'OF A SELLER There. are rnahy ways,that a seller of property can control the appearance and the quality of development on 'the property @he' is selling and he can do. this without going into the development business himself. He can, for CY C7 instaInee, withhold part of the property fr6m the sale if there is a section of it Lsuich as a pond, or stream or a fine stand of old trees-that should remain' undeveloped, later to deed it over to a homeowners I association, suitable private organization, Or the, municipality. Severing a portion of the land for conservation or other open space purposes does not neces- sarily limit the profit potential of the property, while the later transfer of the open land under certain circumstances might possibly be ad- judged a philanthropic gift for tax purposes. Covenants involving' site planning and architectural controls may also be imposed on the buyer as a condition of sale. Such covenants could be spelled out in the deed, or the seller could provide for his own approval of the plat and architectural plans proposed by the buyer prior to completing the transfer of title. For an owner to in pose .restrictions and conditions on the sale of land to a developer doesn't make the selling job any easier. Nevertheless, the seller has every right to take such an action and it is indeed surprising that so many owners, whose land may have been in the family for gen- erations, sell out and without a single backward glance let the developer do with it what he wants. Developers can either be enlightened or craven, like anybody else. Unfortunately, the demands of the marketplace force most of them into the position of having to "get in and get out-fast," as one developer has put it. One could hardly expect a developer with his short-term interest to have as much appreciation for the land itself as the original owner. Under these conditions, open space and aesthetics are most likely to get the short end ofthe stick, and the ex-owner is often horrified at the results. Developers claim, and with a good deal of justification, that they have no desire to slap together another "ticky-tack" subdivision. They are squeezed, they contend, by the irresistible force of the market and the unmovable wall of outmoded zoning regulations. 59 Th e VILLAGE GREEN Leaving aside. open space for amenity and recreation has its roots in Europe. The idea was transplanted to America in the form of New England village greens, malls and commons. Cluster planning operates on the same principle. But all is not lost. There is now a very specific place where an owner's stewardship - arfd: a @ developer's profit motive can meet. It is called "cluster planning," the device used to preserve-40 acres of open space in the Village Green development discussed in Chapter III.- THE PRINCIPLES OF CLUSTER Ninety-five percent-give or take a few points-of the. remaining open land in the New York Metropolitan Region is zoned for single family residential use. The average density called foris about a half-acre -per house. The actual zones run anywhere from one quarter of an acre up to four acres. There are a few cases of tenacre zones. It doesn't take much imagination to see that the offspring of today's population are going to chew up an incredible amount of land in the process of establishing. a home and family, and the urban countryside will be covered from oneend to the other with an unrelieved web of housing developments. When zoning laws first came into common use, the objective was to provide community amenity through the exclusion of inconsistent or unattractive land uses; In those days,. most people assumed, by and large, that houses would be built one at a time. Outlying communities believed (and many still persist in this) that large.lot zoning would dis- courage all those except the very nicest people who would build the very nicest custom built houses. What the region is experiencing now is nothing le'ss than a large-lot 60 rn A cluster plan from the.air. Morrell Park in Philadelphia has preserved wooded stream v Ialleys which provide a continuous green space network for residents. zoning "backlash." One.and two acre zone subdivisions are common- place. A half-acre zone wouldn't drive the most timid developer away. The net effect is the prospect of a nearly total loss of significant community open space, of single family houses costing a whole lot more than they ought to, and being uglier than they have any right to be. As a result a counter trend is setting in: not-necessarily involving a change in the housing densities called for in the local zoning laws, but providing for a better arrangement of dwelling units on a given tract of land-an arrangement that can produce more attractive neighborhoods, with a great deal more meaningful open space. Unlike earlier thinking, this new trend takes into account the likelihood that most of the housing built from here on in will be on a development basis, as opposed to one- at-a-time custom construction. This counter trend, cluster planning, stems from the traditional European idea of clustering houses around a common green or square. The idea was- transplanted by our forebears and shows up in the attrac- tive commons in many small New England towns. With traditional zoning laws, a 100 acre tract in a one-acre zone might net out to 75 houses, several miles of streets and a massive destruc- tion of most all the natural features. With a cluster site plan, the 75 house lots could be reduced in size and grouped together so that the developed land including streets would consume only 50% of the site, and the wooded copses, bosky dells, brooksides or whatever attractive features the land -might possess would be preserved. The amount of com- mon open space created by clustering depends on the degree to which 61 the house lot sizes are lowered: the smaller the lot size, the greater the percentage of open space, provided the zoning density is not changed. With cluster development everybody wins. The owner who par- ticipates in creating a cluster on his land is gratified that natural features and open space are preserved and without any sacrifice, perhaps even a gain, in the selling price. The builder likes it because he saves money on site development, laying of 'streets, sewers and the like. Not only that, the houses sell faster. Home-buyers are pleased because theirs is a pleasant and attractive subdivision-with open space, recreation areas, and a site plan that is a great deal more interesting than the average. The community leadership should be pleased because open space has been preserved, the subdivision has Dot defaced the neigbl@orbood, and a recreation area has been established which will serve the new residents without overtaxing 'existing community facilities. What could be better? Unfortunately there are a couple of hitches. As the Hillsborough case in Chapter III pointed out, clustering can be too successful. A community may be afraid that a change in zoning laws will encourage builders to descend on them like a plague of locusts. Another is that when a developer proposes clustering, the community's back begins to go up. Long and bitter experience has suggested to them that anything that might be good for the builder must-by natural law- be bad for the community. Also, some builders have made the error of insisting on squeezing a few more units in their cluster plan than they would have been able to get under the regular zoning law. This tends to prejudice the planning board, as well as the whole community against both the builder and the entire idea of cluster planning. Even with these few sour apples, cluster planning holds out such hope for open space, the preservation of natural features, and the crea- tion of communities which are attractive instead of drab, that it is appropriate for the landowner to participate in this trend as an exercise of his stewardship. THE LAND-SELLER'S ROLE Though the construction of a cluster development from start to finish might be a creative and exciting experience for a few landowners with the time and inclination, the majority are probably uninterested in the enterprise of pufting up houses. So long as they own the land, however, they have the power to encourage clustering by a number of means. One of the most effective ways of producing open space and an attractive cluster plan would be for the owner to work with an inde- pendent site planner or landscape architect in order to lay out the sub- division plat to his own liking. He could then file the plat in accordance with the regulations of his municipality. When he sells his property to 62 a developer, he sells a package deal: the tract plus the approved plat. It is probably possible for the landowner to go so far as to file with his plat a formal arrangement for the establishment of a homeowners' association which would eventually own and maintain the common property, exert architectural controls within the development and have the power to support the preservation of the neighborhood amenities. The establishment of such a, homeowners' association prior to site de- velopment and sale of lots has proven to have a number of legal and practical advantages. Landowners should be under no illusions about the difficulty of the task of preparing and filing a cluster site plan. The cost of making the surveys plus the fee to the designer could run into the thousands of dollars-how many depending on the scope of the job. Additionally, there may be the added chore of persuading local municipal boards to adopt a.cluster z"Oning ordinance. Nevertheless, any developer would be more than happy to pay a premium for such a package since he avoids all the costs and lost time for site planning and site approval. It need hardly be mentioned that the landowner as a respected member of his community is going to have an easier time getting the legislation needed for plat approval than a developer who may be-or appear to be-less interested in the long range welfare of the community. For those less inclined to go through such an arduous process, there remains the possibility of selling the land conditioned on an approval of the site .Ian, or more realistically, of work ng closely with the plan- P ners who are employed by the developer,. -In return, an owner could agree, to support the developer when"the plat comes up for approval. Another approach might involve, 'a's a first step, discussions with the planning board and the professional planning consultant retained by the municipality. They'may have some''good ideas on development and the c hances are that they would, be as interested, in the preservation of open space and amenity as the owner.; Using method, it might be arranged that the municipality would take an easement on the open space or fee title (the owner can fake an income tax deduction on. what- ever land value he surrenders) and, agree to give the developer, who@- p ever,he may be, "lot credits" so that he could construct the same number. of houses that would have been possible had he bought the entire tract outright. There are any number of variations or departures from, these ap- proaches. Common to all of them is the result: the owner has'indeed acted upon his feelings toward the land, but at the same time has not reduced his potential for 'Selling at a price pretty close to the top of the market. 63 T@ W 14 4.1 tre4 1 NIN NL, Many landowners would like to keep their land intact and pass it along to their children. An "open space" casement is one device that could help make this possible in the face of rising property taxes. 64 THE MIDDLE GROUND, Open Space Easements Many ownersof large acreages did not purchase their land in order to sell it or give it away, but to live on, it and, if their luck, holds, pass it* on intact for the next generation. There is no doubt but that the desire, to keep land.intact for its own sake, as well as for-use and enjoyment by the owner and his children, is one of the highest, forms of land stewardship, Were it not for such owners, the.open land in the metropolitan countryside would certainly bear more of the marks -of, the speculator and the premature, land: de- veloper than. it.does. To continue to hold land open, as a private. undertaking," is@ getting to be a tougher and tougher stewardship assignment in theface of rising property taxes-the money so, desperately needed bygrow ing corn 'mun- ities with quantities of children to educate. But it isn't a matter of soak- .ing the rich or the propertied and, though the assessor may have various attitudes of his own, his-rAhge of choice in assessment is basically quite narrow. In the case of estate .4creage, the country place, or the farm, Ahe assessor is (or soon will be) taxing more than the land itself-he is taxing. its development potential. Whether he likes it or not 'the assessor operates under the strictures of a constitutional or statutory equal tax provision, and if a landowner- no matter what his intenti.ons-can get a subdivision, price for his land, he is probably paying a subdivision tax. If not now, then very, very soon. This situation, is mitigated to some extent by assessors who make an effort to lean over backward in the landowner's favor, perhaps realiz- ing the inequity of taxes collected as opposed to the limited services required'in the case of a large holding. While differential taxation is generally illegal, New Jersey allows differential rates for some farmers and in Connecticut, farmland, forest land, and some open, space may qualify for a lower assessment. But these laws, while interesting enough to largelandowners., don't really apply. to very many of the private open land holdings within the metropolitan complex. Also, such statutes are under critical legal fire since they too often,benefit the speculator more than the bona fide private steward. 65 A QUID PRO QUO Much of the landowner's property tax problem is created by premature land speculation and development in the metropolitan countryside. The loss of open space is the 'result of the same thing. Both the landowner's tax problem and the community's open space problem may be abated by the use of a conservation or 11 open space 11, easement, which, in effect, strips away the aspect of ownership of land which makes the taxes go up in the first place: its potential for devOlopment-a potential also destructive of open space. What is produced by an open space easement, which is basically a negative right in Ian d, is a' very simple quid pro quo. If the landowner, whose, parcel ought to remain open, gives a binding guarantee not to develop the land, the assessor must not assess it as though it could be developed. This is the way equal tax provisions can work in favor of the large landowner. An open space-easement need give no rights of public access to a municipality or any other organization or individual-the property is still private and the attributes of ownership intact, save one: the right to subdivide or otherwise to diminish its value as open space. The basic condition w hich makes such an arrangbinent succeed is that an unequivocal 'guarantee that the land will not be developed can provide a clear public benefit as well as new evaluative criteria for the assessor. William H. Whyte, the well-known writer and a foremost authority on open space easements has emphasized. that, for the landowner, the critical point in the entire concept of a,n open space or conservation easement is that it bo,binding, (in Securing Open Space for Urban America: Conservation Easements, see Appendix). As he puts it, "If a property isn't legally available for subdivision, it isn't comparable to properties that are. The very constitutional provision that assessors have followed to raise valuations now becomes the landowners shield." I Whyte further points out that "if the assessor disregards the ease- ment and values the land on its market value as subdivision land, the landowner has clear legal redress; since he cannot market it as sub- division land, the going rate for such land is patently not its fair market value. This is why the easement must be binding. Many land- owners I have talked to would love to have it both ways; that is, have the easement apply and save them froinhigher taxes -but. always with an easy loophole in case they change their minds." Basically heconcludes, an open space easement "must be a deed in perpetuity, and.rather than soft-pedal this fact, it should not only be made plain to landowners but used as a selling point. The perpetuity feature is to their advantage; without it, they have no real tax protection." 66 _V@ Q N "I P t W a4@, r W4 Y U 11 %s, Easements can be used to protect marshes and other wet areas for conservation or flood control. While a public purpose is served, public access need not be a part of the easement. This is as clear a statement of how the quid pro quo works as there is. But before the landowner can decide whether the conveyance of an open space easement is a suitable device for his particular case, he must first examine both sides of the quid pro quo equation in a little more detail. A PUBLIC BENEFIT: THE "QUID" What is so new and so hopeful about the idea of open space easements is that everyone is beginning to agree that open space does not have to be in public use to serve a public purpose. In the municipal context this means that open space easements could be used to protect a water supply, or protect wet areas from residential encroachment which could reduce their value for flood con- trol. Easements could preserve a wildlife habitat area, and they could be used simply to preserve the open aspect of a community for purely aesthetic reasons. Any or all of these are public purposes that can be served by an open space easement. None of them requires public access. (There is nothing to prohibit public access under an easement arrange- 67 X,@ A Sqh`42, Ark "k d fS 'Sk Z, J6W 40 "e, S, ek ng 115 -W F YA@ Ir-0 X7, mg -nt@-- q@z jqf @f Easily developable properties such as these pitch-pine and oak covered flatlands of Long Island, are often taxed on their value to a developer, not on present use. Open space easements strip away development value which cannot be taxed if it does not exist, ment, however. For example, a bridle path might better be protected.., by easement than by any other device. But the granting of positive ri gh ts is more apt to be a philanthropic gesture than a quid pro quo arrange- ment not to develop land. Conveyance of positive easements. should be considered a variation on the philanthropic gift of fee title as treated in Chapter IV.) I That conservation a'nd the preservation of community amenity are public benefits that do not necessarily require public, access is already recognized legally and by professional land-use planners. It is beginning to be recognized by political and civic leadership as well. All three States have provisions for public bodies to hold open space easements. New York has stepped out a little farther in providing specific enabling legis- lation for the purpose of encouraging municipalities to seek, such ease- ments. There will be, undoubtedly, increasing use of the easement device by the region's municipal governments. By and large it will be.. as, a result of a planning study to determine which, open land.areas should remain open. A willy@nilly easement acquisition program on the part of a municipality might well lack a clearly -defined and provable public purpose. Nevertheless, it is probably true that the initiation of a specific easement agreement will not come from the municipal official, but from the landowner himself. This was the case with the. McKay property dis- 68 jF, a4 'APR' Experts predict that open space easements will become more and more frequent as town officials begin to realize they can't zone out development. Large landowners can supply open space if property tax levels encourage it. The quid pro quo of the open space easement permits this. 69 cussed in Chapter III, and will probably have to be the case with others, at least until municipalities start attacking their open space problems in a positive and systematic way. In offering an easement to a municipality, the landowner should be prepared to show the public purpose the easement will provide. Cer- tainly local government is under no compulsion to accept such an ease- ment, indeed there may be some hesitation until the novelty wears off. Also, it might be prudent for the landowner to feel out the local assessor on his attitudes concerning the value of the easement. The courts are always there to adjudicate a difference of opinion on the question of assessment, but this is the hard way, and not always necessary. But most importantly, the provisions of the easement should be the result of careful legal architecture, listing in detail what is being given up and what is retained. There is no pointiDasking a court to guess what the original intentions were if the easement is challenged by a sub- Sequent owner. ASSESSMENT: THE "QUO" While there is no question that an open space easement provided to. a municipality can be sufficiently binding, sufficiently "in perpetuity" to rate a re-evaluation of the land under easement by the assessor, there is no telling where the new assessment figure will land. Merely to say that the value of the land is reduced by the value of the development rights surrendered is no help at all. It is difficult enough for the land- owner and the assessor to agree in any case, and the process of deciding what fraction of the value of the land is due to development pressure in the area doesn't make agreement any easier. TO an assessor, value just doesn't disappear' so it is well to remem- ber that some of the tax loss liability might be assigned to adjoining real estate; it becomes more valuable by bordering on protected open, space for much th6 same reasons that real estate bordering golf courses generally receives a higher assessment, even though the owners may not be members of the club. Another part of the tax liability has to be assigned to the munic- ipality as a whole. The entire town benefits from protected open space. Indeed it can be proven that the alternative, a housing development on the same land, would increase taxes for the community by an amount a good deal larger than the amount removed from the tax rolls because of the easement. One further consideration that might help-eventually-to estab- lish a value on the rights surrendered is the amount of income tax deduc- tion the grantor of the easement decided to take. While many might strike up an open space easement deal for their own benefit, and hardly 70 feel like philanthropists, it is nevertheless true that as donors of a right in land to a public body they have undertaken a charitable act. What the IRS (their ruling on easements can be found in the Appendix) de- cides to accept as a reasonable figure for a tax deduction can have a good deal of, weight.with the assessor on grievance day. (This might work the other way around too!) Although an effort to grant an open space easement to a local or county government may sound like a ground-breaking experience, the landowner will not be without friends. Planners, conservationists, rec- reation people and others with an interest in the landscape have seized Ion the easement device as the most exciting concept in a long time-a concept that' can go a long way in contributing to a solution to urban open space problems. Politicians are learning too that they can't zone subdivisions out of their communities, nor can they afford'to buy up half the town in order to preserve its open character. Open space ease- ments are a way out for a lot of different people besides the owner of land who would like to keep it open but is getting taxed away from his resolve. DECISION FOR STEWARDSHIP Stewardship is not a point of view but an action. And this book has attempted to cover a sufficient range of ideas to provide a background for decision. It is important, however, for the landowner to wend a prudent way through the legal maze inevitably associated with the various options open to him. A prospective donor of either fee title or easement needs good legal advice in the laws of conveyancing, tax laws (local, state and federal), with particular emphasis on charitable exemption and deduc- tion possibilities, and where pertinent,, laws of decedent's estates and wills. For the seller of land, if not for all owners, legal expertise should in- clude municipal law as well. This may sound like a tall order-and it probably is. But there are many competent and experienced civic and professional groups who can consult with the owner or his attorney on matters relating to a philan- thropic transfer or the preservation of open space within land to be developed. Indeed landowners should avail themselves of the many rec- ognized experts and professionals who will give of their time freely and unstintingly to help preserve a decent landscape in this region. 71 APPENDIX A. ORGANIZATIONS Many governmental and non-profit organizations get top priority from the landowner. Municipal can help the landowner plan the use of open space governments, in general, have a good capability or act as recipient for the conveyance of the title for continuous and stable maintenance. Where so that the land 'may @ be permanently preserved. local governmental interest is facking there are The landowner should bear in mind, as Chapter IV usually non-profit civic groups to fill the breach: pointed out, that different types of land have dif- an Audubon chapter, a museum, an historical soci- ferent potential open space uses, which in turn may ety, a garden club or a land trust. Further, the suggest certain types of' public or quasi-public landowner should nbt overlook local school districts ownership. The listing here Drovides brief com- as potential recipients of open land for educational ments on the needs ar@d interests of various organ- use, or colleges, universities, and priv Iate schools in izations for the landowner's guidance. his area. But if the landowner has special inter- While this catalogue may appear comprehen- estswhich cannot be served by local organizations, sive, it is by no me 'ans complete. Indeed, it neg- pr if his property has unique features calling for lects, for practical reasons, the thousands of local Wanagement by a larger or more specialized type organizations which in more cases than not should of agency, the information below may be of help. 1. GOVERNMENTAL AGENCIES INTERESTED IN LAND a. FEDERAL AGENCIES UNITED STATES DEPARTMENT OF THE INTERIOR The National.Park Service administers national parks, Bureau of Outdoor Recreation national monuments, and national recreation areas. It Northeast Regional Office is interested chiefly in large areas serving several states U.S. Court House or a whole region, but there is an increasing interest in small sites within metropolitan areas. National monu- 9th and Chestnut Streets ments of significa6t scenic, historic or biologic interest Philadelphia, Pa. 19107, may be quite small. 215 WA 3-2400 John L. Sullivan U.S. Fish and Wildlife Service Regional Director Bureau of Sport Fisheries and Wildlife The Bureau is charged with keeping an up-to-date Northeast Regional Office inventory of recreation resources, and assisting govern- 59 Temple Place ment and private interests in planning to meet recrea- Boston, Massachusetts 02111 tion needs. It may accept and use donations of land for 617-223-2961 outdoor recreation purposes.. Richard E. Griffith National Park Service Regional Director Northeast Regional Office The Ser ice is responsible for establishing wildlife 143 South Third Street refuges for the protection of migratory birds and en- dangered species of mammals. Typically its areas are Philadelphia, Pa. 19106 large, but in the Northeast, it has acquired by gift a 215 MA 7-6000 number of small but valuable areas of less than 100 Ronald Lee acres. Regional Director b. STATE AGENCIES CONNECTICUT Board of Fisheries and Game Park and Forest Commission State Office Building 165 Capitol Avenue Hartford, Connecticut 06106 Hartford, Connecticut 06115 203-527-6341 Ext. 2369 203-527-6341 George C. Hancock Donald C. Mathews Chief, Land Acquisition Division Director Interest in tracts of all sizes for wildlife areas. Accept- Lands for forests and parks should preferably be in ability of individual properties depends upon intrinsic excess of 200 acres and possess definite attributes for value, location, type and size. such purposes. 72 NEW JERSEY Taconic State Park Commission DEPARTMENT OF CONSERVATION AND ECONOMIC Staatsburg, New York 12580 DEVELOPMENT 914 889-2281 Division of Resource Development Harold J. Dyer P. 0. Box 1889 Regional Park Manager Trenton, New Jersey 08625 The policy of the State Council of Parks is to acquire 609-292-2733 tracts of land of at least 300 to 400 acres. However, Kenneth H. Creveling strategically located smaller tracts adjacent to existing Director parks are of particular interest. Small isolated' parcels Within this Division a Bureau of Parks and Recreation. cannot be efficiently managed or used by the State is responsible for the administration of all State forests, Division of Fish and Game parks, recreation areas, natural areas and historic sites. Conservation Department Building Consequently, properties of almost any size are of State Campus interest. Acceptance and subsequent use would depend Albany, New York 12226 on intrinsic value and size. Generally, lands of 100 acres 518-457-5690 and more are preferred for parks and forests, unless Dr. E. L. Cheaturn they can be joined to larger properties. Asst. Commisisoner for Fish and Game Division of Fish and Game The division acquires and manages wildlife and water- P. 0. Box 1809 fowl areas. It is particularly interested in wetlands Trenton, New Jersey 08625 along the shores of Long Island Sound, and the Hudson 609-292-2965 River. Lester G. MacNamara Division of Lands and Forests Director Conservation Department Building The Division is interested in refuge lands, lands of high State Campus ecologic value, and public hunting and fishing areas. Albany, New York 12226 Large tracts are preferred since these can be adminis- 518-457-3740 tered more economically and offer a greater variety of William D. Mulholland recreational activity than small ones. Assistant Commissioner .for Lands and Forests Green Acres Land Acquisition Program The division accepts lands to b Ie kept forever in their P. 0. Box 1390 wild and natural state. It can accept easements or Trenton, New Jersey 08625 covenants in such land. There are no maximum or mini- 609-292-2432 mum sizes, but small tracts should bewitliln or adjacent Arlo Brown, Jr. to existing holdings. Director This Division was established to coordinate the acquisi- C. COUNTY AGENCIES tion of land by monies made available under the Green Acres Bond Issue, under criteria set forth by the State Most counties within the region have park depart- Department of Planning. General inquiries about the ments which have accepted gifts of land for the acceptability of a piece of land may be directed to his preservation of nature and for recreation. In some office. counties the department of parks is primarily an NEW YORK operational unit, and the investigation of the:suit- NEW YORK STATE CONSERVATION DEPARTMENT ability of lands for' park purposes may best be car- Division of Parks ried on with the department of planning, In most (For Nassau-Suffolk) cases, the two departments work closely on all Long Island State Park Commission questions of land acquisition. Belmont Lake State Park BERGEN COUNTY Babylon, Long Island, N.Y. Planning Board 516 MO 9-1000 29 Linden Street S. M. Shapiro Hackensack, New Jersey General Manager 201 HU 8-4200 (For Orange, Rockland and Bergen) George H. Dieckmann Palisades Interstate Park Commission Planning Director Administration Building Park Commission Bear Mountain, New York 10911 County Administration Building 914 ST 6-2701 Hackensack, New Jersey A. K. Morgan 201-342-2200 General Manager James A. McFaul (For Westchester, Putnam and Dutchess) Executive Director 73 DUTCHESS COUNTY MONMOUTH COUNTY Planning Board Planning Board 150 Main Street Hall of Records Annex Poughkeepsie, New York Court Street 914-471-2522 Freehold, New Jersey Henry H. J. Heissenbuttel 201 HO 2-1940 Director Charles M. Pike Planning Director ESSEX COUNTY Department of Planning It The Board of Recreation Commission 900 Bloomfield Avenue Hall of Records Annex Verona, New Jersey Court Street 201-642-7800 Freehold, New Jersey Arthur J. Bray 201 HO 2-1940 Planning Officer Walter Schoellner Park Commission Secretary 115 Clifton Avenue James J. Trancer Newark, New Jersey Parks Representative 201-482-6400 Monmouth County Planning Board Everett M. Scherer MORRIS COUNTY President Planning Board James W. Taylor Court House Secretary-Director Morristown, New Jersey FAIRFIELD 201 JE 9-4300 There are no county governments in Connecticut. Dudley H. Woodbridge However, regional agencies have been established Principal Area Planner wbich in some ways perform functions in planning Park Commission and acquisition of open space similar to County Court House agencies in New York and New Jersey. In Fairfield, Morristown, New Jersey they are: 201 JE 9-4300 The Great Ier Bridgeport Regional Planning Agency Russell Myers Trumbull Professional Building-Room 301 Director White Plains Road NASSAU COUNTY Trumbull, Connecticut Planning Commission 203 AM 8-0014 Executive Building Hung C. Chung Mineola, New York Planning Director 516 PI 2-3000 Southwestern Regional Planning Agency Dr. Charles Stonier Executive House on Green Director 83 East Avenue Arthur H. Kunz Norwalk, Connecticut Chief.Planner 203-866-5543 Nils Fredericksen Department of Public Works Director Executive Building Mineola, New York MIDDLESEX COUNTY 516 PI 2-3000 Planning Board Robert Gamble 97 Bayard Street Deputy Commissioner for Parks and Recreation New Brunswick,'New Jersey 201 CH 6-0400 NASSAU-SUFFOLK Douglas S. Powell The Nassau-Suffolk Planning Board has been es- Planning Director tablished to deal with the problems of land use Park Commission planning and economic development shared by the County Record Building two Long Island Counties. New Brunswick, New Jersey Regional Planning Board 201-247-2567 Veterans' Memorial Highway Thomas H. Lee Hauppauge, New York Chairman 516-724-1919 74 Lee E. Koppelman SOMERSET COUNTY Executive Director Planning Board ORANGE COUNTY County Administration Building Planning Board Somerville, New Jersey 201 RA 5-4700 County Building William E. Roach, Jr. Goshen, New York Planning Director 914-294-5151 Carl J. Mays Park Commission Planning Director Box 821 Department of Parks Somerville, New Jersey Box 595 201-722-1200 Monroe, New York William H. Cunningham, Sr. 914-294-5151 Director of Park Commission Austin C. Palmer SUFFOLK COUNTY, Director of Parks Department of Planning PASSAIC COUNTY Veterans' Memorial Highway Planning Board Hauppauge, New York County Service Building 516 AN 5-0700 Paterson, New Jersey Thomas Thorsen 201 AR 8-5000 Executive Director Louis H. Budd, Jr. Park Department Director of Planning Veterans' Memorial Highway Park Commission Hauppauge, New York Lambert Castle 516 AN 5-0700 Paterson, New Jersey Thomas Thorsen 201-742-6373 Commissioner John Crowley UNION COUNTY Executive Director Planning Board PUTNAM COUNTY County Court House Planning Board Elizabeth, New Jersey County Building 201-353-5000 Carmel, New York Harry Maslow 914 CA 5-3641 Planning Director Donald McNally Park Commission Chairman Warinanko Park RICHMOND COUNTY P. 0. Box 275 New York City Planning Commission Elizabeth, New Jersey 2 Lafayette Street 201 EL 2-8431 New York, New York Rudolf Krestan 212-566-8474 Superintendent and Secretary William F. R. Ballard WESTCHESTER COUNTY Chairman Department of Planning Department of Parks 910 County Office Building Central Park White Plains, New York New York, New York 914 WH 9-1300 212 RE 4-1000 S. J. Schulman Newbold Morris Commissioner Commissioner Park Commission ROCKLAND COUNTY 910 County Office Building Planning Board White Plains, New York New Hempstead Road 914 WH 9-1300 New City, New York Charles E. Pound 914 NE 4-4911 Commissioner Aaron D. Fried Planning Director 75 PRIVATE ORGANIZATIONS INTERESTED IN LAND Boys'Clubs of America New York, New York 10010 771 First Avenue 212 GR 5-3640 New York, New York 10017 Daniel Green 212 MU 4-4400 Executive Director David F. Wynn Lands are needed for the extensive day camping pro- Assistant Director gram conducted by the nine branch organizations asso- Program Services ciated with the Society. Property also is needed for Each Boys'Club in the New York region is autonomous, housing children for a period of adjustment prior to and conducts its own program of recreation and citizen going to foster homes. The Society leases some of its training. Property may be needed for headquarters, or lands to other welfare agencies for day camping. The for recreation and camping. The National headquarters Executive Director is familiar with the needs of each will direct an inquiry f rom a landowner to one of the of the agencies, and should be contacted directly. three regional offices in the area, which in turn will Encampment for Citizenship inform a Boy's Club or Clubs known to be looking for 2 West 64th Street land or buildings. New York, New York -10023 Boy Scouts of America 212 SU 7-2714 New Brunswick, New Jersey 08903 Douglas Kelley 201 CH 9-6000 Executive Director Russell A. Turner The Encampment brings together for a six week sum- National Director mer camp program young people of college age from Camping and Conservation Services all over the world and from every region of the United The Boy Scouts are in constant need for land suitable for States. It has a similar program for high school students. scouting purposes by troops, councils and regions. Local The objective: to stimulate a broader, more sympa- Troop areas need not be large, but should be somewhat thetic understanding of social, political and human isolated. Council and Regional camping areas should problems on the part of young adults from diverse ori- be 300 to 400 acres if the surrounding land is subject gi.ns and backgrounds. Donations of property would to development, or 200 acres if contiguous to public or enable the Encampment to expand these programs. corporate holdings. Definite requirements for potable Federation of Jewish Philanthropies and recreation water, Slope, character of terrain, and 130 East 59th Street surrounding land use. All inquiries about land are New York, New York 10022 processed at the National Headquarters before being 212 PL 1-1000 referred to Regional Offices or local Troops. Dr. Maurice B. Hexter Brooklyn Botanic Garden Executive Vice President 1000 Washington Avenue Various social welfare agencies associated with the Fed- Brooklyn, New York eration, including the YM and YWHA's, are interested 212 MA 2-4433 in land and buildings for day and summer camping, Dr. George S. Avery homes for the aged, children's homes, and community Director centers., Since the Federation takes title to all properties Wherever there is land that ought to be preserved in an used by its agencies, landowners should deal directly open condition, the Brooklyn Botanic Garden is anxious with the Executive Vice President. to explore with the owner the possibility of establishing Federation of Protestant Welfare Agencies a botanic garden, arboretum or research area. The avail- 281 Park Avenue South ability of funds to underwrite part of developmental New York, New York 10010 and program costs will be a factor, but by no means an. 212 SP 7-4800 exclusive one. Frank Gatland Camp Fire Girls, Incorporated Assistant Executive 65 Worth Street Land and buildings are needed by agencies belonging New York, New York to the Federation for homes for the aged, children's 212 WA 5-1980 homes, and camps for youth and family groups. The Dr. Anne Freidus Federation will direct inquiries to one or more agencies Regional Director known to be interested in land.. The Camp Fire Girls are always on the lookout for Girl Scouts of America lands suitable for camping and day recreation. Inquiries Region I Branch Office to the regional office will be referred to the local Camp (for Connecticut) Fire Girls organization most likely to be interested. 330 Stewart Street Children's Aid Society Boston, Massachusetts 105 East 22nd Street 617-426-8735 76 Miss Gertrude McGill Richard H. Pough Regional Director President Region 11 Branch Office The Natural Area Council over many years has de- (for New York and New ersey) veloped a reputation for putting the philanthropic 801 Second Avenue landowner in touch with the agency or. organization best fitted to receive and manage land and guiding him New York, New York 10017 in obtaining the maximum tax advantage from doing so. 212 MU 6-3524 It does not itself take title to any land. Miss Helen A. Drake Natural Science for Youth Foundation Regional Director 5 Big Pines Road Interested in any land suitable for. outdoor camping Westport, Connecticut programs. A day camp with minimum shelter and water could require only 10-20 acres. Overnight troop camp- 203-227-5848 ing is also possible on small areas. For extended John Ripley Forbes use by large groups; the minimum size would be 100 President acres or so. Inquiries to the Regional Headquarters will The Foundation specializes in the establishment of be forwarded to the Council operating where the land local and regional nature museums and conservation is located. Local Councils are autonomous, and can then education centers, through the design of facilities, deal directly with the landowner. assistance in fund raising, and operation of the facility. National Audubon Society The Nature Conservancy 1130 Fifth Avenue 1522 K Street, N.W. New York, New York 10028 Washington, D.C. 20005 212 EN 9-2100 202-223-4710 Carl W. Buchheister Dr. Walter Boardman President Executive Director The Society operates educational programs for school Long Island Chapter children and youth groups, and summer conservation camps for teachers. It can take title to land suitable John T. Ricks for sanctuary or nature education purposes. An en- Chairman dowment is preferred. The Nature Centers Division East Gate Road provides comprehensive advisory services to those who Lloyd Harbor, Huntington, wish to establish Nature Centers. Inquiries should Long Island, New York be sent directly to the Society's headquarters. 516 MY 2-7505 National Recreation Association The Conservancy can accept fee title to land, or ac- 8 West 8th Street cept an interest in land. It can also serve as a third New York, New York 10011 party in a reverter clause whereby it will take title to 212 CR 5-7100 land when the purposes of the donor cannot be ful- filled by the original recipient. It is interested in all Joseph Prendergast types of open land, but with emphasis on relatively Executive Director undisturbed tracts for scientific and educational use. NRA does not take title to land, but can provide in- valuable field services in recommending suitable usage. New Jersey Audubon Society National Trust for Historic Preservation 790 Ewing Avenue 815 17th Street N.W. Franklin Lakes, New Jersey Washington, D.C. 20006 201 TWI-1211 202 EX 3-3664 Frank W. McLaughlin Robert R. Garvey, Jr. Executive Director Executive Director The Society is an independent conservation organiza- The landowner who has a building or a site of his- tion, affiliated with the National Audubon Society. It toric or architectural significance, and the capacity is concerned with the preservation of natural areas, and. inclination for philanthropy, should get in touch sanctuaries, and conducts educational programs for with the National Trust. This private organization, school children, nature weekends for adults, etc. Like chartered by Congress, now cares for many pre- other non-profit, tax-exempt organizations in New Jersey, it must pay property taxes making necessary cious, irreplaceable landmarks. An endowment is the provision of some funds for maintenance for large generally essential to provide for upkeep. tracts. Natural Area Council Protestant Council of the City of New York 205 East 42nd Street 475 Riverside Drive New York, New York 10017 New York, New York 10027 212 MU 6-0342 212 RI 9-1214 77 Dr. Dan Potter 201 MA 3-3403 Executive Director Edmund R. Tomb The Council is interested in land for church related pur- Executive Secretary poses which could involve considerable open space, in contrast to the Federation of Protestant Welfare (for Connecticut) 'Agencies which is concerned with the social programs New England Area Council of the Protestant Church groups. 14 Somerset Street Boston, Massachusetts Staten Island Institute of Arts and Sciences 617-523-4570 75 Stuyvesant Place Orville H. Emmons Staten Island, New York 10301 Executive Secretary 212 SA 7-1135 Y's are interested in lands suitable for camping, prefer- George 0. Pratt, Jr. ably without large buildings that are expensive to main- Director tain. Y's are co@stantly s@arcbing for lands to enable The Institute uses land for conservation and education. them to enlarge their camp program. Each area office An owner of land of any size suitable for these pur- is in touch with the Y's under its jurisdiction, and will poses should explore the possibilities of deeding it to be able to put a landowner in touch with a Y looking the institute, or granting it an easement. Location, for camp area and other property. size and natural characteristics are the factors. United Neighborhood Houses of New York Wildlife Management Institute 114 East 32nd Street 709 Wire Building New York, New York 10016 Washington, D. C. 20005 212-LE 2-7360 202 DI 7-1774 Miss Helen M. Harris Dr. Ira N. Gabrielson Executive Director President With 36 associated organizations, operating 54 centers The Institute on occasion takes title to conservation in New York, this agency will be able to put to good areas of exceptional value. Through its field service, the use any land suitable for camping or recreation.. Stress Institute is able to advise landowners on the values of now is on day camping for entire families. Call or write the land and help them to find suitable recipients. to the main office directly. Inquiries to the national headquarters will be referred to the Northeast Field representative. Young Men's Christian Association Wildlife Preserves, Inc. (for New York counties) 24 County Road New York State Executive Committee Tenafly, New Jersey 2 West 45th Street 201 LO 7-3142 New York, New York 10036 212 MU 2-4664 Robert L. Perkins, Jr. Ernest Ford President Executive Secretary Interested in wildlife and botanic areas to be kept in a natural condition, particularly in the State of New (for New Jersey counties) Jersey. Capable of being a third party in a reverter Central Atlantic Area Council clause. Able to act rapidly on an offer of land, and to 45 Bleeker Street transfer property to other suitable agencies, both private Newark, New Jersey and governmental. B. STATUTES AND RULINGS CHARITABLE DEDUCTIONS -FEDERAL INCOME TAX The capability of deducting the value of property is the so-called "private foundation.") Further,.tbe donated to qualified exempt organizations or pub- 1964 revision allows that the value of gifts exceed- lic bodies is well known and needs no appended ing the 30176 limit can be carried forward for five authority. The landowner should be aware, of years up to the 30176 limit of deductibility in each course, of certain aspects of the 1964 revision of the year. Previously, this excess could have been lost Internal Revenue Code which are pertinent to land as a charitable deduction unless compensating philanthropy. This revision, mentioned in several measures for partial conveyance were taken. Be- places in the main body of the text, provides an yond the mention of these changes, the particular expanded interpretation of what constitutes the application of various features of the revenue code exempt organizations to which contributions have should properly come from the landowner's attor- a 30 per, cent limit of adjusted gross income as ney or financial adviser. opposed to the earlier limit of 20,76. (All the organi- There is, however, a recent Internal Revenue zations listed in Appendix A are in the 3017o cate- Service Ruling not widely known that helps clarify gory. Under the 1964 revision just about the only the deductibility of partial rights in land. This rul- type of qualified exempt body remaining at 20,76 ing was developed (in connection with the cele- 78 brated "Merrywood" case) in order to protect the restrictive easement in real property is a charitable view across the Potomac from Mount Vernon: contribution within the meaning of section 170(c) of the Code. Accordingly, the taxpayer is entitled to a deduction under section 170 of the Code in the manner SECTION 170-CHARITABLE, ETC., and to the extent therein provided, for the fair market CONTRIB.UTIONS AND GIFTS value of the restrictive easement. The basis of the.tax- 26 CFR 1.170-1: Charitable, Rev. Rul. 64-205 payer's tToperty, however, must be adjusted by elimi- etc., contributions and gifts; nating at part of the total basis which is properly allowance of deduction. allocable to the restrictive easement granted. A gratuitous conveyance to the United StateF of From Internal Revenue Bulletin America of a restrictive easement in real property to No. 1964-30, July 27, 1964 enable the Federal Government to preserve the scenic view afforded certain public properties, is a charitable contribution within the meaning of section 170 of the CLUSTER DEVELOPMENT Internal Revenue Code of 1954. The grantor is entitled The landowner interested in preserving a portion to a deduction for the fair market value of the restrictive of his property through the use of clustering may easement in the manner and to the extent provided in be assured that there is ample precedent through- Section 170 of the Code; however, the basis of the out the region for the application of the idea. property must be adjusted by eliminating that part of By its nature, clustering is consistent with the the total basis which is properly allocable to me re- basic requirements of municipal zoning laws and strictive easement granted. regulations-density requirements applicable to a Advice has been requested as to the deductibility, for given tract of land remain the same whether clus- Federal income tax purposes, of a gratuitous convey- ance of a restrictive easement in perpetuity to the tering is used or not; requirements for streets, United States of America. drainage, curbing and the like are unchanged. Its The Itaxpayer owns a parcel of land in state X. The effect is in terms of housing type and the open parcel is part of a larger area which presents a generally space preserved. wooded appearance and scenic view to a nearby Fed- Since cluster planning is a modification that in no eral highway. The United States is interested in pre- way abrogates the basic concept of zoning (in fact serving the appearance of the area so as to maintain the enhances it), a local cluster zoning ordinance has scenic view afforded the highway. The surrounding not depended on state enabling legislation for landowners, including the taxpayer, gratuitously con- veyed to the United States perpetual restrictive ease- validity. Cluster. plans have been approved via local ments in their properties. By the terms of the deed ordinance in Connecticut and New Jersey and prior conveying the easement to the United States the tax- to 1963 in New York. In that year, the State of payer agreed to certain restrictions on the use of his New York passed a cluster enabling act in order to property. Generally, the restrictions pertain to the type give statutory recognition to the public purposes and height of buildings and type of activities for which served and to outline the general requirements for they may be used, removal of trees, erection of utility the administration of a local ordinance. In states lines, dumping of trash, use of signs, erection of sales lacking enabling legislation, the New York statute booths and the size of parcels which are sold. might well provide guidelines for drafting a local Section 170 of the Internal'Revenue Code of 1954 ordinance if the landowner's municipality does not provides, in part, that there shall be allowed as a deduc- have one already. Paragraph (a) shows that clus- tion any charitable contribution (as defined in subsec- tering is permissive: the owner is not required to tion (c) ) payment of which is made within the tax- able year. submit a cluster plan, nor is the municipality re- Section 170(c) ( 1) of the Code defines a charitable quired to accept one; paragraph (b)' is the key contribution as meaning a contribution or gift to or for feature, providing for density conformance-and the use of a State, a Territory, a possession of the United should be included in all ordinances; and para- States, or any political subdivision of any of the fore- graph (d) provides important flexibility in the going, or the United States or the District of Columbia, maintenance of open space by not limiting its but only if the contribution or gift is made for exclusive- ownership to the municipality itself, but at the ly public purposes. Section 1.170-1(c) of the Income Tax Regulations same time providing for its protection. provides, in part, that if a contribution is made in prop- erty other than money, the amount of the deduction is Y. CLUSTER ENABLING ACT determined by the fair market value of the property at Section 281 of the town law. Approval of plats; con- the time of the contribution. The fair rnarket value ditions for changes in zoning provisions. The town board is the price at which the property would change hands is hereby empowered by resolution to authorize the between a willing buyer and a willing seller, neither planning board, simultaneously with the approval of a being under any compulsion to buy or sell and both plat or plats pursuant to this article, to modify ap- having reasonable knowledge of relevant facts. plicable provisions of the zoning ordinance, subject to Under the law of state X, a restrictive easement the conditions hereinafter set forth and such other rea- constitutes a valuable property right or interest in favor sonable conditions as the town board may in its discre- of the party for whose benefit the easement is created tion add thereto. Such authorization shall specify the and is enforceable by that party. lands outside the limits of any incorporated village to Based upon the above facts, it is held that the gra7 which this procedure may be app licabl. The purposes tuitous conveyance to the United States of America of a of such authorization shall be to enable and encourage 79 flexibility of design and development of land in such EASEMENTS a manner as to promote the most appropriate use of Although the granting of easements is an estab- land, to facilitate the adequate and economical pro- lished form of conveyance needing no statutory vision of streets and utilities, and to preserve the natural authority, the use of rights in land, as opposed to and scenic qualities of open lands. The conditions here- fee title, to serve a public purpose is formalized in inabove referred to are as follows: the laws of all three states of the New York Region. (a) If the owner makes written application for the use of this procedure, it may be followed at the discre- Below are excerpts from relevant statutes. tion of the planning board if, in said board's judgment, its application would benefit the town. NEW JERSEY (b) This procedure shall be applicable only to lands 12. Without limitation, of the definition of "lands" zoned for residential purposes, and its application shall herein, the commissioner may acquire, or approve result in a permitted number of dwelling units which grants to assist a local unit to acquire: shall in no case exceed the number whicli could be (a) la Inds subject to the right of another to occupy permitted, in the planning board's judgment, if the land the same for a period measured in years or otherwise; or were subdivided into lots conforming to the minimum (b) an interest or right consisting, in whole or in lot size and density requirements of the zoning ordi- part, of a restriction on the use of land by others includ- nance applicable to the district or districts in which ing owners of other interests therein; such interest or such land is situated and conforining to all other ap- right sometimes known as a "conservation easement." plicable requirements. (N.J. Green Acres Land Acq .uisition Act of 1961, Sec- (c) The dwelling -units permitted may be, at the tion 12). discretion-of the planning board and subject to the conditions set forth by the town board, in.detached, CONNECTICUT semi-detached, attached, or multi-story structures. Sec. 7-131c. Acquisition of open space land. Any (d) In the event that the application of this pro- municipality may, by vote of its legislative body, by cedure results in a plat showing lands available for park, purchase, condemnation, gift, devise, lease or other- recreation, open space, or other municipal purposes wiseo, acquire any land in any area designated as an directly related to the plat, then the Planning board as a area of open space land on any plan of development of condition of plat approval may establish such condi- a municipality adopted by its planning commission or tions on the ownership, use, and maintenance of such any easements, interest, or rights therein and enter into lands as it deems necessary to assure the preservation covenants and agreements with owners of such open of such lands for their intended purposes. The town space land or interests therein to maintain, improve, board may require that such conditions shall be ap- protect, limit the future use of or otherwise conserve proved by the town board before the plat may be such open space land. (1963 P.A.490, S.6.) approved for filing. (e) The proposed site plan, including areas within which structures may be located, the height and spac- NEW YORK in of buildings, open spaces and their landscaping, The acquisition of interests or rights in real property 0@ street open and enclosed parking spaces, and streets, for the preservation of open spaces and areas shall con- driveways and all other physical features as shown on stitute a public purpose for which public funds may be said plan or otherwise described, accompanied by a expended or advanced, and any county, city, town, or statement setting forth the nature of such modifica- village after, due notice and a public hearing may tions, changes, or supplementations of existing zoning acquire by purchase, gift, grant, bequest, devise, lease _'@ise, the fee of any lesser interest, development provisions as are not shown,on said site plan, shall be or other subject to review and public hearing by the planning right, easement, covenant, or other contractual right board in the same manner as set forth in sections two necessary to achieve the purposes of this chapter, to hundred seventy-six and two hundred seventy-seven land within such municipality. of this'article for the approval of plats. After acquisition of any such interest pursuant to this ( f ) On the filing of the plat in the office of the county act the valuation placed on such an open space or area clerk or register; a copy shall be filed with the town for purposes of real estate taxation shall take into ac- clerk, who shall make appropriate notations and refer- count and be limited by the limitation on future use of ences thereto in the town zoning ordinance or map. the land. (General Municipal Law, Book 23, Section (Chapter 963, Laws of 1963) 247,1960). C. BIBLIOGRAPHY This selected list of publications has been culled from the massive amounts of prose-both technical and "inspirational" -published in be- half of open space. The basic texts are included here. It may not be complete, but none of it is fluff; all of it is germane to one aspect or another of the open space problem, and can be of substantive help to the landowner. CLUSTER DEVELOPMENT. A readable report pendix contains model ordinances and homeowners' on the function, forms and economics of cluster association deed forms. 132 pages. By William H. lpl=. Helpful insights to the problem of getting Whyte. American Conservation Association, 30 a plan approved are included, and the ap- Rockefeller Plaza, New York, N. Y. 1964. $3.00 80 THE HOMES ASSOCIATION HANDBOOK. A of Documents, U. S. Government Printing Office, detailed study providing step by step guidance in Washington 25, D. C. Available Fall, 1965. setting up homeowners' associations-probably e PLAN FOR THE VALLEYS. This remarkable best means for protecting and maintaining the land-use recommendation for a Baltimore suburb open land in a cluster development. This manual shows how a combination of private initiative and provides detailed guidance to the landowner or governmental processes can produce an "environ- developer in the entire process: from subdivision ment inhabited by man in which natural beauty is planning to recording the plat, and all the way retained." The plan proposes a landowner syndi- through to the last legal wrinkle in deed forms cate, new municipal ordinances and other meas- and association by-laws. 406 pages. Technical ures in order to preserve the basic amenity and the Bulletin No. 50, Urban Land Institute, 1200 18th natural processes that contribute to what the au- Street, N.W., Washington 6, D.C. 1964. $10.00 thors call "the genius of the landscape." 64 pages. LAND ACQUISITION FOR OUTDOOR REC- By Wallace-McHarg Associates, Philadelphia. REATION-ANALYSIS OF SELECTED LEGAL Green Spring and Worthington Valley Planning PROBLEMS. Chapter III contains a fully an- Council, Inc., 212 Washington Avenue, Towson, notated discussion of the law as it applies to ease- Md. 1963. Out of print, but a new expanded edition ments and other partial rights in land. Provides may be available shortly. some clear-cut definitions and summaries of case THE RACE FOR OPEN SPACE. A thorough re- law. Should be of interest to both the landowner view of the need for open space preservation in the and his attorney. 67 pages. By Norman Williams, New York Metropolitan Region, the dynamics be- Jr. Outdoor Recreation Resources Review Commis- hind its disappearance, and suggestions for action sion Study Report Number 16. Superintendent of on the part of governmental units, private organiza- Documents, U. S. Government Printing Office,. tions and individuals. 95 pages. Regional Plan As- Washington 25, D.C. 1962. $.45 sociation, 230 W. 41st Street, New York, N.Y. THE LAW OF OPEN SPACE. A general review 10036. 1960. Out of print. of the legal aspects of open space preservation. Of REVERTER CLAUSES AND RELATED LEGAL particular interest to landowners are sections on PROBLEMS. This legal research report provides encroachment, easements, tax concessions on open a useful technical summary of the problems and space, and tax inducements to make gifts. 72 pages. potentials of reverter clauses and alternate devices By Shirley Adelson Siegel. Regional Plan Associa- for the protection of open space conveyed by gift. tion, 230 W. 41st Street, New York, N. Y. 10036. Includes a state-by-,state summary of statutes and 1960.$3.50 case law that pertains to reverters. 68 pages, OPEN SPACE ACTION. An optimistic report on mimeographed. By Leda Rothman. The Nature what has actually been going on in behalf of open ' Conservancy, Inc., 2039 K Street, N. W., Wash- space preservation. Discusses'new legislation, prop- ington, D. C. 20006. 1964. $3.00 erty taxation, cluster planning and easements from SECURING OPEN SPACE FOR URBAN AMER- a national standpoint. The author provides.a sum- ICA: CONSERVATION EASEMENTS. A basic mary of lessons learned, a list of recommendations exposition of open space possibilities involving less- and a comprehensive appendix which is "primary than-fee conveyance. Provides a literate discussion source material that will be of practical value, to of the legal bases for easements and how they can legislators, planners, lawyers and citizens who are be used to complement other measures in a system- pressing for action." 107 pages. By William H. atic program of open , space preservation. 67 Whyte. Outdoor Recreation Resources Review pages. By William H. Whyte. Technical Bulletin Commission Study Report Number 15. Superin- No. 36. Urban Land Institute, 120 .018th Street, tendent of Documents, U. S. Government Printing N.W., Washington 6, D. C. 1959. $3.00 Office, Washington 25, D. C. 1961 $.65 SPREAD CITY. This publication is reqgired read- OPEN SPACE FOR URBAN AMERICA. A com- ing for those who would like to understand how prehensive analysis of the role of open space in population increases will affect t,he New York Met- urban development, with a fully documented treat- ropolitan Region. The report "Sketches the way the ment of the potential for action by various levels Region will look in 1985 if present economic trends, of government as well as private groups. This is popular taste and public and corporate policies a basic reference work emphasizing legal and statu- continue." The challenge of the future is authori- tory aspects. Mainly intended for professionals, it fatively laid out with a good deal of supporting provides a clear exposition nevertheless. By Ann statistical data. 48, pages., Regional Plan Associa- Louise Strong. Housing and Home Finance Agency, iion, 230 W. 41st Street, New York, N. Y. 10036. Urban Renewal Administration. Superintendent 1962. $10.00 81 Text by CHARLES E. LrrrLE and ROBERT L. BuRNAP Photography by DORAN S. MOLL, except as follows vi-H. Armstrong Roberts 47-C. M. Abbott, E. A. Devaney, Top 2,3-Skyviews, New York 50-Allan D. Cruickshank, National Audubon 8-Statistical Material, Regional Plan Society Association, H. Armstrong Roberts 52-Mid-Fairfield County Youth Museum 10,11--r-Skyyiews, New York 55-Cbarles E. Mobr, National Audubon Society 28-Nassau County Museum of Natural History 60-H. Armstrong Roberts 45-Mrs. Anthony Anable 61 -Peter Gilchrist 46-D. T. Coggeshall, U.S. Fish and Wildlife 64-H. Armstrong Roberts Service, Top 67-Gottscho-Schleisner, Inc. David W. Corson, E. A. Devaney, Middle Bayard Cutting Arboretum. Bottom Designed by LEROY H. APPLETON Editorial Consultation and production supervision by DuDLEY L. PARSONS & CO., INC. 82 voluntary contributions from those who know of Municipal Program our work, consider it important, and are in a posi- This program is directed primarily at suburban tion to help us carry it forward. Moreover, we town governments with official conservation agen- have a deadline. By the end of 1971 we must be cies to establish action processes for open space receiving at least 40% of our income from volun- preservation. Programs are geared to the needs of tary contributions or there will be no way for us each municipality and range from assisting in the to continue ouf. activities beyond that point. We development of a local Stewardship Program to can reaeb this goal, if we can count on you and PNO the preparation of an Open Space Action R. ecom- others like you to participate in our work. We mendation. This document, complete with maps, have developed, therefore, a membership program includes detailed recommendations for priority which provides a range of contribution options acquisition areas, referendum promotion, land- from $10 per year for individual membership to owner solicitation and municipal open space legis- $50 for corporate or sustaining members. lation. Programs may also include preparation . of Based on the likelihood that those who help us a variety of brochures and other public education fund our field programs are those who have the materials. Fees range from $500 to $5,000 and most use for our informational materials, we will (due to the Institute's foundation support) repre- provide a 20% discount on our present and future sent only about one half actual program costs. publications to all members. Also, we would like to provide new members 2. Landowner Program wi th a copy of Peter L. Johnson's technical report Counselling services are provided to selected pri- "Wetland Preservation". In it, Johnson, former vate landowners who are interested in voluntary Area Director for the Institute covers several wet- preservation through land gifts, cluster develop- land preservation techniques and has developed a ment design, easements, etc. Specific, formal recom- model ordinance for local communities to follow. mendations are prepared and landowners are en- Moreover, the report includes 30 laws, ordi- couraged to make contributions to the Institute to nances and orders concerning wetland preser- help defray the cost of the program, Since the vation. inception of the Stewardship Program in 1966, 0 approximately 4,500 acres have been permanently It is important, however, to convey that mcm- set aside as protected open space. These projects bership in the Open Space Institute is mainly a include tracts of all sizes in the metropolitan way to help us continue our vital and unique field countryside. Current "projects in progress" total programs. It is not merely a distribution method another 5,500 acres. for publications except as this is an integral part of our work and in keeping with our "action" 3. Membership Program objectives. If the Open Space Institute is to survive over the So, the contribution you make for membership long pull - an objective shared by our staff, our is just that - a contribution - and it is tax deduc- trustees and our clients - as well as our founda- tible. We hope you will help us to save precious tions -we must develop a more stable and perma- open space in our rapidly urbanizing metropolitan nent financial base. This means that instead of areas, and we hope that what we learn and publish putting, major reliance on foundations for our in our reports and books will help you to do the funding, we must begin to depend more and more same. May we welcome you as a member of the on the combination of service-related fees and on Institute,'soon. ----- ------------------------------------ ...... Open Space Institute 145 EAST 52ND ST., NEW YORK, N.Y. 10022/212-421-0732 YES, I (we) want to help the Open Space Institute Individual Membership $10 Annual Contribution achieve outstanding success with its action programs El Group Membership $25 " so it will be able to continue its operations in the Corporate Membership $50 " _years ahead. Checked below is the type of membership Sustaining Membership $50 " desired- for which I (we) enclose a check for $ Name Organization (if any) Address City State Zip COASW. CENTER 6668 0 0003 1486