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CONSERVATION EASEMENTS

Shute, Mihaly & Weinberger LLP represents public entities and community groups in their efforts to preserve disappearing wilderness, open space, and farmland. The firm develops, manages, and implements programs that preserve significant natural resources through acquisition, conservation easements, and other means. The firm also helps public agencies create funding mechanisms and other programs that provide the financial resources needed to preserve environmental resources. The firm also drafts specific transactional documents such as purchase agreements, as well as conservation, open space, and agricultural easements.

• The firm is currently litigating a conservation easement enforcement action on behalf of the Sonoma Land Trust. The action challenges disposal of contaminated dredged material on a property subject to an agricultural conservation easement held by the Trust. The action alleges that the disposal is a proscribed commercial use and impairs the agricultural productivity of the property. The California Coastal Conservancy has joined with the Trust in defending the easement.

• The firm drafted policy agreements between the City of Livermore and Alameda County creating land preservation incentives by allowing density bonuses for landowners willing to dedicate permanent conservation easements. The program requires dedication of one acre of land to vineyards or olive orchards for each home developed, and for each acre developed in the planning area. The firm represented the City in implementing the program by drafting a model agricultural conservation easement and a model development agreement, as well as numerous site-specific easements and development agreements. The firm advises the City in developing monitoring and enforcement policies to ensure compliance with agreements. The firm also assisted in developing a working relationship between the City and the local Land Trust.

• The firm represented the Marin Audubon Society in connection with the 2003 purchase by local environmental groups of 630 acres of oak forest and marshland in northeastern Novato known as the Bahia property. In 2001 the firm filed a CEQA lawsuit challenging approval of a proposed development at Bahia. The possibility of acquiring the lands emerged during settlement discussions and the firm continued to represent Marin Audubon throughout the appraisal process, purchase negotiations, and fund-raising efforts. This involved working closely with funding agencies and organizations including the California Coastal Conservancy and Wildlife Conservation Board. The firm is currently representing Marin Audubon Society in its efforts to restore its portion of the Bahia property to tidal marsh to provide habitat for the endangered Clapper Rail and other species, and to protect the property from a dredging project proposed adjacent to the property.

• The firm advised the Mountain Area Preservation Foundation in negotiating a litigation settlement agreement to fund open space acquisition in the Truckee area of the Sierra Nevada. The agreement provides that a local land trust will receive in perpetuity a percentage of each property sale at the resort that was the subject of the litigation and is expected to generate several million dollars.
  

• The firm drafted a Joint Powers Agreement between Solano County and the cities of Benicia, Fairfield, and Vallejo for the purpose of managing ten thousand acres of fast-disappearing open space between the cities. The agreement established a common open space plan among the member agencies as well as a voluntary process for coordinating future changes to each agency’s plan. The firm was selected as General Counsel for the Joint Powers Authority established as part of the agreement and advised the Authority in drafting contracts for the purchase of open space, conservation easements and development agreements.
  

• In order to protect highly sensitive resources in a location considered for intensive development, the firm assisted the City of Livermore in developing a Transferable Development Rights (TDR) program. This program allowed landowners in areas zoned for low-density development to develop at higher densities by purchasing TDRs from the owners of sensitive land designated for higher density development. The firm’s work included assistance in drafting the policies establishing the TDR program, drafting and negotiating development agreements, drafting agricultural and parkland easements, and assisting in the negotiations between the owners of the sensitive land and potential TDR purchasers.
  

• On behalf of the Sacramento Area Flood Control Agency, the firm developed a conservation easement and management plan for property located in the City of Sacramento on which SAFCA preserved habitat for federally protected species. The firm’s representation involved coordination with the U.S. Fish and Wildlife Service, a local land trust, the City of Sacramento, a flood control district and the land manager to ensure the property will be responsibly managed for habitat protection, recreation, grazing and flood control.