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

(1) On June 13, 2012, the Public Service Board votedunanimously for it. (See #1, next page.) (2) City Council Resolution 10B (March 20, 2012) specifically

mentioned a conservation easement. (See #2, next page.)

(3) A 501(c)3 land trust can hold a conservation easement onCity land. (See #3, next page.)

(4) The Texas Parks and Wildlife Dept. (owner of the FranklinMountain State Park) has sold, transferred, exchanged or

otherwise gotten rid of 57 park parcels since 1995, so parksneed protection. (See #4, next page.)

(5) The City of El Paso has transferred part of at least one Citypark since 1995, so City ownership is no guarantee either. (See#5, last page.)

(6) Conservation easements can be deployed on Texas Parksand Wildlife land. We know of at least five. (See #6, last page.)

(7) El Pasos only 501(c)3 land trust, the Frontera LandAlliance, is not broke, as has been charged. (See #7, last page.)

(8) If Frontera were ever to dissolve, many years from now, itsobligations would be transferred to another land trust. (See #8,last page.)

(9) Fronteras fees for managing an easement are notexorbitant. (See #9, last page.)

(10) TxDoTs plans for the West Transmountain Loop 375include frontage roads on the 837 acres. Frontage roads meanaccess to business and commerce. (See #10, last page.)

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Deploying a conservation easement on the 837-acreWest Transmountain Scenic Corridor land

(1) On Wednesday, June 13, 2012, the Public Service Board unanimously approved theScenic Corridor resolution written and read by Mayor John Cook. That resolution, whichwrapped up Item 11 on the PSBs agenda,reads: To approve the [Technical WorkingGroup] Committees recommendations that if the [West Transmountain Scenic CorridorUtility Green Space] land reverts to the City, it will come back with a conservationeasement if that is legally possible. Subsequent to the June 13 PSB meeting, three of theFrontera Land Alliances attorneys were consulted and all agreed that a reversion-triggered conservation easement was indeed legal. One attorney referred to it as aspringing conservation easement; two others spoke of it as an agreement triggered bya later event; both have ample legal precedent.

(2) On Tuesday, March 20, 2012, El Paso City Council approved (5-3) Dover KohlsPlan One, which called for the preservation, in perpetuity, of the 837-acre ScenicCorridor land. (The three nay votes came from Representatives who spoke in favor ofDover Kohls Plan Two, which would have preserved an even greater amount of theWest Transmountain Scenic Corridor property.) The March 20 resolution reads thus:Motion made by Representative Niland, second by Representative Robinson, and carriedto APPROVE, AS REVISED amending the El Paso Water Utilities Public ServiceBoard Westside Master Plan to include but not limited to the following: selection of apreferred development scenario for the area, authorization to process an amendment toPlan El Paso, and authorization to process an application for rezoning of the propertywithin the [EPWU/PSB] Westside Master Plan area, Conservation easement by thirdeasement [sic, party], bridges to be use [sic, used] to cross arroyos [sic, arroyos],more parks or small park, minimum encroachment into arroyos/no pocket parks, approve

Scenario 1 and staff recommendations. (3) A 501(c)3 non-profit land trust such as the Frontera Land Alliance can indeed deploy

a conservation easement on land that is owned by a city. At the present time, Fronteraholds the conservation easement on the 26-acre Thunder Canyon property, located justwest of Upper Stanton Street three blocks to the north of Festival Hills in the Dalesneighborhood (Sharondale, Irondale, etc.). In May of 2007 the City approved the creationof a PID (Public Improvement District) on Thunder Canyon. The City bought TC from alocal developer after the TC neighbors agreed in writing to a surcharge on their propertytaxes enabling them to pay off the City for the purchase price within 30 years. Fronteranegotiated a conservation easement with the City and the neighbors; Frontera holds thateasement in perpetuity (which is how all conservation easements are held).

(4) From 1995 through the present time, the Texas Parks and Wildlife Department(TPWD) disposed of 57 parcels previously forming part of Texas state parks. Seventeenof those parcels were sold, fifteen were transferred, eight were exchanged, five weretraded, control on two was relinquished, two were disposed to another party, two morewere deeded without warranty, two were conveyed, and one each was quit-claimed, ordeeded and assigned, or relinquished to the Texas General Land Office; one more wassubjected to a taking (by the federal government for the border fence). By comparison, in

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that same time period TPWD added just nine parcels to its state park system. So theprecedent clearly exists: TPWD can and will dispose of state park land.

(5) We know of at least one City of El Paso park whose land has been disposed oftheformerly 75-acre Blackie Chesher Park (northeast corner of Escobar Drive and ZaragozaRoad). Despite the fact that the Blackie Chesher land when gifted to the City in the early

1960s contained several deed restrictions forbidding all but parkland use, about fifteenacres were detached from the park in 1996 so that the present El Paso Police DepartmentMission Valley Regional Command (9011 Escobar Drive) and the adjacent El PasoMunicipal Court Mission Valley Substation could be constructed on them. The RegionalCommand building was inaugurated on Feb. 27, 1998 and the Municipal Court buildingshortly thereafter. Thus there exists a precedent for the disposition of City parkland.

(6) Conservation easements can indeed be deployed on TPWD-owned land. At present, atleast five TPWD properties carry conservation easements in full or in part: Black GapWildlife Management Area (Brewster County [Alpine]), Devils River State Natural Area(Val Verde County [Del Rio]), Devils River Ranch State Natural Area (Val VerdeCounty), Government Canyon State Natural Area (Bexar County [San Antonio]), and

Caddo Lake Wildlife Management Area (Harrison and Marion Counties [East Texas]). (7) The Frontera Land Alliance, the El Paso areas only 501(c)3 non-profit land trust

organization, is not broke, as has been charged. Frontera presently has $100,000 in thebank, and thanks to on-going supplementary donations Frontera routinely consults withits traditional law firm and also hires attorneys from smaller firms as the need arises.Frontera will also be able to request matching donations from the El Paso CommunityFoundations Richard Teschner Fund for Land Conservation, an entity legally establishedand funded in February of 2012.

(8) In the unlikely event that Frontera ceases to exist in fifteen, thirty, forty-five years ormore, it has engaged in a partnership with the older Texas Land Conservancy (Austin) forback-up and continuity.

(9) Fronteras fees for monitoring a conservation easement are not exorbitant, as hasbeen charged. As Fronteras Executive Director Janae Reneaud Field noted at one of theseveral meetings of the Technical Working Group (chaired by Mathew McElroy,Director, City Development Department) that she was invited to speak at, easementmonitoring costs depend entirely on the details of the easementsuch things as appraisal,survey, title, Environmental Phase One and so forth. To quote Janae, the direct cost toFrontera to hold a conservation easement is just the annual site visit, which on theaverage is $500. However, Frontera has stated that it itself will pay, indefinitely, allmonitoring costs for the 837-acre property.

(10) A very important reason why the specifics of a conservation easement must beworked out as part of a transfer by the City of El Paso of the 837 acres to the state park

can be summed up in two words: frontage roads. According to TxDoTs plans for theWest Transmountain part of Loop 375, frontage roads will run about 300 yards to the eastof the Paseo del Norte interchange, now under construction. Both the interchange and thefrontage roads will lie just adjacent to sections of the 837-acre Scenic Corridor UtilityGreen Space property. Frontage roads have one main purpose: to provide access to stores,restaurants and other commerce. The temptationfifteen, thirty, forty-five years fromnowto sell off part or all of the 837 acres will remain strong; a conservation easementis the firmest guarantee that no voter referendum can ever allow such a sale.