By Meg Waters

Redstone Review

LYONS – Two miles outside Lyons, up Highway 36 toward Estes Park, is a pristine 1,500-acre property. Deer and elk regularly pass through; elk bugle there every fall. Bobcats and coyotes roam the property. Mountain lions and bears occasionally make an appearance. And it’s one of the only known nesting sites for pinyon jays in northern Colorado. The property made it through the past two decades without being developed because Boulder County purchased a series of conservation easements on it in the 1990s. Now the county is considering rewriting those easements to allow construction of a 6,000-square-foot home on the property.

Over five years, the county paid Esther May Sisk, who owned the land, a total of $1.5 million for five separate conservation easements. According to the easements, Sisk and the county entered the

agreement “in order to assure preservation (of the land) in perpetuity for agricultural uses and for the open space function which it serves.” The easements specifically permit agricultural crop production and livestock grazing, as well as hunting that is consistent with game management objectives. They also allow for the “maintenance, repair, replacement and use of all roads and structures existing on the property as of the date of the easement, substantially in their present condition or as reasonably necessary for the uses permitted on the property.”

At the same time, the easements expressly prohibit a long list of uses of the property. The top item on the list of “prohibited uses and practices” is “additional residences, including mobile homes.” Also prohibited is “the construction, reconstruction or replacement of any structures” except those expressly permitted—agricultural buildings deemed “reasonably necessary” and any buildings that existed when the easement was enacted.

Why, then, is the county considering allowing construction of a home on the property? The county worked with the current landowners, Paul Jonjak and Carol Potter, to develop a proposal that would consolidate the five easements into one and update their language. The proposal would establish a two-acre building envelope within which the landowners would have to confine all buildings, including up to 6,000 square feet of residential buildings and up to 15,000 square feet of non-residential buildings. The current easements don’t limit the size of non-residential buildings, although if the landowner decided to build, the usual restrictions of the county planning process would apply.

The county cites fencing as another benefit of the proposal. The new easement would allow the addition of only “wildlife safe” fencing. County staffers also believe that consolidating the five easements into one would reduce the likelihood of new fencing on the property. Currently, the land under each easement could be sold separately, so county staffers worry that five different people might eventually own the five parcels, and they might want to run fences to demarcate their property lines. But this line of reasoning is completely hypothetical.

It’s also conceivable that the addition of a house with up to 15,000 square feet in nearby outbuildings would lead to more fencing than leaving the property undeveloped.

One other reason the county supports this proposal is that an attorney for Jonjak and Potter claims the current conservation easements allow for a home to be built on each of the five parcels. A county write-up of the proposal states: “Although Parks and Open Space staff and the County Attorney’s office do not agree with that interpretation, the possibility of that interpretation exists. Staff recommends this solution in part because it avoids the county having to pursue a legal route to resolve the question.”

Jonjak and Potter’s attorney argues that every farm needs a farmer, and every farmer needs a residence; therefore homes are agriculture-related buildings and would fall under the clause allowing buildings that are “reasonably necessary” for agricultural use of the property. What about the fact that the easements expressly prohibit “additional residences”?

The attorney argues that the word “additional” presumes that each property already has one residence, so this clause prohibits only residences beyond the first. I have trouble following this logic. The word “additional” means “added”; it does not mean “more than one.” The easements were clearly designed to prohibit the addition of any homes on the property.

Many neighbors of the property and other county residents attended a county commissioners hearing on Dec. 20, 2011, to discuss the proposal. County staff presented the proposal, and the attorney for Jonjak and Potter spoke for a few minutes. Then more than 20 members of the public spoke, all in opposition.

Many argued that the proposal sets a dangerous precedent for other conservation easements, on which Boulder County has spent more than $60 million over the years. Those who knew Sisk say her primary goal in entering into the conservation easements was to prevent any form of residential development on the property. Now the county is giving up that key provision for minimal benefits. The county might avoid a lawsuit by making this change. But if the county attorney thinks the landowner couldn’t win the suit, what message does this proposal send to owners of other conservation easements who are feeling constricted by the contracts the county paid them to commit to? Those landowners might deduce that all they need to do to convince the county to rewrite their easements is hire a lawyer who claims to see a loophole in the current contracts’ wording.

Some who attended the hearing expressed concern about what the proposal might mean for people who are considering selling or donating conservation easements to Boulder County, either now or in the future. Jonjak and Potter purchased the easement properties, through a limited liability company, for $1.6 million in 2007. If the county turns this restricted-use agricultural land into a 1,500-acre foothills building lot, Jonjak and Potter could potentially make a good deal of money by selling the property. If Sisk had known that her land would eventually hold a home despite the easements she put in place, she might have preferred to pass on the full value of the developed land to her heirs, rather than the reduced price they presumably took because they thought the land couldn’t be developed. This proposal seems likely to cause some people to have second thoughts about entering into conservation easements with Boulder County.

The Dec. 20 hearing adjourned with the commissioners deciding that they need to discuss the proposal’s legal questions in executive session with legal counsel. Commissioner Will Toor was not present at the hearing because he was attending another meeting. In an interesting turn of events, one of the two commissioners present at the hearing, Ben Pearlman of Lyons, resigned his commissioner position effective Jan. 1 to become the Boulder County Attorney. He was replaced on Jan. 8 by former state representative Deb Gardner. Now Gardner is getting up to speed on all the various matters awaiting decisions – including this one.

This means that only one commissioner, Cindy Domenico, will have attended the public hearing on the Sisk Conservation Easement. The residents who oppose the changes to the easement and who along with the rest of Boulder County paid for the conservation easements, deserve better. When the commissioners have made a decision on the future of the Sisk conservation easement, they will hold another hearing to announce their decision. County staff will send notification of the hearing, 10 days in advance, to all residents who live within 1,500 feet of the easement property line. 

Meg Waters is an editor and writer for a business magazine. She lives with her family northwest of Lyons.

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