Access easements through private property- Mtbr.com
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  1. #1
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    Access easements through private property

    Folks -

    We have a real problem where I live with private property blocking access to public land. We have very, very few access points to the mountains here, and it's caused a lot of problems for everyone, including riders.

    I've been working to try and get the county commission to change county code for several years, so that when somebody subdivides private property that backs to public land, they have to leave an access easement for public use. After all of this time, one of our county commissioners is finally willing to work to make this happen.

    I am looking for language we can use in the development code that will facilitate this. Links to your city or county's planning department would be really useful, if your city or county has something like this in place. I also need to know what issues you've run into w/r/t these kinds of easements.

    Thanks in advance for any help.

    MG
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  2. #2
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    I don't have any of our county development codes, but I work for a local land trust in our area, and we often work with private landowners for trail easements on their property. There is potential benefit to all parties involved if owner are interested in a charitable deduction for their easement. It sounds like your pretty savy in the policy side of land use, so might have already tried the land trust path. Good luck with your trail access, we've had our fair share of NIMBY landowners and we've been lucky to have a local government that sees the value in trail access and development.

  3. #3
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    Quote Originally Posted by haydukelives View Post
    I don't have any of our county development codes, but I work for a local land trust in our area, and we often work with private landowners for trail easements on their property. There is potential benefit to all parties involved if owner are interested in a charitable deduction for their easement. It sounds like your pretty savy in the policy side of land use, so might have already tried the land trust path. Good luck with your trail access, we've had our fair share of NIMBY landowners and we've been lucky to have a local government that sees the value in trail access and development.
    Yeah, unfortunately the political climate here is that private property rules supreme, the agencies are roundly hated and anything that isn't required by code isn't going to happen. That's why such great swaths of our public land are completely inaccessible by the public. It is a huge step for one of the commissioners to be willing to take this on - serious political courage in this county. That's one of the numerous reasons I want us to have our ducks in a row before he takes this public.

    Do you have a link to some easement language that might be useful for us? I know of a couple of Nevada entities that would kick in to compensate a landowner... what are a couple of the national ones that do this type of thing, if you don't mind?
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  4. #4
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    I wasn't involved but this local group did the same thing for an access corridor to a state park.

    Nisene to Sea

  5. #5
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    Quote Originally Posted by Mountaingirl1961 View Post
    Folks -

    MG
    On the ranch I grew up on we were landlocked on one side by a private property owner.

    There are laws which required him to grant us a road through his property to ours.

    You may check your state/county laws for something similar.
    Google "subservient property" and/or "appurtenant or in gross".

  6. #6
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    Here in Summit County Colorado we're very fortunate to have one of the most progressive governments in securing easements through private property, especially during the development process.

    Get in touch with either town of Breckenridge open space, Scott Reid or Summit County open space Brian Lorch (Google the web pages for contact info) and I'm sure they can give you some good advise.

  7. #7
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    Attached is a sample from the City of Grand Rapids, Michigan Zoning Ordinance. The stated purpose of the Grand River Overlay District is to promote development which provides access to the Grand River. One way it accomplishes its purpose is by allowing bonuses (the carrot method) to the height limits allowed within the district. Basically, if the zoning would allow a 2-story house, by granting a permanent access easement, a 3-story house may be permitted.
    Attached Files Attached Files

  8. #8
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    Working with individual land owners might be more fruitful.

  9. #9
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    This is excellent stuff, guys, Thanks! Keep it coming!
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    Not sure this applies to your situation but sometimes you can build a new trail system parallel to the private property on public land. This gives you both a new trail system and a way to access previously closed areas. This works well in situations where your traditional access across private property was to the mouths of frequent canyons. When fixing your access problems this way be careful which existing access point becomes your primary trailhead because it will have to handle all of the new traffic without becoming endangered of being closed itself.

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    What state are you in ? IMBA any help? What about an existing easement such as sewer or overhead power/ transmission lines ?

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    I've got another possible angle that might be helpful. My experience has been that given the political climate you describe, generally the property rights advocates are also pro-business. Is there a way to play up the economic benefit to the community of improved recreational access to public lands? If your local business community makes money off selling and servicing bikes, your hospitality industry rents rooms and sells meals, those dollars are every bit as important as the ones that might come in from hunting and fishing. Those folks in your chamber of commerce should be allies to your cause.

  13. #13
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    Quote Originally Posted by HarryCallahan View Post
    I've got another possible angle that might be helpful. My experience has been that given the political climate you describe, generally the property rights advocates are also pro-business. Is there a way to play up the economic benefit to the community of improved recreational access to public lands? If your local business community makes money off selling and servicing bikes, your hospitality industry rents rooms and sells meals, those dollars are every bit as important as the ones that might come in from hunting and fishing. Those folks in your chamber of commerce should be allies to your cause.
    Howdy, Harry!

    We live in a strange place in that the commissioners and community are very pro-business BUT private property rights trump all else. We've tried this angle and, frankly, it's part of why we're getting a hearing about it this time around. They understand the economic benefits of public lands access. I just need to give my commissioner tools to work with so that he won't get shouted down by the private property owners who don't want people back up in the private sanctuary they've made out of public land.

    County staff has told him that he has to be very careful that this doesn't turn into a "taking," which is a dirty, dirty word in these parts. I know that's what's generated lawsuits over this kind of thing in the past, which is why we want to have a) good arguments for getting it passed and b) good language so that when we do, it's not going to generate a legal battle.

    I'm in rural Nevada and am trying to open up access (primarily) to the Ruby Mountains and East Humboldts. There are thousands of miles of trails in these mountains, but there is legal access to only 108 miles of trails. In a 450,000 ac. ranger district. Not kidding.

    I spent years working on a build-around project to provide access to some of those existing trails - long story, I'm no longer involved in that project but it does progress, albeit at a snail's pace now. Even so, it will only provide access to ONE canyon since they're not going to be able to complete the project as originally envisioned. It would take many, many miles of new trail to access some of the trailheads that are currently closed off to public access.

    I genuinely appreciate the info you guys are giving me. This is good stuff and I'm going to put it together with other info gleaned from my trail buddies and hand it off to my commissioner friend. Thanks a bunch!
    Don't ask me a question unless you really want to hear what I think.

  14. #14
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    Quote Originally Posted by Mountaingirl1961 View Post
    Howdy, Harry!

    We live in a strange place in that the commissioners and community are very pro-business BUT private property rights trump all else. We've tried this angle and, frankly, it's part of why we're getting a hearing about it this time around. They understand the economic benefits of public lands access. I just need to give my commissioner tools to work with so that he won't get shouted down by the private property owners who don't want people back up in the private sanctuary they've made out of public land.

    County staff has told him that he has to be very careful that this doesn't turn into a "taking," which is a dirty, dirty word in these parts. I know that's what's generated lawsuits over this kind of thing in the past, which is why we want to have a) good arguments for getting it passed and b) good language so that when we do, it's not going to generate a legal battle.

    I'm in rural Nevada and am trying to open up access (primarily) to the Ruby Mountains and East Humboldts. There are thousands of miles of trails in these mountains, but there is legal access to only 108 miles of trails. In a 450,000 ac. ranger district. Not kidding.

    I spent years working on a build-around project to provide access to some of those existing trails - long story, I'm no longer involved in that project but it does progress, albeit at a snail's pace now. Even so, it will only provide access to ONE canyon since they're not going to be able to complete the project as originally envisioned. It would take many, many miles of new trail to access some of the trailheads that are currently closed off to public access.

    I genuinely appreciate the info you guys are giving me. This is good stuff and I'm going to put it together with other info gleaned from my trail buddies and hand it off to my commissioner friend. Thanks a bunch!
    Look into leasing a corridor. Provides an out for the private property folks - their getting some $ or a tax write off for the use of the land. The land remains theirs.
    http://facebook.com/CharlemontTrails
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  15. #15
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    you might talk to the folks at the Great Land Trust. Alaska based organization set to acquiring land access through a series of tools.
    Great Land Trust - Working to protect Southcentral Alaska's lands and waterways

  16. #16
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    Quote Originally Posted by Mountaingirl1961 View Post
    Howdy, Harry!

    We live in a strange place in that the commissioners and community are very pro-business BUT private property rights trump all else. We've tried this angle and, frankly, it's part of why we're getting a hearing about it this time around. They understand the economic benefits of public lands access. I just need to give my commissioner tools to work with so that he won't get shouted down by the private property owners who don't want people back up in the private sanctuary they've made out of public land.

    County staff has told him that he has to be very careful that this doesn't turn into a "taking," which is a dirty, dirty word in these parts. I know that's what's generated lawsuits over this kind of thing in the past, which is why we want to have a) good arguments for getting it passed and b) good language so that when we do, it's not going to generate a legal battle.
    ...
    Hi Mountain Girl,

    I had to ruminate on your post awhile, and now have a few more thoughts. Thinking about the "taking" issue gave me a couple additional ideas. I'm not an attorney, just studied planning 20 years ago. As I understand it, the field is somewhat gray. I'd think Nevada law and precedents would be most important, although maybe there are some useful ideas in other rural western states.

    Seems like the original mistake was letting the public lands get "land-locked" by private holdings back whenever. Or did the feds have an access easement that the public can't use? If the latter, maybe the feds could negotiate additional access due to changing management needs. (I know the feds aren't popular, but it would give your county guys some cover...)

    Or how about this? Does subdividing the private land change its use in some fundamental way to justify public access? What kind of subdivision are we talking about? I'm guessing not urban style tract homes, as then it would be easy enough to ensure that the approved maps included streets accessing the public lands. On the other hand, if you've got a rancher breaking a large property into smaller "ranchettes" maybe one of his selling points is this currently private access and he will fight tooth and nail to maintain that.

    Maybe "hado_pv" has the right idea - lease or buy a corridor.

    HC

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