The Big Sur Land Trust is trying to buy paradise.
Thursday, December 13, 2001
Corey Brown walks toward a small clearing in a pine forest five miles south of Carmel and five minutes up a steep dirt road above Highway One. He stops at the crest of the knoll, where the ground drops off and the vista opens up.
"This is absolutely the best view of Point Lobos anywhere," he says, and it''s hard to argue. Even from this slight elevation, the ocean looks more vast. On the clearest days, one can see north across Monterey Bay, past Santa Cruz and all the way to Point Ano Nuevo, 40 miles away in San Mateo County.
Point Lobos State Reserve, directly west across the highway, dominates the scene: 1,325 acres of coves, granite-crusted cypress-and-pine-covered hills and gnarly rock jetties, all jutting out into the sea in an asymmetrical sprawl. Waves explode silently against the rocks. During the winter months, Brown says, it''s possible to spot whales blowing in the distance.
Directly below us, 500 acres of Monterey pines stretch to the highway and out onto the reserve in several shades of green. This small forest is crucial to the sublime feeling that the place evokes.
On a stormy day last week, it was clear that Brown, the executive director of the Big Sur Land Trust, feels something I cannot feel when standing at this spot: a sense of professional pride. Point Lobos Ranch, which includes the forest below, the hill we''re on, and a two-and-a-half-mile stretch of San Jose Creek down to our right--1,315 acres all told--was purchased by the Land Trust in 1993. The ranch will soon become part of the California State Park system. After 2003, the trail we walked in on will bring thousands of visitors to this spot every year to witness what has been called "the greatest meeting of land and water in the world."
If not for the Land Trust, the place would have become a private condominium-and-hotel development.
Brown, who came to the Big Sur Land Trust (BSLT) just over a year ago after 20 years lobbying lawmakers in Sacramento, speaks in the earnest tones of a committed environmentalist. He is practiced at delivering poignant soundbites like: "The Big Sur coast contains resources of international significance; its wildlife, scenic values and recreational opportunities deserve to be protected forever." Or: "California is growing rapidly--some reports say the state will add six cities the size of Los Angeles by 2040. That means it''s urgent that places like Big Sur are protected." To conservation-minded folks, these things seem almost too obvious to bother saying. But it isn''t as though they are universally held to be self-evident.
Almost 20 years ago, another man stood on this spot and dreamed not of open space but of view lots. Ted Richter envisioned an ambitious development. From the forest below would rise a 100-room hotel and conference center. More than 240 condos would be built on the hillside and up into the canyon.
The dream might sound grandiose, but Richter was already one of the most successful hotel devlopers in the county. The families who owned the land--heirs of the pioneer Alexander Allen--had sought his help. Richter sought and won approval from the county and the coastal commission.
While environmental groups fought the development, the Land Trust, then headed by Big Sur resident Zad Leavy, entered into negotiations with the landowners.
At the same time BSLT pursued a parallel track of negotiations with the state. Over the next five years, the Land Trust team executed an elaborate deal.
The Prop. 117 Habitat Conservation Fund, which was created by a citizens'' initiative in June, 1990, would ultimately provide money from the state. But because the state cannot legally secure a mortgage (the legislature would have to vote on the payments every year), BSLT took out the loan to buy the land.
The fair market value was determined to be $12.8 million. The Land Trust offered the landowners $11.1 million, and Leavy wrote a contract that would allow them to receive a substantial tax break for selling the land at less than it would be worth as a developed parcel.
The Point Lobos Ranch deal appears to be a complex work of conservation-real-estate art as well as a classic win-win scenario.
Brown says that is the key to the BSLT''s way of doing business.
"The Land Trust is a marriage, or several marriages," he says. "First, it combines environmental protection goals with strong business skills. We essentially put together significant real estate transactions. While we utilize a scientific understanding of wildlife and other environmental issues, we also understand the business side.
"And the Land Trust is also a marriage between the public interest and the landowner''s property rights."
Leavy concurs. "There''s no question that we live in a paradise that deserves to be protected," he says. "But the political process moves too slowly. We are able to be entrepreneurial, to be creative, and intercede between the private and public sectors."
For Brown, the Trust idea is rooted in a plain and practical truth: "The only way to permanently protect land," he says, "is to buy it."
THIS LAND IS YOUR LAND
Just last month, the Land Trust transferred 51 acres of dunes in Marina to the Monterey Regional Parks District. The BSLT had bought the property from the Granite Rock company, which had an abandoned quarry on the site. This unique coastal dunes habitat, home to five species listed as threatened or endangered, is the latest addition to the Monterey Bay State Seashore, established by the state legislature in 1993. The state put up $2 million of the $3.5 million purchase price for Granite Rock''s dunes.
In 23 years, the Land Trust has worked similar kinds of deals to protect 20,000 acres of rare ocean views, redwood-forested watersheds and other significant lands. The Land Trust now owns more than 3,600 acres outright. Another 7,000-plus acres have been put into public ownership through Land Trust deals. The Trust has permanently prevented development on another 10,000 acres by purchasing conservation easements, or by implementing other land-law devices.
To hear Leavy tell it, the Land Trust had modest beginnings. "A bunch of us, six families, met for about a year, sitting around kitchen tables, and talked about setting up a way to keep Big Sur from being overrun," he says.
Then Michael Murphy, the founder of the Esalen Institute, gave the fledgling group a 50-percent ownership interest in 26 acres just north of Esalen. A neighbor''s mother gave a gift of less than $2,000 to seed a land fund, and the Trust for Public Land held it until the BSLT received its blessing from the IRS as a 501(c)3 tax-exempt organization. A major gift from the David and Lucile Packard Foundation, which allowed the BSLT to put a conservation easement on 3,000 acres, followed shortly thereafter. "And we never stopped," Leavy says.
In 1978, putting together one of the BSLT''s first deals, Leavy created an innovation in open-space acquisition that has since been adopted by land trusts nationwide. While every BSLT deal since has been crafted to match a unique set of circumstances, the Gamboa deal was the model.
The Gamboa Ranch, which straddles Highway One just south of Big Creek in southern Big Sur, had been acquired through foreclosure by a consortium of 19 New York lawyers, who put it on the market for $2 million. In less than 48 hours, Leavy made a deal with the lawyers that would allow BSLT to buy the place for just over half that: $1.125 million.
In order to get this bargain price, Leavy concocted an arrangement that would ensure that the landowners would recoup their losses through tax breaks.
The deal was as complicated as one of those football plays where the quarterback hands off to a halfback going left who pitches the ball to a tight end going right who throws it to the quarterback in the end zone.
David Packard, the Land Trust and representatives from the lawyer-owners all got together for a legal ritual known as a double-escrow. The BSLT bought the land from the owners, and, almost instantly, sold it to Packard.
However, for the few moments that the Land Trust held ownership, Leavy put a set of restrictions on the property, ensuring that it could not be developed. That drove the land''s value down significantly.
These restrictions--which together constitute a conservation easement--were fine with Packard, who wanted nothing more than a piece of open coastal land.
The lawyers would be able to claim almost $1 million as a charitable donation--the difference between the land''s market value and selling price--cutting their capital-gains tax payments on the sale to almost nil.
To prove to the feds that the deal would benefit taxpayers permanently, Leavy "fixed" the value of the property by writing a clause into the deed stipulating that the buyer (Packard and his heirs) must, if they chose to sell the land, offer it to the BSLT or the University of California (which owns the neighboring property) for 90 percent of the price BSLT paid for it.
Leavy recalls that after Packard received a copy of the proposed contract, he almost bailed: "He called me and asked, ''Zad, is this legal?''" Leavy assured him that the deal fit all the conditions necessary for IRS approval. The 19 lawyers who owned the place agreed, and thus became, as Leavy says, "the first conservation buyers in California."
While the permutations of the Gamboa Ranch deal were contorted, it adheres to rather straightforward legal and political logic. More than 80 million people, four million per year, have visited Big Sur since the deal went down, many of them American taxpayers. Instead of driving through a housing development near Big Creek, these people have all had the opportunity to experience a relatively unscathed landscape of pasture- and tree-covered coastal hillsides. Importantly--and this fact lies at the heart of the BSLT''s work--the taxpayers'' contribution in the form of a tax write-off allowed the 19 lawyers to get the land''s full value, thus leaving their property rights untrammeled.
THIS LAND IS MY LAND
The right of a property owner to freely take actions on his or her land, and to expect to earn whatever profit might be made from developing that land, have been recognized for so long that its origin in English common law is unknown. Although it has been controversial in some circles, this is a fact that is generally considered to be self-evident.
In the 1990s, property owners'' rights were bolstered by three Supreme Court decisions, which open-space advocates nationwide have memorized as if they were a sobering mantra: "Nolan, Dolan and Lucas."
Both Leavy and Brown eventually recited the mantra when I asked them each the same question on different days: if it is in the public interest that these lands be protected, why doesn''t the government simply zone the land "open space" or "agriculture," and tell the owners "tough luck"?
The three Supreme Court decisions--Nolan v. California Coastal Commission, Dolan v. City of Tigard (Oregon), and Lucas v. South Carolina Coastal Council--together strengthened development rights and changed the face of open-space protection nationwide. In each, the property owners sued a governmental agency that had attempted, through zoning and other restrictions, to tell them what they could and could not do with their own property.
Each case was decided in favor of a landowner who argued that the government agency, in restricting their right to develop their land as they saw fit, was violating a clause in the 5th Amendment to the Constitution. That chapter in the Bill of Rights declares: "...nor shall private property be taken for public use, without just compensation."
In Nolan, the Coastal Commission tried to require a landowner, who was applying to raze a bungalow and build a bigger home, to provide public access to a beach. In Dolan, the city of Tigard, near Portland, tried to require that a plumbing store owner leave a creekside portion of her property open for flood control and for a bicycle lane. In Lucas, the state of South Carolina tried to prevent a developer from building two homes too close to a rapidly eroding shoreline.
Ever since Nolan, Dolan and Lucas, landowners have been able to claim certain government actions as a "taking." The mere threat of a "takings" lawsuit has made it so that it''s more economical, often, for the government--or a public-minded non-profit--to simply buy land it wants to protect.
Neither Leavy nor Brown seem at all bitter about the takings decisions. Both profess strong commitment to respect for property rights. Leavy was himself a millionaire when he arrived in Big Sur. As a successful Los Angeles attorney specializing in health care cases, he had hit the jackpot with a class-action lawsuit. (A few years earlier, he won an important decision guaranteeing the right of California women to choose an abortion.) While he can talk with obviously honest passion about the fate of the snowy plover, an almost-extinct shorebird that thrives in the dunes of Monterey Bay and nowhere else on earth, Leavy drives a big Lexus. Leavy seems to be a free-market environmentalist.
"Private property rights are alive and well in America," he says simply.
Brown is also a trained attorney. He regards property rights as a simple fact that must be met with a simple strategy.
Earnest and on-message to a fault, Brown carefully explains the tactical reasons why the acceptance of property rights guides the BSLT''s work. If one seeks to protect a "resource"--such as a cow pasture at Point Sur--through regulation, there are six or seven hurdles to clear: county supervisors, the Coastal Commission, the courts, etc. Lose any one of these fights, and there are beachfront condos fronting the dunes where snowy plovers once laid their eggs.
"You can''t get full protection of the resource," Brown says, drilling his point home, "unless you buy it."
This does not mean that the Land Trust sees outright ownership as the only way to protect open space in Big Sur. An economical alternative--one the BSLT has used to great benefit--is to simply buy a conservation easement on a piece of property. This tactic is a variation on the Gamboa Ranch deal. A conservation easement leaves the land in private ownership, but assures that it will not become a tract of trophy homes or a convention center.
In 1997, the BSLT used this tool to protect one of the most dramatic pieces of land on the Big Sur coast, a piece of property unique in the world. The El Sur Ranch straddles six miles of Highway One stretching south from Hurricane Point past Point Sur. A setting of spectacular vistas, the El Sur has been a working cattle ranch for longer than anyone knows.
The ranch''s owner, Jim Hill, hit with rising property taxes and rising costs all around, sought and received approval to develop a hotel on the property. The BSLT, working as usual between the public and private sectors, got $11.5 million from a state fund that had been created when voters approved Prop. 70, a 1988 parks bond initiative.
On a gray day last week, a few hundred head of cattle grazed in an El Sur Ranch pasture under the Point Sur lighthouse. The approaching storm drove sets of big waves into the north-facing spit of beach that reaches out to the monstrous rock crowned by the lighthouse. As we surveyed the bucolic scene from the side of the highway, I tried to imagine hundreds of houses, or condos, a hotel and restaurant, parking lots, a gas station and convenience store, but couldn''t quite picture it. Such a scene will never happen there.
Despite its "win-win" philosophy, the BSLT has not avoided controversy. By embracing the free-market rights of landowners as ardently as it embraces the wilderness ethic, the BSLT has earned its share of enemies on both sides. Over its 23-year history, a handful of developers, politicians and environmentalists have found reason to take issue with the organization.
Leavy, who has served as a member of the California Coastal Commission and the Monterey Peninsula Regional Parks District during his tenure as executive director of BSLT, has been accused of using these positions to help the Land Trust. Critics point out several situations in which decisions by the public boards that Leavy served affected the value of properties in which the BSLT had an interest.
Leavy vigorously denies any conflict of interest, and points out that he recused himself from the votes on these properties.
Some environmentalists have also questioned certain BSLT deals, claiming that the organization has directed public money toward lands that could have been protected through regulation.
One such deal concerned a piece of property just south of the Carmel River, called variously the Odello Artichoke Fields or Coast Ranch, which Leavy refers to as "the gateway to Big Sur."
Leavy will not divulge the inner working of the deal--BSLT strictly guards the confidentiality of its deals with landowners--but some of the facts are public. The BSLT had been angling to buy the land for some time, but couldn''t come up with the cash. The Odello family, meanwhile, had already won approval to build 73 houses on the property. Then, perhaps after talking to Leavy, Clint and Maggie Eastwood bought the land for $6 million.
At the same time, Eastwood was seeking county approval to develop homes on a ridgetop property in Carmel Valley, adjacent to his Canada Woods development. That land was protected, however, with a conservation easement.
Eastwood went before the Board of County supervisors and the board voted to lift the conservation easement on the land near Canada Woods. The Eastwoods then donated half of what they called Coast Ranch to the BSLT, along with the development rights on the other half.
In the typically complex arrangement, the BSLT seems to have worked a deal in which the county unofficially "traded" the development rights on the Odello Fields for those in Carmel Valley. The land on the ocean side of Highway One, having since been deeded by BSLT to California State Parks, is being returned to native wildlife habitat. Another 89 acres is still in agriculture, half of that being cultivated organically through a lease to Earthbound Farms.
And the Canada Woods property has been developed into homesites, each with a spectacular view of the valley and the ocean.
Some environmentalists feel that the real winner in this deal was Eastwood. They believe the Odello fields could have been protected through regulation, and they see the trade-off as a giveaway to Eastwood (who has since become a BSLT honorary boardmember).
Leavy, who engineered the deal, describes the land as crucial to the integrity of Big Sur and important to everyone in California. "The restoration of the Carmel River is probably the second-most important river project in the state of California [next to the Los Angeles River]," he says. As relentlessly on-message as Brown, he adds: "The Odello Ranch deal protected the mouth of the Carmel River from development, and protected the gateway to Big Sur."
Sitting alongside the Odello fields on the side of Highway One last week, at what is now part of Carmel River State Beach, Brown again seemed proud of what the Land Trust had accomplished. Thick willows have already begun to take over where Odello''s artichokes grew. A flock of 15 or 20 snowy egrets dipped among the hedges.
Brown pointed to a slight hillside--a long, narrow strip of land that abuts the back yards of a housing development bordering the reserve. "We have an option to purchase this land," he said, explaining that he cannot reveal details. When asked why the Land Trust is interested in preserving land so close to a subdivision, he slips easily into his practiced cadence.
"It''s part of the beautiful Highway One scenic viewshed," he says. "It''s wildlife habitat, and provides a buffer between the residences and the state park. There have been, in the past, proposed subdivisions on the property, and there''s infrastructure all around. The property could eventually be developed."
It''s a small thing when compared to the work the BSLT has done and the work it is trying to do. But having a reporter''s ear, Brown can''t help but proselytize for the cause at every opportunity, and he does so effectively.
"As residents of Monterey County," he says, "we''re entrusted with some of the world''s most beautiful lands. It''s up to us to decide if they''re going to be protected for future generations or lost. Forever."