This is the Rabbit Island Conservation Easement. Have a look.

In society land is generally purchased on an open market with two motivating premises: development and profit. Historically these ideas have manifested themselves in various forms of subdivision and parcelization. (Think of the farm that was there when you were a kid that was bought and turned into a new subdivision, or the brownstone single family house that was purchased and renovated into several one bedroom apartments, or the field that was there before the row of brownstones even existed. Consider the island of Manhattan–the ultimate example–sold to Peter Minuit in 1626 by the Lenape tribe to ultimately manifest itself as smaller and smaller subunits of private property over time). The common thread in all of these transactions of property is that the effect on the integrity of the land is never part of the bottom line. And the process rarely moves in reverse. In the end because of our society’s individual liberty and participation in a market that does not fully value the costs of development we have had the freedom to historically subdivide without the requirement of foresight. When these subdivisions are summed we see that there are significant unintended consequences: namely, there isn’t very much land left that isn’t subdivided. Collectively this limits the opportunity for anyone to enjoy intact open spaces that resemble whatsoever their historical baseline, especially near population centers. Indeed this is an odd and ironic historical loophole in the code of American ‘liberty’ and 'freedom’. (In defense of previous generations this process unfolded slowly over four hundred years and only recently became broadly visible with the help of Google Earth, etc. Both of which are interesting ideas themselves).  

Subdivision is, of course, against everything that Rabbit Island stands for. Rabbit Island will never be subdivided and the miracle that Rabbit Island remained unsubdivided and unlumbered in 2010 is it’s most remarkable feature. Yet we would never have been able to get this project off the ground (read: we couldn’t have afforded to do this) without a mechanism that made it financially possible to not subdivide the land and profit from it in the traditional way. Since 2006 a program has existed on the Michigan books called Public Act 446 that assigns value to conservation of land as an alternative to development.  Ultimately, this legislation was the linchpin that allowed the Rabbit Island deal to get done technically. Just before the deed was transferred from seller (an old woman) to buyer (a young man) a conservation easement was put in place which in essence donated away the vast majority of the rights of any future landowners to develop and subdivide the land. In return we received a significant decrease in the amount of property taxes owed on a yearly basis that will carry forth in perpetuity. Had this not been available the island would have probably remained on the open market and been purchased by somebody with some plan for development, likely affirming a destiny of subdividing away the eagle’s roost, the heron rookery, the virgin forest’s unique integrity, etc. 

So here is the fine print of the document. Have a look. It isn’t super exciting but we wish we would have had some examples of conservation easements to review when we settled on the legal language of all 20 pages over 4 months in late 2009 and early 2010. Both then and now there was/is surprisingly little on the internet. The process was a sometimes exhausting back-and-forth negotiation between the Keweenaw Land Trust and Rob Gorski, aided by a land conservation lawyer, Ellen Fred, Esq, and a realtor, Forbes McDonald, who was patient and willing to cooperate so long as a sale went through in the end for his client. Things were at some level guided by IRS regulations fundamentaly. These discussions ultimately resulted in the legal mumbo jumbo seen here that states specifically what sort of things can be built on Rabbit Island and where (9,500 square feet maximum footprint in up to three locations… more than we ever hope to use), which trees can be cut and which can’t be (no cutting that adversely effects the function of the ecosystem), what can be mined (nothing), what can be planted (fruit and vegetable gardens, nut trees), how many docks can ever be built (two), what kind of motorized vehicles can be used on any future trails (none), what sort of billboards can be erected (none!), etc. There were more than 20 versions sent back and forth before this final copy was signed by all parties. In the end it was a political, economic, and ecologic success and we are proud to have played a role in. It is, after all, one of the project’s central founding documents. It isn’t ideal, obviously, and definitely not as much fun as some of our other projects, but it underpins every one of them. 

A tip of the hat also goes to the men and women who created Michigan PA 446 and voted it into being: wise leaders with minds toward the future indeed. Our project is directly possible because of their legislation.  Yet as strong as Michigan PA 446 is it is handicapped to a degree in the big picture because it only applies to transactions involving individual pieces of private property for sale in a time when individual pieces of available land are becoming smaller and smaller due to subdivision occurring with the passage of time. The next great piece of conservation legislation must move this idea forward and create a mechanism that offers incentive to combine previously subdivided land into larger contiguous units. Simply put there needs to be a systematic counterbalance to the historical direction of the private property market that aligns our collective land use culture with our modern understanding of ecology, climate, agriculture, externalities of development, etc. Maybe such legislation will get written on rabbit island. 

PS. If anyone with experience in conservation easements reads this document we’d be curious to know what you think. Get in touch.

December 12, 2011