Supervisors' hands 'cuffed' when it comes to conservation easements

When it comes to allowing conservation easements, the answer is clear for Holt County Supervisors.

conservation easements cannot be approved, based on language in the county’s comprehensive plan.

Whether the State of Nebraska understands that message isn’t so crystal clear.

When the board met in regular session, Feb. 29, in O’Neill, chairman Bill Tielke said he’d been approached by a constituent asking if the board will support conservation easements.

Holt County Attorney Brent Kelly reminded the board of the steps they went through to amend the county’s comprehensive plan.

“It says no conservation easements,” Kelly said. “It doesn’t matter how you feel now. You amended a plan that cuffed your hands."

If supervisors want the freedom to consider conservation easements, they will need to go through the same process to remove the language from the plan.

“The comprehensive plan is that very foundational zoning document,” Kelly said, adding that information about this type of easement was added to the plan twice.

The first time, it was added to the cover of the comprehensive plan.

“The specific steps, according to the statute, to my understanding were not followed, so I told you it had to be done this (second way),” Kelly said.

At that time, supervisors sent the matter to the county planning and zoning commission, public hearings were held and a recommendation not to allow conservation easements was approved.

Kelly said supervisors “worded it intentionally strong, no conservation easements allowed.”

According to the county attorney, conservation easements “are kind of a no man’s land kind of thing.”

“The statute that gives you authority to approve or deny them, here are four permissible reasons, the only one that allows you to deny is if it is contrary to your comprehensive plan.”

The county attorney said when he read the statute, he took it for granted when a landowner approached the board about an easement and it was denied, “he’d take his ball and go home.”

That has not necessarily been the case.

Kelly said, “I also took it for granted, if the guy applying for the conservation easement, and you denied it, if he brought it to the register of deeds, the register would say, ‘We can’t file this because the board rejected it.’”

Supervisors were told, by the state, the register of deeds would file the easements.

According to Kelly, if a landowner files through that process, over the supervisors’ objection, and the register of deeds files it, landowners are unable to request a tax break.

Kelly said the other question, which doesn’t include the county, involves future implications. What if someone comes back and says the easement isn’t valid? Is it a valid contract?

“It’s never been tried in court. There’s no statute that says one way or another. That’s what we call an absurd result,” Kelly said. “But the state says you have to file the darn thing.”

Are landowners bound by a conservation easement?

That shouldn’t be a concern of the supervisors.

“That’s a private matter.”

County assessor Tim Wallinger asked if parcels in the wetland reserve program, in place prior to the updated wording in the comprehensive plan, are grandfathered in.

“WRPs in place before this were being assessed as WRP for 10 to 15 years before the zoning change,” he said.

Kelly said if they were validly completed prior to the amendment of the comprehensive plan, they are “good to go.”

“From an assessor’s standpoint, those are being assessed differently,” Wallinger said.

Kelly noted he’s talking only about conservation easements presented for consideration after the comprehensive plan was amended.