The Special Benefits of Open Space Conservation: Financing Open Space with Special Assessments.

• Author: Heffernan, Katie S.

1. Introduction

   Open space conservation is a growing priority for state and local governments as they realize the dire public health and climate consequences of diminishing green spaces. (2) Open space refers to both parks and natural wildlife areas. (3) It provides individual and societal benefits because people living near green space experience higher levels of physical and mental well-being, and, as a result, many communities now place a premium on access to open space. (4) Threats to the natural environment, such as increased development and urbanization, contribute to sprawl, making the acquisition and conservation of open space an important policy objective for promoting smart growth and diminishing the adverse effects of climate change. (5)

   While the personal and public benefits of access to open space have increasing support from the public, the responsibility of developing open space policy ultimately falls on state and local governments, making it difficult for officials to implement comprehensive plans to finance environmental projects that span multiple municipalities. (6) Even though open spaces provide confirmed health and environmental benefits for individuals and communities alike, local governments generate most of their revenue from real property taxes, which tend to favor development over open space conservation. (7) Finally, individual property rights are an important consideration in open space acquisition because the government's taking of property requires just compensation under the Fifth Amendment. (8)

   Municipalities may employ special assessments as one method to finance open space projects. (9) Special assessments assess the cost of a public expenditure on real property that receives or would receive some specific or special benefit from that public expenditure. (10) Sometimes referred to as special benefit taxation, special assessments are similar to real property taxes because property owners are charged a fee on their tax bill to pay for the public expenditure from which they benefit. (11) The primary difference between a special assessment and a general properly tax is that special assessments are levied against a specific area and typically only those properties benefitting from the improvement pay the assessment. (12)

   While special assessments are an alluring tool that can both provide revenue for improvements and influence how and where open space conservation occurs, some states limit the use of special assessments and instead prioritize protection of landowners' rights. (13) Some courts have concluded that special assessments to fund open space acquisition do not meet the requirement that the special benefit be particular and distinct from the benefit to other properties. (14) Additionally, while many states authorize local government's use of special assessments for local improvements, comprehensive open space conservation may require a more regional approach. (15) Oregon, for example, has a comprehensive growth plan with strong regulatory powers to manage development and conserve open space in important agricultural regions. (16) Regional plans generally achieve success when citizens realize a common purpose, and without state or federal intervention, individual voters and officials at the local level may struggle to see the common benefits of a regional open space conservation plan. (17)

   This Note analyzes the challenges faced by localities in developing methods to finance the acquisition and conservation of open space. (18) After discussing the benefits of open space conservation, this Note examines how open space conservation has fallen to the hands of state and local governments. (19) With a focus on how states finance open space projects, this Note compares municipalities' use of special assessments to other types of legislation used to combat the loss of open space. (20) This Note concludes by proposing that states should authorize the creation of regional special assessment districts for the express purpose of financing open space conservation to avoid debt limitations and to encourage a concerted regional response to the loss of open space. (21)

2. History

   1. Importance of Open Space Conservation

      1. Open Space and Public Health Benefits

         Open space refers to natural land areas, such as forests, grasslands, farms, and timberlands, as well as parks and green spaces within urban and suburban areas. (22) Because the definition of open space is so expansive, states and localities often define it differently, creating disjunction in the law. (23) Regardless of its precise definition, open space is lost at an alarming rate--the United States Department of Agriculture estimates almost 6,000 acres of open space are lost or converted to developed uses each day. (24) Even as the population becomes more environmentally conscious, development and expansion eat up the little remaining open space. (25)

         Nevertheless, the general public commonly views open space as a valuable resource because it provides and aids residential development, community aesthetic, environmental preservation, climate change mitigation, and economic enhancement of surrounding areas. (26) As society becomes more urban and sustainability becomes a focus for voters, cities place a greater priority on conserving open space and ensuring access to green spaces. (27) The benefits of increased access to and preservation of open spaces are related to social, environmental, and health-related issues. (28) Parks and greenways offer opportunities for physical activity, social contact, and stress reduction, which have been proven to benefit mental health, improve pregnancy outcomes, and lower rates of cardiovascular morbidity and mortality. (29) Further, improving access to green spaces in urban areas can help reduce inequities in health related to socioeconomic and demographic factors because historically disadvantaged groups tend to live in areas with little access to green space and thus do not reap the benefits associated with proximity to open space. (30)

         The preservation of open space is gaining popularity in the public, but it has yet to become a prevalent movement. (31) The general populace may struggle to see open space preservation as a necessary component of infrastructure because its advantages are less tangible than other improvements and because access to the natural environment was once more plentiful than it is presently. (32) While it may be difficult for the general public to identify the benefits of open space, cities that make open space protection a priority will profit from fresh local produce, recreational parks, clean air and water, biodiversity, and increased human contact. (33) Open space is often lost in favor of development that tends to be more attractive to consumers, policy makers, and voters, but when weighed against the above mentioned benefits, a new development may not be worth the cost of foregoing access to natural green space. (34)

      2. Urban Sprawl

         Urban sprawl poses a serious threat to open space conservation. (35) Sprawl describes the outward expansion of urban areas caused by people moving away from cities, often leaving behind an impoverished urban center. (36) As people move outward from the city center, new development gobbles up open space. (37) Sprawl presents an interesting problem as cities lose their population to suburbs because of crime, poor school systems, lack of urban amenities, and other issues prevalent in urban areas. (38)

         The problems created by sprawl both influence and are influenced by urban growth planning. (39) State infrastructure resources primarily fund highways, making it easier for people to move further outside the city center and disincentivizing efforts to curb sprawl. (40) States and localities face a difficult question of prioritization because open space acquisition, conservation, and preservation requires both the availability of land and the funding to purchase and preserve it. (41) When states and localities spend their resources on improvements to highway systems, suburbanization, and commercialization, they favor sprawling development that eats up open space at the expense of revitalizing urban centers with much needed green infrastructure. (42)

      3. Climate Change

         Loss of open space exacerbates the adverse effects of climate change primarily because the vegetated environment naturally absorbs and stores carbon. (43) The preservation of open space is critical to mitigate the effects of climate change because land use policies that preserve vegetated environments facilitate the natural removal of carbon dioxide from the atmosphere. (44) As many communities begin to feel the adverse effects of climate change, city planners, particularly in urban environments, use parks and green spaces not only to provide aesthetic and community benefits, but also to combat some of the realities of climate change like rising sea levels and temperatures. (45)

         The preservation and conservation of watershed areas is a tool for managing flooding that will likely increase as a result of climate change. (46) A number of cities impacted by flooding have adopted networks of green space along the coast as parks have the ability to absorb millions of gallons of water and create a much-needed buffer between the coast and development. (47) Open spaces in urban areas also mitigate the effects of global warming because the dark asphalt found in cities collects and traps heat. (48) Thus, strategically placed parks in urban centers can help to cool cities struggling with rising temperatures. (49) For example, one study found that large parks can cool the densest urban areas--which tend to be the hottest--by as much as 17[degrees]F. (50)

   2. History of Open Space Conservation and Finance

      1. Open Space Law

         Prior to the end of the nineteenth century, American cities did not plan for the protection of green spaces. (51) Maintenance of public facilities has typically been...