6% of Colorado land is supposed to be protected by conservation easements. But who enforces them?

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LARKSPUR

The landscape of sprawling pastures dotted with ponderosa pines and towering square buttes that bridges Interstate 25 south of Castle Rock and north of Monument is vast, quiet and largely undeveloped.

Colorado voters wanted it that way 25 years ago when conservation groups, a former governor and a billionaire stepped in to forever protect this high-profile corridor from future development.

On a recent cold January morning, the 17,700-acre Greenland Ranch sits serenely along the highway, one of several historic ranches saved through conservation easements. Championed by former Colorado Gov. Roy Romer and local cable magnate John Malone, the massive open-space project was designed to stop fast-growing Denver and Colorado Springs from merging into a giant metroplex.

Key to the undertaking was preserving the endless views that take in Pikes Peak to the south, Longs Peak to the north and, on a clear day, even the Wyoming border.

Only a handful of houses have been allowed to be built on these protected lands, often no more than one or two structures on tracts that cover hundreds of acres. In addition to the Greenland project, a series of other easements along Upper Lake Gulch Road were also put in place. 

No roofs were supposed to ever pierce that spectacular set of views.

But drive along Upper Lake Gulch Road east of I-25 and look south toward Greenland Ranch and the roofline of a large two-story log home at 3000 Upper Lake Gulch Road is clearly visible.

And that is a violation of the original terms of the easement, something that is not supposed to happen on lands protected by the state at a cost of $1.1 billion since 1995, according to an economic impact study by Colorado State University’s Colorado Natural Heritage Program (CNHP). Whether more needs to be done to prevent such costly errors is an open question in the conservation community, where outrage over the problem of unenforced easements is growing.

There are 7,593 parcels of land in Colorado that are under some form of conservation easement, according to a Colorado Sun analysis of data provided by the Colorado Natural Heritage Program. They cover almost 4 million acres, or nearly 6% of the land mass of the state. According to CNHP’s study, the state has garnered $35 billion to $57 billion in economic benefits from them.

Click here to see this data with more information in a table.

Tracking these thousands of easements to ensure that new structures don’t interfere with view corridors and that pastures aren’t overgrazed, for example, is the job of the nonprofit land trusts and local governments who are responsible for monitoring and protecting them.

But in this instance, the land trust charged with enforcing the rules of the easement, the Douglas Land Conservancy, failed to alert the state when problems began cropping up after the property was sold in 2022.

“There was a screwup of gigantic proportions, and things fell through the cracks,” said Sydney Macy, the prominent conservationist who led the charge to protect the corridor.

How is it supposed to work?

Conservation easements are legal agreements in which property owners give up development rights on their land, often in exchange for state and federal tax credits. A key element of negotiating such easements is gaining approval for the location and height of any structures that might be built. New buildings and barns must not interfere with the conservation values of the land.

Under Colorado law, finalized conservation easements must be held by nonprofit land trusts and sometimes local governments, which are responsible for enforcing the terms of the deal, making sure that houses are built in designated areas, known as building envelopes. The agreements exist forever, or “in perpetuity” to qualify for the tax credits and to receive other state funds.

But in this instance, the Douglas Land Conservancy (DLC) failed to uphold the terms of the easement, conservation groups charge, allowing the house to be built on a hill and to encompass not one story, as originally agreed to, but two.

At one point, Douglas County building officials stopped the project to ensure the land trust was aware of the building plans, but ultimately it was allowed to proceed, according to county documents.

Laura Sanford, executive director of the Douglas Land Conservancy, declined to discuss the chain of events that allowed construction on the two-story home to begin. The owner, Steve Lockton, did not respond to an interview request.

Roughly 40 land trusts operate in Colorado, according to the state’s Division of Conservation. Just 17, including DLC, have been accredited by the national commission, according to its spokeswoman, Lisa McCarthy. McCarthy declined to comment on problems at the DLC, citing the national commission’s confidentiality policy.

But the commission has been in touch with the DLC. Sanford said her staff had been cooperating with the agency’s requests for information. Its accreditation has recently been renewed, according to the commission’s website.

That is little comfort to Macy.

“The fact that this land trust has blown it speaks to a larger issue,” Macy said. “These land trusts have been entrusted with stewarding these properties and enforcing the terms of the easements. That the land trust dropped the ball is a harbinger of what else could happen out there without land trusts taking their responsibilities seriously.”

For a time in the early 2000s, the Colorado Conservation Easement program was plagued by fraud, as land with little value was placed under easement and improperly claimed tax credits. But in 2018, after decades of litigation and scrutiny from state lawmakers, the Division of Conservation was created to oversee land trusts and easements. 

The state of Colorado tracks nearly 800 easements, according to Aaron Welch, director of the Division of Conservation and requires that land trusts go through its certification process. One piece of that certification is agreeing to report violations that occur. In this instance, Welch said his department has only recently become aware of the Upper Lake Gulch Road violation and he said he believed it has been adequately addressed.

Welch estimates that violations occur on roughly 1% of the properties it monitors annually. But where the violations have occurred and the nature of those violations isn’t clear. Welch declined to release that information, citing confidentiality rules in place to protect conservation easement owners. A Colorado Open Records Act request filed by the Colorado Sun to obtain the violation data is pending.

“The challenge of stewardship and the problem of violations becomes greater with the passage of time,” Welch said. “When the original landowner grants an easement, they know full well what is in that easement because they negotiated the terms. But as time passes, there is a greater chance that the new landowner doesn’t have an appreciation of that easement. That is just a reality.”

The easements the Division of Conservation monitors were issued state tax credits valued at about $500 million, Welch said. By the time the program ends in 2031, he expects that number will rise to $850 million.

Great Outdoors Colorado, a state agency that uses lottery proceeds to protect lands, has helped protect more than 1.7 million acres, according to its website, including the massive Greenlands Ranch project and Upper Lake Gulch Road. It invested more than $11 million in the two undertakings, according to GOCO Deputy Director Josh Tenneson.

GOCO investigated the Upper Lake Gulch Road easement last fall, after it was contacted by Macy. Weeks of negotiations involving GOCO and the Douglas Land Conservancy followed, with everyone eventually agreeing to a settlement, despite the dispute. According to the Douglas County Building Department, construction on the home is not yet complete.

Tenneson said problems began in 2022 as the property was changing hands. The former executive director of the land conservancy, who oversaw the original easement, was retiring, and the current executive director, Laura Sanford, was just coming in. She approved the new location of the house without amending the easement and without notifying Great Outdoors Colorado. Once the approval was granted, the owner applied for a building permit, which was granted in October of 2023 once the land conservancy gave the go-ahead.

GOCO didn’t learn of the problem for nearly a year, well after construction was underway.

“Technically, it was a violation because the landowner was not permitted by the terms of the easement to build there,” Tenneson said. “It should not have been approved. But to remedy it, we required a number of changes to the easement that we think provide better protection than the original agreement.”

The changes include a requirement to plant trees in front of the house, to partially shield the structure from view along Upper Lake Gulch Road, and to reduce the size of the area on which new structures can be built to 4 acres from 5. The right to create a lake or build a boathouse and dock on the property was also removed, Tenneson said.

Tenneson said Colorado’s work on keeping conserved lands safe and intact is a major undertaking that is growing as original easement holders sell their lands to others and as small land trusts struggle to carry out their protective mission.

“This has been a lesson learned for GOCO,” Tenneson said. 

And for others as well. Beth Conover, acting director of Keep It Colorado, a statewide coalition of land trusts, said her agency is in the midst of identifying where problems are occurring and finding ways to move conserved lands to larger land trusts that have the financial and legal expertise to protect them.

Former state Rep. Don Eberle owns the land next door to 3000 Upper Lake Gulch Road. He was able to place his land under easement, in part because of the pristine views. That this new, towering home has been built in the heart of the viewshed there is a grave disappointment to him.

“Protecting the views was central to this work,” Eberle said, referring to the campaign to save the iconic Douglas County ranches along the I-25 corridor. 

“I remember when people were worried about all the land being developed between Colorado Springs and Denver. People were begging” for it to be protected, he said.

To Eberle, the push to better protect Colorado’s legacy landscapes needs to grow exponentially.

“It’s discouraging,” he said. “There is a risk there that I am not sure that people understand and it exists on all of the conservation easements that have been issued. The public has invested in them. State money goes into them and there is an expectation that they will be protected. The whole program has been touted as a way to save Colorado land. It’s a daunting task.”

Sydney Macy looks out over the Greenland Ranch conservation easement on Jan. 27 in Larkspur. (Michael Ciaglo, Special to The Colorado Sun)