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Thursday, February 14, 2013

Proposed land deal between CAW and Planning chair stirs controversy

Posted By on Thu, Feb 14, 2013 at 9:26 PM

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  • Landowner Lorie White talks to the CAW board

A possible conservation easement deal with the chairman of the Pulaski County Planning Board has angered a group of Lake Maumelle Watershed landowners, who lodged complaints about a perceived conflict of interest this afternoon at the Central Arkansas Water board meeting.

CAW has a deal in the works with Planning Board chair Ray Vogelpohl for a conservation easement on his 335 acres that would restrict development on the land. CAW, which has never before paid for a conservation easement, has allocated $500,000 for that purpose in the 2013 Capital Projects budget, which could potentially go directly to Vogelpohl (paid for by consumers via a 45-cents-per-month watershed management fee). CAW officials stressed that the deal, which has been in negotiation for five years, was not yet official and that the $500,000 was a placeholder figure, as they do not yet have a figure for the proposed easement. An appraisal completed last month valued the easement at more than $800,000.

Vogelpohl has been on the county Planning Board since 2006, the only member who owns land in the watershed. He has been a supporter of the 2008 subdivision ordinance and the land-use ordinance set for a vote by the Quorum Court later this month. Both ordinances have been subjects of great controversy, with vehement protests from some landowners.

A group of around ten landowners attended the CAW meeting, with three of them speaking to complain to the board that the potential easement deal had the appearance of impropriety. They also said that no one had been in touch with them about easement deals on their land.

Barbara Penney, who owns land north of Lake Maumelle, said that she had never been approached by any member of CAW asking about the watershed and had only learned about the easement deal on television. “This is a terribly important conflict of interest,” she said. “[Vogelpohl] has always professed to represent his community but in the mean time…he was negotiating for personal gain.”

Details of the easement deal came to light via FOIA requests from landowner Lorie White, who has been an active critic of the land-use ordinance. “It’s kind of ridiculous that’s been kept secret,” she said at the meeting. “He is the Planning Board chairman, he is a property owner in the watershed, and he is possibly going to get half a million dollars or more for this easement. Why was that kept under wraps?” She also complained that CAW had been less than fully cooperative with her FOIA requests.

Vogelpohl did recuse himself in October of 2011 when the Planning Board unanimously recommended the land-use ordinance, sending it to the Quorum Court for approval. White contends that this only came in response to her FOIA requests, which she made public to the media at the time. Vogelpohl’s letter of recusal does not mention details of the easement deal he was pursuing for himself at the time. Emails acquired by White’s FOIA requests suggest that Vogelpohl continued to be involved in the negotiation of the land-use ordinance after his recusal. White stated after the meeting that she believed the easement deal was a quid pro quo and that CAW was essentially buying Vogelpohl’s support. Vogelpohl did not respond to repeated requests for comment today.

To summarize the landowners’ complaints about the deal:

1) They argue that because nearly two thirds of the Vogelpohl’s land lies in a floodplain and other portions include steep slopes, development would be prohibitively expensive. Therefore, they believe Vogelpohl is being paid handsomely not to develop land that is undevelopable.

2) They believe that the easement deal gives allowances to Vogelpohl that are not in the ordinance, including gravel mining, animal waste being spread on the land, and burying dead and diseased animals. See here for a summary of what they believe would be additional allowances under the deal:
landowners_easement_and_zoning_comparison.pdf

3) They believe the easement deal would supersede the land-use ordinance, if it passed, because of a clause stating that “[t]his Code does not interfere with or abrogate or annul any easements, covenants or other agreements between parties.” They note that in May, the next sentence was cut: “However, if this chapter imposes a greater restriction, this chapter controls.” The deletion of this caveat seems to suggest an attempt to undercut the ordinance in relation to other agreements.

In sum, they believe that Vogelpohl is getting a major payout for a deal that is less restrictive and offers less environmental protection than the land-use ordinance.

CAW officials vehemently deny that Vogepohl is getting a special deal. They say that Vogepohl's land is a priority because of its location along the Maumelle River and contiguous with other land acquired by CAW. Watershed Protection Manager John Tynan told the board that conservation easement was a vital land-protection tool and noted that almost 9 million acres across the country are protected under conservation easement as of 2010. He said it was a more cost-effective tool for long-term protection than direct acquisition. He also stated that they are in communication with other landowners who are also interested in conservation easement but want to wait to see how the deal with Vogephol plays out. CAW plans to look in to conservation easement deals with landowners throughout the watershed in the future.

Both in a phone interview prior to the meeting and during the meeting before the board, Tynan responded to critics of the deal:

1) He stated that in fact the easement deal was "significantly more restrictive" than the land-use ordinance. For example, the easement would create a larger buffer on both sides of the river and would dramatically reduce density. The easement deal would not allow any other homes to be built, whereas the ordinance allows one to two per acre.

2) In addition to underplaying the restrictions, CAW believes that critics are misrepresenting and exaggerating the differences in allowances between the conservation easement and the land-use ordinance. See here for CAW's summary of restrictions and allowances in the two plans:
CAW_easement_and_zoning_comparison.pdf

3) He said that no restriction in the ordinance, enforced by the county, would be superceded by the easement with CAW. He said that the county attorney had advised CAW "clearly and unequivocally...that the zoning code will be enforced equally to all property owners within the watershed. The fact that the conservation easement may exist cannot and will not relax any requirements." He said that the clause pointed to by critics only meant that the ordinance wouldn't override restrictions in other agreements such as an easement. He did not address the curious deletion of the "greater restriction" sentence.

4) He said that despite additional requirements, floodplain areas are in fact developable in Pulaski County. He also noted that 120 acres of the property are not in floodplains, and the density restrictions in that area alone would be vital.

In a phone interview prior to the meeting, CAW CEO Graham Rich acknowledged that they had known from the beginning that the deal might raise concerns about a conflict of interest. "We’ve spoken with our attorney and there's nothing illegal about what we’re doing," he said. "It's just by happenstance that he is on the planning [board], but he also has a tract that borders land that we own that’s along the biggest tributary....Certainly someone could make an issue out of it. I know Ray personally. He would not be the kind that would use his position to gain an advantage on it."

White's attorney, Kent Walker, isn't buying it. "There are so many coincidences that are occurring here that I think that they might take a trip to Tunica," he said in a phone interview after the meeting. "The Chair of the planning [board], which is overseeing the zoning ordinance in its initial stages is the only one offered...if they're going to do this, they need to promote it. I've met with them a dozen times, not one time has this ever been discussed or brought up." He also argued that assurances that the easement are more restrictive are undercut by the fact that CAW will be the policing agent: "The fox is guarding the hen house."

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