The Colony Farm Orchard is Not Trade Land

Horse chestnut tree at Colony Farm Orchard.  Photo copyright October 2009 by Richard Brewer.

Horse chestnut tree at Colony Farm Orchard. Photo copyright October 2009 by Richard Brewer.

I’ve always wondered if there was one fundamental difference between conservationists and those other people whose disposition is exactly opposite–the  exploiters, polluters, clear-cutters, mountaintop blasters, and all the other ill-users and abusers of the land and waters. In recent experiences with the case of the Colony Farm Orchard, I think I have an inkling of what the fundamental difference might be.

Several years ago The Nature Conservancy coined the term “trade land” to refer to real estate given to the organization merely as an asset, like a used car or shares of stock, rather than as land meant for preservation. In earlier days, people had sometimes been unhappy, even irate, when they heard of TNC selling land, thinking that sanctuary land was being sold. The term was invented to refer to lands with minor conservation value that are donated mainly for the money that TNC can raise by selling them.

The 54-acre Colony Farm Orchard (henceforth, just Orchard) in Oshtemo Township, Michigan, has certain features that make it desirable for conservation. I’ve listed these in more detail in earlier posts (such as this one), but they include a variety of habitats, historical interest from being located within the tall-grass Genesee Prairie and bur oak opening, and prime habitat as a migratory bird stopover site.  Perhaps more important is that the Orchard contributes to increased biodiversity and stability of the 270-acre Asylum Lake Preserve which is adjacent to the east, across Drake Road.  The Orchard serves as a very near island of similar but not identical habitat.

The State of Michigan gave the Orchard to Western Michigan University in 1977 for the purposes stated in the original legislative conveyance: “Western Michigan University may utilize the property solely for public park, recreation, or open space purposes, except that the legislature, by statute, may authorize Western Michigan University to utilize the property for some other public purpose.”

The intent is perfectly clear; this is land conveyed as dedicated open space for public use. The Orchard is not trade land.

Nevertheless, in the 1990s, WMU sought to develop the Orchard as part of a proposed BTR (Business Technology Research) Park.  A long battle ensued between WMU, elements of Kalamazoo City government, and certain corporations on one side and various environmental and neighborhood groups plus a high percentage of the citizenry on the other.  The first major skirmish was an attempt by WMU to get around the quoted restriction.  WMU persuaded a local Michigan House member, Dale Shugars, to introduce legislation changing the permitted uses to “1. For a public park, recreation area, or open space area.  2. For a business, technology and research park…” The bill with the altered language passed the House, but a Senate committee concluded that a BTR park was not a public purpose,  The Senate did not act on the bill, and in 1993 it died. The Orchard was saved.

Many things happened between 1993 and now.  One was a compromise of sorts, by which land south of Parkview Avenue, which had come from the state to WMU with no restrictions, was opened to the development of a BTR park. Such a development was begun in 2001. The Asylum Lake parcel north of Parkview and east of Drake that had come to WMU in 1975 with exactly the same restrictions as the Orchard was designated as a Preserve.  It was further protected in 2004 by a Declaration of Restrictions, meant to serve the same function as a conservation easement.

The Colony Farm Orchard is at the upper left in this diagrammatic map which appears on the Asylum Lake website

The Colony Farm Orchard is at the upper left in this diagrammatic map which appears on the Asylum Lake website

During the years between 1993 and 2004, agreement had been reached on a variety of topics. The conservationist participants in the discussions believed that the Orchard, north of Parkview and with the same legislative restrictions as the Asylum Lake property was a part of the Preserve.  The WMU participants, however, rebuffed all attempts at explicit inclusion of the Orchard in the Declaration of Restrictions.  Probably this should have been a signal that WMU was not giving up its plan to violate the restrictions on the Orchard, but the participants were comforted by the fact that the land was still protected by the original restriction. Perhaps they were also tired after the years-long debates.

Faint signals of a renewed attempt on the Orchard could have been noticed in late February 2009.  WMU Vice-President Robert Miller emerged from WMU’s five-year Orchard dormancy to tell one of the Asylum Lake neighborhood groups: “There are no plans to develop that area, but it is one of the options we are looking at. I can tell you, should a decision be made to expand the Business, Technology, and Research Park, we would come to you, to the entire community with our plans and share them. [But] we have none.”

By 2 July, the signal was much stronger.  The WMU Board of Trustees at its July meeting empowered the admistration to spend up to $985,000 to buy out a long-standing Michigan State University lease to conduct pest insect research on the Orchard.  Greg Rosine, another WMU Vice President, made it all explicit; he mentioned the deed restrictions and said that WMU was “seeking to get those restrictions changed.” Local Representative Robert Jones introduced House Bill 5207 to strip the restrictions on 16 July, though the first local public notice was not until 1 August.

Local adverse reactions were evident as early as 14 July at a meeting of the Oshtemo Township Board. Numerous letters and phone calls followed in later days and weeks, to the Kalamazoo Gazette, WMU administrators and board members, and local members of the legislature.  Much of this is related in earlier posts at this website.  As of the day I write, 28 October 2009, the bill has passed the House and been approved by the Senate Appropriations Committee.  Tardy and prolonged debate on the state budget, typical of the Michigan legislature, has delayed immediate action in the Senate.

Proponents of removing the restrictions and making the Orchard an annex to the current BTR park have said little publicly and have been unwilling to engage in any public forum or debate.  Apparently, their arguments are that the BTR is full, that it created more than 1,300 jobs “directly or indirectly” and an expansion would create many more, and that it is a logical site for expansion because it is already owned by WMU, is adjacent to the current park, and is not utilized.

Some of the claims are questionable and the rest are wrong.  The BTR park isn’t full.  Were the jobs “created” or were they jobs that, in the absence of the BTR park, would still have lodged somewhere in the Kalamazoo area? Considering the current job market, how soon will a BTR Park annex actually be needed?  Plenty of other sites exist for expansion, if expansion should ever be necessary. Included are other unrestricted properties owned by WMU as well as remediated brownfield sites in Kalamazoo that are going begging.  Although WMU’s early, obfuscatory statements in February mentioned that expansion to the CFO was “one option,” evidence is lacking than any other site was considered.

In fact, the main argument in favor of the Orchard is money. The Orchard is land bought with taxpayer dollars and given to WMU by the state for public use as open space.  Expansion of the BTR park would consist of dividing the parcel into a few lots and selling them for commercial use at market value.  Estimates for total income from the sales start at around $3 million.  With a cost basis of zero, WMU could reap a handsome profit.

In a rational accounting, the justification for converting this public open space to a BTR park annex fails.  To me and a good many others, there is little need even to do the accounting.  Here is land that in the transfer from state to university was set aside for the public good in language as plain as can be written.

I believe that here we are coming close to the fundamental distinction between conservationists and exploiters.  The difference is the unwillingness or perhaps the constitutional inability of the exploiters to understand and honor a perfectly explicit covenant.  They see it as nothing more than an obstacle to making money from the land, to be gotten around or over.  To them, conserved land is not utilized; conserved land does not perform.

To the exploiters, all land is trade land.

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