Lake Maumelle watershed landowners, angered by a possible conservation easement deal between Central Arkansas Water and the chairman of the Pulaski County Planning Board, lodged complaints about a perceived conflict of interest at a CAW meeting Feb. 14.
CAW has a deal in the works with planning board chair Ray Vogelpohl for a conservation easement on his 335-acre horse ranch 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 its 2013 capital projects budget, money that could potentially go directly to Vogelpohl from funds raised from landowners' 45-cents-per-month watershed management fee.
CAW officials have stressed that the deal, which has been in negotiation for five years, was not yet official and that the $500,000 was a placeholder, as they do not yet have a firm 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. He is the only member of the board who owns land in the watershed. He has been a supporter of 2008 subdivision regulations that placed some limits on development in the watershed, as well as the land-use ordinance that would impose stricter zoning regulations on landowners and developers set for a vote by the Pulaski County Quorum Court later this month. Both have been met with strong protests from landowners, while environmental groups have complained that the rules do not go far enough to protect the watershed.
Three of a group of about 10 landowners spoke at the CAW meeting, complaining 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 meantime ... he was negotiating for personal gain."
Details of the easement deal came to light via Freedom of Information Act 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 2011 when the planning board unanimously recommended the land-use ordinance, sending it to the Quorum Court for approval. White contends that he only recused 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 may have continued to be involved in the negotiation of the land-use ordinance after his recusal. White said 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 since we first began reporting on this story last Thursday. However, he provided the Times a letter to the Quorum Court responding to issues surrounding the easement shortly after we went to press Tuesday evening. See here.
Landowners have three main complaints:
1) They argue that because nearly two thirds of 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 land-use ordinance, including gravel mining, animal waste being spread on the land, and burying dead and diseased animals. (See a summary of what they believe would be additional allowances under the deal at arktimes.com/landownerscomp.)
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 December, 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 Vogelpohl is getting a special deal. They say that Vogelpohl's land is a top priority for watershed protection because of its location along the Maumelle River and because it is contiguous with other land acquired by CAW. They argue that the easement, like the ordinance, is a key step in protecting water quality in Lake Maumelle, a source of drinking water for more than 400,000 Central Arkansans.
Watershed Protection Manager John Tynan told the board that the conservation easement was a vital environmental protection tool and noted that almost 9 million acres across the country are protected under conservation easements as of 2010. He said it was a more cost-effective tool for long-term protection than direct acquisition. He also said CAW has communicated with other landowners who are interested in conservation easements but want to wait to see how the deal with Vogelpohl plays out. CAW plans to look into conservation easement deals with landowners throughout the watershed in the future.
At the board meeting, Tynan said 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.
CAW believes that critics are misrepresenting and exaggerating the differences in allowances between the conservation easement and the land-use ordinance. (See a PDF of CAW's summary of restrictions and allowances in the two plans at arktimes.com/CAWcomp). In a phone interview after the meeting, Tynan said CAW would never pursue any agreement that would relax restrictions in the land-use ordinance. "We support the zoning code as written," he said. "We are not interested and would never work on any sort of document or agreement that would work against the purpose and intent of the zoning code."
Tynan said no restriction in the ordinance, enforced by the county, would be superseded 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. As for the curious deletion of the "greater restriction" sentence, he told the Times that that revision did not come from CAW. Both County Attorney Karla Burnett and Pulaski County Judge Buddy Villines told the Times that they believed the sentence was removed during the revision process because it was redundant. "The ordinance is law," Burnett said. "Once it's adopted by the Quorum Court, it's codified as county law. The easement is just an agreement between two parties...to the extent that the ordinance is more restrictive than the easement, the ordinance controls."
Tynan also said that despite additional requirements, floodplain areas are in fact developable in Pulaski County. He added that, in any case, 120 acres of the property are not in floodplains, and the density restrictions in that area alone would be vital.
In a phone interview with the Times prior to the meeting, CAW CEO Graham Rich acknowledged that CAW 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 [a deal]. ... 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 is more restrictive are undercut by the fact that CAW will be the policing agent: "The fox is guarding the hen house."
Villines responded that critics of the deal were merely trying to derail the ordinance by changing the subject.
"The easement has nothing to do with the zoning ordinance," he said. "If you didn't know the facts you could perceive a conflict of interest. The facts are, once it was brought to [Vogelpohl's] attention he did not vote on the issue."
Villines said that he hadn't spoken with Vogelpohl in more than a year and stated that Vogelpohl was not a player in the negotiations over the land-use ordinance. He does not see any problem with Vogelpohl continuing to chair the planning board, noting that originally landowners in the watershed had been pleased with his selection.
"At this point they're trying to confuse the issue," he said. "Are we going to protect our water or not?"