“The conveyance shall provide that 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.”
-Conservation covanent of Colony Farm Orchard (terminated 2010)
Long story short-
Colony Farm Orchard is a 53 acre parcel of land that is home to red-tail hawks, coyotes, dear, woodcock, turkeys, and green heron along with countless other species of wild life. Western Michigan University acquired possession of this land some time ago with the stipulation that they could not use the land for anything but a public park, recreation area, or other open space purposes. Basically, Colony Farm Orchard was to remain under WMU’s authority, but also it’s forests and meadow to be enjoyed by the public. The State of Michigan had this stipulation in place in 1977 when the state (public) transferred ownership of the land to WMU.
Western Michigan University has been eager to develop the land for years and was met with opposition from Students for Sustainable Earth (SSE) in 2009. And so began Colony Farm Orchard being referred to Enchanted Forest
2010- X-Gov. Jennifer Granholm (D) signed legislation that stripped the land of the protective stipulation while WMU’s Business Technology and Research park flourished. This business park is ironically home to biotechnology and pharmaceutical start-ups. 2010 also brought the misfortunes of a new restricted access status to the Enchanted Forest.
Below you will find an MLive article announcing WMU, Oshtemo Township, and Southwest Michigan First are seeking Kalamazoo County’s approval to expand WMU’ Business Technology and Research (BTR) park onto 44 acres of the Enchanted Forest. You will also find an article written in 2009 by local biologist Richard Brewer that explains the importance of the Enchanted Forest to the local ecosystem in and around Asylum Lake Preserve, as well as a conservation proposal.
More on this to come- NEXT COUNTY COMMISSION MEETING IS APRIL 7!
Conservation Values of the Colony Farm Orchard, Kalamazoo County, Michigan
By RBREWER | Published: DECEMBER 16, 2009
The following is approximately what I said in my brief remarks at the Save the Colony Farm Orchard Rally last Tuesday night, 8 December 2009. I have, however, expanded on my thoughts under point 3, adding a consideration of conservation easements.
We need to recognize three aspects to the conservation value of this piece of land. One is what’s good about the land itself. Two is its beneficial effects on the adjacent Asylum Lake Preserve, which Western Michigan says is permanently protected. Three is the broad question of how the conversion of this dedicated conservation land to commercial use affects the status of conservation land all across the state.
1. The Land Itself. Although this land has been referred to as the Colony Farm Orchard, the old orchard amounts to only a quarter or so of the approximately 53 acres. The fruit trees are surrounded and in some cases overrun by grape vines. Box-elder is a common invading tree in the orchard.
The rest of the property is varied habitat with a couple of sizable wooded areas at the north and south ends. Grasslands dominated by smooth brome grass and goldenrods with invading shrubs and trees surround the wooded areas and the orchard. The land of the wooded area at the north runs down to a springy area with a couple of ponds.
One part of the conservation value of this piece of land is what used to be here. The east edge of Genesee Prairie, one of the eight tall-grass prairies in Kalamazoo County, extended to the Orchard site. This is now the only part of Genesee Prairie in public hands and with anyapproach to natural vegetation. The rest is gone, beneath US-131 or occupied by the west edge of Western Michigan University’s BTR park and commercial and residential areas and croplands west of US-131.
It’s unlikely that much of the original prairie flora is left at the Orchard site. However, there are still bur oaks–a good many, some fairly large and old, others young. They are all almost certainly descendants of the bur oaks that were part of the savanna fringing this tall-grass prairie. They are a genetic connection extending back 180 years to when the first settlers arrived to homestead on the prairies and savannas of Kalamazoo County. But the connection extends back much further than that, to long before Europeans reached Michigan or North America, probably to some time in the Hypsithermal interval around 9000-6000 years ago.
As for animals, we know from various sources that there are coyotes, deer, turkeys, woodcock, Red-tailed Hawks, Green Herons, and many smaller birds in the summer or year-round. I will shortly put up a list of summer bird species that several observers are supplying. The spot also has all the attributes of an excellent migratory stopover site for land birds in both spring and fall. As to the small mammals, reptiles, amphibians, insects, I think it may be time for WMU to fund a serious study to find out just what is here.
2. Benefits to Asylum Lake Preserve. The Colony Farm Orchard is properly part of Asylum Lake Preserve. From the edge of the Preserve vegetation to the edge of the Orchard vegetation is about the same distance as between third base and home plate on a baseball field. The Orchard makes the preserve a larger sanctuary by about 20 percent. This is good; bigger is better in sanctuaries, mainly because local extinction of species is rarer on bigger sanctuaries.
We could also think of the Orchard as an island near to the Preserve. It serves as a stepping stone that wandering animals not currently living on the Preserve can find and, from there, reach the sanctuary. The end result of all this is that the Orchard makes the Asylum Lake Preserve more diverse and less prone to fluctuations in populations, hence more stable.
There are of course the other beneficial effects of buffering against the noise, noxious fumes, and bright artificial lights coming from US-131 and the commercial land beyond it.
3. Threats to Conservation Land Elsewhere in Michigan. The Colony Farm Orchard has a protective conservation covenant that many Kalamazoo residents now know by heart: “The conveyance shall provide that 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 restrictions were placed on the land by the legislature at the time of its transfer from the state to WMU in 1977. If Representative Jones (D-Kalamazoo) and WMU can persuade the legislature to strip away this restriction, as HB 5207 provides, and if Governor Granholm signs it, WMU will be able to use the land for anything. This land, bought with taxpayer dollars and now designated for public use–specifically some variety of public open space–would be available to use as an Annex to WMU’s BTR park. But it could also be used any other way WMU chose.
If HB 5207 is passed and signed into law, what state or university land dedicated for conservation–or any kind of public use–is safe? What of the state parks? What of the arboretums, botanical gardens, and natural areas of the rest of the Michigan public universities?
What, in fact, of conservation easements? These are now the most popular way to protect land in perpetuity, widely used by land trusts and government agencies. They are discussed in many places in Conservancy: The Land Trust Movement in America but especially chapters 7 and 8. Very briefly, a conservation easement is a binding agreement that permanently restricts the development and future use of land so as to protect its conservation values. Conservation easements are held by conservation organizations or units of local, state, or federal government. The easement holders are charged with defending against violations of the easement provisions. As of 2005, land trusts in Michigan held conservation easements on about 55,000 acres. The amount of land in conservation easements held by government agencies is hard to determine but substantial. Conservation easements are a relatively new way to conserve land, rarely used before 1960. Most states have statutes providing the legal foundation for conservation easements; Michigan’s is Act 451 of 1954, called NREPA.
But we have seen what the state legislature, or the House at least, has done with statutes in the case of the Colony Farm Orchard. Suppose some well-connected land owner found that a conservation easement held by some land trust had become inconvenient to him. Might the Michigan legislature be willing to pass a statute saying the conservation easement on his land was rescinded? Maybe, maybe not. Suppose that this situation came up two or three times. Might the Michigan legislature decide that NREPA as currently written was becoming an unnecessary burden to worthy land owners who had changed their minds about the easements on their acreages. In that case, might the Michigan legislature amend the statute to make backing out easier–like, for example, by coming to the legislature with what seemed like a good argument, such as using the land to create jobs? Maybe, maybe not.
The land owners might still have a few hurdles remaining, with the IRS for example. But that’s what attorneys and accountants are for.
If the legislature did either of these things, a judge or two or more would decide whether what the legislature did was legally OK. Probably the judges wouldn’t say whether it was right or wrong or how much it damaged the cause of land conservation.
It is a dangerous path that Representative Jones and WMU are trying to steer the Michigan legislature towards.
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by Alex Mitchell
OSHTEMO TOWNSHIP, MI — Western Michigan University is seeking support from Kalamazoo County as the institution plans an expansion of its business technology and research park in Oshtemo Township.
Representatives from WMU, Oshtemo and Southwest Michigan First spoke with Kalamazoo County commissioners Tuesday about partnering to secure $3.5 million to fund infrastructure installation and land preparation on 44 acres of Colony Farms Orchard, land owned by WMU at the northwest corner of Drake Road and Parkview Avenue near the existing business park.
Commissioners were asked to forgo capturing taxes on the property once development begins in order to generate funding to support the infrastructure upgrades.
Although the property doesn’t currently generate taxes since it is owned by WMU, multiple commissioners questioned whether the area needed the county’s assistance to begin developing the area.
“I find it hard to believe this wouldn’t go forward without county,” said commissioner Kevin Wordelman, D-Kalamazoo. “Would that really sink the entire project?”
However, Oshtemo Township planner Greg Milliken stressed that if the county does not allow its taxes to be captured, the business park expansion likely won’t occur.
“Without your help the project does not move forward,” Milliken said, adding that development of the property could bring 200 to 400 jobs. “The property would remain vacant and uncollectable.”
The proposed expansion comes at a time when the original BTR Park, which is located to the southeast of Colony Farms Orchard, has no room left for development, said Bob Miller, associate vice president of community outreach for WMU.
Although he declined to name specific developers, Miller said he has been contacted by at least six developers during the past few years who have interest in building in the expanded business park.
At least one engineering firm has since chosen to build elsewhere, Miller said.
“They are building someplace else because we were not able to talk to them seriously about being located on Colony Farm,” Miller said. “We don’t collectively want too many more of those opportunities to come and go.”
Half of the proposed project is expected to be funded through a $1.75 million federal Economic Development Administration grant. However, the grant stipulates the recipient ensures the remainder of the anticipated costs are covered.
Last week, the Oshtemo Township Board of Trustees OK’d a resolution stating the township is committed to providing $1.75 million in matching funds to complete the project.
While the exact fundraising mechanism for the project has not yet been identified, WMU has already pledged $250,000 toward the expansion.
Oshtemo Township officials are recommending a bonding plan that would fund the remaining $1.5 million project cost, Milliken explained to county commissioners.
With interest, the bond commitment would grow to $2.22 million after 25 years, although commissioners noted they would prefer a 20-year bond plan instead.
Milliken said the township projects it would collect $1.2 million through sewer and water connection fees as the site develops during that span. He also projected an additional $1.15 million would be captured between county and township tax revenue.
Commissioners Dale Shugars, R-Portage, and Wordelman both said they wanted to explore the possibility of temporarily annexing Colony Farms into the city of Kalamazoo under Public Act 425 so developers would pay the city’s higher millage rate, meaning the bond debt would be lowered faster.
“I think this project could bring Kalamazoo County to the next level in intergovernmental coop and attracting economic development,” Shugars said of getting the city’s involvement.
Miller said infrastructure work on the sight could begin as early as this year after the grand application is approved and a funding plan can be agreed upon.
“There are no other impediments to getting started other than the funding,” Miller said. “We’re ready to go.”
While most commissioners who sounded off on the project said they supported the general spirit of the expansion despite wanting to tweak the funding, commissioner Michael Seals, D-Kalamazoo, said he is hesitant to allow the county’s taxes to be captured on the site after a separate tax-increment financed district was created in Oshtemo Township last year along the South Drake Road corridor.
“We’ve got other parts of this community that are in dire need of a TIF in order to help their community,” Seals said.
After the meeting, Miller declined to comment on commissioners’ reaction to the project, but noted he appreciated their consideration while looking at it for the first time.
“This was a good step,” Miller said. “They gave us the opportunity to introduce a concept.”
Before WMU acquired Colony Farm Orchard in 1977, it was part of a larger tract of land that had been owned by the Kalamazoo State Hospital since the 1880s.
When the state conveyed the Colony Farm Orchard property to WMU in 1977, it stipulated that WMU could only use the land for public park, recreation or open space purposes. The Legislature also could, by statute, authorize WMU to use the property for some other public purpose.
That stipulation was terminated in 2010 when former Gov. Jennifer Granholm signed legislation that nullified land-use restrictions on the parcel.
Alex Mitchell local government and taxes for the Kalamazoo Gazette. Email him at firstname.lastname@example.org or follow him on Twitter.