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Scenic Easement Limits Outlined

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Acquisi'ion of scenic, open space ard access easeroents by the city would be prope: "if re' lated to a program of sireet' and [park beautification," the city attorny's office report!. A nine-page opinión on the queötion of scenic easements wis prepared by tlie attcrney's rffice at the request of the Committee on Natural Rescurces, which had recommendec that the city acquiresuch easenents. Assistant' City Attorney Fred Steingold, in (he opinión said the main legal problem to e resolved is to what extent th; city may spend public funds for aesthetic purposes. "This quesüon has n e ve r , been fully a n s w e r e d by he Michigan Supreme Court, norby ilhe other courts of our land,"he said. "However, there is a ciar trend in legal decisions tow;rd permitting aesthetics to plaj a key role in lïïe acquisition of property by a public agency." Steingold cited a 1954 Unied States Supreme Court deci.'on which stated, in part, that "it is within the power of the legislature to detemine that' the community should be beautiful as well as healthy, spacious as well as clean, well-balanced as well as carefully patrolled . . ." "Such braad language," Steingold said, "indieates that a public body may make aestheiïc values an important basis for acquisition: of property. But a more difficdt question, and one which has nt yet been squarely determiné, is whether aestheiïcs may ie the sole basis for such an acqusition." Steingold adis that he believes Ann Arbor is the first city in the state to oursue the possibilil'y of such aquisitions. In giving the opinión, the attorney's office aid it was itsi understanding tht several types of acquisitions a-e c o n t e mplated. These included acquisii'ion of scenc easements whereby the prop;rty o w n e r is forbidden to biild upon the land or "otherwise dsturb its natural beauty; "acquuition by the city of such a.i easementl wit'h the right to plant tress and make other scenic improve-j ments; acquisition of access'l easements between parks or tween a public road and a park _with the public having tbe righi ' lio use the easemenK01" iravei;ij l;icquisitipn of easPnents where-, l)y the city vv-Ú acquire the iïght 10 plant trees on private Iproen'y alog public roads; andjj Eih acquisition of scenic ease-!J Kenfs wAereby a private ] lerty owier would not be allowed 1 to construct a tall building which 1 would interfere with the I lic's view óf scenic beauty of I adjaining property. Stemgold said that the citv could probably acquire scenici easement rights in all these in-l stances except the last. "In our opinión, the acquisition of a! hne-of-sight' easement would be the most difficult to find a.uthonty for. There the scenicj attractians would lie on land! other tfoan that over which ani leasement would be acquired j and public benefit arising froni , the easement would be quite re-I ,mote." The opinión added that ani easement places a "substantiall restrictïon upon 'e uses which M the land.wner may make of hisll land . . . Therefore, before anfl easement is acquired, thoughtfl should be given to acquiring theH full legal title." Steingold added that citizcnsB could challenge fhe right of theffl city to spend public funds forffl the acquisition of scenic ease-HH ments. "If the acquisitions pro-flll oosed ... are based solely onffiH jesthetic considerations, a legalffll est of the propriefy of the ac-öH juititions would raise novelfJB luestions, and it is impossiblelfl o pre.dict with any degree ofJI ertainty how a court would an-JM wer these questions."