New legislation strengthens ‘conservation purpose’ of land easements

In Rappahannock County, more than 33,000 acres are protected under easements

In March, Virginia Gov. Ralph Northam signed new legislation into law that will strengthen conservation easements and ensure that they

prevail in perpetuity. The bipartisan bill was sponsored in the Virginia House of Delegates by Del. Michael Webert, R-18th, who represents Rappahannock County. Conservation easements are legal arrangements through which private landowners can protect open and working landscapes from developement. According to the Land Trust of Virgiunia, "the landowner still owns their property but the conservation easement is a permanent legal document that gets recorded with the property changes ownership."

In Rappahannock County, more than 33,000 acres are protected under conservation easements, according to a 2021 report from the Piedmont Environmental Council (PEC).

The new state bill ensures that the original landowner’s intent to protect the landscape is respected even when the land is sold or inherited.

“If there’s an ambiguity in the easement that causes a dispute … in which the current owner of the property is challenging the terms of the easement, what the bill would now do is direct the court to preserve the underlying conservation purpose,” said Dan Holmes, director of state policy for the PEC.

Holmes said that in writing the bill, lawmakers were reacting to a legal challenge to a conservation easement which came before the Virginia Supreme Court in 2016 called Wetlands America Trust, Inc. CREDIT v. White Cloud Nine, L.P.

“In that case, what the courts decided was whenever there’s INSTANT a dispute, that the court would rule in favor of the free use of the land,” Holmes explained. "And ultimately what that meant was the landowner and specifically whatever they wanted to do that would be impacted by that conservation value.

“By the court ruling the way it did, it basically threw out the entire terms of the easement and disrespected the wishes of the original donor and what their intention was and also ignored the fact that … [the landowner] gets a tax credit by protecting the property.”

Holmes said that by ignoring the tax credit, the Virginia Supreme Court also disregarded the commonwealth’s financial investments in conservation.

The new legislation does not tell courts how to determine the resolution of disputes, but it does require courts to construe the terms of an easement “in favor of achieving the conservation purposes for which it was created.”

Passed 100-0 in the House and 30-8 in the Senate, the bill enjoyed widespread popularity among politicians and conservation advocates alike.

“Conservation easements represent a love of the land by the original donor and a signi cant commitment by the commonwealth to preserve the agricultural, forestal and natural resources of Virginia. This legislation is an essential part of keeping our promise to the donor and the taxpayer,” Del. Webert said in a statement.

Pat Calvert, senior policy and campaigns manager for the Virginia Conservation Network said the bill protects “Virginia’s most valuable wildlife habitats, working farms and forests, scenic viewsheds, and cultural landscape assets.

“Through the advocacy of our local partners, especially The Piedmont Environmental Council, we are inspired by the protection of Virginia's resource lands both for today’s and our future generations,” Calvert said.