The General Assembly is considering bills this session that would regulate the way courts rule on disputes over conservation easements, a type of contract that protects privately-held land in pursuit of conservation goals.
Landowners can donate an easement to a conservation organization that promises to meet certain conservation values, and then receive a tax credit for the value of the donation. Those conservation values could be agricultural, historic, and scientific, or the preservation of open space, a specific species of plants or animals, and water-quality.
Easements carry over in perpetuity, so if a property owner sells land the buyer would also have to adhere to the easement. In 2016 the Virginia Supreme Court ruled on a case that affected the durability of these easements. After a property changed hands in Loudoun County, the conservation organization that held an easement on the land sued. The court said that when there's ambiguity in disputes over how those conservation goals are being met, courts should typically side with landowners.
Last session Gov Northam’s administration supported a bill that would have had courts err on the side of the conservation organization that holds easements, but the bill stalled and wasn’t passed.
The bills in this year's session, introduced by Delegate Michael Webert and Senator Chap Petersen, say that courts should interpret ambiguity in favor of the easement's original intent instead.
“When you're talking about permanent protection of property, you want to ensure that those conservation purposes are given the proper weight,” said Dan Holmes, the director of state policy for the Piedmont Environmental Council, which helped draft the bill. “In this case we feel the legislation is necessary to provide that direction to the courts to ensure that those conservation purposes - that the donor did not donate lightly to the Commonwealth - are truly protected in perpetuity.”
The Commonwealth has invested a lot in these easements to incentivize that continued protection - $1.7 billion by one measure. That’s the amount of tax credits landowners have received since the year 2000. $291 million has been used by taxpayers in tax credits.
Delegate Wendy Gooditis, who is a cosponsor of the bill, said that these easements are also useful in providing agricultural land in areas susceptible to rapid development. She said that’s the pandemic’s interruption of national food supply chains. “One of the things that the pandemic has done has shown how the local farm to table is important.”
This report, provided by Virginia Public Radio, was made possible with support from the Virginia Education Association.