An Update on Virginia Law Applicable to the Possible Destruction of "Perpetual" Easements on Historic Properties and Open Space by Condemnation: It all Depends Upon Who is the Grantee
By George C. Freeman, Jr.
INTRODUCTION
Nine years ago I delivered a paper in Charlottesville on one of the major questions regarding Virginia's ongoing historic and open space easements program. The question involved the scope of protection afforded by a perpetual easement held by a “public body” against encroachments on the property for other governmental purposes. The Virginia Department of Transportation, the VirginiaHistoric Landmarks Board, and the Virginia Outdoors Foundation, all acting in concert with then-Governor Gerald Baliles's Administration, agreed that the Virginia Open Space Land Act affords the exclusive mechanism under Virginia law for the release of open space easements held by the Virginia Landmarks Board, the Virginia Outdoors Foundation, or any other “public body” as defined in the Act. This meant that lands protected by easements held by these Virginia governmental bodies could not be taken under state law for highways or other public purposes by other state or local governmental entities or public utilities without the consent of the public body holding the easement. Easements held under the Open Space Land Act are state property and immune to condemnation under state law. Such easements can only be released by the public body that holds the easements as the state's agent. The agency's consent, while discretionary, can only be granted where the statutory criteria for release are met by the specific facts of the case. The relevant statutory criteria are found in the original Section 10-153(A) of the Virginia Code:
No open-space land, the title to or interest of right in which has been acquired under this chapter and which has been designated as open-space land under the authority of this chapter, shall be converted or diverted from open-space land use unless the conversion or diversion is determined by the public body to be (1) essential to the orderly development and growth of the urban area, and (2) in accordance with the official comprehensive plan for the urban area in effect at the time of conversion or diversion. Other real property of at least equal fair market value and of as nearly as feasible equivalent usefulness and location for use as permanent open-space land shall be substituted within a reasonable period not exceeding one year for any real property converted or diverted from open-space land use, unless the public body should determine that such open-space land or its equivalent is no longer needed. The public body shall assure that the property substituted will be subject to the provisions of this chapter.
Relevant definitions set out in the original Section 10-156 were as follows:
(a) “Public Body” means any state agency having present authority to acquire land for a public use, or any county or municipality, any park authority, public recreational facilities authority or the Virginia Recreational Facilities Authority.
(b) “Urban area” means any area which is urban or urbanizing in character, including semi-urban areas and surrounding areas which form an economic and socially related region, taking into consideration such factors as present and future population trends and patterns or urban growth, location of transportation facilities and systems, and distribution of industrial, commercial, residential, governmental, institutional, resort, and other activities.
(c) “Open-space land” means any land in an urban area which is provided or preserved for (1) park or recreational purposes, (2) conservation of land or other natural resources, (3) historic or scenic purposes, (4) assisting in the shaping of the character, direction, and timing of community development, or (5) wetlands as defined in § 62.1-13.2 of Code of Virginia. (1966, c. 461; 1974, c. 348; 1986, c. 360.).
The first case where this “release” provision was applied arose in the Baliles Administration in the early 1980s. It involved a request by the Virginia Department of Transportation to the Virginia Board of Historic Landmarks (now the Virginia Board of Historic Resources) for release of part (about twenty acres) of a perpetual easement on the Old Mansion in Bowling Green, Virginia under the Virginia Open Space Land Act. The Historic Landmarks Board found that the existence of alternative routes for completion of the Bowling Green Bypass that did not encroach on the Old Mansion property precluded a finding that the Old Mansion route was “necessary” within the meaning of Section 153(a) of the Open Space Land Act. According to the Board, the fact that the Old Mansion alternative would cost less and involve less “dislocation” than four other proposed alternatives was immaterial. Moreover, the Board concluded that, as a matter of public policy, the precedent set by the release of a perpetual easement in the absence of absolute necessity would break faith with the grantors of this and similar easements on historic landmarks held by the Board and thus undermine the ongoing momentum of its easement program.
The basic facts that shaped the Board's decision in the Old Mansion proceedings were:
• The Old Mansion is one of the oldest houses in Virginia and is listed as a historic landmark on both the Federal and Virginia registers. It was built in the late seventeenth century, and located on about 110 acres of land immediately south of Bowling Green in Caroline County. The entire property is protected by a perpetual easement held by the Virginia Historic Landmarks Board. This easement is itself historic because it was the first easement granted to the Historic Landmarks Board after its creation in 1966.
• Second, the Bowling Green Bypass was a highway project that was started in the early 1960s, and part of it was completed with federal funds. But because of its low priority, Virginia's dwindling federal funds for highway construction, and the fact that the U.S. Secretary of Transportation did not make the finding requisite under applicable federal law for further federal funding of the project, the remaining uncompleted segments were continually delayed. Due to the decisions of a Virginia district court in Thompson v. Fugate, it was clear that the federal requirements could not be avoided by “segmentation” (the use of only Virginia funds to complete the segment on which the historic structure was located). The owners of Old Mansion successfully argued that completion of the bypass through the easement property was not legally feasible under either state or federal law.
• Third, when the Virginia Department of Transportation revisited the Bowling Green Bypass in the wake of the General Assembly's enactment of the recommendations of Governor Baliles' Commission on Transportation, the Department agreed that resolution of the issue of the legal feasibility of the Old Mansion alternative under Virginia law was in the public interest. The question of Virginia law was separate and distinct from the question of legal feasibility under federal law decided in Thompson v. Fugate. All parties recognized, however, that the federal law question would have still had to be resolved in the Old Mansion situation if the easement posed no obstacle to the Old Mansion route under Virginia law. All parties also agreed that resolution of the Virginia law question might obviate the need to litigate the federal question in the federal courts because if Virginia law barred the proposed Old Mansion alternative route, then Virginia law was dispositive.
• Finally, resolution of the question of Virginia law was directly relevant to the then-ongoing deliberations of the Governor's Commission to Study Historic Preservation and its impending recommendations to Governor Baliles and the General Assembly. All concerned agreed that resolution of the Virginia law question within the Baliles Administration and the avoidance of lengthy, costly, and unnecessary litigation was in the public interest. There was also a strong incentive for the Administration and its supporters outside Virginia to avoid needless confrontation between two main components of Governor Baliles' Program for the New Dominion: his then-in place expedited transportation program, and the then-impending report of his Commission to Study Historic Preservation.
Fortunately, the Virginia Open Space Land Act, enacted in 1966, afforded the means for reconciling transportation needs and historic and open space preservation. In light of this agreement among the two concerned Virginia agencies as to the governing Virginia procedure, State Senator Clive DuVal withdrew his earlier request to the Attorney General for a formal opinion on applicable Virginia law and on whether the Thompson v. Fugate precedent precluding “segmentation” as a means of avoiding compliance with federal requirements was still good law.
After the Landmarks Board's decision not to release the portion of the open-space easement requested by the Department of Transportation, the Department held another public hearing on the proposed completion of the Bowling Green Bypass. At that hearing, the Department sought public views on the four remaining alternatives proposed since the Old Mansion route was not legally feasible in light of the Historic Landmarks Board's denial.
After the Old Mansion decision by the Virginia Historic Landmarks Board, the Department of Transportation followed this same procedure to seek release of part of an open-space easement held by the Virginia Outdoors Foundation for another highway project in Albemarle County. In that instance, the highway project was potentially far less intrusive. It involved widening an existing road. The Transportation Department, the landowner, and the Virginia Outdoors Foundation ultimately reached agreement on the desirability of the project and on plans for completing it in a way that had minimal impact on the open space values protected by the easement.
The precedents discussed above demonstrate that a viable means exists for reconciling Virginia's open space easement program under the Open Space Land Act, carried out primarily through the two key agencies--the Virginia Historic Landmarks Board and theVirginia Outdoors Foundation, with other state public policy objectives.
Nine years ago I delivered a paper in Charlottesville on one of the major questions regarding Virginia's ongoing historic and open space easements program. The question involved the scope of protection afforded by a perpetual easement held by a “public body” against encroachments on the property for other governmental purposes. The Virginia Department of Transportation, the VirginiaHistoric Landmarks Board, and the Virginia Outdoors Foundation, all acting in concert with then-Governor Gerald Baliles's Administration, agreed that the Virginia Open Space Land Act affords the exclusive mechanism under Virginia law for the release of open space easements held by the Virginia Landmarks Board, the Virginia Outdoors Foundation, or any other “public body” as defined in the Act. This meant that lands protected by easements held by these Virginia governmental bodies could not be taken under state law for highways or other public purposes by other state or local governmental entities or public utilities without the consent of the public body holding the easement. Easements held under the Open Space Land Act are state property and immune to condemnation under state law. Such easements can only be released by the public body that holds the easements as the state's agent. The agency's consent, while discretionary, can only be granted where the statutory criteria for release are met by the specific facts of the case. The relevant statutory criteria are found in the original Section 10-153(A) of the Virginia Code:
No open-space land, the title to or interest of right in which has been acquired under this chapter and which has been designated as open-space land under the authority of this chapter, shall be converted or diverted from open-space land use unless the conversion or diversion is determined by the public body to be (1) essential to the orderly development and growth of the urban area, and (2) in accordance with the official comprehensive plan for the urban area in effect at the time of conversion or diversion. Other real property of at least equal fair market value and of as nearly as feasible equivalent usefulness and location for use as permanent open-space land shall be substituted within a reasonable period not exceeding one year for any real property converted or diverted from open-space land use, unless the public body should determine that such open-space land or its equivalent is no longer needed. The public body shall assure that the property substituted will be subject to the provisions of this chapter.
Relevant definitions set out in the original Section 10-156 were as follows:
(a) “Public Body” means any state agency having present authority to acquire land for a public use, or any county or municipality, any park authority, public recreational facilities authority or the Virginia Recreational Facilities Authority.
(b) “Urban area” means any area which is urban or urbanizing in character, including semi-urban areas and surrounding areas which form an economic and socially related region, taking into consideration such factors as present and future population trends and patterns or urban growth, location of transportation facilities and systems, and distribution of industrial, commercial, residential, governmental, institutional, resort, and other activities.
(c) “Open-space land” means any land in an urban area which is provided or preserved for (1) park or recreational purposes, (2) conservation of land or other natural resources, (3) historic or scenic purposes, (4) assisting in the shaping of the character, direction, and timing of community development, or (5) wetlands as defined in § 62.1-13.2 of Code of Virginia. (1966, c. 461; 1974, c. 348; 1986, c. 360.).
The first case where this “release” provision was applied arose in the Baliles Administration in the early 1980s. It involved a request by the Virginia Department of Transportation to the Virginia Board of Historic Landmarks (now the Virginia Board of Historic Resources) for release of part (about twenty acres) of a perpetual easement on the Old Mansion in Bowling Green, Virginia under the Virginia Open Space Land Act. The Historic Landmarks Board found that the existence of alternative routes for completion of the Bowling Green Bypass that did not encroach on the Old Mansion property precluded a finding that the Old Mansion route was “necessary” within the meaning of Section 153(a) of the Open Space Land Act. According to the Board, the fact that the Old Mansion alternative would cost less and involve less “dislocation” than four other proposed alternatives was immaterial. Moreover, the Board concluded that, as a matter of public policy, the precedent set by the release of a perpetual easement in the absence of absolute necessity would break faith with the grantors of this and similar easements on historic landmarks held by the Board and thus undermine the ongoing momentum of its easement program.
The basic facts that shaped the Board's decision in the Old Mansion proceedings were:
• The Old Mansion is one of the oldest houses in Virginia and is listed as a historic landmark on both the Federal and Virginia registers. It was built in the late seventeenth century, and located on about 110 acres of land immediately south of Bowling Green in Caroline County. The entire property is protected by a perpetual easement held by the Virginia Historic Landmarks Board. This easement is itself historic because it was the first easement granted to the Historic Landmarks Board after its creation in 1966.
• Second, the Bowling Green Bypass was a highway project that was started in the early 1960s, and part of it was completed with federal funds. But because of its low priority, Virginia's dwindling federal funds for highway construction, and the fact that the U.S. Secretary of Transportation did not make the finding requisite under applicable federal law for further federal funding of the project, the remaining uncompleted segments were continually delayed. Due to the decisions of a Virginia district court in Thompson v. Fugate, it was clear that the federal requirements could not be avoided by “segmentation” (the use of only Virginia funds to complete the segment on which the historic structure was located). The owners of Old Mansion successfully argued that completion of the bypass through the easement property was not legally feasible under either state or federal law.
• Third, when the Virginia Department of Transportation revisited the Bowling Green Bypass in the wake of the General Assembly's enactment of the recommendations of Governor Baliles' Commission on Transportation, the Department agreed that resolution of the issue of the legal feasibility of the Old Mansion alternative under Virginia law was in the public interest. The question of Virginia law was separate and distinct from the question of legal feasibility under federal law decided in Thompson v. Fugate. All parties recognized, however, that the federal law question would have still had to be resolved in the Old Mansion situation if the easement posed no obstacle to the Old Mansion route under Virginia law. All parties also agreed that resolution of the Virginia law question might obviate the need to litigate the federal question in the federal courts because if Virginia law barred the proposed Old Mansion alternative route, then Virginia law was dispositive.
• Finally, resolution of the question of Virginia law was directly relevant to the then-ongoing deliberations of the Governor's Commission to Study Historic Preservation and its impending recommendations to Governor Baliles and the General Assembly. All concerned agreed that resolution of the Virginia law question within the Baliles Administration and the avoidance of lengthy, costly, and unnecessary litigation was in the public interest. There was also a strong incentive for the Administration and its supporters outside Virginia to avoid needless confrontation between two main components of Governor Baliles' Program for the New Dominion: his then-in place expedited transportation program, and the then-impending report of his Commission to Study Historic Preservation.
Fortunately, the Virginia Open Space Land Act, enacted in 1966, afforded the means for reconciling transportation needs and historic and open space preservation. In light of this agreement among the two concerned Virginia agencies as to the governing Virginia procedure, State Senator Clive DuVal withdrew his earlier request to the Attorney General for a formal opinion on applicable Virginia law and on whether the Thompson v. Fugate precedent precluding “segmentation” as a means of avoiding compliance with federal requirements was still good law.
After the Landmarks Board's decision not to release the portion of the open-space easement requested by the Department of Transportation, the Department held another public hearing on the proposed completion of the Bowling Green Bypass. At that hearing, the Department sought public views on the four remaining alternatives proposed since the Old Mansion route was not legally feasible in light of the Historic Landmarks Board's denial.
After the Old Mansion decision by the Virginia Historic Landmarks Board, the Department of Transportation followed this same procedure to seek release of part of an open-space easement held by the Virginia Outdoors Foundation for another highway project in Albemarle County. In that instance, the highway project was potentially far less intrusive. It involved widening an existing road. The Transportation Department, the landowner, and the Virginia Outdoors Foundation ultimately reached agreement on the desirability of the project and on plans for completing it in a way that had minimal impact on the open space values protected by the easement.
The precedents discussed above demonstrate that a viable means exists for reconciling Virginia's open space easement program under the Open Space Land Act, carried out primarily through the two key agencies--the Virginia Historic Landmarks Board and theVirginia Outdoors Foundation, with other state public policy objectives.
