Condemning Protected Open Space Land: Perspective of the Virginia Outdoors Foundation
By Frederick S. Fisher
INTRODUCTION
The Virginia Outdoors Foundation and the Open-Space Land Act are the key instruments of Virginia's land protection policy. The Commonwealth was founded by people who wanted land. It has a strong tradition of property rights and an equally strong aversion to high taxes and regulation. State zoning was not an option when the problems of sprawl and loss of open space became apparent in 1966. The solution was the Open-Space Land Act, which enabled the Commonwealth to work in voluntary partnership with landowners to achieve the goals of each.
The Act authorizes public bodies to accept donated interests in real property to preserve open-space land.1 Private landowners could give a public body a perpetual right to preserve their privately-owned land as open space for the public benefit if the public body determined such preservation was suitable. The land would be retained by the private landowners. In the typical easement, the landowner would no longer have the right to subdivide or develop his land, but would be able to continue to farm, harvest, or forest the land, or to use it for any other use not specifically prohibited by the easement. The protected land would remain privately managed and tax-paying.
The Commonwealth's land protection policy is stated in Section 2 of the Open-Space Land Act, as adopted by Chapter 461 of the Acts of 1966. The General Assembly found:
that the rapid growth and spread of urban development are creating critical problems of service and finance for the State and local governments; that the present and future rapid population growth in urban areas is creating severe problems of urban and suburban living; that the provision and preservation of permanent open-space land are necessary to help curb urban sprawl, to prevent the spread of urban blight and deterioration, to encourage and assist more economic and desirable urban development, to help provide or preserve necessary park, recreational, historic and scenic areas, and to conserve land and other natural resources; that the acquisition or designation of interests and rights in real property by public bodies to preserve permanent open space land is essential to the solution of these problems, the accomplishment of these purposes, and the health and welfare of the citizens of the State. . .
In Chapter 525 of the same year, the General Assembly declared that it was “the public policy of Virginia that the preservation of open space lands is in the public interest and is to be encouraged,” and created the Virginia Outdoors Foundation (VOF) to be the Commonwealth's land trust.
While the Act sets out many values of open space that can be protected and allows temporary protection for a minimum of five years, its main focus is on the permanent protection of existing open space. The Act preserves rural areas and combats sprawl by providing a way for landowners to permanently protect the Commonwealth's rural lands from urban and suburban growth. Its most interesting feature is the conversion/diversion framework--a statutory procedure provided to address other public needs that may conflict with the public's need for protected open space.
The Virginia Outdoors Foundation and the Open-Space Land Act are the key instruments of Virginia's land protection policy. The Commonwealth was founded by people who wanted land. It has a strong tradition of property rights and an equally strong aversion to high taxes and regulation. State zoning was not an option when the problems of sprawl and loss of open space became apparent in 1966. The solution was the Open-Space Land Act, which enabled the Commonwealth to work in voluntary partnership with landowners to achieve the goals of each.
The Act authorizes public bodies to accept donated interests in real property to preserve open-space land.1 Private landowners could give a public body a perpetual right to preserve their privately-owned land as open space for the public benefit if the public body determined such preservation was suitable. The land would be retained by the private landowners. In the typical easement, the landowner would no longer have the right to subdivide or develop his land, but would be able to continue to farm, harvest, or forest the land, or to use it for any other use not specifically prohibited by the easement. The protected land would remain privately managed and tax-paying.
The Commonwealth's land protection policy is stated in Section 2 of the Open-Space Land Act, as adopted by Chapter 461 of the Acts of 1966. The General Assembly found:
that the rapid growth and spread of urban development are creating critical problems of service and finance for the State and local governments; that the present and future rapid population growth in urban areas is creating severe problems of urban and suburban living; that the provision and preservation of permanent open-space land are necessary to help curb urban sprawl, to prevent the spread of urban blight and deterioration, to encourage and assist more economic and desirable urban development, to help provide or preserve necessary park, recreational, historic and scenic areas, and to conserve land and other natural resources; that the acquisition or designation of interests and rights in real property by public bodies to preserve permanent open space land is essential to the solution of these problems, the accomplishment of these purposes, and the health and welfare of the citizens of the State. . .
In Chapter 525 of the same year, the General Assembly declared that it was “the public policy of Virginia that the preservation of open space lands is in the public interest and is to be encouraged,” and created the Virginia Outdoors Foundation (VOF) to be the Commonwealth's land trust.
While the Act sets out many values of open space that can be protected and allows temporary protection for a minimum of five years, its main focus is on the permanent protection of existing open space. The Act preserves rural areas and combats sprawl by providing a way for landowners to permanently protect the Commonwealth's rural lands from urban and suburban growth. Its most interesting feature is the conversion/diversion framework--a statutory procedure provided to address other public needs that may conflict with the public's need for protected open space.
