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Conservation vs. transportation: Who trumps in property taking?
BY JAMES JACENICH • STAFF WRITER
MONTEREY - In recent months, the Virginia Outdoors Foundation sent courtesy notifications for proposed conservation easements in the vicinity of the McDowell Battlefield and U.S. 250 to the Highland County Board of Supervisors for comment.
Finding no grounds to object to the easements, the board asked county attorney Melissa Dowd to issue an opinion about who has the right of eminent domain when it comes to a conflict between the state entities of the VOF and Virginia Department of Transportation.
Meanwhile, two of the three easements have been recorded in Highland County, said Dowd.
Easements are written to prevent or permit a number of activities and are written on a case-by-case basis, depending on the needs of the property owner and the conservation objective.
"The (Bill and Sandy) Brattons specifically had in their conservation easement language that directly addressed the concerns I thought I heard you all make about conservation easement effects on U.S. 250 and U.S. 220 and potential widening or improvements to those roads," said Dowd.
According to the Bratton language, VDOT may widen U.S. 220 even though the Brattons have a conservation easement on the land.
Dowd said she would have liked to see that language in easements on U.S. 250, but it was not included in those easements.
The conservation easement property on U.S. 250 is zoned for conservation. "The only right you (supervisors) have is whether or not the conservation easement is in compliance with the comprehensive plan," said Dowd.
In the case of the three easements proposed by VOF, they are in compliance, she said.
Rexrode said his concern was probably better left for a meeting with the county's state legislative representatives. "I'm not concerned about eminent domain as far as they concern widening the roads," said Rexrode. He said he was concerned about conservation easements that last forever.
"There is nothing you can do about that," said Dowd.
"Unless you define your growth areas," Rexrode responded.
Supervisor Robin Sullenberger asked Del. Chris Saxman, who was present at the board meeting Tuesday, whether a transportation corridor trumps a conservation easement.
Saxman said, "I have not heard any discussion on eminent domain in relation to conservation easements."
Saxman added if VOF were amenable to amending the law to allow road improvements, he would be supportive as well. "I don't know what the code would say about matters of eminent domain as it pertains to conservation easements in perpetuity," said Saxman.
"There is a certain distaste for a broad blanket for eminent domain," said Sullenberger.
"Protection from eminent domain is for the property owner," Saxman agreed. "If there is an agreement that can be made … I don't know who owns the land."
The landowner continues to own the land, said Dowd. "The legal sticky wicket is that U.S. 250 goes through the McDowell Battlefield area," she said. "You are only permitted x,y, z subdivisions; in almost all conservation easements there is a limit (to development).
"But let's say you have a conservation easement in perpetuity that goes up to the edge of the existing U.S. 250. VDOT decides, in its wildest dreams, to add a passing lane going down Bullpasture Mountain. Can VDOT or the supervisors condemn land they need without violating the easement in perpetuity? I don't know the answer."
"It would be wise to seek an opinion from the commonwealth Attorney General since he represents both," said Saxman. "We can probably get that done in short order."
The board directed Dowd to write a letter to the attorney general to get an opinion on who prevailed when two state entities had the right of eminent domain.
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