Letter: Granting, adjusting and living with easements

I offer your readers some different points of view to those expressed by Bill Fletcher in his letter of March 18:

In his letter, Mr.Fletcher asked, “If there were no problems with scenic easements, why . . . would Robert Dennis have to amend his easement after only a few years?” The short answer is that the VOF employee with whom we negotiated our easement left VOF, at which point we decided that only we and that person really understood the intent of some of the easement language –- a problem which needed to be fixed.

The longer answer includes the fact that we donated the second easement in Rappahannock County. at a time when the State’s program was in its infancy – so we had the opportunity to watch the program evolve, and to learn. (My family first offered an easement in 1966, when the Open Space Land Act was approved, but only if our easement were part of a program to preserve the Rappahannock watershed. It took VOF until 1976 to adopt such a program; family easements began to be granted in 1977.)

I agree with Mr. Fletcher that the government could seize our easement-protected property, just as government could seize his land not protected by easement. The procedure is called eminent domain. But I believe our easement somewhat protects us from eminent domain, as it contains the following language: “Although this easement . . . will benefit the public . . . nothing herein shall be construed to convey to the public a right of access to, or use of the Property. The Grantor retains the exclusive right to such access and use. . . .”

Such language is today pretty much standard to all easements, and will, I believe, deter any attempt at eminent domain so long as the Constitution remains in effect. But that’s all rather moot since our property is in fact used by the public – on the basis of our permission – for hunting. fishing, hiking, cross-country skiing, and horseback riding. We are part of an organized group of easement donors who manage about 800 acres for common purposes; together, we even operate our own game-checking station.

Mr. Fletcher also commented on why people grant easements. I personally feel that most donors do so because of emotional attachment to their land, a view reinforced by VOF findings that about half of all easement donors do not seek the tax benefits available to them.

However, I would add that I think that all owners of large tracts should at least consider an easement because of its potential economic value; because of Virginia’s rather unique tax credit sales law, an easement donation can translate into hundreds of thousands of dollars in the bank – meaning a landowner can cash in part of the value of his property without having to sell off any of it.

Whatever one thinks about easements, they are likely to be around a while. The Kaine administration relied mostly on easements to protect 424,000 acres during its four years. Governor McDonnell has pledged to protect yet another 400,000 acres.

Robert T. Dennis
Flint Hill

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