Conservation Easement Enforcement Goes Before the Virginia Supreme Court

UPDATE: On Feb 12, 2016, the Virginia Supreme Court issued a ruling in Wetlands America Trust, Inc. v. White Cloud Nine Ventures, L.P. The decision by the Virginia Supreme Court affirms the validity of perpetual conservation easements in the Commonwealth. Troublingly though, the court clarified the standard of review for conservation easements as “strict construction,” which means the presumption on any ambiguity will be a finding in favor of the “free use of land.”

At a practical level, the ruling will impact how land trusts steward current easements and underscores the importance of specificity in the drafting of future easements.

Text from October, 2015

There is a case pending before the Virginia Supreme Court that could impact the future of conservation easement enforcement and interpretation. On September 16th, 2015, a panel of Virginia Supreme Court Justices heard oral arguments in Wetlands America Trust v. White Cloud Nine, LP. A decision from the Court is expected in November or January.

The case itself centers around a dispute that began in 2013 between Wetlands America Trust, the easement holder (a supporting entity to Ducks Unlimited), and White Cloud Nine, which operates Chrysalis Vineyards, over the size, location and use of structures on its property under easement in Loudoun County, Virginia. Wetlands America Trust found 14 easement violations on the property, but none were upheld by the Circuit court.

The Piedmont Environmental Council joined with five other regional and national conservation groups in weighing in with the Virginia Supreme Court in May of 2015. We asked the Court to follow the clear direction of the General Assembly and to honor the pledge in the Virginia Constitution to support clean air, clean water, history and resource protection when determining how to uphold the integrity of conservation easements.

The organizations, which included The Civil War Trust, The Land Trust Alliance, The Land Trust of Virginia, The National Trust for Historic Preservation, and The Nature Conservancy, signed on (with PEC) to an Amicus Curiae brief in support of the easement holder, Wetlands America Trust.

*The Office of the Attorney General has also filed an Amicus in support of Wetlands America Trust.