Court Monitor

Court Establishes Precedent in Favor of Land Use

The Virginia Supreme Court has established an important precedent in favor of property owners and against environmentalist limitations on land use. Wetlands America Trust v. White Cloud Nine Ventures, 2016 Va. LEXIS 12 (Feb. 12, 2016).

A new owner of farmland sought to develop it for several purposes, including adding a vineyard, growing wheat, and allowing cows to be milked on the land. The owner planned to erect a building to operate a bakery and a creamery, to store aging wine made from grapes grown there, and to feature a tasting room open to the public for consuming cheese, baked goods, and wine produced on the property. The owner also sought to construct an adjacent parking lot, a new road for cars to get there, and a new bridge.

But these plans were interrupted by a lawsuit from the Wetlands America Trust ("WAT"), which is a non-profit organization holding environmental easements across the country. It turns out that a prior owner of the property had given WAT a "Deed of Gift of Conservation Easement," which purported to limit "in perpetuity" the use of the property to "agricultural pursuits, and to prevent any use of the Protected Property which will impair significantly or interfere with the conservation values of the Protected Property, its wildlife habitat, natural resources or associated ecosystem."

The conservation group produced an expert witness at trial who asserted that the proposed construction and related plans would somehow have a significant adverse impact on wildlife on the property. The property owner then produced expert witnesses to rebut the conservation group, which is typically an expensive undertaking.

An environmentalist law had been enacted in Virginia, the Virginia Conservation Easement Act, which allows a "conservation easement" to enable environmentalist groups to acquire and enforce limitations on property use for the broad purposes of protecting "natural resources, maintaining or enhancing air or water quality, or preserving the historical, architectural or archaeological aspects of real property."

For centuries, under common law in England, any restrictive covenant limiting the use of land was disfavored, because it interferes with productivity and efficiency. People who are not even living on a parcel of real property should not be allowed to dictate what the property owner can and cannot do with his own land. The Virginia Supreme Court has restated this longstanding rule: "Valid covenants restricting the free use of land . . . are not favored and must be strictly construed and the burden is on the party seeking to enforce them to demonstrate that they are applicable to the acts of which he complains. Substantial doubt or ambiguity is to be resolved against the restrictions and in favor of the free use of property."

But environmentalists do not want this common law rule disfavoring restrictions on land use to apply against the easements they have obtained on private property throughout our country. Fortunately the Virginia Supreme Court extended to environmental easements the rule disfavoring property restrictions, and established a strong precedent in favor of property development by owners.