Mandatory Conservation EasementsBy: Curt Harvey I wonder if the members of the Clarke County Planning Commission and their cohorts, the Mountain Land Area Planning Committee, have heard of Kelo vs. New London, a case currently before the U.S. Supreme Court dealing with the alleged abuse of eminent domain. Eminent domain is defined as "government seizure of private property for public use, in exchange for payment of fair market value". Federal justification for eminent domain, from which the states have modeled their laws, is found in the last twelve words of the Fifth Amendment to the U.S. Constitution, to wit: "nor shall private property be taken for public use, without just compensation." The proposed plan, which will become law unless the citizens of Clarke County are able to stop this runaway train, states: No parcel may be created with one dwelling unit right in the FOC zoning districts containing at least 20 acres unless it has been offered for a permanent open-space, conservation, or historic easement to the Clarke CountyBoard of Supervisors and Conservation Easement Authority, and to one or more of the following: the Virginia Board of Historic Resources, the Virginia Outdoor Foundation, or any other entity authorized to hold an open-space easement pursuant to the Virginia Open-Space Land Act (§10.21-1700, Code of Virginia). The justification offered is: The purpose of this section is to ensure quality development, preservation of open space, and compliance with the Comprehensive Plan. This is not ambiguous, nor was the explanation offered by Chuck Johnston, County Planning Administrator, at the March 15, 2005 meeting on this very topic. Subdivide a lot of 179.99 acres, to which you have been allocated 5 dwelling unit rights, and 116.99 acres (65%) of that land must be open space with a single dwelling unit right. In other words, 65 percent of your land must be offered for a permanent conservation easement. A quote from the virginiaconservation.org website with regard to conservation easements: "if you want to have control over something, own it". Sounds like the Mountain Land Plan is very cognizant of that principle. When the government mandates a conservation easement, they are taking ownership of the right to how your property will be used. You own the property, they own the rights. Additionally, the county will not wholly own the easement! It is shared with state agencies, making it very unlikely that "mutual agreement to dissolve" the easement will ever occur. Sure, you can build a house on it, but forget about retaining the rights enjoyed by the owners of the other four dwelling unit rights. If the county opens up development later, your neighbors could conceivably get together and subdivide the 63 acres they share and you will be sitting on the edge of a 116.99 acre park that your family can never develop. This regulation says you must give up value in your property ("quality development, preservation of open space, and compliance with the Comprehensive Plan"), forever. Although unlikely, now, that your neighbors will be able to subdivide, we all know of instances where bureaucrats were "unelected" because their policies became unpopular. I contend that the mandatory taking of 65% of the permanent use of a 179.99 acre subdivision to satisy the demands of a transient Planning Commission effects a taking; the abuse of eminent domain in which the government refuses to offer just compensation for the value of assets seized. If a future 63 acre subdivision is worth (hypothetically) $630,000.00, a 116.99 acre subdivision should be worth more than 1 million dollars. If the neighbors have the opportunity, however remote, to develop their 63 acres, then confiscating the same opportunity from the larger parcel's owner is wholly unconstitutional. The web site I quoted earlier, virginiaconservation.org, lists three sections under "Current Avenues for Preserving Open Space in Virginia": 1. Government Toolbox (an ominous name) 2. Outright Purchase Plans 3. Voluntary Land Protection Plans Conservation Easements are listed under number three, keyword voluntary. One last point about conservation easements and other avenues for preserving open space - almost all offer tax incentives to the grantor. This means that while the granting property owner will pay less in taxes, every other property owner will incur additional taxes. In effect, this is a communal taking because it affects us all. I urge my fellow citizens of Clarke County to tactfully engage the individuals responsible for this "tyranny in the making" to reconsider. I sincerely feel that their hearts, though misguided by emotion, are in the right place, but their actions are reprehensible. Thank You. Curt Harvey |
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