§ 10.1-1009. Definitions.
As used in this chapter, unless the context otherwise requires:
"Conservation easement" means a nonpossessory interest of a holder in real
property, whether easement appurtenant or in gross, acquired through gift,
purchase, devise, or bequest imposing limitations or affirmative obligations,
the purposes of which include retaining or protecting natural or open-space
values of real property, assuring its availability for agricultural,
forestal, recreational, or open-space use, protecting natural resources,
maintaining or enhancing air or water quality, or preserving the historical,
architectural or archaeological aspects of real property.
"Holder" means a charitable corporation, charitable association, or
charitable trust which has been declared exempt from taxation pursuant to 26
U.S.C.A. § 501 (c) (3) and the primary purposes or powers of which include:
(i) retaining or protecting the natural or open-space values of real
property; (ii) assuring the availability of real property for agricultural,
forestal, recreational, or open-space use; (iii) protecting natural
resources; (iv) maintaining or enhancing air or water quality; or (v)
preserving the historic, architectural or archaeological aspects of real
property.
"Public body" means any entity defined in § 10.1-1700.
"Third party right of enforcement" means a right provided in a conservation
easement to enforce any of its terms granted to a governmental body,
charitable corporation, charitable association or charitable trust which,
although eligible to be a holder, is not a holder.
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§ 10.1-1010. Creation, acceptance and duration.
A. A holder may acquire a conservation easement by gift, purchase, devise or
bequest.
B. No right or duty in favor of or against a holder and no right in favor of
a person having a third-party right of enforcement arises under a
conservation easement before its acceptance by the holder and a recordation
of the acceptance.
C. A conservation easement shall be perpetual in duration unless the
instrument creating it otherwise provides a specific time. For all easements,
the holder shall (i) meet the criteria in § 10.1-1009 and (ii) have had a
principal office in the Commonwealth for at least five years. Until a holder
has met these requirements, the holder may cohold a conservation easement
with another holder that meets the requirements.
D. An interest in real property in existence at the time a conservation
easement is created is not impaired by it unless the owner of the interest is
a party to the conservation easement or consents to it in writing.
E. No conservation easement shall be valid and enforceable unless the
limitations or obligations created thereby conform in all respects to the
comprehensive plan at the time the easement is granted for the area in which
the real property is located.
F. This chapter does not affect the power of the court to modify or terminate
a conservation easement in accordance with the principles of law and equity,
or in any way limit the power of eminent domain as possessed by any public
body. In any such proceeding the holder of the conservation easement shall be
compensated for the value of the easement.
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§ 10.1-1011. Taxation.
A. Where an easement held pursuant to this chapter or the Open-Space Land Act
(§ 10.1-1700 et seq.) by its terms is perpetual, neither the interest of the
holder of a conservation easement nor a third-party right of enforcement of
such an easement shall be subject to state or local taxation nor shall the
owner of the fee be taxed for the interest of the holder of the easement.
B. Assessments of the fee interest in land that is subject to a perpetual
conservation easement held pursuant to this chapter or the Open-Space Land
Act (§ 10.1-1700 et seq.) shall reflect the reduction in the fair market
value of the land that results from the inability of the owner of the fee to
use such property for uses terminated by the easement. To ensure that the
owner of the fee is not taxed on the value of the interest of the holder of
the easement, the fair market value of such land (i) shall be based only on
uses of the land that are permitted under the terms of the easement and (ii)
shall not include any value attributable to the uses or potential uses of the
land that have been terminated by the easement.
C. Notwithstanding the provisions of subsection B, land which is (i) subject
to a perpetual conservation easement held pursuant to this chapter or the
Open-Space Land Act (§ 10.1-1700 et seq.), (ii) devoted to open-space use as
defined in §58.1-3230, and (iii) in any county, city or town which has
provided for land use assessment and taxation of any class of land within its
jurisdiction pursuant to § 58.1-3231 or § 58.1-3232, shall be assessed and
taxed at the use value for open space, if the land otherwise qualifies for
such assessment at the time the easement is dedicated. If an easement is in
existence at the time the locality enacts land use assessment, the easement
shall qualify for such assessment. Once the land with the easement qualifies
for land use assessment, it shall continue to qualify so long as the locality
has land use assessment.
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§ 10.1-1012. Notification.
Whenever any instrument conveying a conservation easement is recorded after
July 1, 1988, the party responsible for recording it or his agent shall mail
certified copies thereof, together with notice as to the date and place of
recordation, to the local jurisdiction in which the real property subject
thereto is located, the Attorney General of the Commonwealth, the Virginia
Outdoors Foundation and to any public body named in such instrument.
Certified copies of the instrument creating such easement, together with
information specifying the date and place of its recordation, shall be mailed
to the local jurisdiction in which the real property subject thereto is
located, the Attorney General of the Commonwealth, the Virginia Outdoors
Foundation and to any public body named in such instrument. Whenever any
conservation easement is on lands that are part of a historic landmark as
certified, either by the United States or the Virginia Historic Landmarks
Board, any notice required above shall also be given to the Virginia Historic
Landmarks Board.
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§ 10.1-1013. Standing.
An action affecting a conservation easement may be brought by:
1. An owner of an interest in real property burdened by the easement;
2. A holder of the easement;
3. A person having an express third-party right of enforcement;
4. The Attorney General of the Commonwealth;
5. The Virginia Outdoors Foundation;
6. The Virginia Historic Landmarks Board;
7. The local government in which the real property is located; or
8. Any other governmental agency or person with standing under other statutes
or common law.
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§ 10.1-1014. Validity.
A conservation easement is valid even though:
1. It is not appurtenant to an interest in real property;
2. It can be or has been assigned to another holder;
3. It is not of a character that has been recognized traditionally at common
law;
4. It imposes a negative burden;
5. It imposes affirmative obligations upon the owner of an interest in the
burdened property or upon the holder;
6. The benefit does not touch or concern real property; or
7. There is no privity of estate or of contract.
Except as otherwise provided in this chapter, a conservation easement may be
created, conveyed, recorded, assigned, released, modified, terminated, or
otherwise altered or affected in the same manner as other easements.
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§ 10.1-1015. Conveyance to the Commonwealth.
Whenever any holder as defined in this chapter, or the successors or assigns
thereof, shall cease to exist, any conservation easement and any right of
enforcement held by it shall vest in the Virginia Outdoors Foundation, unless
the instrument creating the easement otherwise provides for its transfer to
some other holder or public body. In an easement vested in the Virginia
Outdoors Foundation by operation of the preceding sentence, the Foundation
may retain it or thereafter convey it to any other public body or any holder
the Foundation deems most appropriate to hold and enforce such interest in
accordance with the purpose of the original conveyance of the easement.
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§ 10.1-1016. Savings clause.
Nothing herein shall in any way affect the power of a public body under any
other statute, including without limitation the Virginia Outdoors Foundation
and the Virginia Historic Landmarks Board, to acquire and hold conservation
easements or affect the terms of any such easement held by any public body.
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