Between John & Char Sweet and the Virginia Outdoors Foundation
Recorded: 28 December 2000
Several people have asked about our conservation easement so I have decided to post the text here. The property description is omitted as are the two maps delineating wetlands and grasslands. Be aware that parts of this are boilerplate required by VOF while other parts are customized specifically to fit our land and our requirements. For example, we opted for no subdivision, which is unusual, because we want to maintain the largest area possible of contiguous forest and feel that future generations should share in the use and management rather than subdivide it for individual use. We opted for no commercial timbering and no mining, while both of these could have been allowed under controlled circumstances. On the other hand, we wanted to allow for the continuation and modest expansion of the existing commercial activity. All of these restrictions can be customized to suit the needs of the Grantor of an easement.
THIS DEED OF GIFT OF EASEMENT, made this 20TH day of December, 2000 between JOHN R. SWEET and CHAROLETTE C. SWEET, husband and wife, herein called the “Grantors”, the VIRGINIA OUTDOORS FOUNDATION, an Agency of the COMMONWEALTH OF VIRGINIA, herein called the “Grantee”, whose address is 203 Governor Street, Suite 317, Richmond, VA 23219.
- WHEREAS, the Open Space Land Act of 1966 (Chapter 17, Title 10.1, §§ 10.1-1700 to 10.1-1705 of the Code of Virginia, as amended) declares that the preservation of open-space land serves a public purpose by promoting the health and welfare of the citizens of the Commonwealth by curbing urban sprawl and encouraging more desirable and economical development of natural resources, and authorizes the use of easements in gross to maintain the character of open-space land; and
- WHEREAS, Chapter 18, Title 10.1 of the Code of Virginia (§§ 10.1-1800 to 10.1-1804, as amended) declares it to be the public policy of the Commonwealth to encourage preservation of open-space land and authorizes the Virginia Outdoors Foundation to hold real property or any estate or interest therein for the purpose of preserving the natural, scenic, historical, scientific, open-space and recreational lands of the Commonwealth; and
- WHEREAS, Grantors' real property is predominantly wooded, but includes meadows and areas of natural wetlands supporting rare plant species; and
- WHEREAS, Grantors' real property contains springs and a tributary of the Jackson River, which flows nearby and is a freshwater fishery recreational resource of state significance; and
- WHEREAS, the 1999 Highland County Comprehensive Plan sets forth a goal to “maintain Highland's predominantly rural character” and recommends the application of incentives and techniques such as conservation easements to achieve this goal; and
- WHEREAS, Grantors' real property is zoned A-2, General Agriculture. “This District is intended to facilitate existing and future farming operations and protect the natural resources. The character of the District should remain agricultural in nature with industry or commercial activities allowed when they will benefit the area without degrading the environment.” This easement is consistent with such intent; and
- WHEREAS, the Grantors are the owners in fee simple of the real property hereinafter described, which they desire preserved as open-space land in the public interest.
NOW, THEREFORE, in recognition of the foregoing and in consideration of the mutual covenants herein set forth and the acceptance hereof by the Grantee, the Grantors hereby grant and convey to the Grantee an open-space easement in gross over, and the right in perpetuity to restrict the use of, the real estate consisting of 337 acres, more or less, located in Monterey Magisterial District, Highland County, Virginia near Mustoe, fronting on State Routes 220 and 605, and hereinafter referred to as the “Property.”
The above-described tracts are shown as parcels 54(A)24 and 54(A)21A on the Tax Maps of Highland County. The Property shall be considered to be one parcel for the purposes of this easement, and the restrictions and covenants of this easement shall apply to the Property as a whole rather than to such individual parcels.
AND SUBJECT, HOWEVER, to the restriction that the Grantee or its successors and assigns may not transfer or convey the open-space easement herein conveyed to the Grantee unless the Grantee conditions such transfer or conveyance on the requirement that (1) all restrictions and conservation purposes set forth in the conveyance accomplished by this deed are to be continued in perpetuity, and (2) the transferee is an organization then qualifying as an eligible donee as defined by section 170(h)(3) of the Internal Revenue Code of 1986, as amended, and the applicable Treasury Regulations promulgated thereunder.
This conveyance is further made subject to all easements of record that may affect the Property.
Restrictions are hereby imposed on uses of the Property pursuant to the public policies set forth above. The acts which the Grantors, their heirs, successors, personal representatives and assigns, covenant to do and not to do upon the Property, and the restrictions which the Grantee is hereby entitled to enforce, are and shall be as follows:
Accumulation or dumping of trash, refuse, or junk is not permitted on the Property. This restriction shall not prevent generally accepted agricultural or wildlife management practices, such as creation of brush piles, composting, or the storage of farm machinery, organic matter, agricultural products or agricultural byproducts on the Property, as long as such practices are conducted in accordance with applicable governmental laws and regulations.
- Display of billboards, signs, or other advertisements is not permitted on or over the Property except to state the name and/or address of the owners, to advertise the sale or lease of the Property, to advertise the sale of goods or services produced by or a permitted use of the Property, to provide notice necessary for the protection of the Property, for giving directions to visitors or temporary signs as defined by the Highland County Sign Ordinance. No such sign shall exceed nine (9) square feet in size.
- Division or subdivision of the Property in any manner is prohibited. However, boundary line adjustments with adjoining parcels of land affecting the 1.17 acre parcel are permitted and shall not be considered to be prohibited divisions of the Property. Any part of the Property conveyed off in any such boundary line adjustment shall not be subject to this easement, but any parcels acquired in exchange shall become subject hereto.
- All forest activities shall be carried out so as to preserve the environmental and scenic qualities of the area. Best Management Practices, as defined by the Virginia Department of Forestry, shall be used to control erosion and protect water quality when any material forestry activity is undertaken. The Grantors, or their successors and assigns, shall notify the Grantee no later than thirty (30) days prior to the start of any material forest activity as well as within seven (7) days of its completion. The primary objective of the forest stewardship plan shall be to allow the bulk of the forest area to undergo natural succession in order to revert with time to a mature, old-growth forest. Secondary objectives include provision of wildlife habitat, protection of rare natural areas, and soil and water conservation. Commercial timber operations are specifically prohibited. Grantors may harvest timber for use on the Property, including for firewood, fence posts, and lumber for building construction. Trees and brush may also be cut to maintain and prevent encroachment into grasslands as they exist now or existed in approximately 1950 as shown by aerial photography and defined on the attached Exhibit A. [Map not posted here] Primitive roads which exist for access to the woodlands may be maintained but not substantially improved. Removal or control of non-native invasive species, and removal of trees that would jeopardize the health of the forest on the Property or adjacent properties, or that would present an imminent hazard to human health or safety, is permitted.
- Notwithstanding any other provision of this easement, the wetland areas defined on the attached Exhibit B [Map not posted here] shall not be disturbed, and no building or structure may be constructed within twenty feet of the exterior boundaries of such wetland areas. This prohibition applies to the construction or maintenance of livestock feeding or watering troughs and fencing, except that fencing may be constructed on the boundaries of wetland areas and may be used to delineate such boundaries.
- Grading, blasting or earth removal shall not materially alter the topography of the Property except for dam construction to create private ponds or lakes, or as required in the construction of permitted buildings, connecting private roads, and utilities as described in Paragraph 7. Generally accepted agricultural activities shall not constitute any such material alteration. Best Management Practices, in accordance with the Virginia Erosion and Sediment Control Law, shall be used to control erosion and protect water quality in the construction of permitted private roads. Notwithstanding the foregoing, no grading, blasting, or earth removal is permitted on the Property if it will materially diminish or impair the conservation values protected by this Easement. Mining on the Property is prohibited.
- No permanent or temporary building or structure shall be built or maintained on the Property other than (i) a single family dwelling and non-residential outbuildings or structures commonly and appropriately incidental thereto, (ii) two (2) secondary dwellings and non-residential outbuildings commonly and appropriately incidental thereto, (iii) farm buildings or structures, and (iv) the existing commercial building presently used as a distribution center, which may be expanded, and an additional building used in connection with the same business, provided that the total size of such commercial buildings shall not exceed seven thousand (7,000) square feet in ground area and no more than two (2) stories in height above ground level unless prior written approval is obtained in writing from Grantee. Farm buildings or structures exceeding five thousand (5,000) square feet in ground area may not be constructed on the Property unless prior written approval for said building or structure is obtained in writing from Grantee. Grantee's approval shall be limited to consideration of the impact of the size, height and siting of the proposed structure on the conservation values of the property. Notwithstanding the foregoing, no new dwellings or structures shall be built closer than fifty (50) feet to either bank of the tributary of the Jackson River known as Spring Run that flows through the Property. Private roads and utilities that serve permitted buildings or structures may be constructed.
- Industrial or commercial activities other than the following are prohibited: (1) agriculture, viticulture, aquaculture, silviculture, horticulture, and equine activities, (2) temporary or seasonal outdoor activities which do not permanently alter the physical appearance of the Property, and which are consistent with the conservation values herein protected, (3) activities which can be and in fact are conducted within permitted buildings without material alteration to the external appearance thereof, (4) activities directly associated with any business conducted within permitted commercial buildings, which are conducted within or in the immediate vicinity of the permitted commercial buildings utilized, have a low level of impact on the Property, and do not impair significant conservation interests protected herein. Temporary outdoor activities involving 100 or more people shall not exceed seven (7) days in duration unless approved by the Grantee in advance in writing. Notwithstanding any other provision of this easement, no commercial recreational use (except for de minimis commercial recreational uses) shall be allowed on the Property.
- Representatives of the Grantee may enter the Property from time to time for purposes of inspection and enforcement of the terms of this easement after permission from or reasonable notice to the owner or the owner's representative.
- The Grantors, their heirs, successors, personal representatives and assigns, shall notify the Grantee in writing within sixty (60) days following any transfer or sale of the Property or any part thereof. In any deed conveying all or any part of the Property, this easement shall be referenced by Deed Book and Page Number.
Although this easement in gross will benefit the public as described above, nothing herein shall be construed to convey to the public a right of access to or use with respect to the Property. The Grantors, their heirs, successors, personal representatives and assigns, hereby retain the exclusive right to such access and use, subject to the terms hereof.
Acceptance of this conveyance by the Grantee is authorized by § 10.1-1801 of the Code of Virginia and is evidenced by the signature of its Executive Director hereto. Assignment of this easement is governed by § 10.1-1801 of the Code of Virginia.
WITNESS the following signatures and seals.
J R S & C C S