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HomeMy WebLinkAboutSP202000012 Deed of Gift Conservation Easement 2020-06-15BKI968PGO112 014269 EXEMPTED FROM RECORDATION TAXES UNDER THE CODE OF VIRGINIA (1950), AS AMENDED, SECTIONS 58.1-811(A)(3), 58.1-811(D), AND 10.1-1803 THIS DEED OF GIFT CONSERVATION EASEMENT (hereinafter, this "Easement"), made this 6�' day of OGi��2000, among David L. King and Ellen C. King (together and hereinafter, the "Grantor"), the VIRGINIA OUTDOORS FOUNDATION, an Agency of the Commonwealth of Virginia (hereinafter, the "Grantee"), whose address is 203 Governor Street, Suite 316, Richmond, Virginia, 23219, and William H. White III (hereinafter, "White" WHEREAS, the Grantor is the sole owner in fee simple of certain real property consisting of three hundred twenty seven (327) acres, more or less, located in the White Hall District of Albemarle County, Virginia, fronting on State Routes 684 and 691, together with all improvements thereon and appurtenances thereto belonging, and more particularly described in Exhibit A attached hereto (hereinafter, the "Property"), which the Grantor desires to preserve in perpetuity as open space land in the public interest. WHEREAS, the Open Space Land Act of 1966 (Title 10.1, Chapter 17, §§10.1-1700 to 10.1-1705 of the Code of Virginia, as amended (hereinafter, the "Virginia Open Space Land Act"), 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. WHEREAS, Title 10.1, Chapter 18, §§ 10.1-1800 to 10.1-1804 of the Code of Virginia., as amended, declares it to be the public policy of the Commonwealth to encourage preservation r.� of open -space land and authorizes the Virginia Outdoors Foundation to bold real property or any j estate or interest therein for the purpose of preserving the natural, scenic, historical, scientific, open -space, and recreational lands of the Commonwealth. WHEREAS, the Property possesses natural, scenic, scientific, and open space characteristics of great importance to the Grantor, the people of Albemarle County, Virginia, and the people of the State of Virginia, including, but not limited to, wetlands, riparian corridors, wildlife habitat, biological diversity, prime agricultural lands and scenic resources. WHEREAS, in particular, the Property is subject to taxation based on its use value as land devoted to agricultural, forest, and open -space use. WHEREAS, in particular, the Property is located in a Rural Area for zoning purposes. SK 1968PGO I 1 6 WHEREAS, in particular, the Property lies in the viewshed of the Shenandoah National Park. WHEREAS, the conveyance of this Easement over the Property will preserve the open space character of the Property (including its farmlands and forestlands) pursuant to certain clearly delineated Federal, state, and local governmental conservation policies, including but not limited to: The Virginia Open Space Land Act as more particularly described above. Title 10.1, Chapter 18, §§10.1-1800 to 10.1-1804 of the Code of Virginia, as amended, as more particularly described above. The Comprehensive Plan for Albemarle County, Virginia, 1989-2010, Adopted July 12, 1989 (hereinafter the "Comprehensive Plan"), which identifies the following as objectives: (i) protection of Albemarle County's agricultural and forestal lands through land use regulations and the promotion of voluntary techniques such as conservation easements, (ii) protection of Albemarle County's surface water and groundwater supplies, (iii) protection of Albemarle County's natural, scenic, and historic resources, (iv) to direct growth into designated Growth Areas, and (v) to discourage residential development (other than dwellings related to a bona fide agricultural/forestal use) in Rural Areas and locate the Iimited amount of residential development permitted in Rural Areas in a manner designed to minimize the impact of development on rural resources and minimize the conflict of development with agricultural/forestal activities. The Albemarle County Open Space and Critical Resources Plan, Adopted July 15, 1992 (hereinafter the "Open Space and Critical Resources Plan"), which delineates open spaces and open space characteristics considered important to conserve or preserve, protect and utilize for their environmental, aesthetic, cultural, agricultural/forestal, and recreational value, including important Farmlands and Forests, and the Property contains important Farmlands and Forests. Va. Code Ann., tit. 58.1, ch. 32, §58.1-3229, et seq., Special Assessment for Land Preservation (hereinafter, the "Special Assessment Act"), which permits localities to adopt a program of special assessments for tax purposes with respect to agricultural, forestal, horticultural, and open space lands and is intended to encourage the preservation of rural resources and relieve development pressures that night cause rural land conversion; Albemarle County's adoption of an ordinance providing for the special assessment of real estate devoted to agricultural, horticultural, forest, and open -space use (hereinafter, the "Special Assessment Ordinance"); and the Property is subject to special assessment based on its use value as land devoted to agricultural, forest, and open -space use. N BK 1 968PGO 1 14 The Rural Areas zoning district regulations adopted by Albemarle County in 1980, which are intended to improve the design and character of rural development and halt the development of large scale rural subdivisions, and the Property is located in a Rural Area. WHEREAS, the protection of the Property pursuant to this Easement will yield the following significant public benefits: Protection from development, which existing and foreseeable trends in the vicinity of the Property indicate is increasing rapidly and which would lead or contribute to the degradation of the scenic, natural, and historic character of the area. Consistency of the open space use of the Property with public programs (whether Federal, state, or local) for conservation in the region, including: (i) the Virginia Open Space Land Act, (ii) the Comprehensive Plan, (iii) the Open Space and Critical Resources Plan, (iv) Virginia's Special Assessment Act and Albemarle County's Special Assessment Ordinance, (v) Albemarle County's Rural Areas zoning district regulations. Consistency of the open space use of the Property with the Shenandoah National Park viewshed. The opportunity for the general public to appreciate the natural and scenic vistas of the Property from State Routes 684 and 691. The preservation of the local and regional landscape, which attracts tourism and commerce to the area. The nurture of resident and migratory wildlife for the benefit and enjoyment of all. WHEREAS, the Grantor intends to make a charitable gift of the property interest conveyed by this Easement to the Grantee for the exclusive purpose of assuring that, under the Grantee's perpetual stewardship, the wildlife habitat, agricultural resource base, scenic character, and open space character of the Property will be conserved and forever maintained, and that uses of the Property that would materially diminish or impair such conservation purposes will be prevented. WHEREAS, the specific conservation values of the Property, its description, current use, and current state of improvements are described in a Present Conditions Report prepared by the Grantee with the cooperation of the Grantor and hereby acknowledged by the Grantee and the Grantor to be complete and accurate as of the date of this Easement. The Grantor and the Grantee each have a copy of the Present Conditions Re ort and it is intended to serve as an objective information baseline for purposes of monitoring compliance with the terms of this Easement. However, the Present Conditions Report is not intended to preclude the use of other evidence to establish the condition of the Property on the date of this Easement if there is a controversy over the use of the Property. WHEREAS, the Grantee hereby represents that the Grantee is a "qualified organization” as defined in § 170(h)(3) of the Internal Revenue Code. References to the Internal Revenue Code in this Easement shall mean the United States Internal Revenue Code of 1986, as amended, or the corresponding provisions of any subsequent federal tax laws, and the applicable regulations and rulings. NOW THEREFORE, in recognition of the foregoing and in consideration of the mutual covenants herein and the acceptance by Grantee, the Grantor hereby voluntarily grants and conveys to the Grantee, and the Grantee hereby voluntarily accepts, a perpetual conservation easement of the nature and character described in this Easement, exclusively for the purpose of conserving and. forever maintaining the wildlife habitat, agricultural resource base, scenic character, and open space character of the Property. AND SUBJECT, HOWEVER, to the restriction that the Grantee and its successors and assigns may not transfer or otherwise convey this Easement unless the Grantee and its successors and assigns condition such transfer or conveyance on the requirements that: (i) all restrictions and conservation purposes set forth in the conveyance accomplished by this deed are to be continued in perpetuity and (ii) the transferee is an organization then qualifying as an eligible donee as defined in § 170(h)(3) of the Internal Revenue Code. This conveyance is further made subject to all matters of record that may affect the Property. Restrictions are hereby imposed on the uses of the Property pursuant to the public policies set forth above. The acts that the Grantor covenants to do and not to do upon the Property, and the restrictions that the Grantee hereby is entitled to enforce, are and shall be as follows. Article I. Trash The accumulation of trash, refuse, junk, or any other unsightly material is not permitted on the Property, provided that brush and wood may be placed in temporary piles for burning or other disposal, and brush and wood may be used as fill for erosion control. Article B. Billboards, Suns, and other Advertisements 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 Property and/or the owners of the Property, to advertise the sale or lease of the Property, to advertise the sale of goods produced or services offered in connection with a permitted use of the Property, to provide notice necessary for the protection of the Property, to post the Property to control unauthorized entry or use, or to provide directions to visitors. No sign shall exceed nine (9) square feet in size. n 8K 1968PGO 1 16 Article 3. Division The Property may be subdivided into a maximum of three parcels, two of which may be divided from the Property and the third of which shall consist of the remaining acreage of the Property, (each such parcel referred to hereinafter individually as a 'Parcel" and collectively as the "Parcels"). Access and utility easements for the Parcels and for adjacent properties are allowed. A boundary line adjustment shall not be considered a division that consumes any of the division rights permitted under this Article provided either: (A) each parcel affected by the boundary line adjustment is subject to a conservation easement that has been granted to the Grantee or (B) advance written approval of the boundary line adjustment is obtained from the Grantee. Condemnations, takings in lieu thereof, deeds in lieu thereof, or involuntary conversions shall not be considered divisions consuming any of the division rights permitted under this Article; provided, however, that nothing in this Easement shall be construed to mean that the Grantee has agreed or will agree to any condemnations, takings in lieu thereof, deeds in lieu thereof or involuntary conversions with respect to the Property or any portion thereof The rights retained by Grantor in this Article to divide the Property may be sold by the Grantor to Albemarle County or other public body pursuant to a program adopted by Albemarle County or other public body to acquire title to, or any interests or rights in, real property as a means to provide for the preservation of open space land. Article 4. Management of Forest Resources Management of forest resources shall be in accord with a forest stewardship plan in cooperation with the Virginia Department of Forestry. All material forestry activities shall be carried out so as to preserve the scenic and environmental quality of the area. Best management practices, as defined by the Department of Forestry, shall be used to control erosion and protect water quality. The Grantor shall notify the Grantee no later than thirty (30) days before the start of any material timbering on the Property and within seven (7) days of completion of any such timbering. Subject to the foregoing provisions of this Article, the Grantor hereby expressly reserves the right to clear land: (A) for agricultural purposes, such as viticulture, cultivation and grazing, and (B) as required in the construction of buildings and other structures permitted under the terms of this Easement, as well as connecting private roads thereto. Article 5. Grading, Blasting, or Earth Removal Grading, blasting, or earth removal shall not materially alter the topography of the Property except: (A) to create private conservation ponds or lakes, (B) as required in the construction, renovation, enlargement, alteration, repair, or replacement of any improvements or roads permitted under the terms of this Easement, (C) as required by agricultural, viticultural, winery, recreational, or other use of the Property allowed by this Easement, and (D) as permitted under the following Article of this Easement. 5 8K 1968PGO 1 17 Article G. Mi�nin Surface mining on the Property is prohibited. In addition, any other method of mining used on the Property must be approved by the Grantee in writing and meet the following requirements: (A) such method must not be inconsistent with the particular conservation values protected by this Easement, (B) such method must have, at most, only a limited, temporary, localized impact on the Property, (C) such method must not be irremediably destructive of any significant conservation interests, whether or not such interests are specifically mentioned in this Easement, (D) any mining exploration or production facilities located on the Property must be concealed or compatible with existing topography and landscape, and no mining storage facilities are permitted on the Property, and (E) any surface alteration of the Property as a result of mining activity must be restored promptly to its original state. Article 7. .Buildings and Structures No permanent or temporary buildings or structures shall be constructed or maintained on the Property other than those listed in the following paragraphs of this Article. A. Single Family Residential Dwellings. Three (3) single family residential dwellings, along with non-residential outbuildings and appurtenances commonly and appropriately incidental thereto, taking into consideration the size and location of such outbuildings, (which may include, but are not limited to, guest cottages without kitchens [only one per Parcel], offices, garages, greenhouses, gazebos, fences, sheds, dog kennels, indoor or outdoor swimming pools, outdoor tennis courts, and other recreational facilities of a scale similar to pools or outdoor tennis courts), may be constructed or maintained on the Property, provided that only one such single family residential dwelling may be constructed on each Parcel. There is currently one (1) single family residential dwelling on the Property. B. Secondary Dvvell_in . Six (6) secondary dwellings, along with non-residential outbuildings and appurtenances commonly and appropriately incidental thereto, taking into consideration the size and location of such dwellings, may be constructed or maintained on the Property, provided that no secondary dwelling shall exceed two thousand five hundred (2,500) square feet in livable area. There are currently three (3) secondary dwellings on the Property. G. Farm Buildings and Structures. Normal and customary farm or winery buildings and structures necessary for the uses permitted by this Easement may be constructed or maintained on the Property but no one building shall cover a ground area that exceeds ten thousand (1O,0OO) square feet without prior written approval. For all purposes of this Article, the right to "construct" or "maintain" a building or structure includes the right to renovate, alter, enlarge, repair, or replace such building or structure, subject to any size, location, and other restrictions set forth in this Easement. R, 8K 1968PGO 1 18 Article 8. Industrial or Commercial Activities Industrial or commercial activities other than the following are prohibited: (A) agriculture (including, but not limited to, animal husbandry and viticulture), silviculture, or horticulture, (B) temporary or seasonal activities that do not permanently alter the physical appearance of the Property and are consistent with the conservation values protected by this Easement, (C) activities that can be and in fact are conducted within buildings and structures permitted on the Property under the terms of this Easement without material alteration to the external appearance thereof (such as, but not limited to, the operation of an office either within a dwelling or a non-residential outbuilding or appurtenance thereto, the operation of a country inn or bed and breakfast, and the operation of a horse farm, which may include the raising, breeding, boarding, riding, purchase, and sale of horses), (D) mining by methods permitted under the terms of this Easement, (E) a winery consistent with other wineries in the state of Virginia. Periodic food catering is allowed, but a Ul service restaurant with regularly scheduled hours of operation is prohibited. Regularly scheduled outdoor events by paid admission that include food service or music are not allowed. Article 9. Private Roads Bricl es and UtHM Lines Private roads and bridges may be constructed or maintained on the Property to provide access to any building or structure permitted on the Property or as necessary or appropriate for the conduct of any activity permitted on the Property under the terms of this Easement without permission of the Grantee. Above -ground utility lines may be constructed and maintained on the Property as necessary or appropriate to service the dwellings and other structures permitted the Property. Article 10. Enforcement of Easement The Grantor and the Grantee hereby agree that this Easement will be recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia. The Grantor hereby agrees to notify the Grantee in: writing before exercising any right reserved in this Easement that may have a material adverse impact on the conservation interests associated with the Property. The Grantee shall have the right to prevent and correct violations of the terms of this Easement by appropriate legal proceedings. Representatives of the Grantee may enter the Property from time to time for the purpose of inspection and enforcement of the terms oftlus Easement after either receiving permission from the Grantor or providing reasonable notice to the Grantor, provided that the Grantee may not unreasonably interfere with the Grantor's use and quiet enjoyment of the Property. Enforcement of the terms of this Easement shall be at the discretion of the Grantee, and any forbearance by the Grantee to exercise its rights under this Easement in the event of any breach of any term of this Easement by the Grantor shall not be deemed or construed to be a waiver by the Grantee of such term or of any subsequent breach of the same or any other term of this Easement or of any of the Grantee's rights under this Easement. No delay or omission by the Grantee in the exercise of any right or remedy upon any breach by the Grantor shall impair such right or remedy or be construed as a waiver. This Easement shall not entitle the Grantee to bring any action against the Grantor for any injury to or change in the Property resulting from causes beyond the Grantor's control or from any prudent action taken by the Grantor Under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. 7 'K1968FGOI II Article 11. Transfer of Property The Grantor hereby agrees. (A) to notify the Grantee in writing within sixty (60) days of closing on any proposed transfer or sale of all or any portion of the Property, and (B) that any deed conveying all or any part of the Property will reference this Easement by Deed Book and Page Number. Article 12. Sebgrdination of Mortgage White is the lender under a certain mortgage dated August 30, 1996, and recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia, in Deed Book 1562 at page 581 (hereinafter, the "Mortgage"), which subjects the Property to a lien. White hereby consents to the terms and intent of this Easement, and agrees that the lien represented by the mortgage shall be held subject to the terms of this Easement. Article 13. Rights Retained by Grantor The Grantor reserves all rights with respect to the Property other than those specifically prohibited or limited by this Easement, including, but not limited to, the following: (A) the right to undertake or continue any activity or use of the Property not prohibited by this Easement, (B) the right to sell, give, mortgage, lease, or otherwise convey or encumber all or any portion of the Property, provided such conveyance or encumbrance is not prohibited by this Easement, and (C) the right to deny the public entrance upon or use of the Property or any portion thereof 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 of the Property, and the Grantor hereby retains the exclusive right to such access and use, subject to the terms of this Easement. Unless otherwise provided in this Easement, the rights retained by the Grantor under this Easement may be exercised without the permission of the Grantee. Article 14. Parties Subject to Easement The covenants agreed to, the rights retained, and the terms, conditions, and restrictions imposed by this Easement shall not only be binding upon and inure to the benefit of the Grantor, but also the Grantor's lessees, personal representatives, heirs, successors, assigns, and all other successors in interest to the Grantor, and shall continue as a servitude running in perpetuity with the Property. Article 15. Eatingigishment The Grantor agrees that the donation of the perpetual conservation restriction contained in this Easement gives rise to a property right, immediately vested in the Grantee, with a fair market value that is at least equal to the proportionate value that the perpetual conservation restriction at the time of the gift bears to the value of the Property as a whole at that time. If subsequent unexpected change in the conditions surrounding the Property make impossible or impractical the continued use of'the Property for the conservation purposes specified herein, the restrictions set forth in this Easement can be extinguished, whether in whole or in part, only by BK ! 968PGU I ZU judicial proceeding and only if such extinguishment also satisfies the requirements of Title 10.1, Chapter 17, § 10.1-1704 of the Virginia Code. The Grantee agrees to use its share of the proceeds from any sale or exchange of the Property subsequent to an extinguishment of the restrictions set forth in this Easement in a manner consistent with the conservation purposes set forth in this Easement. Article 16. Grantee's Response to Written Requests for Permission or Approval The Grantee shall respond definitively to a written request for permission or approval submitted by the Grantor pursuant to the terms of this Easement within a maximum of one hundred twenty (120) days of its receipt of such request, and the Grantee shall grant the requested permission or approval unless granting such permission or approval would result in the material diminishment or impairment the conservation values protected by this Easement. If the Grantor submits a written request for peznussion or approval to the Grantee in accordance with the terms of this Easement and the Grantee fails to respond to such request within one hundred twenty (120) days of its receipt of such request, the Grantee shall be deemed to have granted the requested permission or approval, and the Grantor may proceed with the action for which the permission or approval was requested, provided such action will not materially diminish or impair the conservation values protected by this Easement. Article 17. Notices Any written notice required under the terms of this Easement and any written request, perrission, or approval tendered pursuant to the terms of this Easement shall be personally delivered or sent by first class, registered, or certified mail to the Grantor or the Grantee, as the case may be, at the following address, unless a party has been notified by the other of a change of address: To the Grantee: Virginia Outdoors Foundation 203 Governor Street, Suite 316 Richmond, Virginia 23219 To the Grantor: Mr. And Mrs, David L. King 6640 Roseland Farm Crozet, Virginia 22932 Article 1.8. Interpretatioin This Easement shall be interpreted under the laws of Virginia, resolving any ambiguities and questions of the validity of the specific provisions so as to give maximum effect to the conservation purposes set forth herein. G� Article 19. Acceptance 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. Accepted: VIRGINIA OUTDOORS FOUNDATION, Tamara A. Vance, Executive Director r n William 11.White TH Grantor David L. King 10