Virginia farmer Martha Boneta thought her long-running dispute with a local green group was coming to an end. But now, that light at the end of the tunnel has gone dark again.
Efforts to reach a settlement with a local green group, the Piedmont Environmental Council, are on hold. The PEC currently oversees enforcement duties of a conservation easement on Boneta’s property. Under the settlement, the Virginia Outdoors Foundation would have assumed those duties. However, the foundation found serious flaws with the agreement.
Now, the foundation wants Boneta and the PEC to agree on a “corrective amendment” to address the concerns.
With little progress being made on that front, the foundation informed attorneys for both sides it would not take up the matter of assuming enforcement duties at its next meeting.
“It appears, from communications made during the first weeks of December 2014, that we have not been able to reach a solution that is amenable to all parties,” Kerry Brian Hutcherson, the foundation’s staff counsel, wrote to PEC attorney Turner Broughton and William Hurd, the former Virginia solicitor general who represents Boneta.
Accordingly, the VOF staff does not anticipate that the VOF board will take formal action regarding the easement at the board’s upcoming public meeting on Feb. 26. Although we are still hopeful that a solution can be found, the VOF staff will consider this matter closed until the parties are willing to further negotiate.
Conservation easements are agreements property owners sign with conservation groups. The owners receive cash or tax considerations in exchange for accepting limits on development of their property.
Boneta purchased the 64-acre Liberty Farm in Paris, Va., from the PEC in 2006 with the easement already in place.
Since then, in a case that has attracted national attention, Boneta has charged in lawsuits and elsewhere that the PEC has trespassed, conducted overly invasive inspections and even orchestrated harassment from the county government to force her off her property.
At the Virginia Outdoors Foundation’s board meeting in November, Hurd proposed that PEC hand over its enforcement of the easement to the foundation, which already enforces some of the agreement and has had good relations with Boneta. The board voted to accept the enforcement duties if the PEC and Boneta could come to an agreement.
The groups agreed to meet again in December to iron out details of the transfer with an eye toward having it approved at the February meeting.
After carefully examining the details of the easement, and other related documents, top officials with the foundation concluded the organization could not assume full oversight authority over the easement without a “corrective amendment” that would address “a number of serious flaws” it uncovered in the easement.
The Daily Signal obtained the records following Freedom of Information Act request.
Unless the easement language is amended, the foundation has determined that “it would be imprudent” to assume control of what “may be an indefensible liability,” email messages included in the FOIA records show.
Virginia Assistant Attorney General Richard Mahevich concurs with the foundation’s assessment, but the non-profit land trust, which co-holds the easement with the foundation, does not.
The problem stems from what is known as the Baseline Documentation Report—the foundational document that describes what the easement permits and what it restricts. It is contradictory and ambiguous in several areas, according to the foundation’s analysis.
“For instance,” wrote Hutcherson in a report to the foundation board, “the BDR anticipates two single-family dwellings and a pool, all of which are prohibited in the deed. But the deed represents the BDR as accurate and incorporates it by reference. The deed then goes [on] to prohibit any new buildings but articulates requirements for new buildings.”
The foundation could not go forward with an agreement that would “admit of several interpretations with respect to new buildings and their uses. … And although there is agreement between the current owner and PEC that no new buildings are allowed, the only way to remedy this conflict and avoid a future dispute with a successive owner is to correct the deed now.”
Both sides were willing to hand over easement enforcement as is, but the foundation refused, citing potential legal liabilities that would involve the commonwealth of Virginia. The foundation is a quasi-state, legislature-chartered organization.
According to emails obtained by The Daily Signal through a FOIA request, the PEC is unwilling to cooperate on the corrective amendment.
In one email, John Richardson, a member of the foundation’s board, writes that PEC president Chris Miller “described, from his point of view, a number of deficiencies in the analysis our people conducted of the operative deed and the BDR.”
“It is imperative that state lawmakers act decisively to protect property rights and end abusive practices,” says Martha Boneta.
Boneta, who withdrew a lawsuit when a settlement became possible but has until February to refile it, also is looking to push legislative remedies to what she and others have called the unfair, heavy-handed enforcement tactics of the PEC.
“It is imperative that state lawmakers act decisively to protect property rights and end abusive practices,” Boneta said. “The PEC did a bait and switch and filed an easement that both the VOF and the attorney general agree includes erroneous and inaccurate claims.”
Broughton, PEC’s attorney, did not return calls seeking comment from The Daily Signal. But in a Dec. 10 email to the Virginia Outdoors Foundation, said his client could not accept the amendment proposed by the foundation because it “would likely confer improper private benefits” to Boneta.
That claim is “preposterous,” says Bonner Cohen, senior fellow at the National Center for Public Policy Research. “For eight years, she has been subjected to harassment and humiliation by the PEC’s reckless enforcement of the easement, and she has spent hundreds of thousands of dollars defending herself.
“Whatever the original intent of Virginia’s conservation-easement statute,” Cohen said, “the PEC’s well-documented deplorable behavior calls out for the General Assembly to reform the program, lest other landowners be subjected to the hell she has gone through.”
Boneta’s case has generated interest in Richmond, where lawmakers have proposed two different bills providing for greater oversight of land trusts such as the Piedmont Environmental Council. With the General Assembly session set to begin this month, more than 4,000 people have signed a petition demanding reform.