These guidelines are provided to inform landowners considering the donation of an open-space easement to the Virginia Outdoors Foundation (VOF). They are intended to describe the types of resources VOF strives to protect and the potential restrictions considered necessary to protect them. Each property is unique and will be considered on a case-by-case basis.
An open-space easement is an interest in property voluntarily offered by a landowner that limits the property’s uses in order to protect its conservation and open-space values. A property’s open-space values might include farm and forest land and wildlife habitat, as well as historic, natural, scenic, scientific, or public recreational values of a property (see Appendix for further explanation). These values are identified by staff, and protected through the terms in the deed of easement, and then described in the documentation of the property contained in VOF files and records. VOF also takes into consideration the degree of development in the area, and the threat of conversion of the property to intensive uses. A proposed easement must protect the property in perpetuity and yield a significant public benefit.
Typical restrictions necessary to protect the open-space values of the property include limitations on divisions of the property, and on the number and size of buildings and structures that can be constructed on the property, and the creation of restricted-build areas to protect scenic views of the property, prime soils, streams, and/or other natural features.
I. GENERAL CHARACTERISTICS OF AN OPEN-SPACE EASEMENT
An open-space easement is an interest in property that restricts how the property may be used in order to protect certain conservation values on the property. The easement need not permit public access to benefit the public, but to be accepted by VOF an easement must have significant public benefit.
The Public Benefit of an Open-Space Easement
Though most VOF easements do not require landowners to permit public access, protected properties do have significant benefit to the public, such as protection of water quality, retaining productive farm and timber land, and protecting scenic views enjoyed by travelers along public roads, rivers or from parks. It is this public benefit that helps qualify easements for federal and state tax benefits.
Conservation Values on Easement Properties
Conservation values to be protected by an open-space easement might include: productive agricultural or timberlands, scenic vistas, rare species, caves, unique geologic features, rivers or streams, wetlands, wildlife habitat and corridors, and/or historic resources (See Appendix for more information on specific resources).
Other conservation attributes of a property might include:
- inclusion in a private or governmental conservation program, plan, inventory or register, such as National Audubon Society’s “Important Bird Areas”, Virginia Department of Conservation and Recreation’s “Virginia Outdoors Plan”, The Nature Conservancy’s “Ecological Portfolios” or one of VOF’s ten “Special Project Areas”, or
- areas adjacent to other conservation lands such as: existing VOF or other conservation easements, designated scenic rivers or scenic roads, state or national parks or forests, wilderness areas, wildlife management areas, state natural area preserves, or historic battlefields or other historic properties.
II. CONSISTENCY WITH COMPREHENSIVE PLANS AND INTERFERENCE WITH PUBLIC WORKS PROJECTS
By statute VOF must be sure that the protection of open-space land is consistent with the official comprehensive plan of the locality in which the property is located, so that the easement program complements county planning rather than working against it. The language of the Comprehensive Plan, the property’s designation on the locality’s Future Land Use map, or the locality’s review of the easement proposal may provide the indicator of that consistency.
When considering acceptance of an easement, VOF weighs whether an easement on a property may interfere with an anticipated or planned public works project. VOF considers the extent to which planning for the public works project has been finalized, and the practicality and availability of other options for achieving the purpose of the public works project. VOF could suggest provisions in the deed of easement to forestall a conflict between the public works projects or decide it cannot accept the easement. Where an existing road or railroad or utility expansion is in an existing plan, that expansion cannot be blocked, and must be accommodated within the easement’s terms.
III. EASEMENT TERMS
A. Open Space Guidelines
There is no minimum acreage for VOF easements. Properties under 100 acres with strongly significant or multiple conservation values and development potential to be substantially removed or eliminated may qualify for VOF easement. Though each property is different, properties of over 200 acres are likely to contain sufficient open-space values by virtue of their size to qualify for VOF easement, if easement terms adequately protect conservation values. See section C. below for further considerations related to acreage.
B. Excluding parcels or portions of a property
In developing an easement project, VOF considers adjacent properties owned by the potential donor as a whole, rather than as individual tax map parcels. An easement effectively combines the tax parcels together for consideration of the easement, even though there may be retained rights for dividing the property. To achieve the best conservation possible, cutting out or excluding a portion of a property proposed for easement is discouraged, as future development of adjacent land may impair conservation values on the easement property.
For example, creation of a relatively small parcel in the center of the property, or “donut hole”, excluded from the easement proposal is discouraged, as is excluding other adjacent property owned by the donor. An exception may be considered for a house lot on small acreage which does not contain multiple internal division rights, and which may be excluded if it lies on a boundary or in a corner of the property, provided that the number of dwellings and/or divisions (if any) on the proposed easement property are reduced. It is generally recommended that if a substantial acreage is proposed to be excluded from an easement project, the remaining property in easement should not be further divided. For example, if a donor wishes to place 300 of 500 acres owned in an easement, the recommendation would be for the easement to restrict the 300 acres to no division. For the donor’s consideration: leaving out a portion of a property may lessen the appraiser’s valuation of the easement gift.
An adjoining property owned by the same owner, but unrelated by virtue of topography or other natural feature, may be considered a separate property, rather than an excluded portion of the property proposed for easement. Requests to omit parcels or portions of a property will be considered on a case-by-case basis based on the above criteria.
C. Division of Land
To protect open space, properties should remain as a whole to the extent possible and divisions or creation of new parcels should be minimized. Parcelization has the greatest negative impact on open-space and keeping properties intact provides the most open-space and conservation benefit.
For Consideration: In general, the density recommendations listed below indicate the maximum that will be favorably recommended by VOF staff, when presenting projects to the VOF Board of Trustees for their consideration. Fewer parcels are often more appropriate in order to protect specific conservation values. Additional parcels may be accommodated in certain circumstances (such as the property’s being split by a road or river) provided that the other terms of the easement help create an otherwise equivalently protective easement. Protective terms might include controls on building location (setbacks from roads and waterways), further limiting the size or number of dwellings, or other setting up natural resource protection zones, such as for scenic high elevations, rare species or karst features.
For the density acreage guidelines below, please note that the acreage may be less important than the net developable area of the property. If a significant portion of the property could not reasonably be developed, i.e., it contains mostly steep mountain land or wetlands, more limitation on divisions and improvements may be appropriate than on another property of a similar size without physical limitations. Often, these areas also coincide with important areas to conserve.
To accomplish meaningful conservation, in more remote rural areas where population densities and development pressures are relatively low, fewer parcels may be recommended, as compared with those for properties in highly urbanizing areas such as waterfront or localities near major cities.
Other important factors that VOF considers when determining recommended easement terms include:
- The threat of development and existing parcel sizes in the neighborhood.
- Location of the property in relation to county-designated Growth Areas or corridors, or planned road or utility lines.
- The presence of resources with significant public value such as streams feeding a community water supply reservoir or a native trout stream.
General Acreage Density Guidelines
Please read the section “For Consideration” immediately above, as the information is important for understanding the number-based recommendations immediately below:
Properties with fewer than 150 acres should have a strong or multiple conservation values, and are recommended to remain as a whole. It will be recommended that the easement not permit any division or any conveyance except as a whole.
Properties of 150 to 300 acres are recommended to remain as a whole or in no more than two parcels.
Properties of 300 to 600 acres are recommended to remain as a whole, but in some circumstances may be recommend favorably if not divided into an overall density of not more than one parcel per 100 acres, depending on conservation attributes and their protections by other easement terms.
Properties of 600 to 800 acres are preferred to remain as a whole, but may be recommended favorably for easement if not divided into more than five or six parcels.
Properties of 800 to 1,000 acres are preferred to remain as a whole or in as few parcels as possible, but may be recommend favorably if not divided into more than six or seven parcels,
For properties over 1,000 acres, VOF staff will recommend a maximum of eight parcels. On a case-by-case, additional parcels may be favorably recommended, with the aim to achieve an overall density of one additional parcel for each additional 500 acres. This sliding scale is intended to encourage the substantial preservation of large intact tracts of land, which tend to have highest open-space and conservation value, and which are becoming increasingly rare.
D. Guidelines for Dwellings
Number of Dwellings: One dwelling for each of the retained parcel rights is normally permitted. A second, often smaller dwelling for one or more of the permitted parcels for uses such as a guest cottage or apartment, small cabin, farm manager’s house, or farm workers’ quarters may be permitted, provided that the aggregate square footage of living area of the two dwellings is limited. Barn or garage apartments count in the number of permitted dwellings and aggregate square footage. Habitable dwellings of any kind (i.e., cabins, apartments, mobile homes, etc.) will count in the number of permitted dwellings and their aggregate square footage.
Note: landowners may wish to check with their county planning departments or individual mortgage lenders on whether the presence of more than one dwelling per parcel will be permitted under county regulations. Also, it is important to note that the size of an indivisible parcel may raise issues when obtaining a building permit or a new mortgage.
Sizes of Dwellings: Generally, the total square footage of above-ground enclosed living area for the dwelling(s) on a permitted parcel should not exceed an aggregate of 4,500 to 6,500 square feet of above-ground enclosed living area, and each individual dwelling should not exceed a threshold size (customarily 3,000 to 4,500 square feet of living area or smaller) without VOF’s prior review and written approval. Large houses generally have a more significant impact on a property’s resources, so smaller sizes are encouraged in most circumstances, though larger houses may be acceptable depending on their locations.
Locations of Dwellings and other Large Buildings: Location of dwellings or other large buildings can have a major impact on the view from public places as roads, rivers, parks, outlooks, etc. or a natural or historic resource particular to the property. Both the size and location of such a building can impact a property’s natural and open-space resources. For this reason VOF will often suggest limitations on placement of dwellings or other large buildings.
E. Farm Buildings and Structures
The easement contains a threshold size for individual farm buildings and structures, generally 4,500 square feet in ground area (or if the property is less than 50 acres in size 2,500 square feet in ground area). On large working farms especially those retaining lower densities, the size threshold for review of new farm buildings or structures may be increased to up to 10,000 square feet in certain cases if conservation values are protected. Requests for individual larger farm buildings (such as riding arenas or poultry houses), will be considered on a case-by-case basis and will require siting limits. (An alternate easement form is available for commercial agricultural properties, which includes a relatively small defined farmstead area with unlimited farm buildings and related uses by right, and recommends half the usual density of retained division rights for the additional flexibility within the farmstead.)
F. Other Typical Restrictions
Forestry: Forestry is permitted, provided that VOF has approved a pre-harvest plan prior to a timber harvest and that Best Management Practices are used to control erosion and protect water quality.
Riparian (stream buffer or wetlands) Protection: To achieve water quality protection, stream buffers are strongly recommended along perennial streams (solid blue lines on USGS topographical maps), rivers, or other significant water resources on the property. VOF prefers to incorporate buffers that exclude livestock from the waterway, and may require this for important waterways.
Mining: Mining and other earth-disturbing activities that would alter the natural topography of the land are not permitted with exceptions for construction of permitted improvements, generally accepted farming practices, and erosion and sediment control measures.
Scenic Protection: To protect scenic resources, building envelopes, no-build areas or setbacks from roads, rivers, or historic structures may be appropriate.
Monitoring and Enforcement: VOF must be able to inspect the property periodically in order to enforce the restrictions set forth in the deed of easement and the deed of easement makes provision for such monitoring and enforcement. Permission is sought from the landowner in advance of a monitoring visit.
Other: Large signs, accumulation of junk or trash, and certain commercial structures such as large scale cell towers are not permitted.
Additional restrictions desired by the landowner beyond those identified above and outside of those contained in the standard form easement must have clearly delineated conservation purposes, be readily observable by staff during routine monitoring visits, and be practicable to monitor and enforce. A VOF easement cannot undertake, for example, terms which would take daily or frequent monitoring such as a prohibition on hunting or trapping, application of pesticides or bio-solids, or the riding of ATV’s on a property.
IV. EASEMENT APPROVAL
All VOF easement proposals must be approved by the VOF Board of Trustees at one of its quarterly meetings. Once an easement proposal has been approved, it may be finalized and recorded any time within one year of approval.
If an approved easement proposal has not been executed and recorded within one year from the date of acceptance by the VOF Trustees, it must be resubmitted to the Trustees for approval. Reconsideration of a project after the one year initial approval date may be subject to a $1,000 fee.
Guidelines for VOF Staff to Use in Evaluating Potential Easement Properties
Criteria for determining property characteristics:
NATURAL (meets one of the following):
A. The property is in a relatively natural state defined by areas:
- With little or no land disturbance or clearing of vegetation;
- Providing habitat for rare, threatened, or endangered species;
- Of high biological diversity as determined by a qualified professional;
- Within a designated wilderness area;
- Having unique geological features.
B. The property includes lands designated by a federal, state, or local government, or recognized organization as:
- Wildlife habitat;
- Riparian corridors, public water supply watersheds, Chesapeake Bay Resource Protection Areas, Resource Management Areas, flood plain protection areas, or other lands important to water quality or quantity;
- Steep or critical slopes; or
- Prime or other important agricultural or forestal soils.
SCENIC (meets one of the following):
A. The property is listed in a state, or regional, or local landscape inventory (including site-specific listing in the local Comprehensive Plan).
B. The property is part of the scenic rural landscape or scenic panorama seen from a public area such as from a park, nature preserve, road, recreational water body, trail, or historic structure or land area, is open to or used by the general public, and possesses scenic characteristics. For visual accessibility from a public road to provide significant public benefit, it should be a well-travelled road and/or pass through an area of high aesthetic value, by virtue of the scenic qualities of the natural and manmade features of the landscape. Federal tax law suggests examples of factors used in defining a particular view as “scenic” include: 1) the compatibility of the land use with other land in the vicinity; 2) the degree of contrast and variety provided by the visual scene; 3) the openness of the land; and 4) the harmonious variety of shapes and textures.
HISTORIC (meets one of the following):
A. The property is a historically important land area, such as:
- An independently significant land area (for example an archaeological site or a battlefield) that is listed on or meets the criteria for listing on the State and/or National Register;
- A land area listed on the State and/or National Register or within a Rural Historic District;
- A land area identified by the City or County Comprehensive Plan as having local historic significance; or
- A land area identified and documented by a recognized organization as having local historical significance.
B. The property includes a historic structure and/or resides in a historic setting. Examples include:
- Any building, structure, or land area that is listed on or meets the criteria for listing on the State and/or National Register;
- A supporting structure located within a registered Historic District;
- A structure identified by the City or County Comprehensive Plan as having historical significance; or
- A structure identified and documented as having local historic significance (including an example of an architectural style, an association with a historical event, or an association with a historical figure).
Note: In the case of a property that has a State and/or National Register site on it, VOF recommends that the landowner consider donating a historic preservation easement to the Virginia Department of Historic Resources.
The property includes a site used for scientific research or is determined to be appropriate for the systemic (systematic) and objective collection of data under the direction of a qualified individual in the field of natural science. Examples include a grove of trees resistant to a wide-spread virus, or a unique karst cave system.
The preservation of the property is pursuant to a clearly delineated governmental policy or provides scenic enjoyment to the general public as described above. Examples of governmental policy include farmland and forests within an Agricultural and Forestal District, or forestland within a Mountainside Overlay or Conservation District, land within a Rural Historic District or other designation indicative of State conservation policy. Please refer also to Open Space Guidelines in III A. above.
The property is regularly accessible for use and enjoyment by the general public and contains resources of educational value or offers recreational opportunities, such as a water area used by the public for boating or fishing, or a nature or hiking trail open to the public.
Guidance from Internal Revenue Code
Internal Revenue Code Section 170(h)(4)(A) defines conservation purposes as:
- The preservation of land areas for outdoor recreation by, or the education of, the general public.
- The protection of a relatively natural habitat of fish, wildlife, or plants, or similar ecosystem.
- The preservation of certain open space (including farmland and forest land) where such preservation is:
- For the scenic enjoyment of the general public and will yield a significant public benefit, or
- Pursuant to a clearly delineated Federal, State, or local governmental conservation policy and will yield a significant public benefit.
- The preservation of an historically important land area or a certified historic structure.
Note: The Virginia Outdoors Foundation cannot guarantee that an easement will qualify for a federal income tax deduction under IRS criteria or a state tax credit under Virginia law. Donors should consult with qualified tax advisors to determine the tax effect in their particular situation. VOF is not involved in determining the value of an easement for tax purposes. This determination must be made by a qualified independent appraiser.