U.S. v. Blackman

Decision Date09 June 2005
Docket NumberRecord No. 042404.
Citation613 S.E.2d 442
CourtVirginia Supreme Court
PartiesUNITED STATES of America v. Peter F. BLACKMAN.

Page 442

613 S.E.2d 442
UNITED STATES of America
v.
Peter F. BLACKMAN.
Record No. 042404.
Supreme Court of Virginia.
June 9, 2005.

Page 443

Julie C. Dudley, Assistant United States Attorney (John L. Brownlee, United States Attorney; Anthony Conte, on briefs), for plaintiff.

David B. Franzen (Michael E. Derdeyn; Feil, Pettit & Williams, on brief), Charlottesville, for defendant.

Amici Curiae: Historic Green Springs, Inc.; Association for the Preservation of Virginia Antiquities; The Chesapeake Bay Foundation, Inc.; Historic Richmond Foundation; National Trust for Historic Preservation in the United States; The Nature Conservancy; Piedmont Environmental Council; The Waterford Foundation in Support of the United States of America (Rae H. Ely; George Clemon Freeman, Jr.; Timothy G. Hayes; Christopher T. Albert; Hunton & Williams, on brief), in support of appellant.

Present: All the Justices.

KOONTZ, Justice.


Pursuant to Article VI, Section 1 of the Constitution of Virginia and our Rule 5:42, the United States District Court for the Western District of Virginia ("district court"), by its order entered October 21, 2004, certified to this Court the following questions of law:

A. In Virginia in 1973, would a conveyance of a negative easement in gross by a private property owner to a private party for the purpose of land conservation and historic preservation be valid?

B. In Virginia in 1973, would it be valid for a group of private property owners to grant to a private grantee restrictions for the purpose of land conservation and historic preservation on their individually-owned parcels of property, when (1) the property was not being transferred by a common grantor, (2) each grant was made in consideration of similar grants to the grantee, and (3) the grantee did not own any property benefited by the restrictions?

By order entered January 3, 2005, we accepted the certified questions.

BACKGROUND

The relevant facts are recited in the order of certification as follows:

Page 444

The Green Springs Historic District (the "District") is an area of roughly 14,000 acres in Louisa County that was settled in the 1700s. Much of the land in this area has historically been used for agricultural purposes, and this agricultural setting remains today. Because the land has been continuously farmed for almost three centuries, many of the homes and farms have been preserved in their original context with little alteration.

In the early 1970s, the Commonwealth of Virginia bought two hundred acres of land in the Green Springs area with the intention of building a prison. There was much local opposition, and some landowners expressed the belief that the prison would damage the character of their historic community. Reacting to this opposition, the then-governor of Virginia announced in 1972 that the state would not build the prison facility in the area if that area could be preserved. In response to the governor's challenge, local citizens organized a non-profit group dubbed Historic Green Springs, Inc. ("HGSI"), which obtained donations of easements for land conservation and historic preservation from landowners and initiated an effort to have the area designated as a National Historic Landmark District. The Green Springs Historic District was listed on the National Register of Historic Places in March of 1973, and was ultimately designated as a National Historic Landmark in 1974. See Historic Green Springs, Inc. v. Bergland, 497 F.Supp. 839, 842-43 (E.D.Va.1980) (discussing the history of the District).

By a "Deed of Easement" dated March 19, 1973 (the "Easement"), D.L. Atkins and Frances Atkins granted to HGSI an assignable easement over several parcels of their property, including Eastern View Farm. The Easement states in part that "in consideration of the grant to the Grantee of similar easements in gross by other owners of land in the said Green Springs Historic District for similar purposes, the Grantors [D.L. Atkins and Frances Atkins] do hereby grant and convey to the Grantee [HGSI] an easement in gross restricting in perpetuity, in the manner hereinafter set forth, the use of the following described tracts of land, together with the improvements erected thereon." In 1978, HGSI decided to convey its entire portfolio of easements to the United States. In the resulting deed of easement to the United States, all of the original grantors of similar easements within the District acknowledged their agreement to the conveyance by affixing their signatures to the deed. The National Park Service ("NPS") now administers these easements, including the Easement at issue, on behalf of the United States as part of the Green Springs National Historic Landmark District. The Easement at issue provides that the manor house on Eastern View Farm:

will be maintained and preserved in its present state as nearly as practicable, though structural changes, alterations, additions, or improvements as would not in the opinion of the Grantee fundamentally alter its historic character or its setting may be made thereto by the owner, provided that the prior written approval of the Grantee to such change, alteration, addition, or improvements shall have been obtained. This provision applies as well to those 18th and 19th Century outbuildings located on the described property.

Peter F. Blackman ("Blackman") purchased Eastern View Farm on July 1, 2002. Blackman wishes to renovate and rehabilitate the manor house. Specifically, Blackman, inter alia, seeks to remove the existing front porch on the manor house, replace the siding, and create an addition. In support of these intended alterations, Blackman submitted several sets of renovation plans to the NPS for review, but the NPS repeatedly denied certain aspects of his plans. Rather than working with the NPS for final approval of his plan, Blackman's attorney stated in a latter dated January 13, 2004 that Blackman would "commence the Rehabilitation at a time of his choosing, without further notice to [NPS], in accordance with the attached elevations." Subsequently, Blackman removed the porch from his house. The United States filed the complaint in this case June 14, 2004, and on June 16, 2004

Page 445

Judge James C. Turk issued a temporary restraining order restraining Blackman from "commencing and/or continuing renovation work to the manor house located on the Eastern View Parcel, in the Green Springs National Historic Landmark District, unless he has first obtained written approval from the National Park Service."

In defense of his actions, Blackman argues that, inter alia, the original deed of easement granted to HGSI was invalid because at the time it was purportedly created, Virginia law did not recognize any kind of negative easement in gross, including such easements for the purpose of land conservation and historic preservation.

In its order, the district court correctly states that we have not directly addressed the issue of the validity of negative easements in gross in our prior decisions. While also correctly noting that only certain types of easements were recognized at common law, the district court references the statement in Tardy v. Creasy, 81 Va. (6 Hans.) 553, 557 (1886), that "there are many other easements which have been recognized, and some of them have been of a novel kind," for the proposition that prior to 1973 "Tardy leaves open the possibility that other easements, including negative easements related to land conservation and historic preservation, would be valid if sufficiently related to the land."

DISCUSSION

The first question certified by the district court presents the issue of law whether, in 1973, the law of Virginia permitted an individual landowner to grant a negative easement in gross to a third party for the purpose of land conservation and historic preservation. As indicated by the district court, if the law of this Commonwealth did not recognize the validity of such an easement at that time, then the purported property restrictions granted to HGSI are invalid and would be unenforceable by HGSI's transferee, the United States.

Although previously we have not addressed the issue of the validity of a negative easement in gross under the law existing in 1973, the issue is of considerable significance beyond...

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    ...Conservation Easement Act ("VCEA"), Code §§ 10.1–1009through –1016, enacted in 1988. See United States v. Blackman, 270 Va. 68, 80–82, 613 S.E.2d 442, 447–49 (2005)(analyzing the VCEA). There is no dispute that a conservation easement authorized under the VCEA,4 which encompasses the presen......
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    ...terminus on the land of the party claiming it, and is essentially necessary to the enjoyment thereof."); U.S. v. Blackman, 270 Va. 68, 613 S.E.2d 442 (2005) ("An easement appurtenant, also known as a pure easement, has both a dominant and a servient tract and is capable of being transferred......
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    ...streams of water, and to ensure the subjacent and lateral support of buildings or land." United States v. Blackman, 270 Va. 68, 77, 613 S.E.2d 442, 446 (2005); see also Tardy v. Creasy, 81 Va. 553, 557 (1886). Over a century ago, we noted that "attempts have been made to establish other eas......
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  • Enforcing Conservation Easements: The Through Line
    • United States
    • Georgetown Environmental Law Review No. 34-2, January 2022
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    ...parcels and perhaps nearby land by limiting or distorting development of the burdened parcels). 10. See United States v. Blackman, 613 S.E.2d 442, 446 (Va. 2005); French, supra note 9, at 1268, 1307. An “easement in gross,” sometimes referred to as a personal easement, is not held appurtena......

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