[HISTORY: Adopted by the Board of Supervisors of Shenandoah
County 5-14-2013 by Ord. No. 2013-05.[1] Amendments noted where applicable.]
[1]
Editor's Note: This ordinance superseded former Ch. 82, Conservation
Easement Program, adopted 11-14-2007 by Ord. No. 2007-18.
The purpose and intent of this chapter is to further the goals
of the County's Comprehensive Plan and provide a means to assist County
landowners in protecting and preserving farm and forest land, open
space, scenic vistas, historic sites, water resources and environmentally
sensitive lands, and the County's rural character. This chapter establishes
a program which will enable the County to acquire voluntary conservation
easements, either through donation or, should funding be made available,
through purchase, as one means of assuring these valuable County resources
are protected.
The Shenandoah County Conservation Easement Program is established
under the provisions of the Virginia Conservation Easement Act, Chapter
10.1, Title 10.1 (§ 10.1-1009 et seq.), Code of Virginia;
the Open Space Land Act, Chapter 17, Title 10.1 (§ 10.1-1700
et seq.), Code of Virginia; and the Public Recreational Facilities
Authorities Act, Chapter 56, Title 15.2 (§ 15.2-5600 et
seq.), Code of Virginia; and shall be available for all land in the
County. The owner shall voluntarily offer any conservation easement
acquired pursuant to this chapter.
The following definitions shall apply in the interpretation
and implementation of this chapter:
The Shenandoah County Conservation Easement Authority.
A nonpossessory interest in real property, whether easement
appurtenant or in gross, acquired through gift, purchase, devise,
or bequest, imposing limitations of affirmative obligations, the purposes
of which include retaining or protecting natural or open-space values
of real property, assuring its availability for agricultural, forestal,
recreational, or open space use, protecting natural resources, maintaining
or enhancing air or water quality, or preserving the historical, architectural
or archaeological aspects of real property.
The number of residential building lots that may be created
from the parent tract in a given zoning district per the Shenandoah
County Zoning and Subdivision Ordinances.
A charitable corporation, charitable association, or charitable
trust which has been declared exempt from taxation pursuant to 26
U.S.C. § 501(c)(3) and the primary purposes or powers of
which include:
Retaining or protecting the natural or open-space values of
real property;
Assuring the availability of real property for agricultural,
forestal, recreational, or open-space use;
Protecting natural resources;
Maintaining or enhancing air or water quality; or
Preserving the historic, architectural or archaeological aspects
of real property.
The owner or owners of the freehold interest of the parcel.
A lot or tract of land, lawfully recorded in the Clerk's
office of the Circuit Court of Shenandoah County. Because a conservation
easement may contain one or more parcels, for the purposes of this
chapter the term "parcel" shall include all parcels covered by, or
proposed to be covered by, the conservation easement.
The Director of Community development.
Any entity as defined in Virginia Code § 10.1-1700.
A right provided in a conservation easement to enforce any
of its terms granted to a governmental body, charitable corporation,
charitable association or charitable trust which, although eligible
to be a holder, is not a holder.
A.
Designation.
The Director of Community Development is hereby designated as the
program administrator.
B.
Powers
and duties. The program administrator, or his designee, shall have
the following powers and duties with respect to the program:
(1)
Establish reasonable and standard procedures and forms consistent
with this chapter for the administration and implementation of the
program.
(2)
Evaluate all applications to determine their eligibility and their
ranking based on their score, and make recommendations thereon to
the Authority.
(3)
Determine the number of usable development rights existing on each
subject parcel subject to an application.
(4)
Where funding is available for purchase, coordinate the preparation
of appraisals.
(5)
Provide staff support to the Authority.
(6)
Assure that the terms and conditions of all easements are monitored
and complied with by coordinating with each easement holder.
A.
Establishment.
The Shenandoah County Conservation Easement Authority is created under
the Public Recreational Facilities Authorities Act, Chapter 56 of
Title 15.2 (§ 15.2-5600, et seq.), Code of Virginia. The
Authority shall consist of seven members, appointed by the Board of
Supervisors, to be comprised of one member of the Board of Supervisors,
one member of the Planning Commission, and five citizen members. Members
shall serve four-year terms, except that three members initially shall
serve two-year terms. Members shall be eligible for reappointment.
The Committee shall elect a Chairman and Vice Chairman at its first
meeting each calendar year.
B.
Powers
and duties. The Authority shall have the powers and duties to:
(1)
Acquire and co-hold easements pursuant to the provisions of this
chapter.
(2)
Apply for and pursue grants, other funding, and gifts from the Virginia
Land Conservation Fund, state and federal agencies, and private persons
and entities for the purchase of easements.
(3)
Promote the program, in cooperation with the program administrator,
by providing educational materials to the public and conducting informational
meetings.
(4)
Review the ranking of applications recommended by the program administrator
and make a determination as to whether an easement donation offer
should be accepted and, subject to funding availability, which, if
any, conservation easements should be purchased.
(5)
Annually review the program's eligibility and ranking criteria and
recommend to the Board of Supervisors any changes needed to maintain
the program's consistency with the Comprehensive Plan, or to improve
the administration, implementation and effectiveness of the program.
(6)
Take action to enforce compliance with terms of easements being co-held
by the Authority.
(7)
Exercise any powers authorized by the Public Recreation Facilities
Authorities Act.
In order for a parcel to be eligible for a conservation easement,
it must meet the following criteria:
[Amended 9-14-2021 by Ord. No. 2021-06]
In order to effectuate the purposes of this chapter, parcels
for which applications for purchase have been received shall be ranked
according to the criteria and the point values assigned thereto as
set forth herein. Points shall be rounded to the first decimal.
A.
Farm and forest land protection.
(1)
The parcel contains prime farmland as identified by the Shenandoah
County Soil Survey: 1/2 point for each 10 acres containing such soils,
for up to a total of five points.
(2)
The parcel contains prime forested land as identified by the Virginia
Natural Heritage Data Explorer: 1/4 point for each 10 acres containing
Levels 3 or 4 and 1/2 point for each 10 acres containing Level 5 forest
conservation values, for up to a total of five points.
(3)
The parcel is currently located within an Agriculture and Forest
District: four points.
(4)
The parcel has an approved nutrient management plan and/or employs
agricultural best management practices as approved by the Lord Fairfax
Soil and Water Conservation District or the Natural Resources Conservation
Service: one point.
(5)
The parcel is a working family farm: five points if at least one
family member's principal occupation and income (more than half)
is farming or foresting the parcel; three points if at least one family
member produces farm products derived from the parcel.
(6)
The parcel is part of a Virginia Department of Agricultural and Consumer
Services approved century farm: two points.
(7)
The parcel is listed on the Virginia Natural Heritage Data Explorer
as being part of Conserve Virginia in the agriculture and forestry
category: one point.
B.
Natural resources protection.
(1)
The parcel fronts on the Shenandoah River or any perennial stream
identified by the most recent USGS quad maps or other reliable sources:
one point plus an additional one point for every 1,000 feet of linear
stream frontage.
(2)
The parcel is within a watershed identified as impaired on the Virginia
Department of Environmental Quality's Impaired Waters List: two
points.
(3)
The parcel contains perennial springs or wetlands as identified on
the most recent USGS quad maps or other reliable sources: two points.
(4)
The parcel is within a sensitive groundwater recharging area as demonstrated
by the presence of sinkholes or karst topography: one point.
(5)
The parcel is located within the 100-year floodplain: 1/2 point for
every 10 acres in the floodplain up to a total of five points.
(6)
The parcel contains critical slopes of 25% or greater: one point.
(7)
The parcel contains an endangered or rare species: one point for
every endangered or rare species.
(8)
The parcel contains an ecological core as identified by the Virginia
Natural Heritage Data Explorer: 1/4 point for each 10 acres containing
Levels C5, C4, or C3 and 1/2 point for each 10 acres containing Level
C2 or C1 ecological core conservation values, for up to a total of
five points.
(9)
The parcel is part of a natural land network as identified by the
Virginia Natural Heritage Data Explorer: one point.
(10)
The parcel is listed on the Virginia Natural Heritage Data Explorer
as being part of Conserve Virginia in the natural habitat and ecosystem
diversity category, the floodplains and flooding resilience category,
and/or the water quality improvement category: one point for each
category.
C.
Cultural, historical, recreational, and scenic resources.
(1)
The parcel is located within the Fisher's Hill and Toms Brook
Battlefields Preservation Plan: four points for being located in the
Core area; two points for being located in the Study area.
(2)
The parcel shares a boundary with property owned or protected by
the Shenandoah Valley Battlefields Association or other recognized
preservation organization: one point plus one additional point for
every 1,000 feet of shared boundary.
(3)
The parcel is listed on the State or National Register of Historic
Places: two points.
(4)
The parcel contains or adjoins a parcel containing an historic structure
identified by the Shenandoah County Survey or otherwise documented
as being over 100 years old: two points.
(5)
The parcel adjoins a state-maintained road: one point for each 500
feet of road frontage along a designated Virginia scenic highway or
byway; one point for each 1,000 feet of road frontage on a nondesignated
public road.
(6)
The parcel provides public access to a part or the entire property:
one point plus one additional point for every 10 acres of land accessible
to the public.
(7)
The parcel provides public trails through or along the property:
one point plus one additional point for every 1,000 feet of trail
if located along a perennial stream or connects to an existing public
trail network.
(8)
The parcel is listed on the Virginia Natural Heritage Data Explorer
as being part of Conserve Virginia in the cultural and historic preservation
category, the scenic preservation category, and/or the protected landscapes
resilience category: one point for each category.
D.
Open space protection.
(1)
The parcel adjoins the National Forest, or any national, state, or
local park: one point plus one additional point for every 1,000 feet
of shared boundary.
(2)
The parcel adjoins an existing permanent conservation easement: one
point plus one additional point for every 500 feet of shared boundary.
(3)
Acreage: one point for every 50 acres the easement will encompass.
F.
The parcel contains development vulnerable land as identified by
the Virginia Natural Heritage Data Explorer: 1/4 point for each 10
acres containing Classes I, II, or III and 1/2 point for each 10 acres
containing Classes IV or V development vulnerable land, for up to
a total of five points. Fund leveraging: Nonlocal government funding
has been identified to leverage the purchase of the conservation easement:
one point for each 10% of the total purchase price for which those
funds can be applied. Donation of all or a portion of the easement
by the owner shall be considered fund leveraging and points shall
be awarded at the same rate.
Each conservation easement shall conform with the requirements
of the Open Space Land Act and of this chapter. The deed of easement
shall be in a form approved by the County Attorney and shall contain,
at a minimum, the following provisions:
A.
Restrictions.
In addition to the foregoing, the parcel shall be subject to standard
restrictions contained in conservation easements pertaining to uses
and activities allowed on the parcel. These standard restrictions
shall be delineated in the deed of easement and may include, but not
necessarily be limited to, restrictions pertaining to:
(1)
The accumulation of trash, junk, and inoperable vehicles;
(2)
The display of billboards, signs and advertisements;
(3)
The management of forest resources;
(4)
Grading, blasting or earth removal;
(5)
The number of new dwellings and the number and size of outbuildings
and farm buildings or structures;
(6)
The conduct of industrial or commercial activities on the parcel;
and
(7)
Monitoring of the easement
B.
Designation
of easement holders. The Authority shall be a holder and the Shenandoah
County Board of Supervisors shall have third-party right of enforcement
of all easements acquired under this program. The Authority shall
seek one or more public bodies or other holder(s) to be additional
co-holders in the deed of easement or added by the Board of Supervisors
and the Authority later, unless the Authority finds additional co-holders
to be not feasible or not advisable.
Each application for a conservation easement shall be processed
as follows:
A.
Application
materials to be provided to owner. The application materials provided
by the program administrator to an owner shall include, at a minimum,
a standard application form, a sample deed of easement and information
about the program.
B.
Application
form.
(1)
Each application shall be submitted on a standard form prepared by
the program administrator. The application form shall require, at
a minimum, that the owner:
(a)
Provide the name and address of all owners of the parcel;
(b)
The acreage of the parcel;
(c)
The Tax Map and parcel number;
(d)
The zoning designation of the parcel;
(e)
Permission for the program administrator to enter the property after
reasonable notice to the owner to evaluate the parcel and for the
County's Assessor or an independent appraiser to appraise the property;
(f)
Identification of all lien holders on the parcel, including, without
limitation, holders of deed of trust liens and judgment liens; and
(g)
Identify whether it is his desire to donate or sell an easement.
(2)
The application form shall also include a space for an owner to indicate
whether he volunteers to have his parcel be subject to greater restrictions
than those contained in the standard sample deed of easement, and
to state those voluntary, additional restrictions.
C.
Submittal
of application. Applications shall be submitted to the office of the
program administrator. An application may be submitted at any time.
However, applications involving an easement purchase received after
June 1 shall be evaluated in the following fiscal year.
D.
Evaluation by program administrator. The program administrator shall evaluate each complete application received and determine whether the parcel satisfies the eligibility criteria set forth in § 82-6 and shall make recommendations thereon to the Authority.
E.
Evaluation
by Authority. The Authority shall hold a public meeting to review
the list of parcels submitted by the program administrator and identify
on which parcels, if any, it desires conservation easements.
F.
Application.
An owner of a parcel not selected by the Authority for purchase or
acceptance of a conservation easement may reapply in any future year.
Upon approval of an easement by the Authority pursuant to the
terms of this chapter, the proposed easement shall be forwarded to
the Board of Supervisors for its approval. No easement shall be accepted
unless approved by both the Authority and the Board of Supervisors.
Upon approval by the Authority and the Board of Supervisors, and by
any additional co-holder if applicable, the deed of easement shall
be executed by all parties and recorded in the Shenandoah County Clerk's
office. Nothing in this chapter shall obligate the Authority to purchase
or accept a conservation easement on any property.
Should the Authority desire to purchase an easement, the following
procedures shall apply:
A.
Identification of initial pool. For applications received under § 82-9, in which the owner has indicated a desire to sell an easement, the program administrator shall determine the number of points to be attributed to each parcel by applying the criteria set forth in § 82-7. The program administrator shall rank each parcel scoring at least 15 points with the parcel scoring the most points being the highest ranked and descending therefrom. The program administrator shall submit the list of ranked parcels to the Authority. The Authority shall designate the initial pool of parcels identified for conservation easements to be purchased. The purchase price may be supplemented by non-County funding as discussed in § 82-7F above. The size of the pool shall be based upon the funds available for easement purchases in the current fiscal year.
B.
Additional application information required by program administrator.
The program administrator may require an owner to provide additional
information deemed necessary to determine whether the proposed easement
is eligible for purchase and the purchase price of such easement.
C.
Appraisal of conservation easement value. Each conservation easement
identified by the Authority to be purchased shall be appraised either
by the County's Assessor or by an independent qualified appraiser
chosen by the Authority. Each completed appraisal shall be submitted
to the program administrator and the owner. The program administrator
shall forward each appraisal to the Authority, which shall review
each appraisal.
D.
Invitation of offer to sell. The Authority shall invite the owner
of each parcel included in the initial pool of conservation easements
to submit an offer to sell to the Authority a conservation easement
on that parcel, subject to the terms and conditions of a proposed
deed of easement. The invitation to sell shall be in writing and shall
include the desired purchase price, the proposed deed of easement,
and the date by which a written offer must be received by the program
administrator in order to be considered. The invitation may contain
an offer form to be returned if the owner desires to sell a conservation
easement.
E.
Offer to sell. Each owner who desires to sell a conservation easement
shall submit a written offer that must be received by the program
administrator by the date contained in the invitation to offer to
sell. The offer should include a statement that substantially states
the following: "(The owner) offers to sell a conservation easement
to the Authority for the sum of (purchase price), subject to the terms
and conditions set forth in the proposed deed of easement enclosed
with the invitation to offer." Nothing in this chapter shall compel
an owner to submit an offer to sell.
F.
Acceptance. Nothing in this chapter requires the Authority to accept
an offer to sell a conservation easement.
G.
Offers not made; offers not accepted; invitation to other owners.
If an owner invited to submit an offer elects not to do so, or if
his offer to sell is not accepted by Authority, then the Authority
may send an invitation to offer to sell to other owners on the list.
H.
Costs. If the Authority accepts an offer to sell a conservation easement,
the Authority may pay all costs, including environmental site assessments,
surveys, recording costs, grantor's tax, if any, and other charges
associated with closing; provided, however, the Authority shall not
pay fees incurred for independent appraisals or legal, financial,
or other advice, or fees in connection with the release and subordination
of liens to the easement purchased by the Authority.
I.
Application. An owner for whose parcel a conservation easement is
not purchased may reapply in any future year.
J.
Special consideration. The Authority shall give special consideration
and take immediate action to review applications in the special case
where private funding is available to cover 100% of the cost of the
purchase, or the owner is willing to donate the conservation easement
at no cost to the County, provided that such parcel meets the eligibility
requirements of this chapter.
The program created herein may, but is not required to, be funded
annually by the Board of Supervisors in the County budget or by special
appropriation. The Authority shall endeavor to seek funds from federal,
state and private sources to effectuate the purposes of this chapter.
Nothing in this chapter shall require the Board of Supervisors to
fund this program.
