CEA 06-25-09 Meeting AgendaMEMORANDUM
TO: Conservation Easement Authority
FROM: Eric R. Lawrence, Planning Director
RE: June meeting
DATE: June 18, 2009
COUNTY of FREDERICK
Department of Planning and Development
5401665-5651
FAX: 540/665-6395
The Frederick County Conservation Easement Authority will be meeting on Thursday, June 25, 2009
at 8:00 a.m, in the Board of Supervisor's Executive Session Meeting Room in the County
Administration Building, 107 North Kent Street, Winchester, Virginia. The Conservation Easement
Authority will discuss the following agenda items:
AGENDA
1. May 28, 2009 Minutes
2. PDR program - update
3. Fundraising Event Discussion
Please contact the Planning Department (665-5651) if you are unable to attend this meeting.
ERL/bad
107 North Kent Street, Suite 202 • Winchester, Virginia 22601-5000
DRAFT
MEETING MINUTES
OF THE
FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY
Held in the Executive Session Room of the Frederick County Administration Building at 107 North
Kent Street in Winchester, Virginia on May 28, 2009 at 8:00 a.m.
PRESENT: Diane Kearns, Chairman; John Gavitt; John Marker; Todd Lodge; and Gene Fisher, Board
of Supervisors Liaison.
ABSENT: Ritchie Wilkins, Vice -Chairman; Jim Lawrence, Treasurer; Robert Solenberger; and Cordell
Watt, Planning Commission Liaison.
OTHER: Emily Warner and Kelly Watkinson, Potomac Conservancy.
STAFF PRESENT: Eric Lawrence, Secretary; and Bev Dellinger, Secretary III.
PUBLIC MEETING:
1. Minutes.
On a motion by Mr. Marker and seconded by Mr. Fisher, the April 23, 2009 minutes were
approved.
2. TDR Workshop — Update.
Ms. Kearns stated that Valley Farm Credit did a really good job of putting the workshop
together. She saw a number of planning people there.
Mr. Gavitt asked Mr. Lawrence about the status of the TDR Program. Mr. Lawrence stated that
the preliminary draft of the ordinance is coming together and the target is to have it to our DRRC
meeting by mid-July. If the Committee thinks it's appropriate, we start going through the normal
discussion process. Mr. Lawrence committed to the Board of Supervisors that by the end of this
calendar year, we would have the RA policies codified.
3. PDR Program - Update.
Ms. Kearns stated that Mr. Eric Lawrence was in the process of getting everything lined up for
the Snapp easement closing. Via email, Mr. Lawrence found out that the Attorney General had
issued an interpretation of the intergovernmental agreement and this interpretation states that
they aren't going to allow federal monies to be matching funds for a state grant. Mr. Lawrence
and Ms. Kearns double-checked to make sure there were no mistakes on our end. Ms. Kearns
further stated that the Office of Farmland Preservation sent out what they termed the "Initial
Thoughts on State -Matching Funds" and it did not indicate there is any percentage. Ms. Kearns
had a conversation with Kevin Schmidt of this office in March 2007 to double check the
percentage and Mr. Schmidt stated he hadn't thought about it that way, but yes. Ms. Susan
Frederick County Conservation Easement Authority - 1 13 -
Minutes of May 28, 2009
Eddy, who previously was involved with the CEA Committee, backed up Ms. Kearns. We aren't
the only ones in this situation; Clarke County is too, but they're not as deeply dedicated to using
State funds to make it happen. Ms. Kearns had a conversation with Mr. Schmidt yesterday and
he stated when they had the County put this in their line item so the State grant could be divvied
up, they wanted it to be as positive as they could, so they allowed these things. Now when it
comes right down to divvying up the money for the easement, the Attorney General has indicated
that the language is "cost actually incurred" by the County, meaning after everything is done,
what the County is out. Ms. Kearns asked Mr. Schmidt if he realized what this does to us, and he
was apologetic without actually saying it, but he said yes, because this didn't even come out until
ten days to two weeks ago. Ms. Kearns thinks what happened is everybody is in a tight budget
year and they're re -interpreting this because if the money doesn't get used, it goes back into the
"pot" with VADAC and gets redistributed. Ms. Kearns stated she's going to call Governor
Kaine's office about this.
Mr. Lawrence stated the agreement the County has with VADAC says if we elect not to spend
the money or if we don't satisfy the agreement, the money goes back to VADAC so they can
redistribute it to preservation programs. Mr. Lawrence pointed out that we started the program
with $4,500,000 and the second year $500,000, so if they don't let us spend the money, next year
they can offer $4,000,000 again. They have a history of "look at all the money we're making
available". Mr. Lawrence doesn't know if that is their intent, but that's what is happening.
Ms. Watkinson asked Ms. Kearns if she has a sense on how many people are affected by this.
Ms. Kearns stated that Mr. Schmidt told her there are eight or nine easements in the process that
we are in. Three of them have closed; of the ones that closed, none of them have used federal
matching funds.
What Mr. Lawrence found in talking to Ms. Eddy is that Fauquier County, where Ms. Eddy is
now employed, has a lot of private funding. The same thing is applicable to Clarke County.
Ms. Kearns told Mr. Schmidt that if we can't figure something out with the funding within a
week or two, she doesn't know what we're going to do because the money is not going to come
from the County. Mr. Schmidt said he was going to try to think of something and he would be
back in touch.
Mr. Lawrence stated that Rod Williams, County Attorney, has becil in the loop on all this and
he's going to call Mr. Steve Jack, the representative from the Attorney General's office, because
we don't think the State has the right to do this. A year after we signed a contract, we don't
think they're in a position to do an interpretation of what the contract meant both parties have
to agree.
Mr. Fisher asked why the interpretation was made what brought this up. Ms. Kearns stated that
either Mr. Schmidt didn't know or he wasn't at liberty to say. He was trying to say, without
saying, that in our case this was the first time he'd actually seen the numbers of the breakdown
of what we were going to do and that was why he had just emailed Mr. Lawrence with his
concerns, because prior he didn't realize that.
Frederick County Conservation Easement Authority -114-
Minutes
114 -
Minutes of May 28, 2009
Mr. Lawrence stated that nothing else was ever issued beyond the initial thoughts so we're trying
to find out when the mindset changed and where is the documentation that changed it. Mr.
Lawrence also stated that the deeds of easement, which show what shares of money each entity
is contributing, are just getting to VADAC for end of the fiscal year and they're starting to
realize everybody is using matching grants and the State may not think that's appropriate.
Mr. Fisher asked for a summary in writing of what exactly has taken place because he has a
meeting this morning on another subject and someone from the State will be there and he would
like to give her this information.
Ms. Kearns feels we will work our way through this but it's a platter of getting to the right
people.
Mr. Gavitt feels we need to talk to our representatives and emphasize there has been absolutely
no paper trail to indicate any policy change.
Ms. Watkinson stated that Potomac Conservancy would like to talk to as many people as
possible and try to get this resolved, if the Committee feels it's appropriate. Ms. Kearns said she
feels it would be appropriate for Potomac Conservancy to talk to the representatives.
Mr. Lawrence stated that the underlying thing is we're trying to get a PDR Program going in
Frederick County with 198 acres identified with willing, volunteering property owners who want
to do the easements. We're in the process of securing the funding to secure those properties,
which is close to 40 housing rights that we're eliminating, and in theory with the FRPP
application we're putting together now we could secure up to three quarters of a million dollars
to close out these 40 development rights. It seems like everything is coming together for the
promotion of farmland protection of PDRs.
Mr. Lawrence said the put -pose of PDRs and the purpose of the Office of Farmland Preservation
is to protect and preserve farmland. It's not to encourage the County to spend money to preserve
farmland. So if we're preserving farmland and figure out creative financing, why would the
State care?
Ms. Kearns stated we'll try to contact Ms. Vogel and Ms. Sherwood's office and Liz White at
Green is very involved in the Department of Agriculture so she can talk to people there. Ms.
Kearns is going to try to contact someone in Governor Kaine's office. Mr. Fisher stated that he
will be able to talk to Ms. Vogel this morning at a meeting he's attending.
Ms. Kearns stated that June 30`x' is the deadline for new applications and she hasn't heard of
anyone else with an easement that's even close to complying.
4. Fundraising Event Discussion.
Ms. Kearns said she hasn't really talked to Marjorie and the Zartmans yet. They need to know
we will be involved. Since the Wright easement is looking positive, we might want to do
something at the Wright's place. The CEA will have some money to put in as our thatching park
for the Wright easement and stewardship. It's important that the County recognize there are
Frederick County Conservation Easement Authority - 115 -
Minutes of May 28, 2009
stewardship obligations. When the Potomac Conservancy takes an easement from somebody
else, there is supposedly a $5,000 to $6,000 contribution trade to a stewardship fund in case
enforcement is ever necessary.
Mr. Gavitt stated that stewardship in terms of monitoring a property doesn't cost a lot. What
costs a lot is if you get into a violation and into litigation. Mr. Gavitt sees the role of this
Authority and of the County of something in agreement which guarantees that the County will go
forward and assist with any litigation, rather than trying to raise a lot of money. There is a
governmental body in place that is capable of doing that and Mr. Gavitt feels that is the most
important thing of having an agreement.
Mr. Lawrence stated that part of the agreement we're doing with Potomac Conservancy is to let
thein be the leader on overseeing the property. So the maintenance Rind is so that they can
basically pay for their staff to visit and keep track of the properties. We have an inherent ability,
just because vire monitor what housing may be built, that picks up most of the violations that you
would see. On a day-to-day basis, the Potomac Conservancy, through our MOU, takes the lead
in overseeing it. It's an eternal easement so we want to make sure that they are funded, so with
the one-time payment, it becomes their responsibility to do the annual review of the property.
Ms. Kearns stated that the next MOU will probably look different. Hopefully at that point, the
County will be in a more supportive position.
Mr. Marker stated that Farm Bureau is having an Educational Fun Day at his farni on the second
Saturday of July. There will be a lot of exhibits and free food. This may be something that CEA
members might want to attend.
The next meeting will be held on June 25t" at 8:00 am.
There being no further business, the meeting adjourned at 8:45 a.m.
Respectfully submitted,
Diane Kearns, Chaiiman
Eric R. Lawrence, Secretary
Frederick County Conservation Easement Authority - 116 -
MinUtes of May 28, 2009
CEA
Frederick County
Conservation Easement Authority
MEMORANDUM
TO: Conservation Easement Authority
(Memo sent to Frederick County Board of Supervisors for 612412009
meeting)
FROM: Eric R. Lawrence, AICP, CEA Secretary 0"
SUBJECT: Request for Authorization to Purchase a Conservation Easement on
the Betty Snapp Property
DATE: June 18, 2009
The Frederick County Conservation Easement Authority (CEA) has developed a
number of partnerships in an effort to further promote land conservation and acquire
development rights on key agricultural sites in the County. These partnerships have
enabled the CEA to secure funding for conservation easements as well as easement
stewardship. The CEA, and its partners, are pleased to present to the Board of
Supervisors the first qualifying property for acceptance into the County's Purchase of
Development Rights Program.
The first property on which the CEA seeks to establish a conservation easement is an
89.75 -acre parcel owned by Betty Snapp, an active family in the County's agricultural
community.
In order to formalize the acquisition of the conservation easement on the Snapp
property, the CEA is seeking three actions from the Board of Supervisors (details
for each action are included in the body of this memorandum):
1- Authorization to Execute a Memorandum of Understanding (MOU), between
the CEA and the Potomac Conservancy;
2- Authorization to Execute the Deed of Easement for the Snapp property;
and,
3- Appropriation of $395,000 for the acquisition of the conservation easement.
Please contact staff should you have additional questions about the easement program,
the Snapp property, or any aspect of the easement's funding. Timing is of the essence
CIO Frederick County Planning Department, 107 North Kent Street, Winchester, VA 22601 (540-665-5651)
Re: Snapp Property PDR
June 18, 2009
Page 2
on this easement request as the project funding is set to expire at the end of this fiscal
year. It is also noteworthy to mention that Senator Vogel has been instrumental in
securing the ability to use state grant funding for this easement.
Attached is additional information about the proposed easement, including an overview
of the Snapp property (Attachment 1), the draft Memorandum of Understanding (MDU)
(Attachment 2), the draft Deed of Easement (Attachment 3).
Should you have any questions about this request, please contact staff, or Ms. Diane
Kearns, Chair of the Frederick County Conservation Easement Authority.
ERLlbad
Attachments: Description of the Snapp property (Attachment 1)
Draft Memorandum of Understanding (Attachment 2)
Draft Deed of Easement (Attachment 3)
Re: Snap, Property PDR
June 18, 2009
Page 3
Easement Program Background
Conservation Easement Funding
The Board of Supervisors allocated $265,000 and unanimously approved the
Conservation Easement Authority's (CEA) request to participate in the State grant
matching funds program on April 23, 2008. As a part of the request, the CEA also
expressed its commitment to finding outside funding sources that would completely or
partially meet the County's obligation to contribute matching funds toward the purchase
of an easement.
The County received a $265,000 matching grant from the Virginia Department of
Agriculture and Consumer Services' (VDACS) Office of Farmland Preservation. In an
effort to secure additional funding for the easement, the CEA partnered with the
Potomac Conservancy to utilize a matching grant award from the USDA's Farm and
Ranchland Protection Program (FRPP)
Funding for the purchase of the conservation easement on the 89.75 acre Snapp
property has been obtained through these two reimbursable grants. The Virginia
Department of Agriculture and Consumer Services' (VDACS) Office of Farmland
Preservation will contribute $135,000 towards the acquisition of the easement; the
USDA's Farm and Ranchland Protection Program (FRPP) will contribute $260,000.
The VDACS state grant program will enable us to use their funds in a dollar for dollar
match. The Federal Farm and Ranchland Protection Program (FRPP) grant requires a
matching contribution of one dollar for every two that the federal agency provides.
Board members should note that the State will count Federal dollars toward its
matching requirement and vice versa, thus affording the County with an
opportunity to acquire this easement without using any County funds. The
County will be reimbursed for its expenditures; no County funding will be necessary.
Memorandum of Understanding (MOU) — see Attachment 2
A Memorandum of Understanding (MOU) has been drafted between the Frederick
County Conservation Easement Authority (CEA) and the Potomac Conservancy, as co -
holders of the easement. The MOU delineates each party's responsibility as co -holder
of the easement, including the stewardship and legal defense of the easement.
The MOU must be signed at the time that an easement is established, thus the Board is
requested to review the MOU and consider it at the same time that they evaluate the
easement contract and finalized proposal for acquisition. Ultimately, the CEA will be the
responsible party overseeing the County's participation in the easement.
Re: Snapp Property PDR
June 18, 2009
Page 4
Deed of Easement — see Attachment 3
The Deed of Easement is the recorded agreement between the property owner, the
USDA, the County, the CEA, and the Potomac Conservancy. Upon recordation of the
easement, the development rights to the property will essentially be extinguished,
thereby assuring that development will not occur on that particular property.
Conservation Easement Responsibilities
Once established, the easement on the Snapp property will be held in perpetuity by its
co -holders, and these co -holders will be responsible for assuring that the terms of the
easement are enforced over the years. The co -holders are the: Frederick County
Board of Supervisors, Frederick County Conservation Easement Authority, Potomac
Conservancy, and the United States Department of Agriculture (via the Natural
Resource Conservation Service).
An easement co -holder responsibility involves an annual inspection of the property
which requires about two to four hours of staff time per year. Through agreement with
the Potomac Conservancy, the Conservancy will take the lead on the annual inspection
and management of the easement.
Should an issue arise requiring that an easement's terms be enforced, the County
would need to assist in the legal costs associated with such an enforcement, and would
do so in partnership with its co -holders. The exact nature of this cooperation with co -
holders in enforcing an easement is outlined in the MOU between Frederick County and
the Potomac Conservancy (attached). It should be noted that the need to enforce a
property's terms via legal action is very rare, but that it is important for the Board to be
aware of this possibility in considering the acquisition of this property's development
rights.
Re: Snapp Property PDR
June 18, 2009
Page 5
ATTACHMENT 1
Description of the Snapp property
Conservation Easement Purchase Proposal;
The CEA is proposing the purchase of an easement on the Snapp Property for a total of
up to, but no more than, $395,000 (including closing costs).
® $135,000 will come from the VDACS Office of Farmland Preservation
($135,000 of the $265,000 matching grant awarded to Frederick County in
February of 2008)
• $260,000 will come from the US Department of Agriculture's Farm and
Ranchlands Protection Program (FRPP)
Ms. Snapp has agreed to sell the easement for this price with the difference between
the selling price and market value being considered as a donation.
The CEA has used $3,000 of its own funds to help with preparatory costs such as a
certified appraisal.
$395,000 will be funded by VDACS and FRPP reimbursable grants.
The easement will be held by both Frederick County and the Potomac Conservancy.
Property Information
Owner: Ms. Betty D. Snapp
Acreage: 89.75
Property ID: 72-A-12
Zoned: RA
Magisterial District: Back Creek
Current Use: Pasture
• Site is adjacent to a 151 acre working farm currently protected by a Conservation
Easement held by the Potomac Conservancy, the Virginia Outdoors Foundation
and the USDA FRPP.
• if subdivided as traditional five acre lots, the property could produce 17 lots
based on current County density.
• The property joins two state maintained roads: Fromans Road and Cedar Creek
Re: Snapp Property PDR
June 18, 20019
Page 6
Grade (designated Scenic Byway).
The parcel is located within the Cedar Creek watershed, which is listed as
impaired by the Virginia Department of Environmental Quality.
s There is a perennial spring on the property that feeds into Cedar Creek.
9 The property is identified as having karst topography.
The property contains prime soils for farming.
B 'Thee property qualifies for, and is currently in, agricultural Land Use
Owners have implemented best management practices on the farm as
recommended by representatives from the Federal Natural Resources
Conservation Service and Lord Fairfax Soil & Water Conservation District.
0 300 S00 1,200 Feet
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Snapp Property Conservation Easement ce,
Acreage: 89.75 Back Creek Magisterial District
PIN: 72 - A - 12 Zoned: RA
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ATTACEMUT 2
MEMORANDUM OF UNDERSTANDING
BETWEEN
POTOMAC CONSERVANCY
MED
The Frederick County Conservation Easement Authority
On this _day of '2008
PARTIES
The parties to this cooperative agreement are the POTOMAC CONSERVANCY, a tax
exempt land trust whose prime purpose is to protect the lands vital to the health, beauty
and enjoyment of the Potomac River and its tributaries., having an address at 19 West
Cork Street, Suite 201, Winchester, VA 22601, and the FREDERICK COUNTY
CONSERVATION EASEMENT AUTHORITY, a body corporate and politic, organized
under the Public Recreational Facilities Authorities Act, Chapter 56 of Title 15.2 of the
Code of Virginia (1950, as amended), for the purpose of enabling Frederick County to
acquire conservation easements, voluntarily offered by property owners, as a means of
assisting in the preservation of farm and forest land, open space, scenic vistas, historic
sitcs, water resources, environmentally sensitive lands and the County's rural character,
having an address at 107 North Kent Street, Winchester, VA 22601. Working in
partnership, the Conservancy and the FREDERICK COUNTY CONSERVATION
EASEMENT AUTHORITY can collectively improve the quality of stewardship and
ensure legal defense of our co -held conservation easements in perpetuity.
This Agreement is intended to clarify and set forth guidance for stewardship and
enforcement activities regarding the co -holding of conservation easements between the
POTOMAC CONSERVANCY and the FREDERICK COUNTY CONSERVATION
EASEMENT AUTHORITY. The POTOMAC CONSERVANCY and the FREDERICK
COUNTY CONSERVATION EASEMENT AUTHORITY agree to the following to
reach mutually beneficial conservation goals.
AGREEMENTS
Stewardship Responsibilities:
POTOMAC CONSERVANCY will serve as the lead on all Stewardship responsibilities
associated with the co -held conservation easements. POTOMAC CONSERVANCY will
serve as the primary contact with landowners in regards to all questions about their
conservation easements, site visits, approvals and any potential violations. POTOMAC
CONSERVANCY will share information about site visits, approvals and potential
violations with the FREDERICK COUNTY CONSERVATION EASEMENT
AUTHORITY through phone calls, memos and copies of site visit reports. POTOMAC
CONSERVANCY will also share files with the US Internal Revenue Service, the State
Treasurer, and the office of Attorney General and such other government agencies as may
be necessary. POTOMAC CONSERVANCY will keep copies of all original documents
and reports. More specifically the co -holders commit to the following:
Baseline Documentation: POTOMAC CONSERVANCY will be responsible
for the cost and development of the Baseline Documentation Report and will
provide the FREDERICK COUNTY CONSERVATION EASEMENT
AUTHORITY and the landowner with one identical copy each of this report. The
FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY and the
Conservancy will store the reports in a secure location and will not alter or change
their contents in any way.
MonitorinIZ Visits: POTOMAC CONSERVANCY will contact the landowner to
schedule annual monitoring visits of the easement property. If the FREDERICK
COUNTY CONSERVATION EASEMENT AUTHORITY desires to join the
POTOMAC CONSERVANCY in yearly monitoring visits, we will work in good
faith to accommodate the landowners, the Conservancy's and the FREDERICK
COUNTY CONSERVATION EASEMENT AUTHORITY representative's
schedules. After conducting a monitoring visit, the Conservancy will write a
monitoring report and follow-up letter to the landowner, copies of which are to be
kept on file according to POTOMAC CONSERVANCY's record keeping policy.
The Conservancy will provide a copy of the monitoring report and follow up
leiter to the FREDERICK COUNTY CONSERVATION EASEMENT
AUTHORITY.
Record Keeping, Approvals and Landowner Correspondence: POTOMAC
CONSERVANCY will follow the provisions of it's record keeping policy when
corresponding with landowners and the FREDERICK COUNTY
CONSERVATION EASEMENT AUTHORITY and responding to requests for
approvals, amendments or notifications.
If the Conservation Easement requires the landowner to secure prior consent of
the Conservancy and the FREDERICK COUNTY CONSERVATION
EASEMENT AUTHORITY before taking an action, the Conservancy and the
FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY will
collaborate in good faith (and within any applicable time limits) to develop a
response to the landowner's request for approval. The FREDERICK COUNTY
CONSERVATION EASEMENT AUTHORITY and Conservancy will make
every reasonable effort to develop a single, unified response; however, the
Conservancy and the FREDERICK COUNTY CONSERVATION EASEMENT
AUTHORITY recognize that they have separate and equal rights to grant or deny
consent, and if coordinating a unified response is not possible, they may respond
independently to the landowner's request. The landowner must secure both the
FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY and
Conservancy's consent before taking any action requiring such consent.
2
The Conservancy and the FREDERICK COUNTY CONSERVATION
EASEMENT AUTHORITY will provide to each other a copy of any
correspondence received from or sent to the landowner related to the
Conservation Easement. If such correspondence is a written notice or request for
approval from the landowner, a copy must be provided within ten (10) days.
Violations: Should a violation of the Conservation Easement occur, the
Conservancy will follow its internal Violation Response Guideline and will
collaborate in good faith with the FREDERICK COUNTY CONSERVATION
EASEMENT AUTHORITY to develop a unified response to the violation.
However, if the FREDERICK COUNTY CONSERVATION EASEMENT
AUTHORITY and Conservancy disagree as to whether a violation has occurred
or are unable to develop a unified response to a violation, each expressly retains
the right to enforce the terms of the Conservation Easement independently,
notwithstanding the action or inaction of the other.
Costs and IDeome Handling
As the lead organization addressing stewardship responsibilities for our co -held
conservation casements, POTOMAC CONSERVANCY will conduct all monitoring
work. Monitoring involves staff time, travel costs, and administrative costs associated
with organizing site visits, property documentation updates and completing detailed
reports. The FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY
will be asked to contribute to the monitoring costs of this co -held conservation easements
in either of the following ways:
(a) A one time Stewardship Gift for each conservation easement. This one time donation
should be made to the Conservancy by the landowner and/or the FREDERICK COUNTY
CONSERVATION EASEMENT AUTHORITY at closing or shortly thereafter. This gift
will be deposited in POTOMAC CONSERVANCY'S stewardship endowment and will
be used to cover the annual costs of monitoring and enforcement obligations.
(b) Annual fee paid by the FREDERICK COUNTY CONSERVATION EASEMENT
AUTHORITY to POTOMAC CONSERVANCY. This fee will be used to cover
monitoring and administrative costs for the year of particular co -held properties. The
obligation of the FREDERICK COUNTY CONSERVATION EASEMENT
AUTHORITY to continue making such payments on an annual basis shall, however, be
subject to appropriations being made for such payments and nothing herein shall obligate
the FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY to make
such payments in the event funds are not appropriated for same.
If the FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY and the
Conservancy jointly decide to proceed with litigation or a litigation alternative (including
but not limited to arbitration) to enforce the terms of a co -held Easement, the
FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY and the
Conservancy will jointly finance said litigation or litigation alternative. If either the
FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY or the
Conservancy initiates litigation or a litigation alternative independently, the other party
having in good faith determined that such action is not necessary to fully defend the
easement, the litigating party will be solely responsible for costs incurred pursuant to that
litigation.
Prior to execution of an easement by the parties to such easement, co -holders agree to
keep conservation easement grantor (referred to as landowner throughout document)
information confidential and will not publish or distribute any information related to the
purchase price, appraised value of the conservation easement or specific terms and
restrictions of the easement deed with out written permission of the Landowner. Prior to
execution of an easement by the parties to such easement, landowner's names and
property locations may be released with verbal or written permission of the landowner.
This Agreement becomes effective as of the date of signing, and continues indefinitely
unless it is expressly terminated by any party via written notice to the other parties, or
automatically terminated. The Conservancy and the FREDERICK COUNTY
CONSERVATION EASEMENT AUTHORITY may jointly modify or amend this
agreement. Should any parry go out of business, dissolve, or cease to exist as an entity,
and no longer be able to hold or monitor the Conservation Easement, this agreement shall
automatically terminate and all responsibilities under the Easement shall vest in the party
or parties still in existence. The remaining party or parties shall notify the Landowner in
a timely manner of such dissolution. This Agreement is not transferable and no
privileges or responsibilities associated with this Agreement may be assigned to any
person or interest not a party to this Agreement.
This agreement is signed this day of 520�
CO -HOLDING ORGNAIZATIONS
POTOMAC CONSERVANCY
Title:
FREDERICK COUNTY
CONSERVATION EASEMENT
AUTHORITY
By:
Title:
4
ATTACEMNT 3
WARRANTY CONSERVATION EASEMENT DEED
Prepared by: Anne Merwin, Potomac Conservancy, 19 West Cork Street, Suite 201
Winchester, VA 22601
2009
TAX MAP NO.: 72-A-12
Exempted fiom recordation tax
under the Code of Virginia (1950), as amended,
Sections 58.1-811 (A) (3), 58.1-811 (D) and from
Circuit Court Clerk's fee under Section 17.1-266
THIS GRANT OF A CONSERVATION EASEMENT (this "Easement"), made
this day of , 2009, by and between ELIZABETH A. SNAPP having an address
of 167 West Oaks Lane, Winchester, VA 22602 and R. WAYNE SNAPP, Trustee of the R.
ROLAND SNAPP ESTATE TRUST (collectively "Grantor") party of the first part,
FREDERICK COUNTY CONSERVATION EASEMENT AUTHORITY, having an
address at 107 North Kent Street, Winchester, VA 22601, FREDERICK COUNTY,
having an address at 107 North Kent Street, Winchester, VA 22601„ POTOMAC
CONSERVANCY, INC. ("Potomac Conservancy"), a nonprofit organization organized under the
laws of the State of Maryland, having its principal office at 19 West Cork Street, Suite 201,
Winchester, Virginia 22601 (collectively "Local Grantees"), and the UNITED STATES OF
AMERICA ("United States") acting by and through the United States Department of Agriculture
("USDA") Natural Resources Conservation Service ("NRCS") on behalf of the Commodity
Credit Corporation, party of the second part. The Local Grantees and the United States are
collectively referred to herein as the "Grantees".
WITNESSETH:
WHEREAS, Grantor is the owner in fee simple of real property situated on Cedar
Creek Grade in Frederick County, Virginia containing in the aggregate 89.75 acres, more
or less, as further described in Exhibit A (the "Property"), and desires to give and convey
to Grantees a perpetual conservation and open -space easement over the Property as
herein set forth; and
WHEREAS, Frederick County Conservation Easement Authority, a body politic
and corporate organized under the laws of the Commonwealth of Virginia for the purpose
of acquiring conservation easements, voluntarily offered by property owners, as a means
of assisting in the preservation of farm and forest land, open space, scenic vistas, historic
sites, water resources, environmentally sensitive lands and the county's rural character, is
a "qualified organization" and "eligible donee" under Section 170(h)(3) of the Internal
Revenue Code of 1986, as amended (and corresponding provisions of any subsequent tax
laws) and Treasury Regulation §1.170A -14(c)(1), and is willing to accept a perpetual
conservation and open -space easement over the Property as herein set forth; and
Grantees initials 1 Grantors initials
WHEREAS, Chapter 461 of the Acts of 1965, codified in Chapter 17, Title 10.1,
§§10.1-1700 through 10.1-1705 of the Code of Virginia, as amended (the Open -Space
Land Act), declares that the preservation of open space land serves a public purpose by
curbing urban sprawl, preventing the spread of urban blight and deterioration and
encouraging more economic and desirable urban development, helping provide or
preserve necessary park, recreational, historic and scenic areas, and conserving land and
other natural resources, and authorizes the acquisition of interests in real property,
including easements in gross, as a means of preserving open -space land; and
WHEREAS, pursuant to Sections 10.1-1700 and 10.1-1703 of the Open -Space
Land Act, the purposes of this Easement include retaining and protecting open -space and
natural resource values of the Property, and the limitation on division, residential
construction and commercial and industrial uses contained in Section lI ensures that the
Property will remain perpetually available for agriculture, livestock production, forest or
open -space use, all as more particularly set forth below; and
WHEREAS, the General Assembly, by Chapter 847 of the 2007 Acts of
Assembly, has appropriated $4.25 million to Virginia Department of Agriculture and
Consumer Services (VDACS) for the establishment of a state fund to match local
government purchase of development rights program funds for the preservation of
working farms and forest lands; and,
WHEREAS, § 3.2-201 of the Code of Virginia authorizes VDACS' Office of
Farmland Preservation to develop methods and sources of revenue for allocating funds to
localities to purchase agricultural conservation easements; and,
WHEREAS, the Frederick County Board of Supervisors have enacted an
ordinance or passed a resolution that: authorizes, in accordance with Title 10. 1, Chapter
17 of the Code of Virginia ("the Open -Space Land Act") and other applicable law,
Frederick County to purchase agricultural conservation easements from landowners (each
hereinafter called "Grantor"); and sets forth a clear, consistent, and equitable
administrative process governing such purchases; and outlines the goals and purposes of
Frederick County's farmland preservation program; and,
WHEREAS, the purchase of agricultural conservation easements is one
component of Frederick County and the Frederick County Conservation Easement
Authority's broader farmland preservation program; and,
WHEREAS, VDACS and Frederick County entered into an Intergovernmental
Agreement ("the IGA") on February 26, 2008 to provide cooperation between VDACS
and Frederick County to implement VDACS contribution of funds in support of
Frederick County's purchase of agricultural conservation easements; and,
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WHEREAS, Frederick County and the Frederick County Conservation Easement
Authority has agreed to establish a transparent and replicable process for valuation of
agricultural conservation easements, and use a deed of easement that is sufficiently
flexible to allow for future agricultural production in purchases of agricultural
conservation easements for which Frederick Comity uses funds contributed to it by
VDACS; and,
WHEREAS, the Virginia Conservation Easement Act, Section 10.1-1009, et seq.
of the Code of Virginia authorizes a charitable corporation, association or trust exempt
from taxation pursuant to 26 U.S.C.A. §501(c)(3), such as Potomac Conservancy, Inc., to
hold a non -possessory interest in real estate for purposes of retaining or protecting
natural, historic, and 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; and
WHEREAS, Potomac Conservancy, Inc., is a publicly supported, tax-exempt
nonprofit land trust incorporated under the laws of the State of Maryland, has a principal
office in the Commonwealth of Virginia located at 19 West Cork Street, Suite 201,
Winchester, Virginia 22601, whose primary purpose is to protect lands vital to the health,
beauty and enj oyment of the Potomac River and its tributaries and is authorized to accept,
hold and administer conservation easements in Virginia and is a tax exempt public
charitable organization under section 501(c)(3) of the Internal Revenue Code of 1986, as
amended ("IRC" or the "Code"), qualified under section 170(h) of the Code to receive
qualified conservation contributions, and the Potomac Conservancy represents that it
meets the statutory requirements of Virginia Code § 10.1-1009 for a holder of a perpetual
easement under the Virginia Conservation Easement Act and has had its principal office
in Virginia for more than five (5) years as required by Virginia Code § 10.1-1010C; and
WHEREAS, Potomac Conservancy, Inc. is qualified to receive funds under the
Farm and Ranch Lands Protection Program, 16 U.S.C. §3838h(a)(A) and 3838i, which is
administered by MRCS, an agency of the USDA (also generally referred to herein as the
"United States"), as part of the cost of acquiring this conservation easement, in
accordance with the Cooperative Agreement between the United States of America,
Commodity Credit Corporation and Potomac Conservancy, Agreement No(s). 77-33A7-
07-3; and
WHEREAS, this Easement is granted "exclusively for conservation purposes" in
accordance with IRC §170(h)(1)(C) because it effects "the preservation of open space
(including farmland and forest land)" under IRC §170(h)(4)(A)(iii). Specifically the
preservation of open -space on the Property is pursuant to clearly delineated state and
local governmental conservation policies, provides for the scenic enjoyment of the
general public, and will yield a significant public benefit; and
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WHEREAS, this open -space easement in gross constitutes a restriction granted in
perpetuity on the use which may be made of the Property, and is in furtherance of and
pursuant to the clearly delineated governmental policies set forth below:
(i) Land conservation policies of the Commonwealth of Virginia as set forth in:
a. Section 1 of Article XI of the Constitution of Virginia, which
states that it is the Commonwealth's policy to protect its
atmosphere, lands and waters from pollution, impairment, or
destruction, for the benefit, enjoyment, and general welfare of the
people of the Commonwealth;
b. The Open -Space Land Act cited above;
c. Chapter 18, of Title 10.1, §§10.1-1800 through 10.1-1804 of the
Code of Virginia cited above;
d. The Virginia Land Conservation Incentives Act, in Chapter 3 of
Title 58.1, §§58.1-510 through 58.1-513 of the Code of Virginia,
which supplements existing land conservation programs to further
encourage the preservation and sustainability of the
Commonwealth's unique natural resources, wildlife habitats, open
spaces and forest resources;
The Virginia Conservation Easement Act cited above;
f. Chapter 32, of Title 58.1, §§58.1-3230 through 58.1-3244 of the
Code of Virginia, which authorizes special use -value tax
assessments for real estate devoted to agricultural, forestal,
horticultural and open --space use;
(ii) Land use policies of the County of Frederick as delineated in its
comprehensive plan adopted in 2000 by the Frederick County Board of
Supervisors which states that its goals include preserving the economic vitality of
agricultural enterprises; and
WHEREAS, Frederick County has specifically recognized the importance of the
continued preservation of the Property as open space and agricultural land by providing
special assessment of the Property for real property tax purposes; and
WHEREAS, the 2002 Virginia Outdoors Plan, Chapter IVG page 211, recognizes
that Cedar Creek in its entirety qualifies for Virginia Scenic River designation; and
WHEREAS, the permanent protection of the Property will provide for the scenic
enjoyment of the general public by preserving agricultural, open space and scenic views
because the Property can be seen and viewed by the public from Cedar Creek Grade,
Fromans Road and Middle Road; and
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WHEREAS, the Property possesses significant natural, water resources, scenic,
agricultural and open -space values, the preservation of which will yield a significant
public benefit; and
WHEREAS, the aforementioned values are hereinafter referred to as the
"Conservation Values," and are described more particularly in Exhibit B, "Summary of
Conservation Values" and Exhibit C, `Baseline Documentation," and include but are not
limited to forest and fields, used primarily for agricultural purposes for the production of
food and fiber; and
WHEREAS, the Property consists primarily of productive agricultural land, and
contains 89.75 acres of open farmland, of which 62 acres, or 69% of the agricultural soils
have been classified as soils of state wide importance by the USDA, NRCS; and
WHEREAS, the appraised value of this conservation and open -space easement is
FIVE HUNDRED AND THIRTY EIGHT THOUSAND FIVE HUNDRED DOLLARS
($538,500); and
WHEREAS, the Farm and Ranch Lands Protection Program (16 U.S.C. §3838 h
and 3838 i) provides for the purchase of conservation easements to protect prime, unique,
and other productive soils fiorn conversion to non-agricultural uses; and under the
authority of the Farm and Ranch Lands Protection Program, the USDA NRCS has
provided TWO HUNDRED AND SIXTY THOUSAND DOLLARS ($260?000) for the
acquisition of this Easement, entitling the United States to the rights identified herein;
and
WHEREAS, Grantee Frederick County and the Frederick County Conservation
Easement Authority has provided ONE HUNDRED AND THIRTY THOUSAND
DOLLARS ($130,000) under the Frederick County Purchase of Development Rights
Program to Grantors for the acquisition of this Conservation Easement;
WHEREAS, the amount paid by the United States and Frederick County Virginia
for this Easement represents less than its full fair market value and Grantor hereby makes
a bargain sale of this Easement to the extent of the cash consideration paid and a gift of
the balance of the value of the Easement in the amount of ONE HUNDRED AND
FORTY EIGHT THOUSAND FIVE HUNDRED DOLLARS ($148,500); and
WHEREAS, this Easement will yield significant public benefit to the citizens of
the Commonwealth as set forth in Section I, below, and in Exhibit B, Summary of
Conservation Values; and
WHEREAS, Grantor and Grantees desire to protect in perpetuity the
Conservation Values of the Property as specified in Section I and Exhibit B, Summary of
Conservation Values, by restricting the use of the Property as set forth in Section II,
below; and
Grantees initials 5 Grantors initials
WHEREAS, Grantees have determined that the restrictions set forth in Section II
(the Restrictions) will preserve and protect in perpetuity the Conservation Values of the
Property, which values are reflected in Section I and Exhibit B; and
WHEREAS, Grantees have determined that the Restrictions will limit use of the
Property to those uses consistent with, and not adversely affecting, the Conservation
Values of the Property and the governmental conservation policies furthered by the
Easement; and
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein, together with other good and valuable consideration in the
amount of THREE HUNDRED AND NINETY THOUSAND DOLLARS
($390,000), being TWO HUNDRED AND SIXTY THOUSAND DOLLARS
($260,000) from the USDA Farm and Ranch Lands Protection Program, ONE
HUNDRED AND THIRTY THOUSAND DOLLARS ($130,000) from Frederick
County's Purchase of Development Rights Program, the receipt and sufficiency of
which is hereby acknowledged, and a donation by Grantor of property interests
equal to an appraised value of ONE HUNDRED AND FORTY EIGHT
THOUSAND FIVE HUNDRED DOLLARS ($148,500), Grantor does hereby
give, grant and convey to Grantees a conservation and open -space casement in
gross (the "Easement") over, and the right in perpetuity to restrict the use of, the
Property, which is described in Exhibit A, Legal Description, attached hereto and
made a part hereof, and consists of 89.75 acres, more or less, located in Back
Creek Magisterial District, Frederick County, Virginia, near Marlboro;
AND SUBJECT, HOWEVER, to the restriction that Local Grantees or their
successors and assigns may not transfer or convey the Conservation Easement
herein conveyed to Local Grantees without the prior written approval of the
United States and unless Local Grantees condition such transfer or conveyance on
the requirement that (1) all restrictions and conservation purposes set forth in the
conveyance accomplished by this deed are to be continued in perpetuity, and (2)
the transferee is an organization then qualifying as an eligible donee as defined by
Section 170(h)(3) of the Internal Revenue Code of 1986, as amended, and the
applicable Treasury Regulations promulgated thereunder.
The Property is shown as Tax Map No. 72-A-12 among the land records of the
County of Frederick, Virginia. Even if the Property consists of more than one parcel for
real estate tax or any other purpose, it shall be considered one parcel for purposes of this
Easement, and the restrictions and covenants of this Easement shall apply to the Property
as a whole.
SECTION I -PURPOSE
Grantees initials 6 Grantors initials
The conservation purpose of this Easement is to preserve land for agricultural
soils, agricultural viability, and general productive capacity and to protect the
Conservation Values of the Property in perpetuity by imposing the restrictions on the use
of the Property set forth in Section Il and providing for their enforcement in Section III.
No activity that will significantly impair the actual or potential use of the property for
agricultural production shall be permitted. Other purposes of this Easement are: to enable
the Property to remain in a natural, open -space condition by preserving and protecting in
perpetuity its agricultural values and open -space character; to protect the critical water
resources on the Property, including the undeveloped, natural riparian land; to protect
forest resources on the Property; to preserve and protect all of the natural, plant, wildlife,
scenic, agricultural, and water resources of the Property, more particularly described in
Exhibit B, "Conservation Values"; and to prevent any use or condition of the Property
that would significantly impair or interfere with its agricultural and scenic open -space
values, character, use or utility.
SECTION II — RESTRICTIONS AND RESERVED RIGHTS
Restrictions are hereby imposed on the use of the Property pursuant to the public
purposes set forth above. The acts that Grantor covenants to do and not to do upon the
Property, and the restrictions that Grantees are hereby entitled to enforce, are and shall be
as follows:
1. DIVISION. Division of the Property is prohibited. The Property shall not be
sold or conveyed except as a whole..
Boundary line adjustments with adjoining parcels of land are permitted and shall
not be considered divisions of the Property, provided that Grantees are made party
to the deed creating the boundary line adjustment and the following condition is
met:
The proposed boundary line adjustment shall have been reviewed and approved in
advance by, and in the sole discretion of the Board of Directors of Potomac
Conservancy, Frederick County Conservation Easement Authority, Frederick
County and the State Conservationist of the Virginia State Office of the Natural
Resources Conservation Service.
2. BUILDINGS AND STRUCTURES. No buildings or structures other than the
following are permitted on the Property:
(i) One (1) single family residential dwelling and associated accessory
structures, which does not exist as of the date of this Easement. Such single
family residential dwelling and associated accessory structures shall be wholly
contained within the designated Building Area, the location of which may be
designated by Grantor, subject to the following restrictions: (a) the Building Area
shall be no larger than two (2) acres in size; (b) said single family residential
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structure shall not exceed 3,000 square feet of above -ground enclosed living area,
(c) structures within Building Area shall not harm the Conservation Values of the
Property; (d) structures within Building Area shall not be visible from Cedar
Creek Grade, unless specifically approved in writing by Local Grantees; (e) prior
to constructing or placing such single family residential dwelling and associated
accessory structures on the Property, Grantor shall submit in writing to Local
Grantees a request for designation of the Building Area that provides the specific
requested location, and shall obtain in writing Local Grantees' approval of such
Building Area. The decision to approve or deny Grantor's requested Building
Area location shall be in Local Grantees' sole discretion; and
(ii) farm buildings or structures, except that a farm building or farm
structure exceeding 4,000 square feet in ground area may not be constructed or
placed on the Property unless prior written approval for the building or structure
is obtained from Local Grantees, which approval shall be limited to consideration
of the impact of the size, height and siting of the proposed structure on the
Conservation Values of the Property. For purposes of this subparagraph, a farm
building or structure shall mean a building or structure originally constructed and
used for the activities specified in Section II 4(i).
Grantor shall give Local Grantees thirty (30) days' written notice before
beginning construction or enlargement of any agricultural building or residential
dwelling on the Property.
Private roads and utilities to serve permitted buildings or structures on the
Property, and roads with permeable surfaces for other permitted uses on the
Property, such as farming or forestry, may be constructed and maintained as long
as such construction is not inconsistent with the purposes of this Easement and is
done in such a manner as to minimize to the greatest extent possible the impact on
prime, unique and important soils. Existing utilities may be replaced or repaired at
their current locations or relocated, if such relocation is approved in writing by
Local Grantees. Other than roads and yard areas within the Building Areas and
graveled paths, no portion of the Property shall be paved or otherwise covered
with concrete, asphalt, or any other impervious surface material, unless approved
in writing by Local Grantees as being consistent with the conservation purposes
of this easement and such activity falls within the 1 % impervious surface
requirement as articulated in Section 113.
Public and private utilities crossing the Property, whose construction and
maintenance Local Grantees determine will not impair the Property's
Conservation Values, may be constructed and maintained if Local Grantees
should give their prior written approval.
3. LIMIT ON COLLECTIVE FOOTPRINT. The collective footprint of all
buildings and structures on the Property, excluding roads, shall not exceed one
percent (1%) of the total area of the Property. However, if Grantor can
demonstrate that an increase in the collective footprint would result in increased
Grantees initials 8 Grantors initials
protection of the Conservation Values protected herein, Local Grantees may
approve such increase. For the purpose of this paragraph the collective footprint
is the ground area measured in square feet of the structures set forth in subsections
(i) and (ii) of Section II 2 above and all other impervious surfaces, excluding
roads. For the purpose of this paragraph "impervious surface" shall be defined as
any material which covers land and inhibits the percolation of water directly into
the soil, including, but not limited to, buildings, roofing, the area covered by
permanent or nonpermanent structures, macadam and pavement, concrete and
stone driveways and parking areas.
4. INDUSTRIAL OR COMMERCIAL ACTIVITIES. Industrial or commercial
activities other than the following are prohibited: (i) agriculture, livestock
production (animal husbandry), equine activities and forestry, and related small-
scale incidental commercial or industrial operations that Local Grantees approve
in writing as being consistent with the Conservation Values of this Easement; (ii)
processing and sale of products produced on the Property as long as no additional
buildings are required, except where such additional buildings are approved
pursuant to Section Il 3 above; (iii) temporary or seasonal outdoor activities that
do not permanently alter the physical appearance of the Property and that do not
diminish the Conservation Values herein protected; and (iv) activities that can be
and in fact are conducted within permitted buildings without material alteration to
their external appearance. Temporary outdoor activities involving 100 or more
people shall not exceed seven (7) consecutive days in any 90 -day period without
prior written approval of Local Grantees. Notwithstanding any other provision of
this casement, and pursuant to Section 2031(c)(8)(B) of the Internal Revenue
Code, no commercial recreational use except for de nzinimis commercial
recreational uses shall be allowed on the Property. The use of the Property by the
general public supported by paid guides or outfitters, including for guided
horseback trail rides, shall be deemed de minimis for purposes of this Easement so
long as such use does not negatively affect the Conservation Values of the
Property.
5. MANAGEMENT OF FOREST. Best Management Practices, as defined by the
Virginia Department of Forestry, shall be used to control erosion and protect
water quality when any timber harvest or land clearing activity is undertaken. All
commercial timber harvest activities shall be conducted in accordance with a
Forest Management Plan prepared by a Virginia registered professional forester
and approved by Local Grantees that describes existing timber resources, supplies
an inventory of stands to be cut, and shows logging roads and landings. Such
Plan shall incorporate the following goals: (i) to support, maintain, and enhance
wildlife habitat; (ii) to promote the long-term sustainability of contiguous forest;
and (iii) to maintain and enhance riparian forest in order to protect water quality
and prevent water pollution. Any commercial timber harvest must be conducted
in accordance with a Forest Management Plan that has been updated within ten
(10) years prior to the harvest and a pre -harvest plan must be submitted by
Grantor to Local Grantees for Local Grantees' approval at least 60 days before a
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contract for sale of commercial timber is executed. Minimal cutting of trees for
personal use of Grantor or to accommodate permitted structures described in
Section II, Paragraph 2 is permitted. Local Grantees shall be notified 30 days
prior to the clearing of over 10 acres of forestland for grassland, cropland, or in
association with the construction of permitted buildings.
Non-commercial de minimis harvest of trees for trail clearing, firewood or
Grantor's domestic use, trees that pose an imminent hazard to human health or
safety, or removal of invasive species shall not require a forest stewardship
management plan.
6. WATER RESOURCES & RIPARIAN BUFFER. The Property contains
significant water resources, including a natural spring/seep which flows to an
unnamed tributary of Cedar Creek. Said resources are more particularly identified
and described in Exhibit C. In order to protect and maintain the water resources
of this Property, Grantor agrees to the following.
i.) To protect water quality there shall be no plowing, cultivation or other
earth -disturbing activity within the Spring Conservation Area surrounding
the unnamed spring, more particularly described in Exhibit C, except as
may be necessary for (i) wetland restoration or erosion control pursuant to
a governs -hent permit, or (ii) fencing along or within the buffer area.
Within the Spring Conservation Area there shall be (a) no buildings or
other substantial structures constructed, (b) no storage of compost,
manure, fertilizers, chemicals, machinery or equipment, and (c) no
removal of trees except removal of invasive species or removal of dead,
diseased or dying trees or trees posing an imminent human health,
environmental, or safety hazard. Mowing within the Spring Conservation
Area is prohibited.
Should the unnamed spring/seep move or expand, the Spring
Conservation Area shall move in proportion to the movement or expansion
of the spring/seep. However, should the Riparian Buffer move into an area
that was previously outside of the Riparian Buffer and where structures
existed prior to the water body moving, such structures shall not be
considered a violation of this provision.
ii) There shall be no access by livestock to the unnamed natural spring/seep,
or to any other spring on the Property.
iii.) Any ponds constructed shall be for agricultural purposes only, shall not
exceed two acres in size, shall not require damming or substantial
disturbance of the natural spring/seep or other water resources, and shall
be located in areas so that disturbance to prime, unique, and important
soils is minimized.
7. GRADING, BLASTING, AND MINING. Grading, blasting or earth removal
shall not materially alter the topography of the Property except for (i) wetlands or
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stream bank restoration pursuant to a government permit, (ii) erosion and
sediment control pursuant to a government -required erosion and sediment control
plan, or (iii) as required in the construction of permitted buildings, structures,
roads, and utilities. Best Management Practices, in accordance with the Virginia
Erosion and Sediment Control Law, shall be used to control erosion and protect
water quality in such construction. Grading, blasting or earth removal in excess
of one acre for the purposes set forth in subparagraphs (i) through (iii) of this
paragraph require 30 days' prior notice to Local Grantees. Generally accepted
agricultural activities shall not constitute a material alteration. Surface mining,
subsurface mining, dredging on or from the Property, or drilling for oil or gas on
the Property is prohibited.
8. ACCUMULATION OF TRASH, Accumulation or dumping of trash, refuse,
Junk or toxic materials is not permitted on the Property. This restriction shall not
prevent generally accepted agricultural or wildlife management practices, such as
creation of brush piles, composting, or the storage of farm machinery, organic
matter, agricultural products or agricultural byproducts on the Property.
9. SIGNS. Display of billboards, signs, or other advertisements is not permitted on
or over the Property except to: (i) state the name and/or address of the owners of
the Property, (ii) advertise the sale or lease of the Property, (iii) advertise the sale
of goods or services produced incidentally to a permitted use of the Property, (iv)
provide notice necessary for the protection of the Property, (v) give directions to
visitors, or (vi) recognize historic status or participation in a conservation
program. Temporary political signs are allowed. No signs visible from outside
the Property shall exceed nine (9) square feet in size. All signs shall also comply
with all applicable laws and ordinances, to the extent that such laws and
ordinances may be more restrictive than the provisions of this paragraph.
10. CONSERVATION PLAN. As required by section 12381 of the Food Security
Act of 1985, as amended,
i) Grantor, their heirs, successors, or assigns, shall conduct all agricultural
operations on the Property in a manner consistent with a conservation plan
(hereinafter referred to as the "Conservation Plan") prepared in consultation
with the NRCS of the USDA and approved by the Lord Fairfax Soil and
Water Conservation District. This Conservation Plan shall be developed
using the standards and specifications of the NRCS Field Office Technical
Guide and 7 CFR Part 12 that are in effect the day this Easement is signed.
However, Grantor may develop and implement the Conservation Plan with a
higher level of conservation if it is consistent with the NRCS Field Office
Technical Guide standards and specifications.
ii) NRCS shall have the right to enter upon the Property, with advance notice to
Grantor, in order to monitor compliance with the conservation plan.
iii) In the event of noncompliance with the Conservation Plan, NRCS shall
work with Grantor to explore methods of compliance and give Grantor a
reasonable amount of time, not to exceed twelve months, to take corrective
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action. If Grantor does not comply with the Conservation Plan, NRCS will
inform Local Grantees of Grantor's noncompliance. Local Grantees shall
take all reasonable steps (including efforts at securing voluntary compliance
and, if necessary, appropriate legal action) to secure compliance with the
Conservation Plan following written notification from NRCS that (a) there
is a substantial, ongoing event or circumstance of non-compliance with the
Conservation Plan, (b) MRCS has worked with the Grantor to correct such
noncompliance, and (c) Grantor has exhausted its appeal rights under
applicable MRCS regulations.
iv) If the NRCS standards and specifications for highly erodible land are
revised after the date of this Grant based on an Act of Congress, NRCS will
work cooperatively with the Grantor to develop and implement a revised
Conservation Plan. The provisions of this section apply to the highly
erodible land conservation requirements of the Farmland Protection
Program and are not intended to affect any other natural resources
conservation requirements to which Grantor may be or become subject.
11. GENERAL E\TDEMNIFICATION. Grantor shall indemnify and hold harmless
Grantees and VDACS, their respective employees, agents, and assigns for any and
all liabilities, claims, demands, losses, expenses, damages, fines, fees, penalties,
suits, proceedings, actions, and costs of actions, sanctions asserted by or on behalf
of any person or governmental authority, and other liabilities (whether legal or
equitable in nature and including, without limitation, court costs, and reasonable
attorneys' fees and attorneys' fees on appeal) to which Grantees may be subject or
incur relating to the Property, which may arise from, but is not limited to,
Grantor's negligent acts or omissions or Grantor's breach of any representation,
warranty, covenant, agreements contained in this Deed, or violations of any
Federal, State, or local laws, including all Environmental Laws.
12. ENVIRONMENTAL WARRANTY. "Environmental Law" or "Environmental
Laws" means any and all Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, guidelines, policies or requirements of
any governmental authority regulating or imposing standards of liability or
standards of conduct (including common law) concerning air, water, solid waste,
hazardous materials, worker and community right -to -know, hazard
communication, noise, radioactive material, resource protection, subdivision,
inland wetlands and watercourses, health protection and similar environmental
health, safety, building and land use as may now or at any time hereafter be in
effect.
i) "Hazardous Materials" means any petroleum, petroleum products, fuel oil,
waste oils, explosives, reactive materials, ignitable materials, corrosive
materials, hazardous chemicals, hazardous wastes, hazardous substances,
extremely hazardous substances, toxic substances, toxic chemicals,
radioactive materials, infectious materials and any other element,
compound, mixture, solution or substance which may pose a present or
potential hazard to human health or the environment.
Grantees initials 12 Grantors initials
ii) Grantor warrants that it is in compliance with, and shall remain in
compliance with, all applicable Environmental Laws. Grantor warrants that
there are no notices by any governmental authority of any violation or
alleged violation of, non-compliance or alleged non-compliance with or any
liability under any Environmental Law relating to the operations or
conditions of the Property.
iii) Grantor warrants that they have no actual knowledge of a release or
threatened release of any Hazardous Materials on, at, beneath or from the
Property. Moreover Grantor hereby promises to defend and indemnify the
Grantees, Commonwealth of Virginia and united States against all
litigation, claims, demands, penalties and damages, including reasonable
attorneys' fees, arising from or connected with the release or threatened
release of any Hazardous Materials on, at, beneath or from the Property, or
arising from or connected with a violation of any Environmental Laws by
Grantor or any other prior owner of the Property. Grantor's indemnification
obligation shall not be affected by any authorizations provided by Grantees
to Grantor with respect to the Property or any restoration activities carried
out by Grantees at the Property; provided, however, that Grantees shall be
responsible for any Hazardous Materials contributed after this date to the
Property by Grantees.
13. RESERVED RIGHTS. Except to the extent that prior written approval of
Grantees is required by any paragraph of this Article, all rights reserved by
Grantor or not prohibited by this Easement shall be exercised so as to prevent or
minimize, to the extent reasonable under the circumstances, damage to the
Conservation Values identified in Exhibit B, including water quality and
resources, agricultural use, utility and viability, land/soil stability and
productivity, scenic, historic, and cultural values, and the natural topographic and
open -space character of the Property. If Grantor has any doubt with respect to
whether or not any particular use of the Property is prohibited by the terms of this
Easement, Grantor may submit a written request to Grantees for consideration and
approval of such use.
SECTION III — ENFORCEMENT
I. RIGHT OF INSPECTION. Representatives of Grantees may enter the Property
from time to time for purposes of inspection (including photographic
documentation of the condition of the Property) and enforcement of the terms of
this Easement after permission from or reasonable notice to Grantor or Grantor's
representative, provided, however, that in the event of an emergency, entrance
may be made to prevent, terminate or mitigate a potential violation of these
restrictions with notice to Grantor or Grantor's representative being given at the
earliest practicable time.
2. ENFORCEMENT. Grantees have the right to bring an action at law or in equity
to enforce the restrictions contained herein. This right specifically includes the
Grantees initials 13 Grantors initials
right to require restoration of the Property to a condition of compliance with the
terms of this Easement as existed on the date of the Easement, except to the extent
such condition thereafter changed in a manner consistent with the restrictions; to
recover any damages arising from non-compliance, and to enjoin non-compliance
by ex pante temporary or permanent injunction. If the court determines that
Grantor failed to comply with this Easement, Grantor shall reimburse Grantees for
any reasonable costs of enforcement, including costs of restoration, court costs
and attorney's fees, in addition to any other payments ordered by the court.
However, if Grantor ultimately prevails in a judicial enforcement proceeding,
each party shall bear its own costs. Grantees' delay shall not waive or forfeit its
right to take such action as may be necessary to insure compliance with this
Easement, and Grantor hereby waives any defenses of waiver, estoppel or laches
with respect to any failure to act by Grantees. Notwithstanding any other
provision of this Easement, Grantor shall not be responsible or liable for any
damage or change to the condition of the Property caused by fire, flood, storm,
Act of God, governmental act or other cause outside of Grantor's control or any
prudent action taken by Grantor to avoid, abate, prevent or mitigate damage or
changes to the Property from such causes..
3. Third Party Beneficiary Rights of Enforcement. VDACS is a Third Party
Beneficiary of this Conservation Easement with rights of enforcement of all terms
herein. The authority of VDACS to enforce the provisions of this Conservation
Easement shall be independent of the rights of Grantees. In the event that
Grantees and VDACS do not agree as to whether Grantors are complying with the
terms of this Conservation Easement, then each of them may proceed with
enforcement actions without the consent of the others. However, as a practical
administrative matter and to prevent duplication of efforts, VDACS will attempt
to consult with Grantees prior to taking any such enforcement action. VDACS
right of enforcement is permanent and applies to all the terms of this Conservation
Easement.
4, RIGHTS OF THE UNITED STATES OF AMERICA, Under this Easement,
the same rights are granted to the United States that are granted to Local Grantees.
However, the Secretary of the United States Department of Agriculture (the
Secretary), on behalf of the United States, will only exercise these rights under the
following circumstances: In the event that Local Grantees fail to enforce any of
the terms of this Easement, as determined in the sole discretion of the Secretary,
the Secretary and his or her successors or assigns may exercise the United States'
rights to enforce the terms of this Easement through any and all authorities
available under Federal or State law. In the event that Local Grantees attempt to
terminate, transfer, or otherwise divest themselves of any right, title, or interest in
this Easement without the prior consent of the Secretary of the United States
Department of Agriculture, then, at the option of such Secretary, all right, title,
and interest of the Local Grantees in this Easement shall become vested solely in
the UNITED STATES OF AMERICA. In the event this easement becomes
vested in the UNITED STATES OF AMERICA in accordance with the terms of
this section, VDACS retains its rights pursuant to section 2.h of the IGA to bring
Grantees initials 14 Grantors initials
action in a court of law for specific performance of the UNITED STATES OF
AMERICA'S or its successors' and assigns' enforcement responsibility.
SECTION IV — EXHIBITS & DOCUMENTATION
1. Exhibit A: A .Legal Description of the Property is attached hereto and made apart
hereof.
2. Exhibit B: A Summary of Conservation Values is attached hereto and made a
part hereof.
3. Exhibit C: A Surnmary of the Baseline Documentation is attached hereto and
made a part hereof. The documents contained within the fill Baseline
Documentation shall be fully incorporated into this Conservation Easement as
though attached hereto and made a part hereof, and such documents shall be
archived at the Library of Virginia, located at 800 East Broad Street, Richmond,
Virginia 23219-8000. The full Baseline Documentation shall also be kept on file
at the offices of Grantees.
Documentation retained in the office of Grantees includes, but is not limited to the
Baseline Documentation, summarized in Exhibit C and fully incorporated into this
Conservation Easement, which describes the condition and character of the Property at
the time of the Easement closing. The Baseline Documentation may be used to
determine compliance with and enforcement of the terms of this Easement; however, the
parties are not precluded from using other relevant evidence or information to assist in
that determination. Grantor has made available to Grantees, prior to closing this
Easement, documentation sufficient to establish the condition of the Property at the time
of the closing. The parties hereby acknowledge that the Baseline Documentation
contained in the files of Grantees is an accurate representation of the Property.
SECTION V — GENERAL PROVISIONS
1. DURATION. This Easement shall be perpetual. It is an easement in gross that
runs with the land as an incorporeal interest in the Property. The covenants,
terms, conditions and restrictions contained in this Easement are binding upon,
and inure to the benefit of, the parties hereto and their successors and assigns, and
shall continue as a servitude running in perpetuity with the Property. Grantor's
rights and obligations under this Easement terminate upon proper transfer of
Grantor's interest in the Property, except that liability for acts or omissions
occurring prior to transfer shall survive transfer.
2. NO PUBLIC ACCESS. Although this Easement 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. Grantor retains the exclusive right to such
access and use, subject to the terms hereof.
Grantees initials 15 Grantors initials
3. TITLE. Grantor covenants and warrants that Grantor has good title to the
Property, that Grantor has all right and authority to grant and convey this
Easement and that the Property is free and clear of all encumbrances (other than
utility and access easements) including, but not limited to, any mortgages not
subordinated to this Easement.
4. ACCEPTANCE. Acceptance of this conveyance by Local Grantees is authorized
by Virginia Code Section 10.1-1801 and Section 10.1-1010 and is evidenced by
the signature of Frederick County, by the County Administrator by authority
granted by the Board of Supervisors, by Frederick County Conservation Easement
Authority, by its Chairman and by the Potomac Conservancy, by the signature of
its President by authority granted by its Board of Directors.
5. INTERACTION WITH OTHER LAWS. This Easement does not permit any
use of the Property which is otherwise prohibited by federal, state, or local law or
regulation. Neither the Property, nor any portion of it, shall be included as part of
the gross area of other property not subject to this Easement for the purposes of
determining density, lot coverage or open -space requirements under otherwise
applicable laws, regulations or ordinances controlling land use and building
density. No development rights that have been encumbered or extinguished by
this Easement shall be transferred to any other property pursuant to a transferable
development rights scheme, cluster development arrangement or otherwise.
6. CONSTRUCTION. Any general rule of construction to the contrary
notwithstanding, this Easement shall be liberally construed in favor of the grant to
effect the purposes of the Easement and the policy and purposes of Grantees. If
any provision of this Easement is found to be ambiguous, an interpretation
consistent with the purpose of this Easement that would render the provision valid
shall be favored over any interpretation that would render it invalid.
Notwithstanding the foregoing, lawful acts or uses not expressly prohibited by
this Easement are permitted on the Property. Grantor and Grantees intend that the
grant of this Easement qualify in part as a "qualified conservation contribution" as
that term is defined in Section 170(h)(1) of the Internal Revenue Code and
Treasury Regulations § 1.170A-14, and the restrictions and other provisions of this
instrument shall be construed and applied in a manner that will not prevent this
Easement from being in part a qualified conservation contribution.
7. REFERENCE TO EASEMENT IN SUBSEQUENT DEEDS. This Easement
shall be referenced by deed book and page number, instrument number or other
appropriate reference in any deed or other instrument conveying any interest in
the Property.
8. NOTICE TO GRANTEES. Grantor agrees to notify Grantees and VDACS in
writing and served either personally or sent by registered or certified mail, return
receipt requested (i) before exercising any reserved right that Grantor believes
Grantees initials 16 Grantors initials
may have an adverse effect on the conservation or open -space values or interests
associated with the Property; and (ii) at or prior to closing on any inter vivos
transfer, other than a deed of trust or mortgage, of all or any part of the Property.
All notices required or permitted hereunder will be deemed to have been delivered
when posted with the United States Postal Service, Federal Express, United Parcel
Service, or sent by facsimile, telecopier or other such electronic device, with
proof of transmission, directed as follows:
If to Grantor:
Elizabeth Snapp
167 West Oaks Lane,
Winchester, VA 22602
R. Wayne Snapp, Trustee of the R. Roland Snapp Estate Trust
5522 Cedar Creek Grade
Winchester, VA 22602
If to Frederick County
Attention: County Administrator
Frederick County
107 North Vent Street
Winchester, VA 22601
If to Frederick County Conservation Easement Authority
Chairman, Frederick County Conservation Easement Authority
107 North Kent Street
Winchester, VA 22601
If to Potomac Conservancy:
Potomac Conservancy
19 West Cork Street, Suite 201
Winchester, Virginia 22601
Phone: 540-667-3606
Fax: 540-667-7748
If to NRCS:
Natural Resources Conservation Service
Attention: John A Bricker, State Conservationist
1606 Santa Rosa Road
Richmond, VA 23229
Phone: (804) 287-1691
Grantees initials 17 Grantors initials
Fax: (804) 287-1737
If to the Virginia Department of A iculture and Consumer Services:
Virginia Department of Consumer Services
Attention: Commissioner's Office
102 Governor Street
Richmond, VA 23219
Phone: 804-786-3501
Fax: 804-371-2945
9. TAX MATTERS. The parties hereto agree and understand that any value of this
Easement claimed for tax purposes as a charitable gift must be fully and
accurately substantiated by an appraisal from a qualified appraiser as defined in
IRS regulations (see Section 1.170A -13(c)(5)), and that the appraisal is subject to
review and audit by all appropriate tax authorities. Grantees, VDACS, and/or
VDACS' legal counsel make no express or implied warranties that any tax
benefits will be available to Grantor from donation of any property interests as
part of this Easement, or that any such tax benefits might be transferable, or that
there will be any market for any tax benefits that might be transferable. By their
execution hereof, Grantees acknowledge and confirm receipt of the Easement and
further acknowledge that Frederick County, Frederick County Conservation
Easement Authority and the USDA, NRCS have provided to Grantor partial
payment of the value of this Easement in consideration of the grant of the
Easement.
10. MERGER. Grantor and Grantees agree that in the event that any Grantee
acquires a fee interest in the Property, this Easement shall not merge into the fee
interest, but shall survive the deed and continue to encurnber the Property.
11. GRANTEES' PROPERTY RIGHT. Grantor agrees that the conveyance of the
perpetual conservation restrictions in this Easement gives rise to a property right,
immediately vested in Grantees, with a fair market value that is at least equal to
the proportionate value of the perpetual conservation restrictions at the time of the
conveyance bears to the value of the Property as a whole at that time. If the
Easement is involuntarily terminated, extinguished or condemned, in whole or in
part, or if any part of the Property is converted or diverted from its open space
use, Grantor (or their successor(s) or assignee(s)) shall reimburse Local Grantees
a sum of money equal to 52% of the total "Proportionate Value" of the fair market
value of the conservation and open space easement, and the United States of
America a sum of money equal to 48% of the total "Proportionate Value" of the
fair market value of the conservation and open -space easement. The fair market
value shall be determined at the time this Easement or part of this Easement is
terminated or extinguished. In addition, VDACS shall be entitled to a share of
those proceeds proportional to VDACS' contribution toward the total
reimbursable costs that the Local Grantees actually incur in the course of
purchasing this Easement.
Grantees initials 18 Grantors initials
The Proportionate Value, of FOURTY THREE percent (43%), has been
determined by dividing the appraised value of this Conservation Easement FIVE
HUNDRED THIRTY EIGHT THOUSAND FIVE HUNDRED DOLLARS ($
538,500) calculated as of the date hereof, by the unencumbered value of the
Property, ONE MILLION TWO HUNDRED FIFTY-SIX THOUSAND FIVE
HUNDRED DOLLARS ($1,256,500), calculated as of the date hereof.
The proportionate share of the Proportionate Value paid to Grantees shall be
allocated between them as follows: (a) FOURTEEN AND ONE HALF percent
(14.5%) to the Potomac Conservancy; representing 50% of the gift by Grantor (b)
TWENTY THREE percent (23%) Frederick County Conservation Easement
Authority; representing the amount it contributed to the purchase price of the
Easement (c) FORTY EIGHT percent (48%) to the United States of America;
representing the amount it contributed to the purchase price of the Easement (d)
FOURTEEN AND ONE HALF percent (14.5%) to Frederick County;
representing the remaining 50% of the gift by Grantor. This Proportionate Value
is based on an appraisal completed on November 13,2008 by Wesley D. Woods,
GAA of Meyers & Wood Appraisal Group, Inc., Lynchburg, VA., an appraiser
licensed in the State of Virginia, which appraisal determined the purchase price
for this Easement. Any increase in value attributable to improvements made after
the date of the Easement shall accrue to the party who made the improvements.
Until such time as the Potomac Conservancy, the United States, Frederick County
or Frederick County Conservation Easement Authority receive their proportionate
share of the Proportionate Value from Grantor or Grantor's successor or assigns,
the Potomac Conservancy, the United States, Frederick County and Frederick
County Conservation Easement Authority shall have a lien against the Property
for the amount of the Proportionate Value due each of them. The Potomac
Conservancy shall use their allocation of the Proportionate Value in a manner
consistent with the conservation purposes of this Conservation Easement. If the
proceeds from termination or extinguishment are paid directly to one of the
parties directly, then the receiving party shall reimburse the other parties for the
amount of the Proportionate Value due to each.
12. EXTINGUISHMENT, CONVERSION, DIVERSION. Grantor and Grantees
intend that this Easement be perpetual and acknowledge that no part of the
Property may be converted or diverted from its open -space use except in
compliance with the provisions of Section 10.1-1704 of the Open -Space Land Act
which does not permit extinguishment of open -space easements or loss of open
space, Nevertheless, should an attempt be made to extinguish this Easement, such
extinguishment can be made only by judicial proceedings and only if in
compliance with Section 10.1-1704; and not until and unless the Commissioner of
VDACS or the Commissioner's designated agent (referred collectively hereinafter
as "the Grant Manager"), with the concurrence of the Grantees, certifies that such
extinguishment satisfies the requirements of the Open -Space Land Act. In any
sale or exchange of the Property subsequent to an extinguishment, Grantees shall
Grantees initials 19 Grantors initials
be entitled to a portion of the proceeds at least equal to the Proportionate Value of
this Easement computed as set forth in Section 11 above, but not to be less than
the proportion that the value of this Easement at the time of extinguishment bears
to the then value of the Property as a whole. Grantees shall use all their share of
the proceeds from the sale of the Property in a manner consistent with the
conservation purpose of this easement and the Open -Space Land Act.
13. AMENDMENT. Grantees and Grantor may amend this Easement to enhance the
Property's Conservation Values or add to the restricted property, provided that no
amendment shall affect this Easement's perpetual duration, reduce the Property's
Conservation Values, or (vi) affect the rights of VDACS pursuant to the IGA,
including, but not limited to, VDACS' rights pursuant to sections 2.e -h of the
IGA.. No amendment shall be effective unless approved in advance by the United
States and documented in a notarized writing signed by all parties hereto and
recorded among the land records of the County of Frederick, Virginia.
14. SUCCESSORS. The terms "Grantor" and "Grantees" wherever used herein, and
any pronouns used in place thereof, shall include, respectively, the above-named
Grantor and their personal representatives, heirs, successors, and assigns and the
above-named Grantees and their successors and assigns.
15. SEVERABILITY. If any provision of this Easement or its application to any
person or circumstance is determined by a court of competent jurisdiction to be
invalid, the remaining provisions of this Easement shall not be affected thereby.
16. ENTIRE AGREEMENT. This instrument sets forth the entire agreement of the
parties with respect to this Easement and supersedes all prior discussions,
negotiations, understandings, or agreements relating to the easement.
17. CONTROLLING LAW. The interpretation and performance of this Easement
shall be governed by the laws of the Commonwealth of Virginia.
Is. RECORDING. This Easement shall be recorded in the land records in the
Circuit Court Clerk's Office of the County of Frederick, Virginia, and Grantees
may re-record it any time as may be required to preserve its rights under this.
Easement.
19. RELATIONSHIP BETWEEN THE GRANTEES. The parties agree that
Potomac Conservancy shall have primary responsibility for granting approvals,
monitoring, and enforcing this Easement, but each Grantee shall have independent
authority to enforce this Easement in accordance with its terms. In the event that
Grantees do not agree as to whether Grantor is complying with the terms hereof,
each Grantee may proceed with enforcement actions without the consent of the
other Grantees. For any action where this Easement requires that Grantor obtain
approval from Grantees (including from Local Grantees), approval by the
Potomac Conservancy shall be deemed to represent approval from all Grantees
unless such approval expressly states otherwise or Frederick County, Frederick
Grantees initials 20 Grantors initials
County Conservation Easement Authority or United States expressly denies
Grantor's request for approval within a reasonable time. Further, if the Potomac
Conservancy: (a) ceases to exist or (b) attempts to terminate, transfer or otherwise
divest itself of any rights, title, or interests in this Easement without the prior
consent of Frederick County, Frederick County Conservation Easement Authority
and the United States then all right, title and interest of the Potomac Conservancy
in this Easement shall, in the first instance, vest in Frederick County and
Frederick County Conservation Easement Authority. Frederick County and
Frederick County Conservation Easement Authority shall notify the United States
if the Easement becomes vested in them. If the Easement is vested in the
Frederick County and Frederick County Conservation Easement Authority the
United States shall continue to hold all the rights, title and interest conveyed to it
under this Easement.
20. ASSIGNMENT BY GRANTEE. Grantee may not transfer or convey this
Easement unless Grantee conditions such transfer or conveyance on the
requirement that (i) all restrictions and conservation purposes set forth in this
Easement are to be continued in perpetuity and (ii) the transferee then qualifies as
an eligible donee as defined in Section 170(h)(3) of the IRC as amended and the
applicable Treasury Regulations.
21. TRANSFER OF THE EASEMENT. Subject to the United States' written
approval and contingent right identified in Section III Paragraph 3 above,
Grantees shall have the right to transfer this Easement to any public agency or
private nonprofit organization that, at the time of the transfer, is a "qualified
organization" under Section 170(h) of the Code, provided the transferee expressly
agrees to assume the responsibilities imposed on Grantees by this Easement. If
Grantees cease to exist or no longer qualify under Section 170(h) of the Code, and
the United States declines to exercise its contingent right identified in Section III
Paragraph 3, a court of competent jurisdiction shall transfer this Easement to
another qualified organization having similar purposes that agrees to assume the
responsibilities imposed by this Easement on Grantees herein.
WITNESS the following signatures and seals:
GRANTOR
Elizabeth A. Snapp
COMMONWEALTH OF VIRGINIA
COUNTY OF , TO WIT
Grantees initials 21 Grantors initials
I, 'a Notary Public for the Commonwealth aforesaid, hereby
certify that ELIZABETH A. SNAPP personally appeared before me this day and acknowledged
the foregoing instrument.
WITNESS nay hand and official seal this day of 320
Notary Public
My commission expires: (SEAL)
Notary Public
GRANTOR:
R. Wayne Snapp, Trustee of the R. Roland Snapp
Estate Trust
COMMONWEALTH OF VIRGINIA
COUNTY OF , TO WIT
I, , a Notary Public for the Commonwealth aforesaid, hereby
certify that R. WAYNE SNAPP personally appeared before me this day and acknowledged the
foregoing instrument.
WITNESS my hand and official seal this day of 320
Notary Public
My commission expires: (SEAL)
GRANTEES:
Accepted:
Potomac Conservancy, Inc., a Maryland nonprofit corporation
Kelly Watkinson, Authorized Agent of Potomac
Conservancy
COMMONWEALTH OF VIRGINIA
Grantees initials 22 Grantors initials
COUNTY OF , TO WIT
I, 'a Notary Public for the Commonwealth aforesaid, hereby
certify that KELLY WATKINSON an authorized agent of the Potomac Conservancy, personally
appeared before me this day and acknowledged the foregoing instrument on behalf of the
Potomac Conservancy.
WITNESS my hand and official seal this day of , 20
Notary Public
My commission expires : (SEAL)
Accepted:
Frederick County Virginia
COMMONWEALTH OF VIRGINIA
COUNTY OF , TO WIT
I, , a Notary Public for the Commonwealth aforesaid, hereby
certify that ,as an Agent of Frederick County Virginia, personally
appeared before me this day and acknowledged the foregoing instrument on behalf of Frederick
County Virginia..
WITNESS my hand and official seal this day of , 20
Notary Public
My commission expires: (SEAL)
Accepted:
Frederick County Conservation Easement Authority
COMMONWEALTH OF VIRGINIA
COUNTY OF , TO WIT
Grantees initials 23 Grantors initials
I, , a Notary Public for the Commonwealth aforesaid, hereby
certify that „ as Agent of the Frederick County Conservation
Easement Authority, personally appeared before me this day and acknowledged the foregoing
instrument on behalf of the Frederick County Conservation Easement Authority.
WITNESS my hand and official seal this day of 120
Notary Public
My commission expires: (SEAL)
Accepted:
Natural Resource Conservation Service
United States Department of Agriculture
am
John A. Bricker, State Conservationist
COMMONWEALTH OF VIRGINIA
COUNTY OF , TO—WIT
I, , a Notary Public for the Commonwealth aforesaid, hereby
certify that JOHN A. BRICKER, Virginia State Conservationist for the Natural Resources
Conservation Service, personally appeared before me this day and acknowledged the foregoing
instrument on behalf of the Natural Resources Conservation Service.
WITNESS my hand and official seal this day of , 20
Notary Public
My commission expires: (SEAL)
Grantees initials 24 Grantors initials
Exhibit A
Legal Description
Page 1 of 1
ALL THAT CERTAIN TRACT OR PARCEL OF LAND, situate near Marlboro in
Opequon Magisterial District, Frederick County, Virginia, on the west side of Cedar
Creek Grade and being more particularly described by metes and bounds on survey of
A.J. Tavenner, Surveyor, dated 6th of May, 1925, recorded in the Clerk's Office of the
Circuit Court of Frederick County, Virginia in Deed Book 153, Page 335.
LESS AND EXCEPTING THEREFROM that certain strip or parcel of land needed for
location and construction or other improvements of Route 623, conveyed to the
Commonwealth of Virginia by Deed dated July 17, 1969, recorded in the Clerk's Office
in Deed Book 356, Page 371.
The above described real estate is a portion of the real estate conveyed to R. Roland
Snapp and Elizabeth A. Snapp, husband and wife, by Deed of Gift from R. Roland Snapp
and Elizabeth A. Snapp, husband and wife, dated 20th day of February, 1995, which Deed
is of record in the Clerk's Office of the Circuit Court of Frederick County, Virginia in
Deed Book 835, Page 1079. The said R. Roland Snapp died testate on the 23rd of
February, 1995 and pursuant to the terms of his Last Will and Testament, duly probated
and recorded in the Clerk's Office of the Circuit Court of Frederick County, Virginia, in
Will Book 107, Page 1345, his interest in the aforesaid real estate vested in R. Wayne
Snapp, Trustee, who qualified as Trustee on the 24th day of August, 1995.
EXISTING EASMENTS
1. Right of Way Easement granted to Potomac Edison Company by instrument dated
21st of March 2003, and recorded as instrument No. 030007971 in the Clerk's
Office of the Circuit Court of Frederick County, Virginia.
2. Right of Way Easement granted to The Potomac Edison Company by instrument
dated 19th of June, 1991, and recorded in Deed Book 770, Page 253 in the Clerk's
Office of the Circuit Court of Frederick County, Virginia.
Deed of Right of Way fifty -feet (50') in width as granted by instrument recorded
as Instrument No. 070013639 dated 27th of August, 2007 in the Clerk's Office of
the Circuit Court of Frederick County, Virginia.
Grantees initials 25 Grantors initials
Exhibit B
Summary of Conservation: Values
Page 1 of 3
Description of Property and Natural Features
The Snapp Property contains approximately 89.75 acres and lies in the
Shenandoah Valley, in the southern portion of Frederick County, Virginia. The property
can be viewed from both county route 622 (Cedar Creek Grade) and county route 623
(Froman's Road). The property consists of open and rolling pasture with small pockets
of trees dispersed throughout. The property contains one unnamed spring that flows into
Cedar Creek.
Approximately 70% of the soils on the Property have been characterized as
statewide important farming soils. These soils include Oaklet silt loam, Frankstown
channery silt loam, and Frederick-Poplimento soils. The Frankstown series consists of
deep and very deep, well drained soils formed in residual materials derived from siliceous
limestone and interbedded limy shale and siltstone on uplands. Permeability is moderate.
The Frederick and Poplimento soils are dominantly gently sloping and sloping. Both soils
have a surface texture of silt loam and are gravelly or rocky in some ,areas. The Oaklet
series consists of very deep, well drained, slowly permeable soils. They formed in
material weathered from limestone bedrock on gently undulating to steep upland slopes.
Depth to hard limestone bedrock is more than 5 feet.
The only structures contained on the property include agricultural fencing, and off
stream watering structures.
Nater Resources:
The Property contains one spring that flows into Cedar Creek. Livestock has been
fenced out of the spring and the mature riparian habitat is found along the spring outflow
to Cedar Creek.
Conservation Purposes Test
Scenic Enjoyment and Public Benefit
This Property provides for open space and the scenic enjoyment of the general
public and will yield a sigiuficant public benefit as defined in Treasury Regulation
Section 1.170A -14(d). The Property can be seen and viewed by the public from county
route 622, Cedar Creek Grade, which runs along the property and from county route 623,
Froman's Road.
Pursuant to Government Policies
Protection of this property is consistent with government conservation policies in
the following manner:
Grantees initials 26 Grantors initials
Exhibit S
Summary of Consefvation Values
Page 2 of 3
1) Section 1 of Article XI of the Constitution of Virginia, which states that it is the
Commonwealth's policy to protect its atmosphere, lands and waters from
pollution, impairment, or destruction, for the benefit, enjoyment, and general
welfare of the people of the Commonwealth.
2) Chapter 461 of the Acts of 1966, codified in Chapter 17, Title 10. 1, §§10.1-1700
through 10.1-1705 of the Code of Virginia, as amended (the Open -Space Land
Act), which declares that the preservation of open space land serves a public
purpose by curbing urban sprawl, preventing the spread of urban blight and
deterioration and encouraging more economic and desirable urban development,
helping provide or preserve necessary park, recreational, historic and scenic areas,
and conserving land and other natural resources, and authorizes the acquisition of
interests in real property, including easements in gross, as a means of preserving
open -space land.
3) The Virginia Land Conservation Incentives Act, Chapter- 3 of Title 58.1, §§58.1-
510 through 58.1-513 of the Code of Virginia, which supplements existing land
conservation programs to further encourage the preservation and sustainability of
the Commonwealth's unique natural resources, wildlife habitats, open spaces and
forest resources.
4) Chapter 32, of Title 58.1, §§58.1-3230 through 58.1-3244 of the Code of Virginia,
which authorizes special use -value tax assessments for real estate devoted to
agricultural, forestal, horticultural and open -space use; and Frederick County has
specifically recognized the importance of the continued preservation of the
Property as open space and agricultural land by providing special assessment of
the Property for real property tax purposes.
5) The preservation of this property is consistent with the Frederick County
Comprehensive Plan (adopted 2000) ,,Ahich states that its goals include,
maintaining agriculture as a significant portion of the County's economy,
protection of the natural environment from damage due to development activity,
and to protect the rural environment.
6) Protection of this Property significantly contributes to the preservation of the rural
character of the region. At the time of this easement, the Potomac Conservancy
along with other local land conservation organizations, hold conservation
easements on over 5,469 acres of farm and forestland in Frederick County,
Virginia.
7) The purpose of the Farm and Ranch Lands Protection Program, 16 U.S.C. 3838h
and 3.838i is to protect historical resources on farmland and/or prime, unique, and
important topsoil from conversion to non-agricultural use. Protection of this
Property is consistent with that goal because soils on the Property have been
classified as "prime" and "unique" farmland of statewide and local importance by
the Natural Resources Conservation Service, an agency of the United States
Department of Agriculture.
Grantees initials 27 Grantors initials
Exhibit B
Summary of Conservation Values
Page 3 of 3
8) Protection of this Property is consistent with the Frederick County Purchase of
Development Rights Program, which was adopted by the Frederick County Board
of Supervisors, on the 24th of August 2005. The Frederick County Conservation
Easement Authority, which was created on 24th day of August, 2005, has
identified this Conservation Property as worthy of protection for conservation
purpose. The landowner has submitted the required application, and the Frederick
County Conservation Easement Authority has found that the Conservation
Property satisfies all of its requirements and has provided funding to purchase this
Conservation Easement.
Grantees initials 28 Grantors initials
Exhibit C
Suminaty of Baseline Documentation
Page 1 of 1
A Baseline Documentation Report is kept on file at the office of the Grantees and
is fully incorporated into this Conservation Easement as though attached hereto and made
a part thereof, including: Conservation Property summary, easement summary,
description of scenic and natural features, description of existing structures, description
of the surrounding community, USGS map, copy of Conservation Easement, property
survey, map of the building zone, aerial photograph of Conservation Property, map of
surrounding protected land, soils map and descriptions, viewshed map, title certificate,
map showing location of where photos were taken, photo documentation showing the
condition of the Conservation Property at the time the easement is donated, and the
resolution by the Board of Potomac Conservancy, Frederick County Conservation
Easement Authority and Frederick County, Virginia to accept this Conservation
Easement.
Grantees initials 29 Grantors initials