Virginia Supreme Court upholds property rights, deals severe blow to land trusts

By |2016-02-17T11:08:59+00:00February 16th, 2016|News|12 Comments

grPESIn a landmark decision that is as uplifting for property rights advocates as it is devastating for land trusts throughout the United States, the Virginia Supreme Court on February 12 overwhelmingly ruled in favor of a small Loudoun County winery in its multi-year battle with one of the nation’s most powerful environmental groups.

By a 5-2 margin, the Virginia Supremes upheld a lower court decision that Chrysalis Vineyards’ plans to upgrade its facilities did not violate the terms of a conservation easement on the property held by Wetlands America Trust (WAT), on behalf of Ducks Unlimited (DU).  The case, Wetlands America Trust, Inc. v. White Cloud Nine Ventures, L.P., was being watched closely, and its outcome will send shockwaves through the land-trust community, which is coming under increased scrutiny as a result of highly publicized transgressions against rural landowners.

Revelations that the Warrenton (VA) based Piedmont Environmental Council (PEC) hadMartha-Boneta-Cow relentlessly harassed farmer Martha Boneta over a conservation easement it co-holds on her farm garnered nationwide attention and led to enactment of legislation that – for the first time anywhere in the U.S. – subjects land trusts to public accountability.  Significantly, the PEC is also involved – and on the losing side — in the case just decided by the Virginia Supreme Court.


What is remarkable about the faceoff before the Virginia Supreme Court is the vast gap in size and influence between the two combatants.  Wetlands America Trust is a non-profit organization that holds conservation easements across the country and provides fiduciary services to Ducks Unlimited, an environmental group with headquarters in a high-rent Washington, DC, commercial district just three blocks from the White House.  By contrast, Chrysalis Vineyards is a small business in rural Loudoun County operated by another small business, White Cloud Nine.

chrysalisOn land leased from White Cloud Nine, Chrysalis Vineyards planned to construct a farm building housing a creamery, a bakery, and a tasting room.  Plans also included constructing a small bridge and roads leading to the farm building as well as putting in a parking lot to accommodate the winery’s customers.  Jennifer McCloud, Chrysalis’s manager, also planned to plant grapes and wheat on the property and to have dairy cows graze on the land.   In keeping with the agricultural character of her business, the grapes would be made into wine, the wheat would serve the bakery, and the dairy cows would produce milk for the creamery.

Ducks Unlimited joins forces with the PEC

By the fall of 2010, however, the Piedmont Environmental Council expressed concerns to Ducks Unlimited that Chrysalis’s plans violated the conservation easement on the property, and DU responded by questioning McCloud about her intentions.

Convinced that her activities in no way conflicted with the terms of the easement, McCloud went ahead with the expansion of her business.   For its part, WAT, acting on behalf of DU, sued White Cloud Nine, alleging 14 violations of the conservation easement.

But in a stinging rebuke to Ducks Unlimited and the PEC, the Twentieth Circuit Court of Virginia on June 19, 2015, rejected, with narrow exceptions, all 14 allegations.  Handing a clear victory to Chrysalis Vineyards, Judge Burke McCahill ruled that nothing in the conservation easement prohibited a farm building on the property from housing a creamery, bakery, or tasting room.  Citing case law, he also found that the bridge, roads, parking lot, and other upgrades to the property did not violate the easement.

Ducks Unlimited appealed the case to the Virginia Supreme Court, a decision it, the PEC, tasteand a coterie of environmental groups supporting DU now no doubt regret.  In upholding the lower court’s ruling, the Virginia Supreme Court expressly rejected DU’s restrictive interpretation of the conservation easement’s language, insisting instead on interpreting the easement as it is clearly written.

For example, the court dismissed DU’s/WAT’s objections to Chrysalis’s plans for the farm building, saying it found “strong support” in the easement that the structure may be used for industrial and/or commercial activities. “Notably, WAT simply ignores these authorized activities under the Easement in advocating its own restrictive construction of the term ‘farm building,’” the court said.  In point after point, Virginia’s highest court similarly quashed DU’s/WAT’s objections.

“Common law principle”

burling“What’s important in this decision is that the Court followed the traditional standards in looking at ambiguous easements in land:  When an easement in land is ambiguous, the courts should construe strictly against the party trying to enforce it,” notes Jim Burling (left), director of litigation and principal attorney for the property rights practice group at the Pacific Legal Foundation.  “In other words, when there is doubt over the terms of an easement in land, that doubt will be resolved in favor of the underlying landowner and against the party (here the conservation easement owner) trying to enforce it.”  Burling cited what he calls the “money quote” in the February 12 Virginia Supreme Court ruling:

Under this common law principle, consistently recognized by and applied by this court for over a century, “[v]alid covenants restricting the free use of land, although widely used, are not favored and must be strictly construed and the burden must be on the party seeking to enforce them to demonstrate that they are applicable to the acts of which he complains.” Friedberg, 218 Va. at 665,239 S.E.2d 110 (citing Riordan v. Hale, 215 Va. 638, 641, 212 S.E.2d 65, 67 (1975); Traylor v. Halloway, 206 Va. 257, 259, 142 S.E.2d 521, 522-23 (1965).  Accordingly, “[s]ubstantial doubt or ambiguity is to be resolved against the restrictions and in favor of the free use of property.”  Id. (citing Schwarzschild, 186 Va. at 1058, 45 S.E.2d at 155); see Stevenson v. Spivey, 132 Va. 115, 119, 110 S.E.367, 368 (1922) (restrictive covenants “will not be aided or extended by implication.” 

Chrysalis Vineyards’ McCloud was thrilled over the court’s decision. “After years of firm chrysalissignresolve, frustration, time, and money, we have completely prevailed in the lawsuit initiated by Ducks Unlimited in their belligerent attempt to stop my farming activities… They took it all the way to the Supreme Court of Virginia, supported by these bullying ‘Big Shot’ agencies that wrote to the court in support of DU’s arrogant position.”

The “Big Shots’ McCloud referred to are the regional and national environmental groups that submitted amicus briefs to the court in support of Ducks Unlimited.   They include the Piedmont Environmental Council, the Nature Conservancy, the Land Trust of Virginia, The Land Trust Alliance, the National Trust for Historic Preservation, and the Civil War Preservation Trust.  Indeed, no less than Virginia Attorney General Mark Herring (D) submitted an Opinion to the state Supreme Court supporting Ducks Unlimited – all to no avail.

Dark clouds gather over the PEC

Having played a decisive role in instigating and backing Ducks Unlimited’s ill-fated suit against the small winery, the PEC continues to see its fortunes wane.  And there’s more trouble brewing.  On January 19, Fauquier County Circuit Court Judge Jeffery Parker  refused to dismiss charges filed against realtors Phil and Patricia Thomas, who, along with the PEC, are co-defendants in a suit filed by Virginia farmer Martha Boneta.

Boneta charges that the Thomases and the PEC conspired to interfere with her business and undermine her property rights.  As co-holder of a conservation easement on Boneta’s 64-acre farm in Fauquier County, the PEC has been caught – in written communications and on camera – abusing its oversight responsibilities. Indeed, the PEC’s inspections of Boneta’s farm went far beyond the narrowly circumscribed language of the conservation easement and even included demands to see her laundry, closets, and more.  Watch the video at

Judge Parker’s ruling means the case can move forward to a jury trial, a prospect that neither the PEC nor the Thomases can relish.  It turns out, for example, that the conservation easement Boneta signed when she bought the property in June 2006 is not the easement the PEC filed with Fauquier County.  By conducting its intrusive inspections of Boneta’s farm over many years, the PEC was actually trespassing on her property, because the land trust was enforcing a conservation easement that was invalid from the start.

The Virginia Outdoors Foundation, a state agency that co-holds the conservation easement with the PEC, has determined that the document is a liability to the Commonwealth and is unenforceable.   Furthermore, the PEC, which sold the farm to Boneta, advertised it as a property of historical significance, claiming that Confederate General Stonewall Jackson encamped on what is now Boneta’s farm in July 1861 on his way the First Battle of Manassas (Bull Run).  As Civil War historians have attested, there is no evidence for this claim.

Legal precedent

The Virginia Supreme Court’s ruling creates a legal precedent that will enable landowners across the country to defend themselves against land trusts planning to use conservation easements as a means to bully people like Jennifer McCloud and Martha Boneta.


  1. Pericles Xanthippou February 17, 2016 at 5:00 AM

    Thank you for this exposition.

    You describe the precedent (final paragraph) as useful to “landowners across the county”. Is that what you meant or ought it to read — as suggested in your first paragraph — ‘… across the country’ (“devastating for land trusts throughout the United States”)?

    Also, if applicable to jurisdictions outside the Commonwealth of Virginia, what kind of precedent would it be: binding or merely persuasive?


    • CFACT Ed February 17, 2016 at 11:54 PM

      The VA Supreme Court can only set Virginia precedent. It can be persuasive in other states, as you observed. Let’s hope it is.

      • J.P. Katigbak May 19, 2016 at 11:45 PM

        CFACT, keep up the good work on the issue behind the existence of conservation easements in the US. It is never too late to take a stand on the ideological and philosophical aspects of environmentalism because there is anything to do specifically with left-liberalism. Good luck! – J.P.K.

    • Pericles Xanthippou February 18, 2016 at 3:56 AM

      Thank you, Ed. Indeed, let’s hope so! ΠΞ

  2. vis a vis February 17, 2016 at 2:38 PM

    Don’t sign a conservation easement when you buy land. It amounts to being the equivalent of an HOA. If the conservation easement is super vague, and they won’t sell you the land unless you sign their stupid conservation easement, demand specificity in it, to bring these marxists out of the closet from the start, regarding what they actually want to limit you from doing on your own land.

    • chluke323 February 19, 2016 at 8:48 AM

      How much land do you farm?

  3. Well Done February 17, 2016 at 7:32 PM

    These land trusts are just a front for the “people can’t own land” agenda of the one-worlders. Don’t think the battle is over, though. These efforts to control almost all the land are driven by Marxist thought, and the promise that they, the trust fund bureaucrats, will be among the elite who control the land.

  4. roberta4343 February 18, 2016 at 2:26 PM

    I find it funny that someone can own 2 percent of your land and get to dictate 100 percent the rest of it while the owner of the 98 percent gets to bear all the costs and liabilities. sounds like easements contracts are void on their face as they lack equal consideration, meeting of the minds, full diclosure and start and end date. hum, the judge was right on this one. unfortunantly easements are a way to cheaply steal land/propertyrights from people under a veil of rightousness. shame on them for that.

  5. Coonhound February 18, 2016 at 7:16 PM

    These commies frame the ‘environmental issue’ as urgent and our use of land as unsustainable. Truth? Propaganda, to be used as population control. Govt favors corporations over citizens now, in a quasi-fascist business model built more on population control/govt dependence, than saving the environment/biosphere. One would believe from false narrative in the mainscam media that we will not have any land not ‘utterly ruined’ in the next 10 yrs if we don’t act NOW to implement ‘sustainable growth’ (aka austerity/restriction of property rights, excessive taxation, Agenda 21, govt corruption~Reid NV+Clinton in OR) The truth of the matter is that the US has one of the lowest population densities in the world developed or 3rd world countries w/ only 84 per sq mile.Compare this to China @ 142+India @ 142 w/ EU countires like Germany 315. Even this number does not due justice. With such a large landmass, the US has less than 10 per Sq mi in close to 2/3 of the country. There are vast swaths of unused untapped lands in this country that are practically in no worse shape than they were when the country was fouded.
    We need to be aware of the propaganda and the reasons for its implimentation, control NOT preservation. We must also remember something that, no matter one’s stand on the Malheur Wildlife refuge, Federal Govt is in no way allowd to ‘own land w/in States save for ports, forts, arsenals,and limited areas to support such uses IF approved by The Sovereign States. Much of this unused and underdeveloped land could be used to produce economic opportunity rather than shuttng down the economy like most of these actions do.
    One last but extremetly important thing not to overlook. These NGOs, regional planning commisions, and alphabet soup agencies are UNELECTED. They are implementing rules and regulations that are enforced just as the rule of law is which cannot be refuted when looking at the fines and prison sentences meted out for violation of these. This country was not meant to have laws made by those who are unaccountable to The People or The States. This is an anethema to a free society and is another form of taxation w/out representation and an attack on both economic and recreational liberties w/in NO BASIS OF CONSTITUTIONAL LAW.

    Talking heads who spout off cherry picked sentences of the ‘Supremecy Clause’ out of context are running a false narrative. That the Federal laws are supreme is valid ONLY IF THEY ARE IN FURTHERANCE OF THE CONSTITUTION, something this out of control corrupted Feral Govt has long ago cast aside as an atiquated relic unsuited for world citizens and global kumbiyah crowd. The Constituton nor capitalism are going to be blamed when the finanacial system clollpases. Do not buy into this logic. Neither are applied to public policy as evidenced by the dozens of NULLIFICATION LAWS PASSED IN MANY STATES EACH LEGISLATIVE SESSION.
    IF you feel frustrated at the direction our govt is taking us~toward a total totalitarian system (to split hairs over Fascism or Communism is a waste of time and energy)~there are things that you can do that can make a difference. Instead of getting caught up in the runoff to nomination of presidential candidates (proven unbelievably corrupt by the 2012 GOP caucuses esp Maine w/blatant and inexcusable voter disenfranchisement by the RNC ex:letters to full time students telling them they werew ineligible to vote despite living in Maine full time and election fraud where the State party affiliates already concluded totals BEFORE they were reported from the local district reps!) Watch this short video and prepare to become nauseated.
    What can we do then? Call, write, or visit your STATE and local officials or candidates. Let them know you support Nullification of Unconstitutional bills and Executive Orders. Inform them that Jefferson said Nullification is the rightful remedy for an overreaching central govt. Overreach is about as nicely worded understatement if there ever was one. Interposition, the State protecting its citizens from abuse of their liberties by a corrupt central govt by interpositioning itself between victim and aggressor, adn finally the anti-commandeering doctrine favored by one of the most astute and brilliant political minds in history (James Madison). Do not fall for those who call for Con-cons( among them globalists and usurpers of sovereignty, George Soros) even misled conservative talk radio shills like Neo-Con/Zionsit Mark Levin. With many laws based on these principes already passed we are a few concerned citizens away from restoring our Republic legally and peacefully. Visit the 10th Amendment Center and find out what you can do to stop absurd intrusions into private property like this business has had to endure (not to mention the cost of legal representation which the govt takes into account).
    TAC~ {How you can make a difference} (population density)

  6. Paul V Sutera February 20, 2016 at 8:17 AM

    Doesn’t anyone mention that these landowners are receiving tax-advantages/breaks for having these conservation easements? They work well over most of the country – obviously if you overgraze your land and turn everything, including rivers and creeks into muddy rivers, that’s abusing your tax-break. Put 10 cows or horses on one acre of land and you will have dirt, mud and erosion.

  7. Paul V Sutera February 20, 2016 at 8:25 AM

    No mention of the tax-advantages these land owners receive? Conservation easements scare conservatives, but they sure do like the tax-breaks. When an article doesn’t mention these breaks, it’s got an agenda. And farmers already have a separate tax-code. Present an adequate balanced discussion about conservation easements, and the good they do, and the advantages to land owners. This article is completely one-sided, though I do consider the readership.

  8. J. Casey February 23, 2016 at 9:18 AM

    This court action has destroyed property rights of easement holders. The lawyers who wrote the easements, thought they were clear. The lawyer who did the title search for the buyer should have found the easement and presented it with the abstract of title or the title insurance policy. The buyer should have received an explanation of the restrictions and enforcement of them, before the sale. Any appraisal o the limited use real estate should have valued the easements. Now extra care to be more nit picky precise in writing easements will be needed if someone wants to sell restricted use property and keep possession of the easements. And ironclad dispute resolution clauses will have to be included. And the county assessor will have to take into account the devalued easements massive benefit to the market value of the now broadly unrestricted use of the property. And the lawyers involved better have acquired E&O insurance to the max or take action to protect their assets.

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