BOARD OF SUPERVISORS PUBLIC HEARING Date of Hearing: February 10, 2016 # 1 SUBJECT: PROPOSED CONVEYANCE OF COUNTY PROPERTY Amendment to Open-Space Easement owned by the Old Dominion Land Conservancy, Inc. - Blue Ridge Center for Environmental Stewardship ELECTION DISTRICT: CRITICAL ACTION DATE: STAFF CONTACTS: Catoctin At the discretion of the Board Lauri Sigler, County Attorney s Office Leo Rogers, County Attorney s Office PURPOSE: The purpose of this item is to approve amendments to the terms and conditions of an existing approximately 568.91 acre open-space easement held by the Board of Supervisors of Loudoun County, Virginia (the Board ) and the Potomac Conservancy, Inc. ( the Conservancy ), over and across certain property owned by the Old Dominion Land Conservancy, Inc. ( Old Dominion ) which said land is known as the Blue Ridge Center for Environmental Stewardship (the Blue Ridge Center ). RECOMMENDATION: Staff recommends that the Board approve amendments to the existing open-space easement on portions of the Blue Ridge Center for Environmental Stewardship BACKGROUND: As explained in the letter dated November 16, 2015 from J. Duncan Pitchford, Assistant Attorney General III, on behalf of the Commonwealth of Virginia, Department of Conservation and Recreation ( DCR ), DCR requests approval to amend certain terms of the Open-Space Easement held jointly by the Board and the Conservancy. The subject property is composed of eleven (11) adjacent parcels that are located within an area of Loudoun County known as the Blue Ridge Center for Environmental Stewardship (the Blue Ridge Center ) and is located generally on the west side of Harper s Ferry Road (Route 671), east of the boundary with Jefferson County, and on the north side of Sawmill Lane (Route 686), in the Catoctin Election District. The subject property is more particularly described as follows:
Item #1, Proposed Conveyance of County Property- Amendment to Open-Space Easement owned by Dominion the Old Land Conservancy, Inc. Blue Ridge Center for Environmental Stewardship Board of Supervisors Public Hearing February 10, 2016 Page 2 PIN# Tax Map Number 510-36-3218 717 542-40-0755 715D 542-30-6423 715C 510-46-1359 714 509-36-3388 138 509-17-1879 138A 509-25-8827 71 509-17-3778 74 509-37-5927 72 509-17-6379 75 509-17-8644 712B The original Open-Space Conservation Easement was recorded in 2003 as Instrument Number 20031021-0139944 and was subsequently amended by deed recorded in 2006 as Instrument Number 20061214-0104119 which said amendment extinguished four retained development rights granted in the original easement, collectively referred to as the Easement. At the time the Easement was created the Robert and Dee Leggett Foundation was the owner of the subject Property which was subsequently conveyed to Old Dominion by Deed of Gift dated October 30, 2013 and recorded as Instrument 20131101-0086837. On January 18, 2014, Old Dominion executed an agreement pledging to donate the subject property to DCR for a state park. To ensure the property will be compatible with the new use as a state park, DCR is requesting that the terms of the Easement are amended before the subject property is conveyed to the Commonwealth. ISSUES: The letter from Mr. Pitchford, attached hereto as Attachment 1, explains that certain provisions contained in the Easement are incompatible with the use of the property for a state park and includes DCR s reasons for requesting amendments to the Easement: 1) the restriction limiting the maximum area of a sign to nine (9) square feet prohibits DCR from advertising the property s use as a state park; and 2) certain provision in regards to liability and indemnification may obligate the Commonwealth to its terms despite contrary constitutional and statutory prohibitions including terms which would potentially waive sovereign immunity and obligate the Commonwealth to undertake activities regardless of whether those were authorized or funded by the General Assembly. As a holder of the Easement the proposed amendments do not put any additional undue burden on the County.
Item #1, Proposed Conveyance of County Property- Amendment to Open-Space Easement owned by Dominion the Old Land Conservancy, Inc. Blue Ridge Center for Environmental Stewardship Board of Supervisors Public Hearing February 10, 2016 Page 3 Specifically DCR has requested the following amendments: 1. Amend Section 7 restricting signage to allow the display of additional signage to provide information as customary should the subject property be used as a State Park and allow one (1) entrance sign on the property up to one hundred (100) square feet. See Attachment 2 for a picture of the sign to Hungry Mother State Park as an example of a typical state park entrance sign, said sign being 4 feet x 15 feet for a total of 60 square feet. 2. Amend Section 17 adding language to restrict the Board s and the Conservancy s conveyance of the Easement to an agency of the Commonwealth if the subject property is owned by the Commonwealth. 3. Add new Section 31 titled Provisions Not Applicable to Commonwealth and State Agencies to clarify that in the event that the subject Property is owned by the Commonwealth that this new provision shall control over any conflicting provisions with respect to liability, indemnification, expenditure of funds, and provide for the succession if a state agency ceases to exist. 4. Add new Section 32 to clarify that the Easement will be perpetual in duration and exempt from and not subject to the doctrine of merger of title so that the Easement will not be extinguished if there would ever be a common ownership between the owner of the property and the Grantee or holder of the Easement, i.e. if an agency of the Commonwealth becomes the owner of the property and a different agency of the Commonwealth becomes the holder of the conservation easement. At a meeting of its Board of Directors, the Conservancy approved the amendments to the Easement as requested by DCR, with said amendment reflected in the Second Amendment to Deed of Easement attached hereto as Attachment 3. FISCAL IMPACT: There are no fiscal impacts to the County. ALTERNATIVES: The Board can endorse the staff recommendation to amend the Easement or the Board can choose not to approve the amendments but this will delay the Commonwealth s acquisition of the subject Property. DRAFT MOTIONS: 1. I move that the Board of Supervisors forward the Proposed Conveyance of County Property- Amendment to Open-Space Easement owned by Dominion the Old Land Conservancy, Inc. Blue Ridge Center for Environmental Stewardship to the March 1, 2016, Board of Supervisors Business Meeting for action. OR
Item #1, Proposed Conveyance of County Property- Amendment to Open-Space Easement owned by Dominion the Old Land Conservancy, Inc. Blue Ridge Center for Environmental Stewardship Board of Supervisors Public Hearing February 10, 2016 Page 4 2a. I move that the Board of Supervisors suspend the rules. AND 2b. I move that the Board of Supervisors approve amendments to the Deed of Easement recorded as Instrument Number 20031021-0139944, with subsequent amendment recorded as Instrument Number 20061214-0104119, to modify certain provisions contained in the Easement that are incompatible with the use of the property for a state park as further described in the staff report for the February 10, 2016, Board of Supervisors Public Hearing. OR I further move that the Board authorize and direct the Chairman or the County Administrator to execute a Second Amendment to Deed of Easement or other form of agreement acceptable in form to the County Attorney on behalf of the Board of Supervisors. 3. I move an alternate motion. ATTACHMENTS: 1. Letter dated November 16, 2015 from J. Duncan Pitchford, Assistant Attorney General III, on behalf of the Commonwealth of Virginia, Department of Conservation and Recreation, with maps and images of the property owned by Old Dominion Land Conservancy 2. Picture of the entrance sign to Hungry Mother State Park 3. Copy of Second Amendment to Deed of Easement as approved by the Board of the Potomac Conservancy, Inc.
* ^ 3 Mark R. Herring Attorney General Office of the Attorney Qeneral November 16, 2015 900 East Main Street Richmond, Virginia 23219 804-786-2071 FAX 804-786-1991 Virginia Relay Services 800-828-1120 7-1-1 VIA ELECTRONIC MAIL: lauri.sigler@loudoun.gov Lauri A. N. Sigler Assistant County Attorney County of Loudoun 1 Harrison Street S.E. Leesburg, Virginia 20177 RE: Old Dominion Land Conservancy - Easement to Loudoun County Dear Ms. Sigler: Thank you again for your assistance in working to prepare an amendment to the Deed of Easement held by the County of Loudoun dated September 30, 2003, recorded as Instrument No. 200310210139944 in the land records of Loudoun County. Virginia, as amended by that certain Amendment to Deed of Easement dated December 4, 2006, recorded as Instrument No. 200612140104119 (the "Easement"), in anticipation of the Old Dominion Land Conservancy conveying the encumbered property to the Commonwealth of Virginia, Department of Conservation and Recreation ("DCR"). On January 18. 2014, the Old Dominion Land Conservancy executed that certain Agreement to Donate Land for a State Park, pledging to donate the property it owns in Loudoun County, encumbered by the Easement, to DCR for a state park. Certain provisions contained in the Easement are incompatible with use of the property for a state park, including one restricting the size and type of signs which may be posted on the property (which would prevent DCR from advertising its use as a park) and others which would obligate the Commonwealth despite constitutional and statutory prohibitions applicable to it. These latter provisions include ones which would potentially waive the sovereign immunity enjoyed by the Commonwealth (and its political subdivisions, such as the County) and ones which would obligate the Commonwealth to undertake activities regardless of whether those were authorized or funded by the General Assembly. We thank you and your office for working together to amend these provisions in light of the anticipated revised use of the property, and look forward to the approval of the draft amendment by the County. Finally, as we discussed, I have included with this letter some images of the Attachment 1
Lauri A. N. Sigler November 16, 2015 Page 2 property from the Phase I report prepared on behalf of DCR. Should you have any questions, please do not hesitate to contact me at 804.371.0977 or ipitchford@oag.state.va.us. ;ry tru]y\yoursl Enclosures J. Duncan Pitchford Assistant Attorney General III cc: Sarah Richardson, DCR (w^o enclosures)
USGS Topographic Map Charles Town and Harpers Ferry Quads Old Dominion Land Conservancy, Inc. Scale 1 = 2000 Prepared for:
Blue Ridge Center for environmental stewardship Blue Ridge Center for Environmental Stewardship 11661 Harpers Ferry Road Purcellville, VA 20132 540-668-7640 www.blueridgecenter.org LEGEND N i 1 J TRAILS CONTOURS ROADS BLUE RIDGE PROPERTY (3 PARKING Q CAMPING S GATED ENTRANCE PROTECTED LAND s To Route 340 ^ 1000 ^ ^ O c ' ^ v I X <r J ^ i K ^? 0 1000 Feet T $ te 671 J : v. Wetland 'f fe s kn K5 V ' o s\ $ )d S Or Demory- \ -»\Aortman ^ Mou ntai n N s V^House View Vista ^V 5-1 fti 'nfon i V \ ^Bush f y LU Historic \^ X t' - > Ruins Pinfey lonathon's j De'mory 1 Run Rock ' V mm j Wortm. '\\ Spur! Pond } Pond**' ' Legacy i LQQP J. \Gordon \Pond T JT jv*^ist(jric I '' l^tlstoric^ Q. <-0. rl ciabih A. - y, Cabin \ Farmstead * ^ ^ Derry ^ I T j Historic L0 0 J > Loop N 5 -, <v5 ( I Cabin- ' 4 K Qr t ^ r Old_Bridge T ; f; Tail I s ; s ^ 1-559 i^udption Center f Private ^ Residence :> 671 Main Entrance ;.S V ray r o Swfeet a I feun Loop ^ 'o f Powerlir" 6 Powerlihe g i Butterfly -f Alky,, 1 <b y O 2- o- r Sawmill Field w ^. EQUESTRIAN PARKING (0 Sawmill Lane Trail Distances Arnold Trail Butterfly Alley Derry Loop Farmstead Loop Jonathan's Rock Trail (one way) Legacy Loop Little Turtle Trail Meadow View Trail Mountain View Vista (one way) 671 Old Bridge Trail Piney Run Spur Sweet Run Loop Wood Thrush Trail > ^ To Route 9 Wortman Trail (Kiosk to Farmstead Loop) Map produced by Matt Robinson of the Appalachian Trail Conference for the Blue Ridge Center (C) 2004. Updated 2013. 0.3 1.0 mi 0.5 mi 0.8 mi 1.3 mi 0.1 mi 1.2 mi 0.25 mi 0.25 mi 0.1 mi 0.2 mi 0.5 mi 1.9 mi 0.6 mi
2012 Bing Aerial Image Old Dominion Land Conservancy, Inc. Loudoun County, VA Scale 1 = 1000 Prepared for:
Attachment - 2 Sign is 4 feet x 15 feet = 60 square feet
EXEMPT FROM RECORDATION TAXES PURSUANT TO SECTIONS 58.1-811(A)(3), 58.1-811(C)(3), AND 58.1-811(C)(4) SECOND AMENDMENT TO DEED OF EASEMENT THIS SECOND AMENDMENT TO DEED OF EASEMENT, is made this day of, 2015 (the Second Amendment ) by and among the OLD DOMINION LAND CONSERVANCY, INC., a Virginia non-stock corporation ( Grantor ); the BOARD OF SUPERVISORS OF LOUDOUN COUNTY, VIRGINIA (the County ), a body corporate and politic; and the POTOMAC CONSERVANCY, INC. (the Conservancy ), a non-profit corporation organized under the laws of the state of Maryland (collectively, Grantees ). WHEREAS, by Deed of Easement dated September 30, 2003, recorded as Instrument No. 200310210139944 in the land records of Loudoun County, Virginia, as amended by that certain Amendment to Deed of Easement dated December 4, 2006, recorded as Instrument No. 200612140104119 in the aforesaid land records (collectively the Deed of Easement ), the Robert and Lee Leggett Foundation, a Virginia non-profit corporation (the Foundation ), granted and conveyed an open space conservation easement jointly to the County and the Conservancy on certain tracts or parcels of land as more fully set forth in the Deed of Easement (the Property ); and WHEREAS, the Foundation transferred and conveyed the Property to Grantor by Deed of Gift dated October 30, 2013, recorded as Instrument No. 201311010086837 in the aforesaid land records; and WHEREAS, Grantor, the County, and the Conservancy desire to amend the Deed of Easement subject to the terms and conditions set forth in this Second Amendment; and WHEREAS, on, 2015, the Board of Directors of the Conservancy approved this Second Amendment; and WHEREAS, on, 2015, at a regularly scheduled business meeting on, 2015, pursuant to a duly adopted motion, the County approved this Second Amendment; and WHEREAS, the Property is not subject to the lien of any deed of trust. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in consideration of the covenants, terms, conditions, and restrictions hereinafter set forth, the parties amend the Deed of Easement as follows: stead: 1. Section 7 of the Deed of Easement is hereby deleted, and the following is inserted in its Signage. There shall be no display of billboards, signs, or other advertisements on the Property, except to: (1) state solely the name of the Grantor, the name of the farm, andor address of the Property; (2) advertise the sale or lease of the Property; (3) advertise the sale of goods or services produced pursuant to a permitted use of the Property; (4) give directions to visitors; (5) provide warnings pertaining to trespassing, hunting, dangerous conditions and other similar warnings; (6) provide information or interpretation of historical, cultural, or environmental features; (7) recognize the Property is preserved forever by a conservation easement; or (8) provide such other information as customary should the Property be used as a state park, upon consultation with the Grantees. One (1) sign on the Property, to be used as an entrance sign, may be up to one hundred (100) 1 Attachment 3
square feet, otherwise, no sign on the Property shall exceed nine (9) square feet or the County s Zoning Ordinance, whichever is more restrictive. 2. Section 17 of the Deed of Easement is hereby amended by adding the following provision: Subject to the foregoing, in the event the Property is owned by the Commonwealth of Virginia (the Commonwealth ), the County and Conservancy agree that any such transfer or conveyance of this Easement must be made to an agency of the Commonwealth. 3. The Deed of Easement is hereby amended to include the following Section: 31. Provisions Not Applicable to Commonwealth and State Agencies. The parties hereto agree, notwithstanding anything contained in this Deed of Easement to the contrary, that in the event that the Property is owned by the Commonwealth, the following provision shall control over any conflicting provisions hereof: (a) With respect to tort liability for acts or occurrences on or about the Property, including product liability, the Commonwealth is either constitutionally immune (or partially immune) from suit, judgment, or liability; insured; or covered by a financial plan of risk management that is in the nature of self-insurance, all as determined by applicable laws, government policies, and practices. (b) Agencies of the Commonwealth cannot expend funds unless appropriated by the Virginia General Assembly. If any session of the Virginia General Assembly fails to appropriate funds for the continued activities of an agency of the Commonwealth which may assume ownership or control of the use of the Property, as relates to the use of such Property, then any maintenance, repair, or financial obligations of such agency under this Deed of Easement shall automatically terminate upon depletion of the then currently appropriated or allocated funds. (c) No equitable, quasi-contractual, or injunctive remedies, other than those specifically authorized by law, may be used or are effective against the Commonwealth. (d) This Deed of Easement shall be governed by, and construed according to, the laws of the Commonwealth, and any legal action against the Commonwealth shall be instituted and maintained only in the state courts of the Commonwealth. (e) No liens may be placed against, or shall attach to, any property owned by the Commonwealth. (f) Notwithstanding any other provision of this Deed of Easement, if the agency holding the Property shall cease to exist as an agency of the Commonwealth, and is not replaced by a successor entity with similar powers and purposes, or its powers and authority are limited so as to not permit the continued use of the Property for the purpose and use anticipated, then all maintenance, repair, and related financial obligations under this Deed of Easement as relates to the Parcel shall terminate. In such event, the Commonwealth will endeavor to give as much notice as is reasonably possible of the event triggering the termination of the aforementioned obligations under this Deed if Easement and the 2
anticipated termination date, but failure to give such notice shall not affect the termination. (g) Notwithstanding the provisions of Section 30 hereof, the County and the Conservancy acknowledge that the Commonwealth has not agreed to provide any indemnification or save harmless agreements running to either of the County or the Conservancy. No provision, covenant, or agreement contained in this Deed of Easement shall be deemed, in any manner, to be a waiver of the sovereign immunity of the Commonwealth, or any of its boards, agencies, or other political subdivisions, from tort or other liability. (h) The provisions of this Section 31 and all subsections hereunder shall automatically cease and terminate in the event the Commonwealth conveys the Property to a third party which is not a board, agency, or other political subdivision of the Commonwealth. 32. Except as expressly otherwise provided herein, this Deed of Easement shall be of perpetual duration, and no merger of title, estate or interest shall be deemed effected by any previous, contemporaneous, or subsequent deed, grant, or assignment of an interest or estate in the Property, or any portion thereof, to Grantee, it being the express intent of the parties that this Deed of Easement not be extinguished by, or merged into, any other interest or estate in the Property now or hereafter held by Grantee. 4. Except as specifically modified and amended in this Second Amendment, the terms, conditions, and restrictions set forth in the Deed of Easement remain unchanged and continue to be in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Deed of Easement as of the date first written above. [THE REST OF THIS PAGE IS INTENTIONALLY LEFT BLANK. SIGNATURES APPEAR ON THE FOLLOWING PAGES.] 3
OLD DOMINION LAND CONSERVANCY, INC., a Virginia corporation By: Name: Title: COMMONWEALTH OF VIRGINIA CITYCOUNTY OF to wit: I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify that, as of Old Dominion Land Conservancy, Inc., a Virginia corporation, whose name is signed to the foregoing Second Amendment to Deed of Easement, appeared before me and personally acknowledged the same in the jurisdiction aforesaid. GIVEN under my hand and seal this day of, 2015. My commission expires: My registration no.: Notary Public 4
APPROVAL AS TO FORM: THE BOARD OF SUPERVISORS OF LOUDON COUNTY, VIRGINIA Assistant County Attorney By: Name: Title: COMMONWEALTH OF VIRGINIA CITYCOUNTY OF to wit: I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify that, as on behalf of the Board of Supervisors of Loudoun County, Virginia, whose name is signed to the foregoing Second Amendment to Deed of Easement, appeared before me and personally acknowledged the same in the jurisdiction aforesaid. GIVEN under my hand and seal this day of, 2015. My commission expires: My registration no.: Notary Public 5
POTOMAC CONSERVANCY, INC., a Maryland non-profit corporation By: Name:Hedrick Belin Title: President COMMONWEALTH OF VIRGINIA CITYCOUNTY OF to wit: I, the undersigned Notary Public, in and for the jurisdiction aforesaid, do hereby certify that, as of Potomac Conservancy, Inc., a Maryland non-profit corporation, whose name is signed to the foregoing Second Amendment to Deed of Easement, appeared before me and personally acknowledged the same in the jurisdiction aforesaid. GIVEN under my hand and seal this day of, 2015. My commission expires: My registration no.: Notary Public 6