Proposed Trump golf course runs afoul of conservation easement

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Eric Trump wants to turn the old Kluge property into a world-class golf course, but a conservation easement is standing in the way. Eric Trump wants to turn the old Kluge property into a world-class golf course, but a conservation easement is standing in the way.

Like my golf game, the proposed golf course that Eric Trump envisions for Albemarle County may never materialize. While Trump purchased the land encompassing the former estate of Patricia Kluge, the Virginia Outdoors Foundation (VOF) holds a conservation easement on nearly 217 acres. After more than two years of correspondence between the VOF and Trump Virginia Acquisitions, the VOF reiterated in a September 13, 2013, letter that it “seriously doubt[s]” the development of the golf course can proceed. That’s right—the Trump Organization, headed by bouffant-haired patriarch Donald (or “The Donald” depending on your level of street cred), the real estate mogul with a larger-than-life persona who has built lavish properties all over the world, might be trumped by an easement.

Generally speaking, conservation easements entitle the easement holder to prevent the landowner from doing something that would otherwise be permissible. The VOF’s easement prohibits industrial or commercial activities unless they are seasonal or temporary outdoor activities that don’t permanently alter the physical appearance of the land or diminish any of the VOF’s protected conservation values.

Eric Trump and Trump Virginia Acquisitions General Counsel Jason Greenblatt have both unequivocally stated that the easement doesn’t preclude the golf course development, with Greenblatt going so far as to say that the language of the easement gives the Trumps an “absolute right” to build the course. This sentiment was reiterated in the golf course proposal’s executive summary, which also outlined the alleged environmental and economic benefits that would flow from the development.

“There will be significant environmental improvements made across the board,” reads the summary, which goes on to claim the project will improve the standard of living and quality of life for Albemarle County citizens. “Irrespective, the VOF easement expressly permits ‘commercial seasonal outdoor activities,’ including a golf course.”

At its core, the dispute over the golf course is one of property rights. When Trump Virginia Acquisitions bought the land, the company inherited certain property rights. However, when the VOF obtained the conservation easement prior to the Trumps’ purchase, it also acquired a stake in the property. So, whose rights ought to prevail?

Local attorney James Neale, who formed the League for Preservation of Conservation Easements earlier this year with some adjoining property owners in the wake of the continued debate over the golf course, thinks the VOF has the upper hand.

“Virginia taxpayers bought this easement when the grantor (Kluge) deeded it to the VOF for tax credits,” Neale said. “We all have a tremendous interest in preserving the integrity of that exchange.”

Neale has a point.

Virginia enacted the Open Space Land Act in 1966, which enabled organizations like the VOF, to hold conservation easements. According to VOF attorney Kerry Hutcherson, legislators realized these easements needed to be perpetual to promote the values of land conservation.

“There are very few instances where land that has an easement on it created under the [Open Space Land] Act can be released from that easement,” said Hutcherson. Essentially, the VOF would have to determine through a formal process that land’s conversion or diversion from open space use was absolutely necessary for the public welfare.

In addition to having to argue that golf courses align with conservation values, the Trumps must also convince Albemarle County officials that the development and maintenance of a luxury golf course is one of the VOF’s accepted commercial activities, no amount of alleged environmental and economic goodwill or Trump-esque bravado should save the project.

In terms of the process moving forward, the Board of Supervisors would have to issue a Special Use Permit to allow the golf course construction after weighing the impact of the proposed use on surrounding properties. The Planning Commission will hold a public hearing in mid-December before the Board makes a final decision on the Trumps’ proposal.

But never count the Trumps out, regardless of the odds. They encountered similar protest when they chose to build a golf course on the ecologically-sensitive shores of Aberdeenshire in Scotland. The 4,000-year-old coastal sand dunes known as Foveran Links were designated a Site of Special Scientific Interest (SSSI) by the United Kingdom to preserve their natural state. SSSIs can be terminated for compelling national economic reasons, but critics of the course argued that the potential economic value of the golf resort did not outweigh the environmental costs. The Scottish government approved the construction and the course officially opened in 2012.

LAW STAR

James F. Neale, Partner at McGuireWoods

What types of law do you practice?

Nominally, I am a “products liability” defense attorney, and I spend a significant amount of time advising and defending clients in the food industry. But the reality of a smaller town practice (and one of the things I enjoy most about being a lawyer here) is the variety of work you get to do. The last three cases I’ve tried have been a tax credit land valuation case, an insurance coverage dispute, and a tractor-trailer accident and personal injury case. If it goes to court, I’ll try to do it. I don’t think I’d enjoy doing the same thing every day.

What is one case you have worked on that is particularly meaningful to you? 

I worked for a lawyer and for a client who let me handle a jury trial just a few months out of law school. We had a hung jury. I lost it on retrial. I got to appeal the case, and argued before the Supreme Court of Virginia. My client won on appeal. They were very generous to let me have those responsibilities as a pretty young lawyer when I really had no business at all doing any of that.

What is one takeaway you would like to give to the community concerning the golf course and land easement issue?

Virginia taxpayers purchased this easement to preserve and protect some of the most scenic rural land that there is. The Virginia Outdoors Foundation is a steward, holding the easement for the benefit of us all and with the duty to preserve that property forever. I know that’s an obligation the VOF takes very seriously, and I hope that everyone who considers this issue will appreciate the importance of the obligation to preserve and to protect those things that make this area such a great place to live and work.

Eric Trump wants to turn the old Kluge property into a world-class golf course, but a conservation easement may prohibit—or at least delay—construction.—Ron Cooper