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Virginia Outdoors Foundation, Herring sue over Albemarle conservation easement

The Virginia Outdoors Foundation and state Attorney General Mark Herring are suing an Albemarle County couple over alleged conservation easement violations.

According to the complaint, the VOF alleges that a property owner along U.S. 29 in the Red Hill area built a house that exceeds easement restrictions on dwelling size by nearly three times.

The foundation is seeking a temporary injunction to prevent further construction activities on the property and permanent relief “to restore the property to a condition that complies with the easement.”

According to the complaint filed earlier this month, the foundation holds an open-space easement on approximately 522 acres near the intersection of U.S. 29 and Red Hill Road that has since been subdivided into three parcels that have different owners. Under the terms of the easement, only four houses can be built on the total property and two cannot exceed 3,000 square feet of above-ground enclosed living area.

A conservation easement is a permanent agreement between a landowner and a conservation organization, or an easement holder, that allows the landowner to retain ownership of the land but places certain expectations on how the land will be managed.

When reached by phone Thursday, property owner Rebecca Schultz and her fiancé, Ryan Darrow, said they needed to check with their attorney before commenting.

In 2018, Schultz purchased one of the parcels that is partially under the VOF easement and, according to the complaint, had knowledge of the easement and the dwelling size restrictions. About 62 of the 145.8 acres are under the foundation’s easement, while the remainder of the property is under a historic preservation easement.

The complaint said Schultz’s property, according to an agreement, can have one of the two 3,000-square-foot homes and alleges that she ignored those requirements and built a home that “greatly exceeds” the size restrictions, at more than 8,700 square feet of livable area.

“When someone buys land that is under an easement, they generally know that there are terms, conditions and restrictions to owning that property and building on it,” Herring said in a news release. “This landowner allegedly completely ignored the terms of the easement put on their land and built a house that greatly exceeded the dwelling size limits. In Virginia, we pride ourselves on protecting our land and keeping it beautiful for generations, and those who choose to disregard those protections and violate an agreement should be held accountable.”

The VOF was created by the General Assembly in 1966 and is a public body and state agency. The foundation holds conservation easements on about 70,000 acres in Albemarle, according to a 2019 document, and on more than 850,000 acres across the state.

The complaint said before and after Schultz’s purchase of the property in 2018, VOF explained to her the restrictions that the easement imposed, including that a finished, walkout basement, with door and window access to the outside, would be included in calculating dwelling size.

VOF “explained that it could not approve any dwelling larger than 3,000 square feet because the dwellings on the other parcels under the easement had been allocated at their maximum individual size and the only building envelope designated for a new dwelling larger than 3,000 square feet of livable area was not located on the Schultz property,” according to the complaint.

In October 2019, VOF determined that Schultz’s building plans complied with the terms of the easement, premised on “a house with 2,902 square feet of above-ground enclosed living area on the main level; a partially exposed unfinished basement level labeled as a ‘storage/workshop/utility space’; and a two-story detached garage connected to the new dwelling by an open-air breezeway,” the complaint said.

After a zoning violation in December 2019 for a “farm building” on the Schultz property that was to be “used for agricultural purposes only and had no residential purpose” actually included “a kitchen, bathroom, and rooms for sleeping and gathering,” VOF revoked and reinstated approvals multiple times, according to the complaint.

Ultimately, in March 2021, VOF again revoked its approval of the building plan after a report from the Albemarle’s assessor’s office showed that Schultz’s proposed house would have a finished living area of 3,904 square feet, excluding the basement and the garage, “a figure far in excess of the one provided in the building plans and the Albemarle County building permit application.”

An April, in-person inspection “confirmed multiple violations of the easement and the terms explicitly identified,” as the house was larger than the 3,000-square-foot cap; “the as-constructed basement contained significant areas of finished living space — including multiple bedrooms, multiple bathrooms, and living areas — in violation of Schultz’s and the building plans’ representations that the basement would be unfinished;” and “the garage, now connected by an enclosed breezeway (not an open-air breezeway as represented in the proposed plans), contained previously unreported living space, including multiple bedrooms, a kitchen, and one or more bathrooms,” the complaint said.

In June, Albemarle officials asked the builder to resubmit an application after a site visit showed finished space in the garage not included in the original plans, and totaled what “looks like” eight bedrooms, six full bathrooms and two half-bathrooms, according to county building permit information.

A new application was submitted in July for a house with 8,702 square feet of “habitable space” and 3,724 square feet of “unfinished” square footage, which is currently listed as “under review.”

“Unless enjoined by the court, Schultz will continue her unauthorized activities in violation of the easement and worsen the harm she has already caused,” the foundation said in its filing. “VOF has no adequate remedy at law for Schultz’s violations. A temporary injunction is warranted based on the equities of this case and the strong public interest in upholding the terms and protective purpose of conservation easements.”


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