Historic Preservation Easement Challenged in US and Virginia Courts

Congressmen Acknowledge Continuing Pattern of Park Service Abuse in Historic Districts

By L.M. Schwartz

One of the most significant and unusual Property Rights cases of the last several decades is now before US and Virginia courts. Peter F. Blackman, who three years ago purchased Eastern View Farm in Louisa County, is contesting the validity of a purported historic preservation/conservation easement held by the US National Park Service (NPS). The NPS has, so far, stood in the way of Blackman’s efforts to repair, maintain and restore an 1850s farmhouse suffering from decades of neglect and abuse even though the terms of the easement required the house would “be maintained and preserved...”

Peter Blackman’s farmhouse shortly before beginning repairs of structural and exterior damage. Even to the untrained eye, evidence of serious deterioration can be seen from a distance. Below: rotting sills and studs due to chronic water seepage around windows; ineffective structural repairs and poor maintenance by prior owners.

The easement was conveyed in 1973 by one of Blackman’s predecessors to a local preservation organization, Historic Green Springs Incorporated (HGSI), a non-profit Virginia corporation. The alleged purpose of the easement was to preserve what historic preservationists have described as a “historic farm” and its “manor home” lying within the 14,000 acre Green Springs Historic District. In 1978, HGSI assigned Mr. Blackman’s easement, along with many other easements in the District, covering about 7000 acres, to the United States. The NPS claims authority to administer and enforce the terms of the purported easements it holds in the District. The terms vary substantially from one property to another, and some terms in the Blackman easement are vague and even contradictory.

The outcome of United States v. Blackman, filed in June, 2004, in the US District Court for the Western District of Virginia, Charlottesville, may hinge on questions involving validity of the purported historic preservation easement; whether a negative easement in gross was cognizable under Common Law in Virginia in 1973; whether the purported easement could be lawfully conveyed to and accepted by the NPS; and whether the NPS claims of enforcement authority are barred by estoppel, waiver, acquiescence, abandonment and by breach of the easement’s terms.

On October 21^st, 2004, in an unusual Order on his own Motion, Judge Norman K. Moon of the US District Court certified certain questions pertaining to the Common Law to the Virginia Supreme Court. Oral arguments were heard in Richmond on April 20^th, 2005. It is possible the Virginia Court will answer the US District Court’s questions by the end of its current term in June.

The main issues in this civil action are narrow in the sense they pertain to 1973 historic preservation easements, held by a private entity, which encumbered property prior to the 1988 statutory recognition of negative easements in gross in Virginia. The implications of the courts’ decisions for holders of similar conservation servitudes, and for property owners burdened by them, may be of broader consequence, not only in Virginia, but nationwide. Although not binding in other jurisdictions, if a ruling by the Virginia Court favors Mr. Blackman and leads to the US District Court vacating the easement, it would, as far as this writer is able to determine, be the first time anywhere in the United States such an easement was nullified by any court. The result could not only influence the decisions of other courts, but it would be highly symbolic considering the Brief Amici supporting the NPS was filed by HGSI, the Association for the Preservation of Virginia Antiquities, The Chesapeake Bay Foundation, the Historic Richmond Foundation, the National Trust for Historic Preservation, The Nature Conservancy, the Piedmont Environmental Council and The Waterford Foundation.

In addition to a civil action, the National Park Service filed a criminal complaint against Mr. Blackman on the theory he broke an arguably ambiguous preliminary injunction against “renovation” of his home. It seems HGSI and the NPS construed Blackman’s performance of necessary repairs and emergency maintenance as “renovation.” Blackman, in a letter to the Subcommittee on National Parks, indicated the NPS actions have, at the very least, involved bad faith.

To others, the NPS criminal complaint stacked atop the civil action appears to fit a long-running and well-documented pattern of vindictive retaliation against property owners who do not bow to the exact dictates of the NPS bureaucracy, or who are not favored by members of the local preservation elite.

The federal magistrate properly threw out the NPS information for criminal contempt on Blackman’s motion to quash because Rule 42 of the Federal Rules of Criminal Procedure first requires a judge’s order to show cause or an arrest order, a requirement the NPS arrogantly ignored. NPS is trying to pursue a criminal charge. In an affidavit file with the Court, Blackman asserted everything he did was allowed under the injunction and thus he did not violate it.

Background

The circumstances leading up to the Blackman controversy are complicated by nearly 35 years of litigation involving a host of players and what has been termed “chaotic mismanagement” by the Department of Interior/NPS in Louisa County’s 14,000 acre Green Springs Historic District. The history of the formation of the District is entwined with and complicated by the proposed siting of a state prison, by vermiculite mining disputes, housing development and by what many have stated are the efforts of a group of environmentalist and preservationist “come-here NIMBYs” to run roughshod over the Property Rights of local landowners and businesses, and to undermine the decisions and authority of the Louisa County Board of Supervisors.

On the other side is HGSI, led by local attorney Rea Ely (right), described as the “Ladies of Green Springs…widows and ‘maiden ladies’…silver-haired Southern belles who have fought for 30 years to save their historic land.” A relative newcomer to the District and a native of Florida, Ely and her husband found their ‘dream farm’ there about 37 years ago. Others are not so complimentary, including one Virginia official who is said to have described her as one of the “wackos and crazies and part of a fringe element.”

Litigation to stop development in the District has cost millions, and according to one account, Ely admits for the total value of what has been spent, including legal services donated, “we could have bought and sold this whole area three times over.”

Some of the key parties in past legal controversies were HGSI, Virginia Vermiculite, Ltd., W. R. Grace Co., Inc., the Virginia Historic Landmarks Commission, Secretary of Agriculture Bob Bergland, the Farmers Home Administration, United Virginia Bank, Secretary of the Interior Cecil Andrus, Keeper of the National Register William Murtagh, the Louisa County Board of Supervisors and various owners of land within the District including the Spring Creek Development which proposed 1,200 homes, an 18-hole golf course and business park near the village of Zion’s Crossroads.

Much of the factual history is recited in numerous court documents. For those who are interested, Historic Green Springs v. Bergland, 497 F. Supp. 839 (1980) presents a lengthy and detailed analysis up to 1980. In brief, from the record, the controversies date to 1972, when Virginia proposed construction of a new prison in Louisa County. HGSI organized a successful effort to block the prison and promoted the District’s historical qualities. The result was its recognition as a Virginia Historic Landmark by the Virginia Historic Landmarks Commission. The Commission, in 1973, nominated the District to the National Register. The Department of the Interior (DOI) approved the nomination and listed the District on the National Register. The listing was later found to be defective for lack of adequate notice to the affected landowners.

HGSI also acquired “preservation easements” over approximately half of the land in the District which prohibited new industrial and commercial development, and in some instances limited construction of, to and around structures, and required proper maintenance of historic buildings.

In 1974, DOI considered designating the District a National Historic Landmark. The Advisory Board on National Parks, Historic Sites, Buildings and Monuments presented a report which noted very few historical events and persons associated with the District, but discussed the characteristics of the “manor houses” and outbuildings said to “constitute a textbook of Virginia architecture up to the period following the Civil War.” Based upon this widely questioned report, the Secretary of Interior designated the District a National Historic Landmark in 1974.

HGSI had previously offered the easements it held to DOI and in 1974 renewed its offer, but DOI made it clear the easements would be accepted only as part of a national easements program. Although funding for a national easements program was ultimately denied, DOI proceeded to consider acceptance of the easements and prepared an evaluation report, submitted in 1976, which noted many flaws in the terms and extent of the easements, such as failure to grant public use and access, and failure to prohibit in all cases subdivision and development of the land.

In spite of this, Secretary of the Interior Ronald Coleman recommended a quick acceptance of the easements without the benefit of an environmental impact statement pursuant to the National Environmental Policy Act (NEPA), or of the promulgation of regulations to govern easement acceptance. In the Federal Register, March 18^th, 1977, DOI announced the proposed acceptance of the Green Springs easements. The announcement gave notice of a public hearing to be held on April 22^nd in Louisa.

On May 18^th, 1977, the DOI published another notice in the Federal Register announcing its procedure for acceptance of the easements which included departmental review and preparation of an environmental assessment of the proposal. The notice stated that preparation of the departmental study as well as of the environmental assessment had been accomplished, and further, a public hearing had been held in connection with that assessment. Preparation of the environmental assessment had not in fact been completed.

When finally issued on June 8^th, the environmental assessment of the easements proposal noted acceptance of the easements would impede state, local, and industrial development in the District in several ways, but the DOI issued a negative declaration, stating acceptance of the easements was not a major federal action having a significant impact on the environment. Due to protests of Green Springs landowners and the pending litigation, additional public hearings ensued to reconsider the District’s listing on the National Register as a state nomination as well as the District’s designation as a National Historic Landmark; and to “determine anew, without any presumptions based on prior actions,” the issues concerning the District, but the reconsideration process would not entail resubmission of the District's landmark status to the DOI Advisory Board. A transcript of the July 27^th hearing revealed great confusion existed about the scope of the hearing, about the action being proposed by DOI officials at the hearing, and that DOI did not, for the most part, respond to the public’s questions.

Inter-departmental memoranda of November and December, 1977, showed DOI had recognized the state nomination of the District to the National Register was defective and that it had been removed from such a listing. Then, on December 13^th, 1977, the Secretary of the Interior decided to redesignate the District as a National Historic Landmark on his own authority, and to accept HGSI’s preservation easements. The District’s designation as a National Historic Landmark automatically placed it back on the National Register.

The DOI actions were attacked in court on numerous grounds. The Court decided, inter alia, the designation of the District as a National Historic Landmark and its placement on the National Register of Historic Places “are hereby set aside as violative of plaintiffs’ due process rights under the Fifth Amendment…and of the Administrative Procedure Act…The acceptance of the preservation easements over the District…is hereby set aside due to the defective landmark designation…The Secretary shall remove the District from the National Register and any list of National Historic Landmarks…”

Most interesting were Judge Robert Merhige’s comments:

The Court admittedly is troubled, however, by the [DOI] assertion that a “district” the size of Manhattan can be a historic “site,” in spite of the absence of any significant commemorative event or historical person associated with it… One structure in the District was said to have been used briefly as a hospital during the Civil War. Some of the first of McCormick’s reapers were said to have been used to harvest crops in the District—a slim basis indeed for the Secretary’s conclusion.

Then, just when property owners and the Louisa Board of Supervisors thought they had prevailed, and life in their little portion of rural America would return to some semblance of normalcy, the US Congress intervened. Without notice, without hearings, Green Springs Historic District was put back on the National Landmarks list in December, 1980. It was, stripped of political doubletalk, a secretive vote born of raw power, arrogance and disdain for local government authority and landowners by a lame duck Congress. The rationale: if the decision of Judge Merhige stood, all the other defective NPS designations could be undermined. Numerous questions go begging.

After this ‘below the belt’ blow, Congress proceeded to kick Louisa County in the teeth while it was down by declaring no future Historic District could be designated without a favorable majority vote by the property owners, but even that ‘concession’ was a lie. Even if property owners in a proposed district voted to keep the land off the Landmarks Register, the land would still be considered “eligible” by the NPS and, according to the authors of US vs. NPS, “thus still subject to the same curtailment of property rights—the same bureaucratic purgatory.”

Eastern View Farm

Blackman’s farm lies midway between Richmond and Charlottesville, within the District, an irregular oval of rolling hills, farmland and “old plantations.” The history of Green Springs began with a “big hiccup,” according to Rae Ely, 200 million years ago when a volcanic intrusion squeezed molten rock toward the surface. Erosion created a shallow, saucer-shaped depression 5 miles by 7 miles wide filled with iron-rich soil where wheat and tobacco grew “almost as wildly as dandelions.” While the national significance of the District’s historic qualities is questionable, the rich earth of this rural area has a number of eighteenth and nineteenth century buildings of architectural merit. Most of its land is used for agriculture, although commercial development has found its place.

When Peter Blackman purchased the farm in 2002, he faced the daunting task of repair and restoration work on a home suffering from long neglect, weather and storm damage, structural deterioration, and toxic mold growth on interior walls.

Electrical wiring, plumbing and heating systems were inadequate and unsafe. Prior to beginning repairs, winter heating costs ran $1000/month, and even then some rooms were too cold to be livable and water pipes froze and burst. Not only does he plan to architecturally restore the home to reflect its former beauty and character, inside and out, but he also desires a comfortable home with modern conveniences.

Peter Blackman is a graduate of Yale, Columbia Law School and the Wharton School of Business. He has worked as an attorney with Lazard, an international financial advisory and asset management firm, as a legal/business journalist and as an editor of the New York Law Journal. He is comfortable with three languages, German Italian, and French, and is currently finishing a book on antique wood carvings. In addition, Blackman is no stranger to historic preservation, having already successfully taken on the historic restoration of an old city apartment building.

He explained, “I believe in preservation too; that is why I bought my property; that is why I wish to restore the house. The government is using the guise of preservation to obstruct real preservation, quite notoriously. Further, conservation easements do not preserve. They are at best a legal instrument that is meant to be conducive to preserving. With a conservation easement, a property owner might get away with actions that are detrimental to preservation. Without an easement, a property owner might do things that serve preservation wonderfully. The property owner, in general, is the one with the greatest interest to do right by a property, after all. That is the economic underpinning of our system of property rights.”

In an April 21^st, 2005, US House of Representatives Parks Subcommittee Hearing considering amendments to the Historic Preservation Act of 1966, Subcommittee Chairman Devin Nunes commented, “However, there is a disturbing trend of abuse that has emerged, especially in the last decade. The Act has increasingly been used to trample the rights of property owners.” He indicated the historic preservation act is being used as a legal tactic to stop development in communities.

Blackman testified at the Subcommittee hearing, “The National Park Service and others will use the National Register as a bludgeon against the property owner and trample his property rights if they can. To them, your property, once listed, is just a resource. To them, it is not a home.”

House Resources Committee Chairman Richard W. Pombo stated, “Congress recognized many years ago the importance of preserving our nation’s historic places and landmarks. However, in our attempts to preserve these places, it is important to remember one of the most important foundations of our great nation, and that is an individual’s right to private property.”

The Parks Subcommittee Hearing has generated anguished cries throughout the preservationist community. Within the current framework of Congressional investigations into conservation easements and hearings about tax-exempt ‘non-profit’ land trusts, the preservationists have good reason to tremble about their nationwide empire of land acquisition and control over private land, most of it built upon the backs of the American taxpayer. Recent exposes by major newspapers such as The Washington Post, have detailed lack of financial oversight and transparency, misuse of grant funds, fraudulent tax credits, questionable practices by tax-exempt organizations involving charitable donations of easements, blatant use of funding to lobby and participate in political campaigns, favoritism for land trust executives, inflated property appraisals, and other serious problems. The nonpartisan Joint Committee on Taxation found many of the benefits flowed primarily to the wealthy and often went to insiders charged with policing the restrictions imposed by the easements. Senator Charles E. Grassley, Chairman of the US Senate Committee on Finance, is investigating governance problems in the non-profit arena and considering legislative reforms.

Non-profits exempted from taxes because they serve a ‘public purpose’ have become a hotbed of tax evasion and abuse, according to the head of the Internal Revenue Service. “We can see that tax abuse is increasingly present in the sector,” Internal Revenue Commissioner Mark W. Everson said in a letter to the Senate Finance Committee. Chairman Grassley said, “What’s going on isn’t a pretty picture in the harsh light.”

A related problem is the valuation of non-cash assets donated. When such assets are not publicly traded securities, the taxpayer has an incentive to inflate the value. Currently, Everson said, the IRS is auditing 50 donors of conservation easements and several exempt organizations that receive such easements. It is doing a “pre-audit review” of 400 open-space easement donations to be followed by a review of 700 facade easements.

In recent written comments to Congressman Devin Nunes, Chairman, Subcommittee on National Parks, Mr. Blackman stated, “Everything I did fell into the category of repair, indeed emergency repair, and the injunction did not apply to ‘basic maintenance and preservation.’” Blackman further stated in his letter, “The whole pattern of the NPS handling of Eastern View Farm proclaims loudly that there was bad faith, culminating more recently in their attempt to bring a charge of criminal contempt against me without going to the federal judge who is hearing the case, in clear violation of Rule 42 of the Federal Rules of Criminal Procedure.”

While Mr. Blackman (right) has not accused the NPS of malicious retaliation, he was quoted in a Greenwire article, saying, “I am not alone among property owners in the Green Springs Historic District to have suffered these abuses. Reports of similar abuses occurring in other geographic areas with an NPS presence have percolated over the years.”

He further stated in his comments to Congressman Nunes, “The potential for abuse by a local group, one not elected by the affected property owners, is obvious. Is it not to be expected that an insider of such a group might use its derivative power to avenge himself on a neighbor with whom he has a petty difference? Yet the NPS was completely oblivious to my concerns on this matter, not even making a good faith inquiry into the group. All the more galling is that the NPS itself had repeatedly expressed misgivings about HGSI, as I mentioned in my testimony, yet no attempt was ever made by the NPS to correct the problems it had identified, or satisfy itself that they had gone away, before it once again joined forces with what it resumed calling its ‘Partner.’ This is the real scandal: the whole pattern of bad faith shown by the NPS. Often inseparable from this bad faith is incompetence and cover up. Again, it is not so much the wrong I have suffered that should matter to you, but rather, whether such bad faith behavior is a norm with the NPS.”

In a letter from the Hearing Record, sent to the Subcommittee on National Parks, one neighbor, Jo Anne Krahenbill, wrote, “[A]s an owner of a property covered by the National Register, I can confirm that such a listing can be a nightmare. My father, a real farmer, was an organizer of the district and initially supported the notion of conservation easements…He came to rue the day he contributed an easement on his property. Throughout his ownership of the farm, he was hassled and harassed by the Park Service. They told him he could not make any changes on his house, even on the interior, as the condition of the house deteriorated…the current owners have been able to do the very things my father was forbidden from even considering. These current owners are tight with [HGSI], an organization the Park Service seems to always do the bidding of, regardless of right or wrong.”

In another letter to the Subcommittee, Earl W. Poore, Builder, states, “I was involved in the creation of the historic district and the conservation easements…My experience with the National Park Service has been radically different from what they promised us beforehand…it has been a constant battle, for me and others except those who are part of an organization, [HGSI] to whom the Park Service seems to be in cahoots with. This organization is run by a woman who got control…and has since tried to control everything that goes on here like her personal fiefdom.”

And in yet another letter, Mr. D. L. Atkins explains, “First, let me say that I love Green Springs and its beautiful farmland, and I wanted to preserve that for my children and grandchildren…I contributed well over 1,500 acres [into easements] and did not receive any tax credits…nor even the $10 consideration recited in the easement documents. I did not get a single penny for all the substantial property rights I gave up. In return, I have been treated with suspicion and like an adversary…the Park Service led us to believe that our easements would be treated like scenic easements and they would allow us to manage our properties just like we had been doing before…Once the Park Service had actual control of the easements, they changed their tune…If I could do things over, I would never have donated a single conservation easement that could end up under the management of the Park Service, and I would not have allowed the Park Service to act as a wedge in my life. If people knew what I and others have been through, they would run from any property over which the Park service has a say.”

Many observers believe the criminal complaint by the NPS against Mr. Blackman fits a nationwide pattern of malicious abuse, harassment and retaliatory prosecution of private property owners. Illustrative is the recent case of Wrangell St. Elias National Park and Preserve Superintendent Gary Candelaria who left his position under a cloud of controversy after allegations of inholder harassment, illegal road closures, destruction of resources, selective enforcement, and according to Susan Smith, chairman of Residents of the Wrangells, he “…aggressively pursued land acquisitions, buying out private lands and authorizing NPS takeover of lands outside park boundaries…” Alaska Governor Frank Murkowski called for an investigation into NPS actions during the Candelaria administration. Unannounced, armed visits and low-level fly-overs of targeted inholdings, while granting coveted concession permits and favors to NPS supporters in the community were widely reported.

Warnings

Almost 15 years ago, Dr. Leri M. Thomas, (left) of Virginians for Property Rights, edited and produced a seminal manuscript, US vs NPS, which provides many important insights and additional facts about the history of the activities of HGSI and the formation of the Historic Green Springs District. Since that time, she earned her doctorate with graduate work focused on child development and bullying, featuring a case study of how mountain people dealt with bullying by the NPS and the Virginia Department of Game and Inland Fisheries.

US vs NPS, covering a range of topics, including NPS Battlefields and the tragic history of the Shenandoah National Park, is now out of print, but it clearly demonstrates why Historic Districts are breeding grounds for political manipulation, favoritism and conflict; how the rights of landowners are held hostage to the NPS/preservationist cartel is the rule rather than the exception; and how NPS ignored Due Process and fairness in dealing with local citizens and county governments:

The NPS has and is expanding its control over hundreds of thousands of acres in Virginia. Will an elite bureaucratic board be dictating to local governments which land-uses it will allow?...Bill Reilly, former Rockefeller environmentalist, head of the Environmental Protection Agency…calls our rights, “quaint anachronisms”… “Smite the encroachers!” was Reilly’s rallying cry…“the greatest threats to historic properties, natural resources, scenic values, and national parks come not from federal agencies but from private parties doing private things on private lands.” [emphasis in the original manuscript]

Today the NPS has an official policy of seeking the down-zoning of properties, thus requiring owners to sue for [their] property rights…rights which were inherently theirs in the first place.

Meanwhile in Louisa County, the HGSI marches forward as the NPS’s lackey for administration of the easements held by NPS…in 1991 the NPS (at taxpayer expense) deployed a full-time 30-year employee, Mr. Jim Zinck, to Louisa County…Mr. Zinck’s job is to ride herd on the local government and property owners as the arm of “Big Government…”

Ironically, Mr. Zinck supervised the drafting of Green Springs’ blueprint for control when he was superintendent of NPS’s Fredericksburg and Spotsylvania National Military Park. Author of the General Management Plan, under Mr. Zinck, was Alexander (Sandy) Rives, who has since been transferred to Shenandoah National Park…In Rives’ draft (p. 16) is the undoing of the zoning decisions already determined by the Louisa County Board of Supervisors.

There is, of course, much more to the Green Springs story. There are ‘rabbit trails’ leading off the main road, yet to be explored. Many of the details about the roles of the individual actors, on both sides of the issue, are not covered here. The saga of litigation and political intrigue surrounding the Virginia Vermiculite mine, for example, which has helped provide social and economic stability to the area, is a lengthy tale by itself.

The outcome of US v. Blackman will soon be decided in the courts and is by no means predictable. Even though the evidence and the arguments of law set out in court filings clearly appear to be in Mr. Blackman’s favor, political activism and the relativism of ‘situation ethics’ have permeated the thinking of many courts. A victory for Blackman could be a significant setback for the historic preservationist’s power and control ‘trip.’ An appeal would likely be considered.

The political stakes are high and it would be foolish to believe Judge Moon and the justices of the Virginia Supreme Court are unaware of the implications. Even if the decision is in Mr. Blackman’s favor, there is, based on previous events, the possibility of heavy-handed, politically motivated intervention, a legislative act or zoning ordinance changes, pushed through by the ‘land trust’/NPS/HGSI cartel, rendering relief meaningless. One local business owner, involved in years of costly litigation, understated the case when he appraised Mrs. Ely and her allies as “tenacious.” There is no reason to believe their ‘preservationist’ mind-sets will change or their efforts to exercise their power will cease.

Today, Peter Blackman stands before the Courts of Justice and the Court of Public Opinion representing the vast majority of Virginia’s land owners. He has, almost alone and unknown, taken a principled stand on behalf of Rights in Private Property, a victim of the same abusive structure of arrogance, greed and lust for power the contributors to US vs. NPS and many others have so cogently documented over the years.

Whatever the outcome of US v. Blackman, it will serve as a warning sign. Unless we reaffirm the lessons our Founders pleaded we not forget about true historic preservation, the preservation of Unalienable Rights in Life, Liberty and Property, we will one day find ourselves in Peter Blackman’s shoes.

“There is an evil which ought to be guarded against in the indefinite accumulation of property from the capacity of holding it in perpetuity…The growing wealth acquired by them never fails to be a source of abuses.”—James Madison