Conservation and Preservation Easements Act
In June 1995, West Virginia enacted the Conservation and Preservation Easements Act by amending Chapter 20 of the West Virginia Code through the addition of Article 12. Through this Conservation and Preservation Easements Act, the West Virginia Legislature recognized the importance and significant public benefit of conservation and preservation easements in its ongoing efforts to protect the natural, historic, agricultural, open-space and scenic resources of the state. This enabling legislation was required to allow perpetual conservation and preservation easements to be created within the state. Currently, all fifty states have enacted conservation and preservation easement enabling statutes.
Within the Conservation and Preservation Easements Act, conservation and preservation easements are defined, and the basics are outlined as to how easements are to be created and the various rights and duties concerning the easement. The Voluntary Farmland Protection Act first incorporates the concepts created under this Conservation and Preservation Easements Act, and then expands upon them to allow the creation of the state and county Voluntary Farmland Protection Programs.
Voluntary Farmland Protection Act
On March 10, 2000 , the West Virginia Legislature unanimously passed into law WV Code § 8-24-72 through § 8-24-84 (2000) and later revised to WV Code § 8A-12-1 through §8A-12-20, known as the Voluntary Farmland Protection Act. The Act went into effect on June 8, 2000 and amended a 1982 statute of similar code location that once allowed the creation of Farmland Preservation Committees.
Through this Act, the legislature declares that agriculture is a unique “life support” industry and that a need exists to assist those agricultural areas of the state which are experiencing the irreversible loss of agricultural land. The Act further authorized the creation of county Farmland Protection Board(s) and Farmland Protection Program(s) and creation of the West Virginia Agricultural Land Protection Authority; detailed the contents and requirements of the Farmland Protection Program(s); outlined the powers and duties of the Farmland Protection Boards and the Authority; detailed the methods of farmland protection; detailed the value of a conservation easements; outlined the criteria for acquisition of easements; outlined the use of land after a conservation easement is acquired; outlined potential funding for the Farmland Protection Program(s); and authorized the Commissioner of Agriculture to promulgate rules.
On March 9, 2002 , the West Virginia Legislature modified the Voluntary Farmland Protection Act to allow each county with a Farmland Protection Program to provide funding for such Program through a real estate transfer tax. The County Commission of each eligible county may enact an additional tax on the privilege of transferring real estate to be used solely to fund the county’s Farmland Protection Program. The maximum rate allowable is $1.10 per $500 ($2.20 per $1,000) or fraction thereof of the real estate transfer value. These monies must be used exclusively for the purpose of funding farmland preservation (WV Code §8A-12-21).
Post Mortem Act
On April 8, 2006, the West Virginia Legislature passed a post mortem act, titled ‘Authority of personal representative concerning conservation and preservation easement.’ Through this Act, the Legislature clarified the ability of a personal representative, trustee or executor to sell, donate or amend a conservation easement in order to obtain a federal estate tax exclusion; or take such steps as are necessary to execute a deed or complete a deed of conservation or preservation easement which was initiated, but not completed prior to a decedent’s death. The Act was updated in 2020 to clarify that the personal representative, trustee or executor is empowered to act when authorized by the will; agreed to by all beneficiaries to the will; or order by a court of law
The sale or donation must comply with the Conservation and Preservation Easements Act and must be made to a qualified conservation organization (farmland protection board, State Authority or qualified land trust).
In addition, the sale or donation must meet one of he following conditions:
- All heirs, beneficiaries, and devisees must provide written consent; OR
- The will directs that an easement be sold or donated; OR
- The decedent has a current application for sale or donation of an easement in the process of settlement.