The Voluntary Farmland Protection Act

Effective June 8, 2000, West Virginia enacted the Voluntary Farmland Protection Act. The Act establishes a two-tier system to allow landowners to voluntarily protect their farmland. A state entity, the West Virginia Agricultural Land Protection Authority was established as an independent board under the Department of Agriculture to accept conservation easements from landowners. In addition, the Act allows the County Commission of each county to establish a county Farmland Protection Board to develop a local protection program and to hold easements. A conservation easement offer can be made to your local Farmland Protection Board, or if a funded board does not exist in your county, to the West Virginia Agricultural Land Protection Authority.

Selling or Donating a Conservation Easement

A landowner may donate or offer for sale a conservation easement on all or a portion of their property. A conservation easement is a legal agreement a landowner voluntarily places on their property in order to protect it from future development and to protect its natural resources. The landowner still owns the property, holds title to the property, and has the right to sell, give or transfer the property. The conservation easement is perpetual. It is recorded with the deed so that all future owners must honor the conservation protections afforded to the property.

Under the Act, the landowner may offer by written application to the West Virginia Agricultural Land Protection Authority or their county Board to sell or donate a conservation easement on all or a portion of their property. This application must include an asking price, if any; and a complete description of the land including any secured debt or liens on the property. The land must meet the criteria established under the Act in order to be accepted into the program. In addition, any offer to sell rather than donate must compete with other land offers made to the state or county program, and is subject to the availability of funds.

The easement may be held or co-held with any 501(c)3 charitable corporation that functions as a land trust. This is a common practice in many other states because it provides additional protections and benefits to the landowner.

Criteria for Ranking the Acquisition of Easements

Each of the county programs and the state program will design their own ranking system based on the following criteria:

  •  The imminence of residential, commercial or industrial development
  • The total acreage offered for conservation easement
  • The presence of prime farmland, unique farmland or farmland of statewide importance, other locally significant farmlands and the productive capacity of acreage
  • Whether the property offered is adjoining or related to working farms
  • The ratio of the asking price, if any, of the easement to the fair market value of the easement
  • The historical, architectural, archeological, cultural, recreational, natural, scenic, source water protection or unique value of the easement
  • The existence and amount of secured debt upon the property, and whether the total exceeds the agricultural value of the land as determined by the appraisal

Value of Conservation Easement

The maximum value of a conservation easement acquired by the state Authority or the county Board is the larger of (1) the asking price or (2) the difference between the fair market value of the land and the agricultural value of the land, whichever is lower. The fair market value of the land is the value a willing buyer would pay for the land without the conservation restrictions. The agricultural value is the value of the land with the conservation restrictions.

The county or state will obtain independent appraisals to determine these values.

Permitted Uses of Land

Property subject to a conservation easement under the program may continue to be used for the following purposes:

  •  Any farm use
  • Businesses directly related to the retail sale of farm products
  • Any activity performed for religious, charitable or educational purposes or to foster tourism
  • Any home-based business that does not require a Division of Environmental Protection permit to operate

The Act also provides a more general understanding that any use of land under a conservation easement must be consistent with the purpose of the farmland protection program.

The landowner may exclude two acres for each residential dwelling which exists at the time of the easement. The landowner must agree not to subdivide this two acres in the future. If the landowner wishes to retain the right to construct additional residences in the future on a portion of the property, that portion of the property will need to be excluded from the easement offer.

The landowner MAY NOT develop the land for any commercial, industrial, residential or other nonfarm purpose. Nonresidential, noncommercial, nonindustrial farm support buildings or structures are permitted.

Definition of Farmland

Farmland is defined as a tract, or contiguous tracts of land, of any size, used or USABLE for agriculture, horticulture or grazing and includes all real property designed as wetland that are part of the property tract. Woodland is considered land of a farm only if it is part of or appurtenant to a tract of land which is a farm, or is held by common ownership of a person or entity owning a farm. In no event, however, may woodland include land used primarily in commercial forestry or the growing of timber for commercial purposes or any other use inconsistent with farm use.

Tax Classification of Land Subject to a Conservation Easement

Any property held or coheld by a holder under a conservation easement, regardless of ownership, shall be taxed as “agricultural lands” for property tax purposes without further requirement, restriction or disqualification.