Relocation of easements isn’t unwarranted hardship

A Circuit Court correctly decided that relocating two easements would not result in loss or injury to any real or potential economic benefits and would not cause excessive or unwarranted hardship or adversity to affected landowners, the Court of Appeals of Virginia has held.

Following unsuccessful negotiations with affected landowners, a residential real estate developer petitioned to relocate the access easements under Virginia Code § 55.1-304. The Circuit Court ruled in favor of the developer.

Judge Richard Y. AtLee Jr. found no error in the Circuit Court’s conclusion that “some level of hardship is permitted given that ‘undue’ qualifies ‘hardship’ and cannot be ignored when interpreting the statute.”

“The relocated easements and roads would likely improve the development potential of appellants’ property, and the relocation does not limit or inhibit appellants’ use of their own property,” the judge said.

Joined by Chief Judge Marla Graff Decker and Judge David Bernhard, AtLee affirmed the holding in Smith v. Allen Creek Associates LLC (VLW 025-7-221).

No prior analysis

The developer’s attorney, Stephen Strosnider of Franklin, Denney Ward & Strosnider in Waynesboro, said there was no reported case law analyzing the meaning of economic damages or undue hardship in § 55.1-304.

“A servient owner who seeks to relocate an easement essentially needs to prove a negative — the absence of those two elements,” Strosnider explained. “No Virginia courts have identified how a servient owner might carry that burden and what factors a court would consider.”

“As far as I know, this is the first case in Virginia in which a servient owner has successfully used § 55.1-304 to relocate an easement across its property,” he said.

Having worked on the development for more than four years, Strosnider felt that his client’s good faith efforts were reflected in the Court of Appeals’ statement that relocating the easements would likely improve the development potential of the affected properties.

Asked about the defendants’ claim that there was no justiciable controversy here, Strosnider said “it was not convincing to argue that the lack of a permit means that a statutory cause of action was unavailable — especially when the appellants prevented the permit from being issued.”

Failed negotiations

Allen Creek Associates LLC, or ACA, wanted to develop a parcel of land it owns near Route 151 in Nelson County into a residential community. As part of its plans, ACA sought to relocate two easements on the property: the Allen Creek right of way, or ROW, and the Eastern ROW.

These easements provide access to Route 151 for agricultural properties owned by Darlene and William Smith and Maxine Small. Despite nearly a year trying to negotiate relocation of the two easements, the parties failed to reach an agreement.

ACA then petitioned the Circuit Court to relocate the easements pursuant to Code § 55.1-304. At trial, ACA’s civil engineer testified that the Virginia Department of Transportation would not approve its site plan without a shared entrance agreement with the defendants.

The Circuit Court granted ACA’s petition to relocate both easements, finding that it would not cause either economic damage or undue harm to the defendants. The appeal followed.

Justiciable controversy

The panel disagreed that there was no justiciable controversy ripe for adjudication, that the petition was based only on future or speculative facts rather than present facts, or that the Circuit Court rendered a judgment that significantly altered the appellants’ property rights.

ACA petitioned under § 55.1-304, which permits relocation of the easement by written agreement of the parties. “In the absence of such an agreement, the statute expressly permits the servient landowner to petition the Circuit Court to relocate the easement,” AtLee said.

“Nothing in the statute requires any governmental approvals or other prerequisite prior to petitioning the Circuit Court for relocation,” the judge pointed out. “Beyond the lack of statutory requirements, the evidence established that the controversy involved present facts rather than future or speculative facts.”

Here, ACA developed a site plan leaving the easements largely in their original positions but needed a shared entrance agreement for state and county approval.

“Based on ACA’s evidence, the only thing stopping ACA from proceeding was appellants’ refusal to enter a shared entry agreement,” AtLee said. “ACA’s only alternative was to proceed with the petition to relocate the easement.”

Accordingly, the panel found that ACA established actual adverse claims based on present, rather than future or speculative facts.

Properly applied

The panel was satisfied that the Circuit Court properly interpreted and applied Code § 55.1-304 to find that relocation of the easements would not result in loss or injury to any real or potential economic benefits and would not cause excessive or unwarranted hardship or adversity.

There was no dispute that the easements had existed for more than ten years, as required by statute. Whereas the statute did not define economic damage or undue hardship, the panel gave those terms their ordinary meaning in light of the context in which they were used.

“Thus, to prevail under this prong of Code § 55.1-304, ACA had to prove that relocating the easement would not cause appellants economic loss or injury,” AtLee wrote. The record supported a finding that the relocation of the easements would not cause economic damage.

“Appellants do not point to any evidence in the record showing that they would be unable to continue their farming operations or conduct new agricultural uses (including agrotourism) if the easements are relocated,” he said. “Nor do they present any evidence of possible cost to them.”

Rather, the evidence established both that the appellants would be able to conduct the same agricultural activities, as well as how ACA designed its site plan with appellants’ agricultural equipment in mind.

“Appellants’ argument that the relocation of the easement would hamper their ability to develop the property in the future is speculative,” AtLee found. “Appellants had no fixed plan on how they wanted to develop the property, listing multiple ideas (such as a brewery, corn maze, or pumpkin patch), but the only consistent evidence was that it would be a ‘farming activity.’”

ACA also presented evidence that the current easements were insufficient for intensive development or subdivision of either of the appellants’ properties. The Allen Creek ROW had been narrowed from 30 feet to 18 feet by erosion.

“Moreover, the roadway through that easement was unsafe for potential commercial use, as there was only one foot between the edge of the road and the bank of Allen Creek, and the bank was four to six feet tall,” the judge pointed out.

No hardship

Lacking a statutory definition of undue hardship. AtLee understood hardship to mean privation, suffering or adversity.

“‘Undue’ modifies ‘hardship’ in the statute and is defined as ‘excessive or unwarranted,’” the judge said. “Undue hardship then means an excessive or unwarranted privation or adversity.”

Here, the Circuit Court correctly concluded that some level of hardship was permitted under the statute.

“But we need not determine the exact level of hardship permissible under the statute, as the evidence, viewed in the light most favorable to ACA, shows that the relocation of the easement would cause no undue harm, and even some benefit, to appellants,” AtLee wrote.

The panel rejected the appellants’ argument related to their use of the land for agricultural purposes and their ability to get agricultural equipment across the right of way onto their properties.

“ACA presented evidence that the site plan was developed with appellants’ agricultural equipment in mind,” AtLee found, adding that “by design, appellant’s farm equipment should not have to encroach into the opposite lane of the road to complete turns.”

Should the road be obstructed, AtLee said the agricultural equipment could use the other lane of the road. “Thus, the evidence does not establish that there would be any hardship, let alone undue hardship, to appellants,” he held.

ACA’s proposed plan also included separate turn lanes for the new roadway, which established that the proposed easement locations would not cause hardship to the appellants and would be safer.

Finally, AtLee found that no taking occurred here because “ACA’s evidence established that appellants’ agricultural equipment could still access the property through the relocated easements, which were specifically designed to accommodate the equipment.”