“Trump-ed” Up Golf Course Threatens Easement
In its recent letter to county planners, Virginia Outdoors Foundation (VOF) stated that it seriously doubted that the easement terms could accommodate the golf course planned by Donald Trump. However, the letter invited Trump to provide more information.
In 2011, Donald Trump bought the estate of Patricia Kluge. The estate, which Trump purchased in multiple transactions, was in foreclosure and sold for a fraction of its original listing price. Virginia Outdoors Foundation holds a conservation easement on the estate, which was granted by Ms. Kluge in 2006. At the time the easement was donated, the property was a vineyard with scant traces of an overgrown private, non-commercial, 9-hole golf course on it. The owner had abandoned the golf course and removed the artificial grading and contours. The easement contained no reservation for the use of the golf course. To the contrary, the easement documentation directly specified that there was to be “no more golf” on the property.
Trump’s attorney stated in 2011 that, according to his interpretation of the easement, Trump had an “absolute right” to build a commercial golf course on the property. VOF disagreed. In its response letter, VOF pointed this out, saying, “For a number of years, it has been the VOF’s policy to not take easements on properties that would be used for a commercial golf course. This is in keeping with the general view that such a use would not have the conservation values required under Section 170(h) of the Internal Revenue Code for the gift of such an easement to be tax deductible.”
Local planning officials, VOF, Piedmont Environmental Council, local residents, and the newly formed Virginia League of Conservation Easements are all concerned about the environmental impacts of the changed use and the potential increase in traffic if the planned golf course is built. Trump’s 18-hole golf course on other land in Loudon County, Virginia recently hosted the junior PGA championship tournament. While vying to host the tournament, Trump officials claimed the course in Loudon County could handle 150,000 fans, and there would be room to park “thousands of cars” – as well as concessions and grand stands. It remains to be seen whether Trump will make similar assertions about the new property on the former Kluge Estate.
This is not the first time Trump has fought a conservation easement. In Bedford, NY, Trump argued that he had an access easement through the Eugene Agnes Meyer Preserve – conserved by the Nature Conservancy. The Nature Conservancy successfully defended the property from the claim, but the claim was in litigation for four years and required an extensive commitment of time and money from the Nature Conservancy.
Nor is this the first attempt of a developer to use land under easement as a golf course. Those interested in reading further about the complex relationship between conservation easements and golf courses can read the Alliance case summaries on Friends of Shawangunks v. Clark (holding that the development of a privately-owned golf course was “conversion”), Sierra Club v. Palisades Interstate Park Commission (holding that the land trust could amend the easement in exchange for significant concessions), and Gresczyk v. Landis (holding that a golf course is not a turf farm and thus not a valid agricultural use).
Land trusts faced with challenges like the Trump golf development should consider their mission when deciding how to act. The statute that established VOF stated that VOF’s mission is “to preserve the natural, scenic, historic, scientific, open-space and recreational areas of the Commonwealth.” Golf courses are not mentioned in the statute and courts have declined to accept golf courses as recreation areas as conceived by the legislators. VOF is striving to be true to its mandate and to the terms of its easement.
Finally, land trusts should carefully assess their ability to handle litigation threats. The IRS requires land trusts who accept conservation easements to uphold the terms of those easements in perpetuity. In order to withstand protracted litigation from a determined developer, your organization will need substantial financial and legal resources. VOF has the resources of the state and the Attorney General behind it. The Nature Conservancy has attorneys and reserves to fall back on for bonding and court fees. Other land trusts may want to consider enrolling in Terrafirma Risk Retention Group, LLC, a pooled fund that provides the backing of hundreds of organizations to each challenge. For other options that may help, you may want to take a look at our Practical Pointer on "Additional Methods of Providing for Conservation Defense."