Robert Marmet knew he was supposed to inspect Martha Boneta’s farm, but he didn’t know exactly what for. He knew there were limits on what he could inspect, but he had no idea where they were.
So when Marmet, a senior energy policy analyst with the Piedmont Environmental Council, and his partner Mike Kane, a conservation officer with the group, turned up June 12 to inspect Boneta’s Liberty Farm in Paris, Va., they more or less inspected what they wanted to inspect.
They walked through the upstairs and downstairs portion of the barn that sits on the property. They inspected every room within—bathrooms, closets, storage rooms and offices. They looked over the farmer’s personal effects and even toured the basement area of the barn that housed some of the animals. They inspected “The Smithy,” an historical structure on the property that was once a blacksmith shop. They stood on chairs to peer into the loft area.
What were they looking for? They were there on behalf of the PEC to enforce an easement on Boneta’s property. Easements are documents property owners sign that compensate them for agreeing to withhold land from commercial development. In Boneta’s case, the PEC accused her in a previous lawsuit of violating the agreement in a number of ways, the main one of which was to operate apartments on the property.
An agreement to settle that suit required PEC to acknowledge the accusation was false and Boneta did not have apartments on the property, but it permitted PEC to “measure for the size of an apartment.” This inspection obviously went far beyond that.
Boneta claims in a lawsuit filed last month in Fauquier County Circuit Court the inspections are part of a pattern of harassment. Her case accuses Peter Schwartz, a member of the elected Fauquier County Board of Supervisors and former member of the PEC board of directors, of, among other things, telling zoning officials he wants the rules “aggressively enforced” with regard to the farm.
She also claims PEC should not be allowed to be involved in the enforcement of the easement. She said before the PEC sold her the farm in 2006, it owned both the property and the easement, which is illegal under Virginia law.
Almost all property owners with easements must endure routine inspections by the land conservancies or other organizations that enforce the easements. Usually, they are low-key and friendly. Landowners are apprised of violations, and the sides work together to address them.
This is not the case with Martha Boneta.
She told Marmet and Kane when they entered her property in June they could inspect only what the easement language allows. “It’s very clear,” she said. And if they “exceed what the language says, it is considered trespassing. In the past, you have demanded to inspect my closets and have photographed my personal private possessions, and this exceeds your authority.”
Marmet replied that, yes, he is an attorney—and a former judge, according to his bio on the PEC website—but he is not licensed to practice law in Virginia and is not familiar with the terms of the easement. If he was about to violate any of its terms, he told Boneta, “I ask that you give me notice.”
At which point, Mark Fitzgibbons, an attorney and neighbor who has supported legislation to protect traditional farming practices from intrusive zoning rules, stepped in. “The PEC has been placed on notice,” Fitzgibbons told Marmet. “The obligation is on you, not Martha Boneta, to know what the easement terms are.”
Fitzgibbons told The Daily Signal the inspections have gotten out of hand. “From what I’ve observed, these inspections are being conducted with an agenda greater than ensuring fidelity to the easement,” he said.
It does seem to me the PEC has crossed a line. They are going anywhere and everywhere across Martha’s property, and it does seem excessive. So, either they do not know what the easement terms really say, or they do know and are pushing boundaries of their easement authority. Also, if the terms of easement are vague, they are to be construed against the inspector, which opens the issue of trespassing.
Fitzgibbons is not alone in thinking the PEC has gone too far with its handling of Boneta. Several recent events suggest frustration with the organization and what many view as its heavy-handed tactics may be reaching critical mass.
There is Boneta’s lawsuit, in which she claims the PEC “attempted to convince the [county] zoning administrator and other local government officials” to issue zoning citations against her farm—and plenty of email and written correspondence obtained through Freedom of Information Act requests to support her version.
There is something called the Boneta Bill, signed into law by Terry McAuliffe, Virginia’s Democratic governor, and effective July 1. The legislation, which prevents local authorities from requiring special-use permits for conventional farming activities outlined in the law, proves members of Virginia’s General Assembly recognize the problem and have sympathy for Boneta.
And there is the audit of Boneta’s 2010 and 2011 tax records that some suggest may amount to using the IRS against Boneta. A former IRS director sits on PEC’s board.
Tom DeWeese, president of the American Policy Center, a non-profit, free-enterprise group based in Virginia, is circulating a petition that calls on House Speaker John Boehner and other congressional leaders to investigate the PEC, its relationship with the county government and the actions the group has taken against Liberty Farm.
DeWeese said the documents reveal Schwartz, the county supervisor, knew about Boneta’s audit before she received the notice in the mail, and Fitzgibbons said he learned of the audit during a meeting with Schwartz in the supervisor’s private home on July 21, 2012—a few days before Boneta received her IRS letter.
“Martha [Boneta] stood up and resisted, and so now she is being targeted,” DeWeese said in an interview. “But this is not just Fauquier County. We see this happening all over the country. The PEC is one of many quasi groups operating behind the scenes. There are hundreds, perhaps thousands of green groups just like the PEC pulling the strings of government.”
DeWeese also said he is talking to state lawmakers about placing a “five-year opt out” provision on easements that would give property owners some flexibility.
“Right now the easements exist in perpetuity, and this is a problem because there is no real oversight for how they are managed,” DeWeese said. “The PEC can move the easements around to the government and other land trusts, and it’s a profit for them. But the landowner is stuck forever with the easement.”
If there is a congressional investigation, DeWeese would like to see the PEC’s non-profit 501(c)(3) status come under scrutiny.
“The PEC was given an IRS designation as a non-profit educational institution and this comes with restrictions,” he said. “Given how they have interacted with the Fauquier County government and how they have treated Martha, I think this calls out for an investigation. If you cut off the PEC’s 501(c )(3) status, you can cut off PEC at the knees.”
The PEC has moved to dismiss Boneta’s suit in its entirety because it “has failed to set forth valid claims,” said Heather Richards, vice-president of conservation and rural programs, wrote in an email.
The group also released a detailed post on its website that presents its side of the story.
“PEC and other land trusts across the country take our responsibility to uphold conservation easements in perpetuity seriously, and work hard to maintain positive relationships with landowners,” the post says. “We are saddened by the public misrepresentations about both the terms of this conservation easement and the facts surrounding the court case and its ensuing settlement, which was agreed to by all parties.”
But questions remain.
Why was Boneta singled out for an audit, and how did Schwartz and others know about it beforehand? What does it say about the relationship between the PEC and Fauquier County government that a supervisor can encourage “aggressive enforcement?” How much inspection is needed to determine whether there are apartments in the barn?
Bonner Cohen, a senior fellow at the National Center for Public Policy Research in Washington, has studied conservation easements for decades. He said what began as a laudable effort to provide financially stressed landowner with tax breaks in exchange for setting aside land for conservation has been converted into a vehicle for government land grabs. The actions taken against Liberty Farm appear to bolster these concerns, he said.
“Mr. Marmet showed an appalling ignorance of the terms of the conservation easement he, representing the PEC, was on Martha Boneta’s property to enforce,” said Cohen, who witnessed the inspection in June. “One is left with the impression that the inspection was little more than a fishing expedition to find out how much he could get away with. That’s not right.”