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Developer says Virginia Outdoors Foundation opposed pier as it paved way for fracking
Terrell W. Bowers has battled opposition to his Rappahannock Cliffs development along the lower Rappahannock River in Richmond County for several years now.
Some neighbors and conservation agencies say the approved 45-lot subdivision along Fones Cliffs—a hot spot for bald eagles and an area steeped in early Virginia history—is a bad idea.
But Bowers, who has a home on the property and lives in South Carolina, says a letter from the Virginia Outdoors Foundation to the Virginia Marine Resources Commission opposing a community pier for the development was the last straw.
Bowers’ quest to have that letter withdrawn has shed light on a controversial provision in some VOF conservation easements—to allow oil and gas drilling on the protected land.
The June 11 letter, on VOF stationery and signed by board of trustees Chairman Charles H. Seilheimer Jr., said VOF objects to Bowers’ pier application “to preserve the natural, scenic, historic, scientific, open-space and recreational areas of the commonwealth.”
It goes on to cite environmental and historical attributes of that section of river. For example, the Rappahannock there is considered worthy of state scenic river designation, and sits in an area earmarked for protection by the Rappahannock River Valley National Wildlife Refuge.
Bowers took aim against the protest letter by Virginia’s largest conservation easement holder, saying the agency sent it at the same time it was approving conservation easements that could allow drilling for oil and natural gas on nearby land.
If a VOF conservation easement permits oil and gas exploration and extraction, Bowers said in a recent interview, “Was the land really conserved to begin with?”
He added, “It will be interesting to see if conservation organizations protest fracking on conservation easements with the same gusto that they protested the Rappahannock Cliffs community pier.”
Hydraulic fracturing, or fracking, is a drilling technique in which water, chemicals, sand and other fluids are injected into the ground to fracture gas-bearing deposits to make the gas easier to recover. Conservation easements restrict most types of development in perpetuity.
Bowers said a landowner across the river protested the Rappahannock Cliffs pier, based on the fact that his land is protected by a VOF conservation easement.
GAS, OIL LINK
Bowers said a court-records check in June by his attorney, Robert Smith, revealed that the easement on the land across the river permits oil and gas exploration and extraction.
VOF holds about 144 easements in the Taylorsville basin, which runs through the Northern Neck, Caroline County and the Middle Peninsula. On 21 of those easements, property owners have retained oil and gas rights.
Texas-based Shore Exploration and Production Corp. has leased 80,000 acres of land along the basin, where it hopes to drill for oil and natural gas. The company has said drilling could begin within 12 to 18 months.
The Warrenton-based Piedmont Environmental Council said last month that oil and gas extraction and conservation easements are incompatible. The PEC first brought up its objections last July.
VOF trustees, at their Oct. 23–24 meeting in Charlottesville, put off consideration of any new easements with those provisions until after its next meeting in March.
VOF has said some landowners in the Taylorsville basin wanted to protect their land with conservation easements, but had already signed leases with Shore.
Agency staff and an attorney researched the issue, determining that oil exploration and drilling is a compatible use, as long as it meets IRS restrictions intended to balance the need for energy production with a property’s conservation value protection. Any method of extraction, including fracking, would have to be approved by VOF.
Looming over Bowers’ back and forth with the VOF is a lawsuit.
Bowers filed the civil complaint in Richmond City Circuit Court in September, asking that VOF withdraw a letter of protest to the Virginia Marine Resources Commission opposing the community pier. The VMRC reviews riparian landowners’ requests for piers, boathouses and other structures on state-owned waters.
Named as defendants are the VOF, Seilheimer and Peter C. Bance, bance is cqpresident of the Essex County Countryside Alliance and a VOF trustee. The lawsuit was discussed in a closed session during the VOF board of trustees meeting in Charlottesville on Oct. 24, according to VOF Executive Director Brett Glymph.
A few days after that meeting, Glymph sent a letter to the VMRC, withdrawing opposition to Bowers’ pier.
The letter stated that VOF “has not and does not take any position on the [pier] application. Any letter of communication stating otherwise does not reflect the position of the VOF Board of Trustees and was sent without board action.”
Citing pending litigation, a VOF spokesman declined to elaborate on the letter, or on Bowers’ complaint.
Bowers, meanwhile, says he was advised by his attorney not to comment on the letter or the lawsuit. Bowers would say that he met with Seilheimer and Glymph prior to the October meeting, in which his request that the letter be withdrawn was denied.
In the court filing, Bowers says Bance and Seilheimer worked together to oppose Bower’s development. Seilheimer, who lives in Orange County, and Bance of Goochland County did not respond to requests for comment on the letter or the lawsuit.
As of this week, no response to Bowers’ allegations was filed with the court.
Bance owns Wheatlands, a 19th-century plantation house on 125 acres about four miles upriver from Rappahannock Cliffs.
Bowers’ complaint describes the Essex County Countryside Alliance as “an anti-growth, anti-development organization.”
The group’s website says it “promotes the array of conservation options offered by a host of conservation groups operating in Essex County.”
Seilheimer “is also a member and financial supporter of the alliance,” Bowers’ complaint alleges.
The court filing goes on to say that Bance and Seilheimer “conspired with other Essex County landowners to use the prestige of VOF to protest the Rappahannock Cliffs community pier, knowing that the board of trustees had not approved” the letter sent to VMRC.
In addition, the filing says Seilheimer and Bance “expended VOF resources to contact other state agencies and conservation groups . . .to oppose the community pier.”
Bowers says in the suit that the VOF protest letter was the first involving a project on private property in the agency’s 47-year history. A spokesman for the agency said he did not know whether that was the case.
The lawsuit asked that VOF retract the June 11 protest letter and that Seilheimer and Bance be enjoined from using “VOF’s name, personnel and resources in their protests of the Rappahannock Cliffs community pier.”
Bowers says his pier permit application is now under review by the VMRC and that a decision on that could come early next year.
‘STILL FIGHTING IT’
Bowers, 52, was working in the commercial real estate business in Richmond 10 years ago when he purchased 260 acres along Fones Cliffs. A boundary adjustment cut that to 250 acres.
“At the time, I bought it as a weekend getaway place,” he said. He built a four-bedroom house on the property, and at one point says he was considering a conservation easement on the land.
“And I met with the U.S. Fish and Wildlife Service,” which was in the process of identifying parcels to protect in the developing Rappahannock River Valley National Wildlife Refuge. And, he says, he wanted to develop the land in an environmentally responsible way.
At the time, the zoning allowed him to create one lot for each 2.5 acres. Subsequent changes in the county’s zoning laws changed that to 8 acres, then 15 lots.
He received approval for 15 lots, each one with the provision for a private pier with two wet slips on the river, he says, but decided not to go ahead.
Next, he hired Randall Arendt, a nationally known conservation land planner, to design the upland portion of the property, creating 22 lots on the river. That plan would have conserved about 75 percent of the acreage as open space.
That was in 2009, and by that time, Bowers says, opposition of any development on the cliffs was growing.
There were more changes: over the next three years, the plan evolved into a 45-lot development with a community pier required, instead of individual piers.
“I had a by-right plan, and one would consider that plan a cookie-cutter urban sprawl-type plan” compared to the Arendt version, he said.
“I don’t think anyone would argue which is the better plan. The problem, though, is that the less-desirable plan was easy to approve and done administratively. The better plan took hundreds of thousands of dollars and years to get approved,” Bowers said.
“And even after it’s been approved, people are still fighting it.”
He says the VOF’s opposition turned others against his project, which is still in the pre-construction phase. He estimates the delays have cost him more than $100,000.
Rusty Dennen: 540/374-5431