In 2024 Letter, Richard Stuart Raises Prospect of Legal Action Against State Conservation Department
Stuart argues that he has the right to build a solar farm on his property, despite an easement that some federal and state officials say does not allow such development.
By Adele Uphaus
MANAGING EDITOR AND CORRESPONDENT
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During a public hearing before the King George Planning Commission last week, representatives from Caledon Solar LLC cited a July 26, 2024, letter from the state secretary for natural and historic resources as evidence that solar energy development is permitted on Cedar Grove Farm.
That letter was in response to a July 8, 2024, letter from Richard Stuart to Matthew Wells, director of the Department of Conservation and Recreation, which representatives did not cite. In the letter, which the Advance received through a request under the Freedom of Information Act, Stuart—the property owner as well as the county attorney and a state senator representing District 25, which includes King George—informed Wells of his intent to proceed with the project, despite DCR’s contention that such development would be inconsistent with a conservation easement on the property.
“Please consider this my formal communication to you of my intent to proceed,” Stuart wrote in the letter. “I also must advise you that if you take any action to impede my right to proceed, it will be met with swift legal action.”
Easement Controversy
DCR holds an open-space easement on a portion of the property. The easement was granted in 2001 by then-owner James Nash, and it gives the grantee (DCR) “the right in perpetuity to restrict the use of Cedar Grove Farm,” according to the deed of easement.
In August of 2023, Wells informed Stuart in a letter that his department had reviewed the solar farm proposal and determined that it would be incompatible with the conservation protections required by the easement.
“The development of commercial solar installations is in many circumstances considered incompatible with conservation easements, since these projects have tended to be intensive, landscape-altering projects with negative environmental impacts, particularly when it comes to site grading and stormwater runoff,” Wells wrote in the letter, which was included in the application materials provided to the county.
Wells noted that a management plan developed by Stuart and the previous DCR director does “contemplate” the installation of a solar project. “However,” he wrote, “the details of how any solar project is developed in a manner designed to protect the natural resources originally contemplated were not fully provided and, as a result, were not finalized.”
Wells wrote that in order for commercial solar installation to proceed, the easement would need to be amended. He said DCR would be open to this.
Wells, Feds and the Solar Project
In the meantime, according to correspondence the Advance received through a request under the Freedom of Information Act, Wells had reached out to the U.S. Department of the Interior’s Fish and Wildlife Service (USFWS)—which awarded $986,094 in Coastal Grant Program funds to DCR to purchase the easement in 2001—to ask them to review the proposed solar project. He first sent a letter in November of 2023, and DCR staff sent further information in response to requests from USFWS in April and May of 2024.
In her June 21, 2024, official response to Wells, Colleen Sculley, regional director of USFWS’s Office of Conservation Investment, agreed with DCR’s contention that the solar farm would be inconsistent with the easement and with the purposes of the Coastal Grant Program. She also found that amending the easement would violate the terms of the grant.
“Real property acquired with National Coastal Wetlands Conservation Grant funds must continue to serve the purpose for which it was acquired. If acquired property is used for reasons inconsistent with the purpose(s) for which acquired, such activities must cease,” Sculley wrote. “The proposed commercial solar development as described by the Department appears to be inconsistent with the purposes described in the competitive Federal grant proposal submitted by the Department on June 14, 2000, which the Service used to evaluate, rank and award Federal grant funds for the Easement acquisition.”
Wells sent Sculley’s official response to Stuart by email on June 25, 2024.
“Given the response from USFWS, we believe that it would be difficult to move forward with an effective easement amendment,” Wells wrote in the email. “However, we would be happy to attempt to facilitate a meeting with USFWS for you and your solar developer to directly engage them on whether there may be a path forward… Please let me know if you would like us to reach out to USFWS about a follow-up meeting, and if so, who you would like to include in that conversation. I would be happy to discuss this matter further at your convenience.”
Stuart “Perplexed” by Federal Response
Stuart sent an email response describing himself as “perplexed” by USFWS’s response and requesting documentation of the requirement that parties that funded the purchase of the easement must sign off on amendments, which Wells said he would put together.
Then in his July 8 letter, which was not included in the application materials provided to the county for last week’s Planning Commission meeting, Stuart told Wells that he would be moving forward with the project and accused Wells and his staff of being “difficult.”
“Out of deference to the Youngkin administration, I have waited approximately two years for you to do your analysis and, despite my cooperation, you now decide you are not willing to move forward,” Stuart wrote. “I have tried to be courteous and work with you, but is [sic] has become absurd, especially since the management agreement clearly authorizes that activity.
He continued, “I must tell you that I am most distressed by your comments to me that you must treat me differently because of ‘who I am.’ Furthermore, I regret that you and some of your staff have chosen to be so difficult and intentionally try to obfuscate the law and spirit of the easement.”
Stuart sent a copy of this letter to Travis Voyles, the state secretary for natural and historic resources, who oversees DCR and four other state agencies. Stuart also sent copies to Richard Cullen, a former attorney general who now serves as a counselor to Gov. Glenn Youngkin; Scott Surovell, the Virginia Senate majority leader; and Thomas M. Wood IV, an attorney.
Voyles responded by letter on July 26.
“This is in response to your letter on July 8, 2024, and the discussions regarding future land use decisions on your private property—Cedar Grove Farm in King George County, Virginia,” Voyles wrote. “On review, consistent with the management plan and agreement that was established with you and the Director of the Department of Conservation and Recreation (DCR), solar energy development is specifically permitted in certain areas of the property, where it is consistent with the easement.”
Representatives from the Land Trust Alliance and nine other conservation organizations wrote to Stefanie Taillon, who replaced Voyles as secretary of natural and historic resources, in May, asking her to “reconsider whether the proposed use is consistent with the terms of Cedar Grove Farm Conservation Easement.”
They cite the conclusions of DCR and USFWS, as well as a legal analysis by Kerry Hutcherson, a land use, real estate, and land conservation attorney who worked on numerous conservation easement enforcement cases as staff counsel for the Virginia Outdoors Foundation.
According to Hutcherson, the solar facility is not permitted by the restrictions set forth in the easement, and “the development, construction, and operation of the use set forth in the [special exception] Application would violate those restrictions” as well as Virginia’s Open-Space Land Act.
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