Right-Of-Way Acquisition

Working to obtain trail right-of-way has the potential to be a long and difficult process because most people, understandably, closely guard their private property rights.  This part of the trail project requires great care and patience and should be headed by skilled negotiators who are familiar with real estate law.  Actually having full ownership rights of the land along the trail route would be ideal, but the overriding goal is simply to gain long-term legal permission to access and use the land.  Sometimes, property owners are not at all interested in relinquishing any of their property rights, and the trail must simply be re-routed.  Different right-of-way acquisition options are explained below.

Titles

A title is the legal proof of land ownership and all of the rights that come with the land.  Full ownership and property rights are obtained when the owner transfers the land title.  Some key property owners might voluntarily donate the portion of their land required for the trail route in exchange for a tax write-off, but usually, title transfer will require some level of financial compensation.  Experts recommend that trail organizations choose a reliable land trust or conservancy to which they will give all of the land titles acquired.  If the trail organization confronts legal or financial trouble that forces it to dissolve, the land trust or conservancy will be able to maintain protection of its segments of the trail corridor.

Easements (Private, Rail, and Utility)

The collection of land ownership rights that comprise a full land title can be separated.  This allows some rights to be retained by the original owner while other rights are legally transferred to another party such as the Trail Group in this plan.  Greenway planning efforts most often use the conservation easement which, as defined by the Valley Conservation Council (based in Staunton), is “a voluntary legal agreement between a private land owner and public or private organizations to protect the agricultural, natural, historic, and/or open space value of land.”   Conservation is accomplished by transferring to the Trail Group some or all of the development rights associated with the land.  The original owner still owns the land and usually receives property tax breaks for giving up his development rights.

Easement agreements can be very different and can place unique restrictions on how the easement holder can use his rights.  Some easements might expire when the land owner sells the property, and others might have to be renewed after a set number of years.  However, many agreements transfer legal ownership of development rights to the easement holder indefinitely.  As with full title ownership, greenway groups often transfer their easements to a land trust or land conservancy.

Under the right circumstances, rail and/or utility corridors can offer some of the most promising trail easement opportunities because they are often reasonably graded, relatively direct, and offer easy access to developed areas.  Nationwide, the Rails-To-Trails Conservancy has helped create over 1,250 trails.   Two of Virginia’s most successful trails, the W&OD and the Virginia Creeper, are the products of utility and rail right-of-way agreements.  The W&OD was constructed on an abandoned rail corridor that is now owned by Dominion Virginia Power and used for electric power lines.  The towns of Damascus and Abingdon purchased the Virginia Creeper right-of-way from Norfolk & Western.

In the early 1980s when a rail corridor was officially abandoned, any easements controlled by the rail company automatically reverted back to the original property owners and any land owned by the rail company was divided and sold.  Congress was concerned that this rapid fragmentation of former rail corridors would harm the nation’s long-term rail infrastructure.  As a result, in 1983 the National Trails System Act was amended to create a program called railbanking.

The railbanking program allows a corridor’s property rights to be transferred to individuals or groups who will convert the corridors to maintained trails so the land can be preserved for future rail infrastructure needs (although this is unlikely).  Because the property rights transfer precludes legal abandonment, the corridor can remain intact and is not divided by piecemeal sales and property claims.  If the rail company wants to convert the corridor back into an active rail line, the managing trail group would be entitled to the fair market value of the land and any improvements.  By contacting the Surface Transportation Board, localities and trail groups can be included on the rail abandonment notification list so they can stay abreast of any railbanking opportunities.

Not only are trails built along abandoned rail and utility corridors, but there is also a growing trend of trails being routed along active rail and utility corridors – called rail-with-trail projects.  In these situations, rail and utility companies benefit by making use of the trails for maintenance vehicles and other purposes.  Understandably, rail and utility companies are very concerned about potential safety and liability issues, and sometimes this prevents greenway/rail or greenway/utility partnerships from happening.

Proffers

Sometimes localities can obtain land easements (or even titles) during the rezoning process.  As part of rezoning, local governments study the potential positive and negative impacts a development might have on the community.  In order to mitigate some negative impacts and make the project more appealing, developers often proffer (voluntarily give) certain concessions to localities.  These proffers can take many different forms including cash payments, road improvements, and even land right-of-way.  This process can be used by Staunton to assemble sections of land that can contribute to the Staunton Frontier Trail network.

Leases

Another way to obtain rights-of-way is by leasing land.  Almost all property rights (including control and liability) are transferred to the lessee for a contracted number of years – usually long term and sometimes perpetually.  This type of arrangement allows an individual to maintain legal ownership of the land while it is used by another party such as a trail group.  Sometimes land owners such as farmers will sell land to a trail group if the organization agrees to let the farmer lease portions of the land to farm indefinitely.