[Hvcatskillcewg] Enforcement Issue (Quite Lengthy)

[Carissa Haberland]

Hi Everyone-

We have an easement enforcement issue we would like some opinions from our
peers about. 

Here is the background:

The easement closed in 2004 (donation). The easement is an ag hybrid (Farm
Steads, Farm Areas and Resource Protection Areas), ag being the primary
conservation value and allowed in the Farm Steadsand Farm Areas. The current
owner is not the original grantor. The property is a second home for the
current owner, who is planning to use the property as an estate/hobby farm
(cows, pigs, chickens, llamas, donkeys, etc...). Since the current owner
purchased the property, he razed the original farmhouse and rebuilt it on
the original footprint (approved and permitted by the easement). 

The annual monitoring visit in August revealed potential construction. We
discovered the landowner had dug a well and was in the process of
constructing a very large road in the Farm Area of the easement. I followed
up the site visit with a letter documenting the annual monitoring visit
(asking him to S-T-O-P!), a phone call with the owner and a meeting with the
owner to explain the conditions of the easement, what was permitted where
and the approval process.

I ascertained from the meeting that the landowner intended to build a barn
and a 20,000 square foot home, both of which are permitted by the easement
(unfortunate on the 20,00 sq ft) if located within the Complexes with prior
approval. If any structure is located outside of the Complexes (i.e. Farm
Area) the Grantor must demonstrate why it cannot be located in the Complex
and its approval is at the "sole discretion" of the LT. We requested site
plans for the improvements and for the Complexes/structures to be staked out
before considering or granting approval. 

I ascertained from the meeting that the road construction was to provide
access to the barn and house (not approved). Roads are permitted for ag
purposes but the extent of the road (size and and materials being used) was
questionable. We asked that he cease construction of the road and provide us
with a site plan addressing our concerns about the effects of the road on
the RPAs and ag viability of the property.

In September, I followed up with the landowner (in writing) to see if they
were moving forward with the intended improvements because we had not
received requests for approval or any site plans. The owner agreed to
contact us when the surveying work and site plans were completed.

In early December, on an unrelated site visit with a DEC Wetlands
Specialist, it came to our attention that the owner may have violated NYS
Environmental Laws on the property by using C & D materials for the road
construction. We followed up with the DEC and found that he was fined for
using C & D fill and was not required to remove the materials but cap it
with clean fill. At that point, I scheduled another follow up site visit to
ascertain whether any potential activities revealed by the annual monitoring
visit had been acted upon.

Our site visit revealed that the barn has been constructed outside of the
Farm Stead Complex in the Farm Area. Neither verbal or written approval was
sought or given by or to the landowner for the construction of this
structure. In addition, the wetlands have been delineated on the property
through this process and are significantly different from the maps used for
the original landplanning. Hence, the delineated wetlands plus buffer extend
into one of the Farm Complexes and the RPA does not encompass a good portion
of the wetland and buffer. The landowner has capped the road but has not
proceeded any future (yet). No plans have been created for the road
drainage, etc.

Issues:

1. The construction of this barn is a violation of the conservation easement
as it was not approved by the Land Trust and it is located outside of the
designated area for structures. 

2. The owner has violated a State Enviro. Law with materials used for the
road and the LT concerns have not been addressed. DEC is also concerned
about the effects on the wetland but cannot pursue the road as a violation
until they update the maps.

3. The RPAs do not protected what was originally intended.

Options:

I brought to this matter to our the Land Protection and Stewardship
Committee and our counsel to evaluate how we can remedy the situation. It
appears that we have two options:

1. Require that the owner remove the barn and the road and restore the area
to its original state.

This option could land us in court or the owner could just comply with our
request.

2. Amend the easement with a conservation gain scenario.

This option could allow us to clarify the RPAs, "clean up" some language in
the easement and gain some conservation values.

We are thinking that we will approach the landowner with removing the road
and barn and amend as a back up plan. Any advice or experiences you can
share would be helpful!

Carissa D. Haberland
Director of Stewardship Programs
Orange County Land Trust
P.O. Box 2442
Middletown, NY 10940
(845) 343-0840
(845) 341-0898 (fax)
carissa at oclt.org
www.oclt.org <http://www.oclt.org/> 

 

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