[Hvcatskillcewg] Enforcement Issue

Mon Jan 8 16:34:45 PST 2007

Good evening Carissa and others,
What a heart-rending  - and deeply sobering - challenge you are facing. Truly, it is time to gather your collective forces. Have your attorney read closely as to all your options - including the punitive damages. At the end of the day, this barn may be in balance (with a 20Ksf house!?) with the entirety of the ag homestead, and the integrity of most of the resources intended to be protected may be reclamable, but much has already been violated, not the least of which is trust, the second most precious asset we claim as our own (after land.) 

I seem to recall, many years ago now, in the 90s, a similar situation where a new landowner elected to erect a barn in egregious defiance of the CE (not of that owner's donation.) The land trust in question - was it the Brandywine in PA? - was able to force the owner's hand, had it razed. No doubt Henri Jordan, or Tamara or someone in DC legal might be able to shed more light (it may have been written up.)  Sorry I cannot be more specific. I applaud your persistence, and your good judgement in going public. Please keep us posted, and we'll do our best to help.

Michael DeWan, President, Woodstock Land Conservancy

Michael J. DeWan, MAI
L. T. Bookhout, Inc.
P. O. Box 807
Rhinebeck NY  12572
845.876.5367
fax  876.5519

  ----- Original Message ----- 
  From: Christopher Duncan 
  To: Chris Olney ; 'Carissa Haberland' ; hvcatskillcewg at lists.ltanet.org 
  Cc: Jim Delaune 
  Sent: Monday, January 08, 2007 10:49 AM
  Subject: Re: [Hvcatskillcewg] Enforcement Issue (Quite Lengthy)

  Dear Carissa,

  (I have already sent an email privately to Carissa, but I think it time to go public.)

  Clearly, as Chris Olney says, this is a very difficult situation.  There is an easement violation which I understand will stand up in court.  While the weight of any expenses involved might fall on the Orange County Land Trust, I think easement donors, potential easement donors, and the general public will be watching to see what happens.  For the sake of all the land trusts in the region, I think it important the easement be enforced.  That's what we pledge  to do in accepting an easement.  This may seem like an exaggeration, but land trust integrity is at stake here.   

  If this holds up in court as it seems it will, eventually the Orange County Land Trust would get reimbursed for legal expenses.  May it not go that far.  I would encourage OCLT and its attorneys to have one or more serious conversations with the landowner and his/her attorneys.

  If there is anything at all that the I or the Wallkill Valley Land Trust could do to support you and OCLT, please ask.

  Chris

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  Christopher Duncan, Executive Director
  Wallkill Valley Land Trust, Inc.
  PO Box 208
  New Paltz, NY 12561
  845-255-2761
  845-306-5447 fax
  wallkillvalleylt at verizon.net
  www.wallkillvalleylt.org

    ----- Original Message ----- 
    From: Chris Olney 
    To: 'Carissa Haberland' ; hvcatskillcewg at lists.ltanet.org 
    Sent: Monday, January 08, 2007 10:07 AM
    Subject: RE: [Hvcatskillcewg] Enforcement Issue (Quite Lengthy)

    Tough situation Carissa.  It appears you have done well in knowing what is going on with the property through your site visits, correspondence with the landowner, and interactions with DEC.  I might suggest that you could gain more (conservation value) and lose less (money and sleep) if you reverse your tactic and go for the amendment first, with litigation/removal as the back-up.  By amending, the landowner could keep his barn, but you could not only add land to the RPA (including all of the newly delineated wetland, plus a large buffer) but also significantly reduce the size of the second home that could be built or perhaps eliminate it altogether.  You might also be able to mandate an additional stewardship payment to the land trust, along with the amendment, as a slap on the wrist for not submitting plans and an approval request for the barn that was built.  Your lawyer might be able to convince the landowner that these options are more favorable and less expensive for the landowner than losing his barn and/or going to court.  Just make sure you get enough out of the amendment and a payment to make up for the landowner's transgressions.  

    Chris O.

    Chris Olney, Director of Conservation

    The Catskill Center for Conservation and Development

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    From: hvcatskillcewg-bounces at lists.ltanet.org [mailto:hvcatskillcewg-bounces at lists.ltanet.org] On Behalf Of Carissa Haberland
    Sent: Friday, January 05, 2007 12:54 PM
    To: hvcatskillcewg at lists.ltanet.org
    Subject: [Hvcatskillcewg] Enforcement Issue (Quite Lengthy)

    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

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