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THIS DEED OF DEVELOPMENT RIGHTS EASEMENT is made on the 19th
day of sep~er 2007 ~t ~q,u~~91~Ii(rNt~lork. The parties are Felix
Deerkoski,. . . Box 24~~Mattr'tuc~, NY 11952 (herein called "Grantor"), and
the TOWN OF SOUTHOLD, a municipal corporation, having its principal office
at 53095 Main Road, P.O. Box 1179, Southold, New York (herein call
"Grantee").
GRANT OF DEVELOPMENT RIGHTS EASEMENT
INTRODUCTION
WHEREAS, Grantor is the owner in fee simple of certain real property
located in the Town of Southold, Suffolk County, New York, identified as part
of SCTM #1000-101-1-2.3 more fully described in SCHEDULE A, including a
"Limited Agricultural Area" and a "Primary Agricultural Structure Area",
attached hereto and made a part hereof and shown on the survey prepared
by John Ehlers Land Surveyor, dated June 14, 2007 and last revised August
31, 2007 a reduced copy of which is attached hereto and made a part hereof
(the "Survey"), hereinafter referred to as the "Property"; and
WHEREAS, the Property is located in the A-C Zoning District of the
Town of Southold; and
WHEREAS, the Property contains soils classified as Class I and Class II
worthy of conservation as identified by the United States Department of
Agriculture Soil Conservation Service's Soil Survey of Suffolk County, New
York; and
WHEREAS, the Property is part of the New York State Agricultural
District #1, and the Grantor wishes to continue using the Property for
agricultural production as defined in this Easement; and
WHEREAS, the Property is currently used as a horse farm and for field
crops; and
WHEREAS, it is the policy of the Town of Southold, as articulated in
the Town's Master Plan of 1973, amended in 1986 and 1989 as adopted by
the Town Board, Town of Southold, and Section 272-a of the Town Law to
protect environmentally sensitive areas, preserve prime agricultural soils, to
protect the scenic, open space character of the Town and to protect the
Town's resort and agricultural economy; and
WHEREAS, the Property in its present scenic and agricultural condition
has substantial and significant value as an aesthetic and agricultural
resource since it has not been subject to any development; and
WHEREAS, Grantor and Grantee recognize the value and special
character of the region in which the Property is located, and Grantor and
Grantee have, in common, the purpose and objective of protecting and
conserving the present state and inherent, tangible and intangible values of
the Property as an aesthetic, natural, scenic and agricultural resource; and
WHEREAS, Grantee has determined it to be desirable and beneficial
and has requested Grantor, for itself and its successors and assigns, to grant
a Development Rights Easement to Grantee in order to restrict the further
development of the Property while permitting compatible uses thereof;
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NOW THEREFORE, in consideration of ONE MILLION THREE HUNDRED
TWENTY THOUSAND FOUR HUNDRED FIFTEEN AND 20/100 Dollars
($1,320,415.20) and other good and valuable consideration paid to the
Grantor, the receipt of which is hereby acknowledged, the Grantor does
hereby grant, transfer, bargain, sell and convey to the Grantee a
Development Rights Easement, in gross, which shall be binding upon and
shall restrict the premises shown and designated as the Property herein,
more particularly bounded and described on Schedule "A" annexed hereto
and made a part of this Instrument.
TO HAVE AND TO HOLD said Development Rights Easement and the
rights and interests in connection with it and as hereinafter set forth with
respect to the Property unto the Grantee, its successors and assigns forever,
reserving, however, for the direct use and benefit of the Grantor, its legal
representatives, successors and assigns, the exclusive right of occupancy
and of use of the Property, subject to the limitations, condition, covenants,
agreements, provisions and use restriction hereinafter set forth, which shall
constitute and shall be servitudes upon and with respect to the Property.
The Grantor, for himself, and for and on behalf of his legal
representatives, successors and assigns, hereby covenants and agrees as
follows:
0.01 Grantor's Warranty
Grantor warrants and represents to the Grantee that Grantor is the
owner of the Property described in Schedule A, free of any mortgages or
liens and possesses the right to grant this easement.
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a
municipal corporation organized and existing under the laws of the State of
New York State and is authorized under Section 64 of the New York State
Town Law and Section 247 of the New York General Municipal Law to acquire
fee title or lesser interests in land, including development rights, easements,
covenants, and other contractual rights which may be necessary or desirable
for the preservation and retention of agricultural lands, open spaces and
naturai or scenic resources.
0.03 Purpose
The parties recognize the environmental, natural, scenic and
agricultural values of the Property and have the common purpose of
preserving these values. This Deed is intended to convey a Development
Rights Easement on the Property by Grantor to Grantee, exclusively for the
purpose of preserving its character in perpetuity for its environmental,
scenic, agricultural and natural values by preventing the use or deveiopment
of the Property for any purpose or in any manner contrary to the provisions
hereof, in furtherance of federal, New York State and local conservation
policies.
0.04 Governmental Recoqnition
New York State has recognized the importance of private efforts to
preserve rural land in a scenic, natural, and open condition through
conservation restrictions by the enactment of General Municipal Law Section
247. Similar recognition by the federal government includes Section 170(h)
of the Internal Revenue Code and other federal statutes.
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0.05 Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Property are compatible with the
purposes of this Easement. In order to aid in identifying and documenting
the present condition of the Property's natural, scenic, agricultural and
aesthetic resources and otherwise to aid in identifying and documenting the
Property's agricultural values as of the date hereof, to assist Grantor and
Grantee with monitoring the uses and activities on the Property and ensuring
compliance with the terms hereof, Grantee has prepared, with Grantor's
cooperation, a survey dated June 14, 2007 last revised August 31, 2007
prepared by John C. Ehlers Land Surveyor, and a Phase 1 Environmental
Site Assessment dated June 19, 2007 by Nelson, Pope & Voorhis, LLC.
0.06 Recitation
In consideration of the previously recited facts, mutual promises,
undertakings, and forbearances contained in this Development Rights
Easement, the parties agree upon its provisions, intending to be bound by it.
ARTICLE ONE
THE EASEMENT
1.01 Tvpe
This instrument conveys a Development Rights Easement (herein
called the "Easement"). This Easement shall consist of the limitations,
agreements, covenants, use restrictions, rights, terms, and conditions
recited herein. Reference to this "Easement" or its "provisions" shall include
any and all of those limitations, covenants, use restrictions, rights, terms
and conditions.
1.02 Definitions
"Development Rights" shall mean the permanent legal interest and
right to prohibit or restrict the use of the Property for anything other than
agricultural production as that term is presently referenced in 9247 of the
General Municipal Law and/or defined in Chapter 70 of the Town Code of the
Town of Southold (the "Code") and including the production of crops,
iivestock and livestock products as defined in Section 301(2)(a)-(i) of the
NYS Agriculture and Markets Law, now or as it may be amended. No future
restrictions or limitation in the definition shall preclude a use which is
permitted under the current law and/or code.
"Equestrian Rights" shall mean the right to use the Property and to
erect structures for the purpose of boarding, breeding, raising and training
of horses or other equines. The term "equestrian rights" shall not include
equine events such as rodeos, horse shows or polo matches where
spectators are expected to attend.
1.03 Duration
This Easement shall be a burden upon and run with the Property in
perpetuity.
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1. 04 Effect
This Easement shall run with the Property as an incorporeal interest in
the Property, and shall extend to and be binding upon Grantor, Grantor's
agents, tenants, occupants, heirs, personal representatives, successors and
assigns, and all other individuals and entities. The word "Grantor" when
used herein shall include all of those persons or entities. Any rights,
obligations, and interests herein granted to Grantee shall also be deemed
granted to each and everyone of its subsequent agents, successors, and
assigns, and the word "Grantee" when used herein shall include all of those
persons or entities.
ARTICLE TWO
SALE
GRANTOR, for good and valuable consideration, hereby grants,
releases, and conveys to Grantee this Easement, in perpetuity, together with
all rights to enforce it. Grantee hereby accepts this Easement in perpetuity,
and undertakes to enforce it against Grantor.
ARTICLE THREE
PROHIBITED ACTS
From and after the date of this Easement, the following acts, uses and
practices shall be prohibited forever upon or within the Property:
3.01 Structures
No structures may be erected or constructed on the Property except as
permitted by the South old Town Land Preservation Committee and other
applicable provisions of the Town Code and 4.06 of this Easement. For
purposes of this Easement, "structure" shall be defined as anything
constructed or erected on or under the ground or upon another structure or
building, including walkways. Structures shall not include trellis, fences,
posts and wiring, farm roads or farm irrigation systems, nursery mats,
drinking troughs, jumps, or fencing used in connection with equestrian uses
and bonafide agricultural production, including without limitation fencing to
keep out predator animals. Approvals for these shall be as required by
applicable provisions of the Town Code.
3.02 Excavation and Removal of Materials: Mining
The excavating or filling of the Property, except as may be necessary
to construct and maintain permitted structures and improvements on the
Property or in connection with necessary drainage or soil conservation
programs, shall be prohibited, without the prior written consent of Grantee.
Mineral exploitation, and extraction by any method, surface or subsurface, is
prohibited. The removal of topsoil, sand, or other materials shall not take
place, nor shall the topography of the Property be changed except to
construct and maintain the permitted structures and improvements on the
Property and for purposes of erosion control and soil management, or in
connection with normal agricultural/horticultural activities, without the prior
written consent of Grantee.
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3.03 Subdivision
The Property may not be further subdivided pursuant to Town Law
Sections 265, 276 or 277 or Section 335 of the Real Property Law, as they
may be amended, or any other applicable State or local law, except as
provided herein. "Subdivision" shall include the division of the portion of the
Property from which the development rights are acquired into two or more
parcels, in whole or in part. Notwithstanding this provision, the underlying
fee interest may be divided by conveyance of parts thereof to heirs or next
of kin by will or operation of law. Further, notwithstanding the restrictions
contained in this 3.03, Grantor may, subject to approval by the Planning
Board of the Town of Southold and as otherwise required by the Town Code,
reconfigure existing property lines with contiguous parcels for the purpose of
agricultural production. All reconfigured parcels must contain at least 10
acres of preserved land.
3.04 DumDing
The dumping or accumulation of unsightly or offensive materials
including, but not limited to trash, garbage, sawdust, ashes or chemical
waste on the Property shall be prohibited. This prohibition shall exclude
materials used in the normal course of sound agricultural practices, including
fertilization, manure collection, spreading and disposal all in accordance with
acceptable horse farming practiceland applicable law, composting and crop
removal. Dyo ~V" ""fICU I-tuvuJ f"'(H.+'I<L- -;I-.Q
3.05 Signs
The display of signs, billboards, or advertisements shall be prohibited,
except signs whose placement, number, and design do not significantly
diminish the scenic character of the Property and only for any of the
following purposes: (a) to state the name of the Property and the names
and addresses of the occupants and the character of the business conducted
thereon, (b) to temporarily advertise the Property or any portion thereof for
sale or rent, (c) to post the Property to control unauthorized entry or use, or
(d) with the consent of the Grantor, to announce Grantee's easement. Signs
are subject to regulatory requirements of the Town.
3.06 Utilities
The creation or placement of overhead utility transmission lines, utility
poles, wires, pipes, wells or drainage systems ("utilities") on the Property to
service structures approved pursuant to Section 4.06 shall be prohibited
without the prior written consent of the Grantee Utilities must, to the extent
possible, be constructed within 30 feet of the centerline of any roads or
driveways, and may be used solely to service the permitted structures on
the Property. The Property may not be used for the creation or placement of
utilities to service any other properties.
3.07 Prohibited Uses
Except for uses specifically permitted by this Easement, the use of the
Property or structures on it for any residential, commercial or industrial
uses, permanent or temporary, shall be prohibited. For the purposes of this
section, agricultural production, as referenced in Section 247 of the General
Municipal Law and/or defined in Chapter 70 of the Town Code, and including
the production of crops, livestock and livestock products as defined in
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Section 301(2)(a)-(i) of the NYS Agriculture and Markets Law, now or as it
may be amended, shall not be considered a commercial use. No
improvements or activity inconsistent with current or future agricultural
production shall be permitted in the Property. The use of the Property for
public parking shall be prohibited.
3.08 Soil and Water
Any use or activity that causes or is likely to cause soil degradation or
erosion or pollution of any surface or subsurface waters shall be prohibited.
This prohibition shall not be construed as extending to agricultural
operations and practices (including, without limitation, the use of
agrochemicals such as fertilizers, pesticides, herbicides, and fungicides) that
are in accordance with sound agricultural management practices.
3.09 Drainage
The use of the Property for a leaching or sewage disposal field shall be
prohibited. The use of the Property for a drainage basin or sump shall be
prohibited, except in accordance with sound agricultural management
practices and in order to control flooding or soil erosion on the Property.
3.10 Development Riqhts
The use of the acreage of this Property for purposes of calculating lot
yield on any other Property shall be prohibited. Grantor hereby grants to
Grantee all existing development rights (and any further development rights
that may be created through a rezoning of the Property) on the Property,
except for the rights specifically permitted by this Easement and the right to
construct, maintain and replace any pre-existing structures, and to construct
new structures, as such rights may be provided in Section 4.06, and the
parties agree that any other such development rights shall be terminated
and extinguished and may not be used or transferred to any other parcels.
ARTICLE FOUR
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain all
other rights of ownership in the Property, some of which are more
particularly described in this ARTICLE FOUR.
4.02 Possession
Grantor shall continue to have the right to exclusive possession of the
Property.
4.03 Use
Grantor shall have the right to use the Property in any manner and for
any purpose consistent with and not prohibited by this Easement as well as
applicable local, State, or federal law.
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4.04 Landscapinq Activities
Grantor shall have the right to continue the current and/or customary
modes of landscaping, pruning and grounds maintenance on the Property.
Grantor shall have the right to remove or restore trees, shrubs, or other
vegetation when dead, diseased, decayed or damaged or interfering with
agricultural production, to thin and prune trees to maintain or improve the
appearance of the property, and to mow the property.
4.05 Aqricultural Activities
Grantor shall have the right to engage in all types of agricultural
production as the term is referenced in Section 247 of the General Municipal
Law and/or defined in Chapter 70 of the Town Code, and including the
production of crops, livestock and livestock products as defined in Section
301(2)(a)-(i) of the NYS Agriculture and Markets Law, now or as it may be
amended and equestrian rights as defined in Section 1.02. Notwithstanding
the definition of agricultural production in Chapter 70 of the Town Code,
structures shall be prohibited except as set forth in Section 4.06.
4.05A. Equestrian Activities
Grantor shall have the right to conduct certain equestrian activities on
the Property, including those equestrian rights defined in Section 1.02, and
the right to provide horseback riding instruction and to let horses for
instruction and/or for riding. Horseback riding instruction and the letting of
horses for instruction and/or for riding shall be conducted primarily within
the area designated on the Survey as the "Reserve Area" and secondarily on
the Property.
4.06 Structures
A. Allowable Improvements. Grantor shall have the right to erect and
maintain the following improvements on the Property, as may be permitted
by the Code of the Town of South old and subject to the approval of the
Town of Southold Land Preservation Committee, provided the improvements
are consistent with and do not derogate from or defeat the Purpose of this
Easement or other applicable laws:
(i) Underground facilities used to supply utilities solely for the
use and enjoyment of the Property;
(ii) Within the "Primary Agricultural Structure Area," described
on Schedule "B" attached and made a part hereof, new
construction, including drainage improvement structures,
provided such structures are necessary for or accessory to
agricultural production, but not to include an indoor riding
ring;
(iii) Within the "Limited Agricultural Structure Area" described
on Schedule "C" attached and made a part hereof, not
more than two run-in sheds, not to exceed 24' x 36' each,
and fencing related to equestrian or agricultural uses, all
subject to approval from the Land Preservation Committee
as to location and design;
(iv) Renovation, maintenance and repairs of structures built or
permitted pursuant to this Section 4.06.
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(v) Twenty-five foot (25') wide access way to the "Agricultural
Reserve Area" from Elijah's Lane, for a driveway, utilities
for the Property and the "Agricultural Reserve Area", and
other access uses to the Property only.
(vi) Specific improvements not included as structures in
Section 3.01 of this Easement.
B. Conditions. Any allowable improvements shall protect prime
agricultural soils, agricultural production, open space and scenic vistas, and
otherwise be consistent with the Purpose of this Easement.
C. Environmental Sensitivity During Construction. The use and
location of any improvement permitted hereunder shall be consistent with
the purposes intended herein, and construction of any such improvement
shall minimize disturbances to the environment. Grantor shall employ
erosion and sediment control measures to mitigate any storm water runoff,
including but not limited to minimal removal of vegetation, minimal
movement of earth and minimal clearance of access routes for construction
vehicles.
D. Replacement of Improvements. In the event of damage resulting
from casualty loss to an extent which renders repair of any existing
improvements impractical, erection of a structure of comparable size, use,
and general design to the damaged structure shall be permitted in kind and
within the same general location subject to the review and written approval
of Grantee, pursuant to applicable provisions of the Town Code.
E. Parking Prohibited. Public parking shall be prohibited on the
Property.
4.07 Notice
Grantor shall notify Grantee, in writing, before the construction of any
permanent or temporary structures as permitted in Section 4.06 herein and
shall file all necessary applications for approvals that may be required by
this Easement or by the Town Code of the Town of Southold, and shall
provide documentation as may be required for such applications.
4.08 Alienability
Grantor shall have the right to convey, mortgage or lease all of its
remaining interest in the Property but only subject to this Easement.
Grantor shall promptly notify Grantee of any conveyance of any interest in
the Property, including the full name and mailing address of any transferee,
and the individual principals thereof, under any such conveyance. The
instrument of any such conveyance shall specifically set forth that the
interest thereby conveyed is subject to this Easement, without modification
or amendment of the terms of this Easement, and shall incorporate this
Easement by reference, specifically setting for the date, office, liber and
page of the recording hereof. The failure of any such instrument to comply
with the provisions hereof shall not affect Grantee's rights hereunder.
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ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments and
other governmental or municipal charges, which may become a lien on the
Property, including any taxes or levies imposed to make those payments
subject, however, to Grantor's right to grieve or contest such assessment
and defer payment pending such action. The failure of Grantor to pay all
such taxes, levies and assessments and other governmental or municipal
charges shall not cause an alienation of any rights or interests acquired
herein by Grantee.
5.02 Indemnification
Grantor shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or
any of its officers, employees, agents or independent contractors, all of
which shall be reasonable in amount and actually adjudicatedL arising from
injury due to the physical maintenance or condition of the Property caused
by Grantor's actions or inactions or from any taxes, levies or assessments
upon it or resulting from this Easement, all of which shall be considered
Grantor's obligations.
5.03 Third Partv Claims
Grantor shall indemnify and hold Grantee harmless for any liability,
costs, attorneys' fees, judgments, expenses, charges or liens to Grantee or
any of its officers, employees, agents or independent contractors, all of
which shall be reasonable in amount and actually adjudicated, resulting: (a)
from injury to persons or damages to property arising from any activity on
the Property, except those due solely to the acts of the Grantee, its officers,
employees, agents, or Independent contractors; and (b) from actions or
claims of any nature by third parties arising out of the entering into or
exercise of rights under this easement, excepting any of those matters
arising solely from the acts of Grantee, its officers, employees, agents, or
independent contractors.
5.04 Grounds Maintenance Requirement
If Grantor leaves the Property open and does not engage in agricultural
production, then Grantor shall continue the current modes of landscaping,
pruning and grounds maintenance. In the event Grantor fails to comply with
the provisions of this section after reasonable notice is given to Grantor by
Grantee, then, in addition to all other remedies set forth herein, Grantee or
its agents are hereby authorized to enter upon the Property to perform such
maintenance.
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ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entrv and Inspection
Grantee shall have the right to enter upon the Property at reasonable
times, upon prior notice to Grantor, not more frequently than annually, and
in a manner that will not interfere with Grantor's quiet use and enjoyment of
the Property, for the purpose of inspection to determine whether this
Easement and its purposes and provisions are being upheld. Grantee shall
not have the right to enter upon the Property for any other purposes, except
as provided in Section 5.04 and 6.03, or to permit access upon the Property
by the public.
6.02 Restoration
Grantee shall have the right to require the Grantor to restore the
Property to the condition required by this Easement and to enforce this right
by any action or proceeding that Grantee may reasonably deem necessary.
However, Grantor shall not be liable for any changes to the Property
resulting from causes beyond the Grantor's control, including, without
limitation, fire, flood, storm, earth movement, wind, weather or from any
prudent action taken by the Grantor under emergency conditions to prevent,
abate, or mitigate significant injury to persons or to the Property or crops,
livestock or livestock products resulting from such causes.
6.03 Enforcement Riqhts of Grantee
Grantor acknowledges and agrees that Grantee's remedies at law for
any violation of this Easement may be inadequate. Therefore, in addition to,
and not in limitation of, any other rights of Grantee hereunder at law or in
equity, in the event any breach, default or violation of any term, provision,
covenant or obligation on Grantor's part to be observed or performed
pursuant to this Easement is not cured by Grantor within fifteen (15) days
notice thereof by Grantee (which notice requirement is expressly waived by
Grantor with respect to any such breach, default or violation which, in
Grantee's reasonable judgment, requires immediate action to preserve and
protect any of the agricultural values or otherwise to further the purposes of
this Easement), Grantee shall have the right at Grantor's sole cost and
expense and at Grantee's election,
(i) To institute a suit to enjoin or cure such breach, default or
violation by temporary and/or permanent injunction,
(ii) To enter upon the Property and exercise reasonable efforts to
terminate or cure such breach, default or violation and/or to
cause the restoration of that portion of the Property affected by
such breach, default or violation to the condition that existed
prior thereto, or
(iii) To seek or enforce such other legal and/or equitable relief or
remedies as Grantee deems necessary or desirable to ensure
compliance with the terms, conditions, covenants, obligations
and purposes of this Easement; provided, however, that any
failure, delay or election to so act by Grantee shall not be
deemed to be a waiver or a forfeiture of any right or available
remedy on Grantee's part with respect to such breach, default,
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or violation or with respect to any other breach, default or
violation of any term, condition, covenant or obligation under
this Easement.
The cure period in this Section 6.03 may be extended for a reasonable time
by Grantee if such restoration cannot reasonably accomplished within 15
days.
6.04 Notice
All notices required by this Easement must be written. Notices shall be
delivered by hand or registered mail, return receipt requested, or by certified
mail, with sufficient prepaid postage affixed and with return receipts
requested. Mailed notice to Grantor shall be addressed to Grantor's address
as recited herein, or to such other address as Grantor may designate by
notice in accordance with this Section 6.04. Mailed notice to Grantee shall
be addressed to its principal office, recited herein, marked for the attention
of the Supervisor and the Town Attorney, or to such other address as
Grantee may designate by notice in accordance with this Section 6.04.
Notice shall be deemed given and received as of the date of its manual
delivery or three business days after the date of its mailing.
6.05 No Waiver
Grantee's exercise of one remedy or relief under this ARTICLE SIX
shall not have the effect of waiving or limiting any other remedy or relief,
and the failure to exercise or delay in exercising any remedy shall not
constitute a waiver of any other remedy or relief or the use of such other
remedy or relief at any other time.
6.06 ExtinQuishment/Condemnation
At the mutual request of Grantor and Grantee, a court with jurisdiction
may, if it determines that conditions surrounding the Property have changed
so much that it becomes impossible to fulfill the Purpose of this Easement
described in Section 0.03, extinguish or modify this Easement in accordance
with applicable law. In that case, the mere cessation of farming on the
Property shall not be construed to be grounds for extinguishment of this
Easement.
If at any time the Property or any portion thereof shall be taken or
condemned by eminent domain, by the Grantee or by any other
governmental entity, then this Easement shall terminate with respect to the
Property, or portions thereof so taken or condemned, and the Property shall
not be subject to the limitations and restrictions of this Easement. In such
event, the Grantor, its successors or assigns, shall not be required to pay
any penalties, but the value of the Property shall reflect the limitations of
this Easement. Any condemnation award payable to the Grantor shall be in
proportion to the value attributable to the residual agricultural value of the
Property and if the condemnation is undertaken by an entity other than the
Grantee, then the remaining portion of the condemnation award shall be
payable to the Grantee in proportion to the value attributable to the
development rights transferred hereby.
II
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understanding
This Easement contains the entire understanding between its parties
concerning its subject matter. Any prior agreement between the parties
concerning its subject matter shall be merged into this Easement and
superseded by it.
7.02 Amendment
This Easement is made with the intention that it shall qualify as a
Conservation Easement in perpetuity under LR.C. Section 170(h). The
parties agree to amend the provisions of this Easement if such amendment
shall be necessary, to entitle Grantor to meet the requirements of Code
Section 170(h). Any such amendment shall apply retroactively in the same
manner as if such amendment or amendments had been set forth herein.
This easement may be amended only with the written consent of
Grantee and current Grantor and in accordance with any applicable State
and local law. Any such amendment shall be consistent with the Town Code
and any regulations promulgated thereunder and shall be duly recorded.
7.03 Alienation
No property rights acquired by Grantee hereunder shall be alienated
except pursuant to the provisions of Chapter 70 of the Town Code and other
applicable laws upon the adoption of a local law authorizing the alienation of
said rights and interest, following a public hearing and, thereafter, ratified by
a mandatory referendum by the electors of the Town of Southold. No
subsequent amendment of the provisions of the Town Code shall alter the
limitations placed upon the alienation of those property rights or interests
which were acquired by the Town prior to any such amendment.
7.04 Severability
Any provision of this Easement restricting Grantor's activities, which is
determined to be invalid or unenforceable by a court, shall not be
invalidated. Instead, that provision shall be reduced or limited to whatever
extent that court determines will make it enforceable and effective. Any
other provision of this Easement that is determined to be invalid or
unenforceable by a court shall be severed from the other provisions, which
shall remain enforceable and effective.
7.05 Governinq Law
New York Law applicable to deeds to and easements on land located
within New York shall govern this Easement in all respects, including validity,
construction, interpretation, breach, violation and performance.
7.06 Interpretation
Regardless of any contrary rule of construction, no provision of this
Easement shall be construed in favor of one of the parties because it was
drafted by the other party's attorney. No alleged ambiguity in this Easement
shall be construed against the party whose attorney drafted it. If any
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. provision of this Easement is ambiguous or shall be subject to two or more
interpretations, one of which would render that provision invalid, then that
provision shall be given such interpretation as would render it valid and be
consistent with the purposes of this Easement. Any rule of strict construction
designed to limit the breadth of the restrictions on use of the Property shall
not apply in the construction or interpretation of this Easement, and this
Easement shall be interpreted broadly to effect the purposes of this
Easement as intended by the parties. The parties intend that this Easement,
which is by nature and character primarily negative in that Grantor has
restricted and limited his right to use the Property, except as otherwise
recited herein, be construed at all times and by all parties to effectuate its
purposes.
7.07 Public Access
Nothing contained in this Easement grants, nor shall it be interpreted
to grant, to the public any right to enter upon the Property, or to use images
of the property. Grantee may use images of the Property for non-
commercial reporting of this Easement.
7.08 Warranties
The warranties and representations made by the parties in this
Easement shall survive its execution.
7.09 Recordino
Grantee shall record this Easement in the land records of the office of
the Clerk of the County of Suffolk, State of New York.
7.10 Headings
The headings, titles and subtitles herein have been inserted solely for
convenient reference, and shall be ignored in its construction.
IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee
has accepted and received this Deed of Easement on the day and year set
forth above.
ACKNOWLEDGED AND ACCEPTED:
FELIX DEERKOSKI, GRANTOR
~-~-
FELIX DEERKOSKI
ACKNOWLEDGED
TOWN OF SOUT
D ACCEPTED:
D, Grantee
BY: 'O#~~
Scott A. Russell
Supervisor
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
On this /9 day of SOoT. in the year 2007 before me, the undersigned, personally
appeared FEJ..JI( I>l<c'(I<~SKI personally known to me or proved to me on the basis
of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the
within instrument and acknowledged to me that he/she/they executed the same in
13
",
. his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the
individual(s), or the person upon behalf of which the individual(s) acted, executed the
instrument.
t~f.~^--
Notary Public
Notary Public
PATRICIA L. FALLON
Notary Public, Stat~ Of New York
No. 01 FA4950146
01':'1"-; !'.., ~;uff()lk County
Cornnti~,:';ion L:xpires April 24, 0lLJ II
STATE OF NEW YORK
COUNTY OF SUFFOLK
SS:
On this 1'1 day of &c1'T. in the year 2007 before me, the undersigned, personally
appeared Scott A. Russeli, personally known to me or proved to me on the basis of
satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or
the person upon behalf of which the individual(s) acted, executed the instrument.
j)dhuiL f,~
Notary Public
PATRICIA L. FALLON
Notary Public. Stat' Ot New York
No.01FM950g6
t.. d I ,.... .t"".~.II, '-''"'J',nty
Qua !'lie n bUl,,-,,"'. '-"...: .
Commission Expires Apnl 24,
oZ/) 1/
C\Documents and SettingslAnne\My Documents\Anne\Town of Southold Deeds of Development Rights\Deerkoski 9] 307 Grant of
Development Rights Easement changes highlighted.doc
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File No: RH07300744
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SCHEDULE A - DESCRIPTION
"LIMITED AGRICULTURAL STRUCTURE AREA"
AMENDED 09/13/07
ALL that certain plot, piece or parcel of land, situate, lying and being in the hamlet of Mattltuck,
Town of Southold, County of Suffolk and State of New York bounded and described as follows:
BEGINNING at a monument on the northerly side of Middle Road C. R. 27 at the extreme
southwesterly end of the curve that connects the westerly side of Elijah's Lane and the northerly
side of Middle Road C.R. 27;
RUNNING THENCE along said northerly side of Middle Road C. R. 27 the foliowing two (2) courses
and distances:
1. Westerly along an arc of a curve bearing to the right having a
radius of 1909.86 feet, a distance of 110.88 feet to a monument; and
2. South 75 degrees 58 minutes 51 seconds West, 248.33 feet to a
monument and land now or formerly of County of Suffolk;
THENCE North 25 degrees 41 minutes 09 seconds West along said land and later along land now or
formerly of Unified Credit Trust, 933.00 feet;
THENCE North 63 degrees 41 minutes 10 seconds East, and through land now or formerly of Felix
Deerkowski, 402.98 feet to the westerly side of Elijah's Lane;
THENCE South 26 degrees 18 minutes 50 seconds East along said westerly side of Elijah's Lane,
953.32 feet to a monument and the northerly end of the curve first above mentioned;
THENCE southwesterly along said curve bearing to the right having a radius of 53.37 feet, a
distance of 92.08 feet to the northerly side of Middle Road C. R. 27 and the point or place of
BEGINNING.
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ALTA Development Rights Policy (6-17-0Ci)
File No: RH07300744
SCHEDULE A - DESCRIPTION
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"PRIMARY AGRICULTURAL STRUCTURE AREA"
ALL that certain plot, piece or parcel of land, situate, lying and being in the hamlet of Mattituck,
Town of Southold, County of Suffolk and State of New York bounded and described as follows:
BEGINNING at a point on the westerly side of Elijah's Lane where the same is intersected by the
southeasterly corner of land now or formerly of Helen Berkoski and the northeasterly corner of the
premises herein described; said point being also distant the following two (2) courses and
distances from a monument at the extreme northerly end of the curve that connects the northerly
side of Middle Road, C.R.27 and the westerly side of Elijah's Lane:
1. North 26 degrees 18 minutes 50 seconds West, 1503.22 feet; and
2. North 26 degrees 03 minutes 00 seconds West, 137.99 feet
to the true point or place of BEGINNING;
RUNNING THENCE from said true point or place of beginning along land now or formerly of Helen
Berkoski the following two (2) courses and distances:
1. South 63 degrees 43 minutes 10 seconds West, 290.40 feet; and
2. North 26 degrees 02 minutes 40 seconds West, 150.00 feet
to land now or formerly of Dennis & Abersmith B. Deerkoski;
THENCE South 63 degrees 43 minutes 09 seconds West along said land, 98.55 feet to land now or
formerly of Barbara and Charles Smithen;
THENCE along said land the following two (2) courses and distances:
1. South 26 degrees 05 minutes 00 seconds East, 176.54 feet
to a monument; and
2. South 64 degrees 19 minutes 10 seconds West, 337.40 feet
to land now or formerly of Unified Credit Trust;
THENCE South 24 degrees 22 minutes 42 seconds East along said land, 238.76 feet;
THENCE through land now or formerly of Felix Deerkoski the following three (3) courses and
distances:
1. North 64 degrees 24 minutes 00 seconds East, 255.07 feet;
2. South 25 degrees 36 minutes 00 seconds East, 309.63 feet; and
3. South 64 degrees 24 minutes 00 seconds West, 261.68 feet
and again to land now or formerly of Unified Credit Trust;
THENCE South 24 degrees 22 minutes 42 seconds East along said land, now or formerly of 105.54
feet;
ALTA Developlllellt Rights Policy (6-17-06)
File No: RH07300744
THENCE North 65 degrees 37 minutes 32 seconds East still along said land, 345.00 feet;
THENCE through land now or formerly of Felix Deerkoski the following three (3) courses and
distances:
1. North 63 degrees 41 minutes 10 seconds East, 120.13 feet;
2. North 26 degrees 18 minutes 50 seconds West, 282.84 feet; and
3. North 63 degrees 41 minutes 10 seconds East, 282.85 feet
to the westerly side of Elijah's Lane;
THENCE along said westerly side of Elijah's Lane the following two (2) courses and distances:
1. North 26 degrees 18 minutes 50 seconds West, 267.06 feet; and
2. North 26 degrees 03 minutes 00 seconds West, 137.99 feet
to the point or place of BEGINNING.
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SURVEY OF PROPERTY
SITUATE: MATllTUCK
TOWN: SOUlHOLD
SUFFOLK COUNTY, NEW YORK
SUFFOLK GOUNTY TAX MAP
NUMBER 1000 - 101 - I - 2.3
5iJRVEYED. 06-14-2001
REVISED, 08-;21-2001
Ot>-31-2001
alRtmIID 1'0:
PELlXD!!IDKOSIlt:l
rowN OP '""""""
COMMONWEALTIlI LAND 1TILE lNSURANCBCOMPANY
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JOHN C. EHLERS LAND SURVEYOR
is EAST MAIN STREET
RlVERHEAD, N.Y. 11901
369-8288 Fax 369-8287
N.Y.S.LIC.NO.S02Q2
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111111111111 1111111111111111111111111111I111111 1111 I11I
111111111111 1111111111111
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT/DOP
Number of Pages: 19
Receipt Number : 07-0089112
TRANSFER TAX NUMBER: 07-05657
Recorded:
At:
09/24/2007
09:06:40 AM
LIBER:
PAGE:
D00012523
409
District:
1000
Section:
101.00
EXAMINED AND
$0.00
Block:
01.00
CHARGED AS
Lot:
002.006
FOLLOWS
Deed Amount:
Received the Following Fees For
Page/Filing
COE
TP-584
Cert.Copies
Transfer tax
$57.00
$5.00
$5.00
$12.35
$0.00
Above Instrument
Exempt
NO
NO
NO
NO
NO
Handling
NYS SRCHG
Notation
RPT
Comm.Pres
Fees Paid
$5.00
$15.00
$0.00
$50.00
$0.00
$149.35
Exempt
NO
NO
NO
NO
NO
TRANSFER TAX NUMBER: 07-05657
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
Judith A. Pascale
County Clerk, Suffolk County
mlllt~~ .__._- C-;;. -- ..
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Number ot' pages
TORRENS
q
~:ECOPDE[:T
2007 SeD 24 09~ 06i. 40 m'l
Judith R. Pascale
CLEF:K OF
SUFFOLK COUr.jPi,1
Serial #
L DOOOi2523
F' 40'j
Certificate #
DT# 07-05657
Prior Ctf. #
Deed I Mortgage Instrument
Deed I Mortgage Tax Stamp
Recording I Filing Stamps
3
FEES
Page I Filing Fee
.-
Handling
,)
5. 00
EA-52 17 (County)
EA-5217 (State)
R.P.T.S.A.
Sub Total
~7-
Mortgage Am!.
I. Basic Tax
2. Additional Tax
Sub Total
Spec.! Assi!.
or
Spec. I Add.
TOT. MTG. TAX
Dual Town _ Dual County
Held for Appointment
Transfer Tax ,f;'
Mansion Tax
TP-584
5"~
Notation
Comm. of Ed.
5. 00
The property covered by this mortgage is
or will be improved by a one or two
family dwelling only.
YES or NO
5 e:, CJ::j
Atlidavit
~o
/
/ rX 35"
15. 00 Q';} 35"
Sub Total -0..
Grn'" T"" d q '3::'- 9t-
(Certified Copy
NYS Surcharge
Other
4 Dist.l ODD Section I D I. OD Block 0 I. 00
If NO, see appropriate tax clause on
page # of this instrument.
-0'
Real Property
Tax Service
Agency
Verification
07028662
'/~~
(H'LPA A
'\21-SEP-OZ
.~
1000 10100 0100 002006
1000 10100 0100 002007
5 Community Preservation Fund
/ In/ItA
Consideration Amount $' U ,. J
CPF Tax Due $ A!T
Lisa Clare Kombrink, Esq.
235 HamptJn Road
Southampton, NY 11968
Improved
Vacant Land L/
6 Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD & RETURN TO:
TO
/ IfOl)
TO
TO
8
Suffolk Count Recordin
,
This page forms part of the attached
-oeev' kos 1(;
~ TO l
, I OW {\ Of SOJThol ()
The premises herein is situated in
SUFFOLK COUNTY, NEW YORK.
SDJ-rho I cJ
In the Township of
In the VILLAGE
or HAMLET of
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECORDING OR FILING.
(over)