HomeMy WebLinkAboutL 12362 P 78CONSERVATION EASEMENT
THIS DEED OF CONSERVATION EASEMENT, is made on the 2~'-day of
December, 2004 at Southampton, New York. The parties are Vallo Benjamin, M.D. residing at
29315 Main Road, Grient, New York 11957 (herein called "Grantor'), and the PECONIC
LAND TRUST, INCORPORATED, a not-for-profit New York Corporation, having a principal
office at 296 Hampton Road, P.O. Box 1776, Southampton, New York 11969 (herein call
· "Grantee").
WHEREAS, Grantor is the owner in fee simple of cortain real property located in the
Town of Southold, Suffolk County, New York, more fully described in SCHEDULE A end
shown on the Conservation Easement Map marked EXHIBIT A, both attached hereto, made a
part hereof, end hereinafter referred to as the "Property"; and
WHEREAS, the Property is located in the (Low Density Residential R-80) ZonLng
District of the Town of Southold which designation, to the extent possible, is intended to prevent
the unnecessary loss of those currently open lands which contain prime agricultural soils as
outlined in the Town of Southold code, Section 100-30, further described as Suffolk County Tax
Map Parcel Number 1000-13-2-8.2; end
WHEREAS, Grantor wishes to grant a Conservation Easement on the 23-acre parcel of
Property so that a portion of the Property (hereinafter referred to as the "Open Area", comprising
six (6) acres of the Property, moro fully described in SCHEDULE B altached hereto) shall
remain in its open, undeveloped, and scenic state and the remainder of the Property (hereinafter
referred to as the "Development Area(s)", comprising seventeen (17) acres of the Property, may
be further developed with no more than five (5) single-family resideneas with appurtenant
structures end improvements; and
WHEREAS, the Property contains soils classified as Class I end Class II woi'~hy of
conservation as identified by the United States Department of Agriculture Soil Conservation
Service's Soil Survey of Suffolk County, New York; end
WHEREAS, the Property is currently in agricultural use as a vineyard end it is Grentor's
WHEREAS, the Property is part of the New York State Agficultmal District #1, end the
Grantor wishes to continue using the Open Area in en agricultural capacity and as scenic open
space as defined in the Town of Southold; and
WHEREAS, it is the policy of the Town of Southold, as articulated in the Town's Master
Plan of 1973, mended in 1986 end 1989 as adapted by the Town Board, Town of Southold
code, 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, New york State has recognized the importance of private efforts to preserve
land in a scenic, natural and open condition through conservation easements by enactment of
Environmental Conservation law, Section 49-0301, et.seq.; and
WHEREAS, Article 57 of the New York State Environmental Conservation Law, Section
57-0101, et.seq., entitled "Long Island Pine Barrens Maritime Reserve Act," declared it to be in
the public interest to protect end manage the Pine Barrens/Peconic Bay maritime system,
including the Property; and
WHEREAS, the Property is part of the Peconic Estuary System which was included in
the National Estuary Prog~em by determination of the United States Environmental Protection
Agency on September 9, 1992, as a "nationally significant estuary"; and
.WH_EP~A~, the Preps?.7 effe?~ ~he public s'~"Jfiee.~.t scen'Z44slas ef epen !:md~m
protected farmland to farmland to the east; and
WHEREAS, the Property has road frontage on Heath Drive and Sound View Drive which
offer the public scenic vistas of the subject property; and
WHEREAS, Grantor and Grantee recognize the value and apecial 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 Open Area 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 Conservation Easement to Grantee in
order to reslrict the further development of the Property while permitting compatible uses
thereof;
NOW THEREFORE:
Grantor warrants and represents to the Grantee that Grantor is the owner of the Property
described in SCHEDULE A, f~e of any mortgages or liens and possesses the right to grant this
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a 501(c)(3) qualified not-for-
profit charitable organization under Section 170(h)(3) of the Internal Revenue Code of 1986, as
emended and the regulations thereunder(hereinafter called "the Codo"), and incorporated under
the Not-For-Profit Corporation Law of New York State for the propose of conserving and
preserving the unique environmental, agricultural, scanie and open apace values of lands located
in New York State.
0.03 Purpo_ se
The parties recognize the open space and agricultural values of the Open Area and have
the common purpose of preserving these values. This Deed is intended to convey a Conservation
Easement on the Property by Grantor to Grantee, exclusively for the purpose of preserving its
open space character in pexpetuity and its agricultural values by preventing the use or
development 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 Government Recomaition
New York State has recognized the importance of private efforts to preserve land in a
scenic, natural, and open condition through conservation restrictions by enactment of
Environmental Conservation Law, Article 49-0301, et. seq. Similar recognition by the federal
govemmant includes Section 170(h) of the l~ternal Revenue Code and other federal statutes.
0.05 Grantee's Warranty
Grantee warrants and represents that it possesses the intent and ability to enforce the
terms of this Conservation Easement on the Property, and that the Property satisfies the criteria
adopted by Grantee relating to the quality and characteristics of open land that should be
protected and maintained as open land, as determined by the Board of Directors at a duly
'constitut~:d meeting of that Board on October 18, 2004.
0.06 Documentation
Grantee acknowl, e~tge,~J/y~a~lplanee of th s Fxqement that pre~qent unen af~pyape~y
~e compatible with the pu~sas of~is E~ment. G~tor h~ m~e avail~le to Gr~tee
sufficient documentation to establiah ~e condition of~e Prope~y at ~e time of~e gift of~is
E~emetu. In order to aid in identi~ing ~d docmenting ~e pr~ent condition of the Prope~y's
resources ~d o~e~ise m ~d in identi~ing ~d d~m~t~g ~e Prope~y's open space v~ues
~ of~e date he.f, to ~sist ~tor ~d Gr~tee ~ mo~todng ~e ~as ~d activities on ~e
Propeay ~d ~u~g compli~ce M~ ~e te~s h~f, ~tee h~ pr~ed, with ~tor's
c~pemtio~ ~ inv~to~ of~e Pmp~'s relev~t featur~ ~d conditiom (~e "B~eline
~cmentatiun"), ~is B~el~e ~m~tafion includes, but need not be l~ited m, ~
appraisal of~e pmpe~y a~ble tu O~tee, a Come~afiun E~ent M~ m~ked E~IBIT
& ~ aerial photo.h, photog~ of~e Pmpe~, a to~e~ map, a de~fiption ~d site
pl~ of existing l~d m~, fea~, md s~c~s ~d ~ ac~owl~t page si~ by
~tor ~d ~t~ wMch vefifi~ ~at ~e B~eline ~fion ~o~ ~tely r~resen~
~e mnditiun of~e ~op~ at ~e t~e of~e ~t. Copi~ of~e B~efine ~cm~tafiun
sh~l be ~ s~ely by ~t~ ~d ~t~. ~tor ~d ~t~ ac~owl~ge ~d a~ee
· at in ~e ev~t a ~n~v~y ~s~ ~ r~t to &e m~e ~d extent of~e ~tor's ns~
of~e Prope~y or i~ physical ~ndifion ~ of~e d~e be~[ ~e p~ sh~l not be foreclos~
~om utilizMg ~y o~er relev~t or material d~umen~, ~meys, repom, photo~aphs, or other
evidence to ~sist in ~e r~olution of~e ~n~ovemy.
0.07 Recitation
In consideration of the recited facts, mutual promises, undertakings, and forbearances
contained in this Easement, the parties agree upon its provisions, intending to be bound by it and
Grantor hereby voluntarily grants and conveys this Conservation Easement in pe~qoetuity to
Grantee.
1.01 Type
This instrument conveys a Conservation Easement (herein called the "Easement"), This
Easement shall consist of the covenants, restrictions, rights, terms, and conditions recited herein.
Reference to this "Easement" or its "nrovisions" shall include any and all r~f th~ cav~nante,
restrictions, rights, terms and conditions.
1.02 Duration
This Easement shall be a burden upon and nm with the Property in pe~:}etuity.
This Easement shall mn 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 every one of its
subsequent agents, successors, and assigns, and the word "Grantee" when used herein shall
include all of those persons or entities.
GIFT
GRANTOR, as an absolute gift, 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.
From and after the date of this Easement, the following acts, uses and practices are
prchibited forever upon or within the Property; except as otherwise specifically permitted by the
provisions hereof.
3.01 Stxuctures
Except as provided in Section(s) 4.06, the construction or placement of residential,
commercial, indus~al or other buildings, stmctorcs, or improvements of any kind or nature
(including, but not limited to mobile homes), permanent or temporary, on, over, or under the
Pwperty, is pwhibited. Structures and improvements, including, but not limited to, driveways
and agricultural structures as permitted in Section(s) 4.06 hereof, may not be made on, over, or
under the Property without the prior written consent of the Grantee.
3.02 Excavation and Removal of Materials: Mininf,
The excavating or filling of the Property, except as may be necessary to construct and
maintain permitted structures and improvements on the Property, is 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 contxol and
soil management, without the prior written consent of Grantee.
3.03 Subdivision
The subdivision or partitioning of the Prope~y is prohibited, without the prior written
consent of Grantee, which shall be granted if that subdivision or partition is consistent with the
terms of this Easement. In no event shall any subdivision result in the creation of more than five
(5) residential lots, as provided in Section 4.06 hereof. The Open Axea shall not be subdivided.
3.04 Dumping
The dumping or acoanaulation of unsightly or offensive materialn inelndln~, hnt nc~t
limited to txash, garbage, sawdust, ashes or chemical waste on the Property is prohibited. This
prohibition shall exclude materials used on the property in the normal course of sound
agricultural practices, including fertilization and composting.
3.05 Sic, ns
The display of signs, billboards, or adve~semants is prohibited, except signs whose
placement, number, and d~sign do not significantly diminish the scenic character of the Property
and only for any of the following purposes: (a) to state the name and address_of the Property and
the names and addresses of the occupants, (b) to temporarily advertise the Property or any
portion thereof for sale or rent, (e) to post the Property to control unauthorized entry or use, or
(d) to announce Grantee's conservation easement. Signs shall not be more than six square feet in
size, be non-ilhiminated and are subject to regulatory requirements of the Town.
3.06 Ponds and Water Courses
The alteration of the pond located on the'Property or the creation of new water
impoundments or water courses is prohibited without Grantee's consent.
3,97 Lan. dscaDin~ Activities
The removal of trees, shrubs, or other vegetation from the property is prohibited except as
provided in Section(s) 4.05 and 4.06.
The creation or placemem of overbead utility transmission lines, utility poles, wires,
pipes, wells or drainage and septic systems on the Open Area is prohibited without the prior
written consent of the Grantee. Utilities on the Proper~y must, to the extent possible, be
constructed within 30 feet of the centerline of roads or driveways, and may be used solely to
service the permitted structures.
3.09 Uses
Commercial-recreational uses are prohibited. The use of the Property for any commercial
or industrial propose is prohibited except as specifically permitted herein~ Residential uses
permitted in Section 4.06 shall not be considered commercial or industrial uses.
The use of the Open Area for a leaching or sewage disposal field is prohibited, except to
service the permitted structures. The use of the Open Area for a drainage basin or sump is
prohibited, except in accordance with sound agricultural management practices and in order to
control flooding or soil erosion on the Property.
The use of the acreage of this Property for purposes of calculating lot yield or
development density on any other Property is 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 right to coustruct, maintain and replace
the structures as provided in Section 4.06, and the parties agree that such rights, except those
required to carry out the permitted uses of and activities on the property, are terminated and
extinguished and may not be used or transferred to any other parcels.
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Orantor shall retain all other customary
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, New York, State,
or federal law.
4.04 Landscanine Activities
Grantor shall have the right to continue the current modes of landsoaping, 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.
4.05 A_efieultural Activities
Grantor shall have thc right to engage in all types of agricultural activity as the term is
defined in Section 301 of the New York State Agriculture and Markets Law, provided that such
n,-t~,,i~ ,h-!! be~'ona_uctediv. ~-¢cerdav. ce w'.'~h C~'.eptmposesand4pvov]s]zr&c,f_th~a Ea~ernznt.
Accessory structures, as permitted by 4.06B, and as may be reasonably necessary in connection
with agricultural me and the maintenance on the Property of horses, sheep, beef ur dairy cattle,
or.aimil~r domestic livestock, may be constructed, maintained or replaced by Grantor with the
prior wrttten consent of the Grantee and are subject to appropriate governmental approval.
4.06 Structures
A. Allowable Residential Improvements
Grantor shall have the right to construct no more than five (5) single-family
residences with appurtenant structures and improvements reasonably n~enssary to serve
such residences including, without limitation, driveways, garages, storage sheds, septic
systems and leaching fields, swimming pools, pool houses, tennis courts, and other
family-scale athletic fecilities. Grantor shall have the right to remove trees, shrubs, or
other vegetation reasonably necessary to eoustruet or replace such single-family
residences and appurtenant structures and improvements. All such residences, structures
and improvements shall be constructed, maintained and replaced within the Development
Area as described in SCHEDULE C.
B. Allowable Non-Residential Improvements
Grantor shall have the right to erect and maintain the following non-residential
improvements on the Open Area which are necessary to and consistent with the
agricultural uses as permitted in Section(s) 4.05 hereof, with the prior written ennsent of
Grantee:
(i)
Agricultural structures, including but not limited to stables, barns, sheds, and silos
as are necessary for the agricultural uses of the Agricultural Area, placed so that
they do not detract fi'om or adversely affect the conservation values protected by
this Easement; and
(ii) Existing access drives, to provide aeeees to the improvements permitted by this
Section 4.06; and
(iii)
(iv)
C.
Underground facilities used to supply utilities, septic systems, leaching fields, and
control stormwater renoff from the improvements permitted under the terms of
this para_ovaph A. and lq n~ prnvid~cl ;. ~"~en 3~08 he.~e-2~ f; and
Fences, if they are placed so that they do not block or deb'act from the scenic view
of the property, may be constructed without the prior written consent of Grantee.
Replacement of Structures or Improvements In-Kind
In the event of damage resulting from casualty to au extent which renders repair
of any existing structures or improvements impractical, erection of a replacement_of
comparable size, bulk, use, and general design to the damaged improvement or structure
shall be permitted within the same location subject to the review and written approval of
Grantee.
D. Environmental Sensitivity During Construction
The use and location of any improvement permitted to be constructed hereunder
shall be consistent with the conservation purposes intended herein, and constmetion of
any such improvement shall minimize disturbances to the environment. Grantor shall
employ erosion and sediment control measures to insure that storm water ronoffwill not
carry eroded and other deleterious materials into Long Island Sound (or other wetland
area), including but not limited to minimal removal of vegetation, minimal movement of
efirth and minimal clearance of access routes for consU~uetion vehicles.
4.07 Notice
Grantor shall notify Grantee, in writing, before takingany~ac~ion ur bef~e_exerei~ing any
reserved right with respect to the Property, which could adversely affect the environmental,
scenic, open space, and agricultural values which are the subject of this Easement. This includes
the eonstrucfiun of any permanent or temporary structures as provided in Section 4.06 hereof.
Grantor shall provide Grantee with complete documentation including information on the need
for and use of such structures, and architectural plans of any proposed structures, which are
subject to Grantee's approval. The request for approval shall desoribe the nature, scope,
location, timetable and any other material aspect of the proposed improvement or activity in
sufficient detail to permit Grantee to evaluate the proposal.
Approval, disapproval or comments of Grsatee shall be given to Grantor within 45 days
after all necessary documentation and information is submitted to Grantee. If, aRer 45 days,
Grantor has not received any response from Grantee to such submission, then Grantor shall
notify Grantee in writing that is has not received any response ~ aneh submission. If Grantee
fails to raspund to soch secund notico with 10 days thereafter, then Grantee shall be deemed to
have approved Grantor's proposed action or request.
Whenever an action by Grantor requires the approval of Grantee, it is understood Grantor
must also obtain any required governmental approvals for the action.
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
txanaferee, 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 oft. his Easement, and shall
incorporate this Easement by reference, epecifieally setting for the date, office, liber and page of
the recording hereof.. The failure of any such instnunent to comply with the provisions hereof
shall not affect Grantee's fights hereunder or the validity of this Easement.
GRANTOR'S OBLIGATIO~N'S
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. If Grantor fails to make such payments, Grantee is authorized
to make such payments (but shall have no obligation to do so) upon ten days prior written notice
to Grantor, according to any bill, statement or estimate procured from the appropriate public
office without inquiry into the accuracy thereof. That payment, if made by Grantee, shall
become a lien on the Property of the same priority as the item if not paid would have become,
and shall bear interest until paid by Grantor at two percentage points over the prime rate of
interest from time to time charged by Citibank, N.A., or its corporate successor.
5.02 Indemnification
Grantor shall indemnify and hold Grantee harmless for any liability, costs, attorneys'
fees, judgments or expenses to Grantee or any of its officers, employees, agents or independent
contractors arising from the physical maintenance or condition of the Property or from any taxes,
levies or assessments upon it or resulting from this Easement, all of which are considered
Grantor's solo obligations.
5.03 Third Party_ Claims
~rantor shall iaderunify and holdJ3mnt~o harmlesg facanv liahiliw cnetn nflr*rne~'
fees, judgments, or oxpensos to Grantee or any of its officors, em~loyeas, ~ents ~r independent
contractors resulting: (a) fi.om injary to persons or damages to prop~ty arising from any activity
on tho Property, except thuso due solely to tho acts of the Grantee, its officers, employees,
a~¢~nts, or independent contractors; and (b) from actions or claims of any nature by third parties
arising out of tho entering into or oxereise of rights under this oasemont, oxoepting any ofthoso
matters arising solely from tho acts of Grantee, its officers, employees, agents, or independent
contractors.
GRANTEE'S RIGHTS
Grantee shall have the right to enter upon tho Property at reasonable times, upon prior
notice to Grantor, and in a manner that will not interfere with Grentor's quiet use and enjoyment
of the Property, for the purpose of inspection to dotermine whether this Easement and its
pmpnaes and provisions are being upheld. Grantee shall not have the right to enter upon tho
Property for any other purpose, except as provided in Section 6.03 nor to permit access upon the
Property by the pablie.
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 ehenges to the
Property resulting from causes beyond the Grantor's control, including, without limitation, fire,
flood, storm, and eaah movement, or from any prudent action taken by the Grantor under
emergency conditions to prevent, abate; or mitigate sigin/ieant injury to persons or to the
Property resulting fi.om such eanses.
6.03 Enforcement Riehts of Orant~
Grantor acknowledges and agrees that Grantee's remedies at law for any violation of this
Easement are inadequate. Therefore, in addition to, and not in limitation of, any other rights of
Gran~e hereunder at law or in equity, in the event any breach, default or violation c~f any **em
prowsloa, covenant or obligation on Grentor's pm to be observed or performed porsua~t to this
Easement is not cured by Grantor within fifteen (15) days notice therenfby Grantee (which
notice requirement is expressly waived by Grantor with respect to any such breach, default or
violation which, in Grantee's reasonable jodgment, requires immediate action to preserve and
protect any of the open space values or otherwise to fro'thor tho pmposos of this Easement),
Grantee shall have tho right at Grantor'a 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/ur 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 proposes 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, or violation or with respect to any other breach,
default or violation of any term, condition, covenant or obligation under this
Easement.
Grantor shall pay either dircctly or bY reimbursement to Grantee, s!! reasQnab!e
attorneys' fees, court costs and other expenses incurred by Grantee (herein called "Legal
Expenses") in connection with any proceedings under this Section.
6.04 No Waiver
Grantee's exercise of one remedy or relief nnder 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 have the effect of waiving or limiting the use of any other
remedy or relief or the use of such other remedy or relief at any other time.
6.05 Assimaabilitv
Grantee shall have the right to assign any and all of its rights and responsibilities under
this Easement, and any and all of its rights, title and interest in and to this Easement only to a
qualified organization (herein called "the Assignee"). As used herein: the term "qualified
organization" means a not-for-profit corporation, or a governmental uait or agency, which is
qualified to receive such interests pursuant to Article 49 of the New York Environmental
Conservation Law, and is a qualified organization within the meaning of Section 170(h)(3) of the
Code, which is organized or operated primarily or substantially for one of the conservation
purposes specified in Section 170(hX4XA) of the ex, de. Any assignment by Grantee or a
successor Grantee must require the Assignee or Aesignee's successors to carry out the purposes
of this Easement. The Assignee and its successors and assigns shall have the same right of
assignment, subject to compliance with the provisions of this Section 6.06.
6.06 Succession
If at any time Grantee or any Assignee is unable to enforce this Easement, or if Grantee
or any Assignee ceases to exist or ceases to be a qualified organization under I.R.C. Section
170(h)(3), then this Easement shall be vested in such qualified corporation, body or agency as
defined and upon the conditions contained in Section 6.05 as the Grantee shall designate. If, on
the occurrence of any of these events, Grantee or any successor or assignee fails to assign all of
its rights and responsibilities under this Easement and all of its rights, title and interest in and to
this Easement to a qualified organization, then the rights and responsibilities under this Easement
shall become vested in another qualified organization, in accordance with a cy pres proceeding
brought in any court of competent jurisdiction.
This Easement gives rise to a property right and interest immediately vested in the
Grantee. For purposes of this Section 6.07, the fair market value of such right and interest shall
be equal to the difference, as of the date hereof, between the fair market value of the Property
subject to this Easement and the fair market value of the Property if nnenenmbered hereby. Such
difference, divided by the fair market value of the Property unenenmbered by this Easement, is
hereinal~er referred to as the "Proportionate Share". The Proportionate Share of this Easement is
68% as based on the Grantor's appraisal dated December 20, 2004 and filed as part of the
Baseline Documentation Report reflected in Section 0.06.
.In the event a material and potentially unforeseeable change in thc conditions
surrounding the Property makes impossible its continued use for the purposes contemplated
hereby, resulting in an extinguishment of this Easement by a judicial proceeding, Grantor shall
pay to Grantee an amount equal to the Proportionate Share of the fair market value of the
Property at such time. In the event of a sale by Grantor to an unrelated person subsequent to
such extinguishment, or a transfer made on account of the exercise of the power of eminent
domain, the sale price or condemnation award shall establish fair market value. Absent such a
sale, the Property's fair market value shall be established by independent appraisal.
If all or any part of the Property is taken under the power of eminent domain by public,
corporate, or other authority, or otherwise acquired by such authority through a purchase in lieu
of a taking, so as to abrogate thc restrictions imposed by this Easement or otherwise effectively
to frustrate the purposes hereof, Grantor and Grantee shall join in appropriate proceedings at the
time of such taking to recover the full value of the interests in the property subject to the taking
and all incidental or direct damages resulting ftc.'::. ~.e taking~Mt expenses~reasonabty incurred
by the parties to this Easement in connection with such taking shall be paid out of the recovered
proceeds. Grantee shall be entitled to the Proportionate Share of the remaining recovered
proceeds. Grantee shall use such proceeds actually recovered by it in a manner consistent with
the purposes of this Easement.
The respective rights of Grantor and Grantee set forth in this Section 6.07 shall be in
addition to, and not in limitation of, any rights they may have by law with respect to a
modification or termination of this Easement by reason of changed conditions or the exemise of
powers of eminent domain as aforesaid.
7.01 Entire lJnderstanding
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 Code Soctiun 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 be ennsistent with the Purpose of this
Conservation Easement, shall not affect its perpetual duration, shall not permit additional
residences on the Property other than as permitted under this Conservation Easement on its
effective date, and shall not permit any impairment of the significant conservation values oftbe
Property. Any such amendment shall apply retroactively in the same manner as ifaneh
amendment or amendments had been set forth herein.
This Easement can be terminated or modified in accordance with the common and
statutory law of the State of New York applicable to thc termination and modification of
easements and covenant~ nmning urith the I~ntt
right to agree to amendments to this Easement that are not inconsistent with the purposes of this
Easement set forth in the herein, provided however, that Grantee shall have no right or power to
agree to any amendments hereto that would result in this Easement failing to qualify as a valid
Conservation Easement under Article 49, Title 3 of the Environmental Conservation Law oftbe
State of New York, as the same may be hereafter emended, any regulation issued pursuant
thereto, or Section 170(h) of the Code governing "qualified conservation contributions".
The parties acknowledge that the boundaries of the Open Area and the Development
Areas may have to be adjusted to accommodate the Town of Sonthold if the Property is
subdivided as permitted in Section 3.03 and the parties agree to cooperate in such boundary line
adjustments as permitted, provided said adjustments would not result in diminution of the Open
Area or an increase in the area which may be developed by the Grantor.
7.03 Severabili~y
Any provision of this Easement restricting Grantor's activities, which is determined to be
invalid or unenforceable by a court of competent jurisdiction, 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 of competent jurisdiction shall be severed from the other provisions,
'which siSall remain enforceable and effective.
7.04 Notice
All notices required by this Easement must be written. Notices shall be delivered by
hand or express, certified.or registered mail; return receipt requested, or by certified mail, with
sufficient prepaid postage affixed and with return receipts requested. Mailed or expressed 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 7.04. Mailed notice to Grantee
shall be addressed to its principal office, recited herein, marked for the attention of the President,
or to such other address as Grantee may designate by notice in accordance with this Section 7.04.
Notice shall be deemed given and received as of the date of its manual delivery or the date of its
mailing.
New York Law applicable to deeds and conservation easements pertaining to land located
within New York shall govern this Easement in all respects, including validity, construction,
interpretation, breach, violation and performance, except as provided in Section 7.06 hereof.
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 shail be consU'ued against the party whose attorney drafted it.
If any provision of this Easement is embignons 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 thc 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 fight to use the Property, except as otherwise recited
herein, be construed at all times and by all parties to effectuate its proposes.
7.07 Public Access
Nothing contained in this Easement grants, nor shall be interpreted to grant, to the public
any right to enter upon the Property.
7.08 Warranties:
The warranties and representations made by the parties in this Easement shall survive its
execution.
7.09 Recording
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 Conservation Eas~aent on the day and year set forth above.
ACKNO~7 ACCEPT~ED:
ACK~OWLEDGEDANDACCEPTED:
PECONIC LAND TRUST, INCORPORATED (Grantee)
BY: ]~,. ,~ [4. ~
o~ v.H. Halsey
President
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
· .~ ~r' .
_On~..this~5. ,d?y ofge-o~ tn the year 2004 before me, the undermgned, personally
appeared ~ e.. ~tst~t, 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 instxument 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 insU'ument, the individual(s), or the person upon behalf of which
the individual(s) acted, executed the instrument.
N~[ary Public
STATE OF NEW YORK )
COUNTY OF SUFFOLK ) SS:
Juile 1~ Wesnofske
Nota~ff Public State of New York
No. Ot WE50644~5
STATE OF NL=W YORK SS:
~OUNIY OF SUFFOLK
~EDWARD P. ROMAINE, CLERK OF THE COUNTY OF SUFFOLK AND CLERK OF THE SUPREME COURT
OF THE STATE OF NEW YORK IN AND FOR SAID COUNTY (SAID COURT BEING A COURT OF RECORD)
DO HEREBY CERTIFY THAT I HAVE COMPARED THE ANNEXED COPY OF
DEEDLIBER ]D.-~,,Tt.. ATPAGE O'~ RECORDED
AND THAT IT IS A JUST AND TRUE COPY OF SUCH ORIGINAL F~ AND OF THE WHOLE
1HEREOF
N TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND AND AFFIXED THE SEAL OF SAID
OUNTYAND COURTTHIS ~ DAY OF ~
CLERK ~-o~..
EXHIBIT A: Existing Conditions Map of the Conservation Easement Area
'rifle Number 326S07325-1
Schedule A Description
Page
DISTRICT 1000 SECTION 013.00 BLOCK 02.00 LOT008.002 ON THE TAX
MAP OF SUFFOLK COUNTY
ALL that certain plot, piece or parcel of land, situate, lying and being at Orient,
Town of Southold, Country of Suffolk, State of New York, bounded and
descdbed as follows:
BEGINNING at a point on the Northerly side of main Road (N.Y.S. Rte 25) at the
Southwesterly comer of land now or formedy of Nathan B. Kyrkostas, said point
of beginning also being the intersection of the Easterly side of Heath Drive and
the Northerly side of Main Road (N.Y.S. Rte ~5) and running the following four
courses distances to the point or place of BEGINNING:
RUNNING THENCE North 15 degrees 09 minutes 40 seconds West along the
Easterly side of Heath Drive 400.90 feet;
THENCE North 20 degrees 09 minutes 20 seconds West continuing along the
Easterly side of Heath Drive 306.60 feet;
THENCE continuing along the Easterly side of Heath Drive as it curves to the
right having a radius of 572.95 feet;
THENCE North 10 degrees 21 minutes 10 seconds West continuing along the
Easterly side of Heath Drive 76.03 feet to the point or place of BEGINNING;
RUNNING THENCE South 79 degrees 18 minutes 50 seconds West 50.00 feet;
THENCE North 10 degrees 21 minutes 10 seconds West 85.00 feet;
THENCE South 78 degrees 34 minutes 40 seconds West 218.47 feet;
THENCE North 11 degrees 25 minutes 20 seconds West 89.00 feet;
THENCE South 78 degrees 34 minutes 40 seconds West 300.00 feet;
THENCE South 11 degrees 25 minutes 20 seconds East 40.00 feet;
Continued On Next Page
Title Number 326507325-'1
Schedule A Description - continued
Page 2
THENCE South 78 degrees 34 minutes 40 seconds West 54.36 feet;
THENCE North 36 degrees 59 minutes 10 seconds West 198.46 feet;
THENCE North 14 degrees 02 minutes 30 seconds West 136.11 feet;
THENCE South 78 degrees 34 minutes 40' seconds West 43.53 feet;
THENCE North 34 degrees 42 minutes 50 seconds West 327.28 feet;
THENCE North 74 degrees 28 minutes 10 seconds East 149.02 feet;
THENCE South 23 degrees 02 minutes 50 seconds East 93.00 feet;
THENCE North 72 degrees 57 minutes 20 seconds East 340.00 feet;
THENCE North 23 degrees 28 minutes 50 seconds West 54.00 feet;
THENCE North 15 degrees 36 minutes 00 seconds West 332.48 feet;
1 HENCE North 1[ degrees 40 minutes 21 seconds West 3~0.92 feet to the
approximate high water mad( of Long Island South as said high water mark was
on 10/25/99;
THENCE North 81 degrees 45 minutes 14 'seconds East along said approximate
high water mark 15,29 feet;
THENCE South 76 degrees 51 minutes 06 seconds East continuing along said
high water mark 79.36 feet;
THENCE South 83 degrees 13 minutes 57 seconds East continuing along said
approximate high water mad( 102.03 feet;
THENCE North 75 degrees 51 minutes 58 seconds East continuing along said
approximate high water mark 90,76 feet;
THENCE North 68 degrees 13 minutes 55 seconds East continuing along said
approximate high water mad( 125.49 feet;
Continued On Next Page
Title Number 326S07325-1
Schedule A Description- continued
Page 3
THENCE North 74 degrees 59 minutes 56 seconds East continuing along said
approximate high water mark 82.19 feet;
THENCE South 82 degrees 21 minutes 41 seconds East continuing along said
approximate high water mark 47.95 feet;
THENCE South 15 degrees 46 minutes 30 seconds East 667.44 feet;
· THENCE North 72 degrees 57 minutes 20 seconds East 175.00 feet;
THENCE South 08 degrees 04 minutes 52 seconds East 50.09 feet;
THENCE South 10 degrees 21 minutes 10 seconds East 723.83 feet;
THENCE South 79 degrees 36 minutes 50 seconds West 267.00 to the Easterly
side of Heath Drive, the point or place of BEGINNING.
SUBJECT to the burdens of a certain Right of Way over the most Easterly
portion of premises as more fully set forth in Liber 1093 page 247 and Liber
12004 page 934.
Continued On Next Page
Schedule B
Hill Crest Estates, Section 2
at Orient, Town of Southold,
Suffolk County, New York
Surveyor's Description
Parcel C Conservation Easement
To be Donated to Peconic Land Trust
ALL that certain plot, piece or parcel of land, with the buildings and
improvements thereon erected, situate, lying & being at Orient, Town of Southold,
County of Suffolk and State of New York, known and designated as Parcel C
Conservation Easement to be Donated to Peconic Land Trust as shown on Map of ~Hill
Crest Estates, Section 2', more pa~dcolarly boundary and described as follows:
BEGINNING at a point on the westerly side of Heath Drive, said point being
situate the following two (2) courses and distances as measured along the westerly side
of Heath Drive from the westerly terminus of the arc of a curge counecdng the westerly
side of Heath Drive and the northerly side of Hill Crest Drive:
1. On the arc of a curve W the left having a mdins of 25.47 feet for a distance
of 39.53 feet,
2. North 10 deg. 21 min. 10 sec. West 76.03 feet;
RUNNING thence from said point of beginning along Lot 30, Subdivision, "Hill
Crest Estates, Secrion 1' Suffolk County File No. 7218 the following two (2) courses and
distances:
North 10 deg. 21 mia. '10 sec_ West 85.00 feet,
South 78 deg. 34 mi, 40 sec West 218.47 feet to Lot 29, Subdivision,
~Hill Crest Estates, Section 1";
RUNNING thence Nor'th 11 deg. 25 min_ 20 sec- Wast along Lot 29, Subdivision,
~Hill Crest Estates, Section 1' 89.00 feet to Parcel B, as shown on Map of"Hill Crest
Estates, Section 2";
RUNNING thence Nocth 00 deg. 13 min. 13 sec- West along Parcel B, as shown on
Map of"Hill Crest Estates, Section 2" 375.58 feet to Parcel A, as shown on Map of "Hill
Grest Estates, Section 2";
RUNNING thence North 78 deg. 34 min. 40 sec. East along Parcel A, as shown on
Map of "Hill Clv.~L E~U, Lr.~, Suciiou 2' 471.10/rtl ~o thc r,,;~i, ml.v ~idc ur a ucsi~h~ 23 £uuL
· right of way and land now or formerly Frank B. Zimmer;
RUNNING thence South 10 deg. 21 min. 10 sec. East along the westerly side of a
certain 25 foot right of way and land now or formerly Frank B. Zimmer 548.42 feet to
Lot 32, Subdivision, "Hill Crest Estates, Section 1";
RUNNING thence South 79 deg. 38 min. 50 sec. West along LOt 32, Subdivision,
"Hill Cz~st Estates, Section 1" and crossing Heath Drive 317.00 feet to the westerly side
of Heath Drive an4 the point or place of Beginning.
CONTAINING an area of 6.0000 Acres.
N
SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT/DOP
Number of Pages: 18
Receipt Number : 04-0139581
TRANSFER TAX NUMBER: 04-21421
District:
1000
Deed Amount:
Section: Block:
013.00 02.00
EXAMI~u AND CHARGED AS FOLLOWS
$0.00
Recorded:
At:
LIBER:
PAGE:
Lot:
Received the Following Fees For Above Instrument
Page/Filing $54.00 NO Handling
COE $5.00 NO NYS SRCHG
TP-584 $5.00 NO Notation
Cert.Copies $22.50 NO RPT
SCTM $0.00 NO Transfer tax
Comm. Pres $0.00 NO
TRANSFER TAX NUMBER: 04-21421
Fees Paid
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
Edward P.Romaine
County Clerk, Suffolk County
12/23/2004
01=16:56 PM
D00012362
078
008.002
Exempt
$5.00 NO
$15.00 NO
$0.00 NO
$30.00 NO
$0.00 NO
$136.50
Serial #
Certificate #
Prior Cfi. #
Mortgage Instrument
31
Page / Filing Fee
Handling
TP-584
Notation
EA-52 17 (Coanty)
EA-5217 (State)
R.P.T,S.A.
Comm. of Ed.
NYS Surcharge 15. 00
Other
Real Property
Tax Service
Agency
Verification
RECORDE5
2004 E~c 25 01:16:56 PM
EO~ard P. Ro~ine
CLERK OF
Deed / Mortgage Tax Stamp
FEES
Sub Total
Sub Total
Grand To~al ~
1000 01300 0200 008002
Recording / Filing Stamps
Mortgage Amt.
1. Basic Tax
2. Additional Tax
Sub Total
Spec./Assit.
O£
Spec./Add.
TOT. MTG, TAX
Dual Town -- Dual County
Held for Appointment
Transfer Tax ~
Mansion Tax
~ !m'opcrty covered by tiffs mortgage is
or will be improved by a one or two
family dwelling only.
YES or NO
If NO, see appropdat~ tax clau~ on
page # of this instrument.
5
Consideration Amount
CPF Tax Due
Preservation Fund
Improved,
6 [ SatisfaetionffDischarges/Relea~z Li~t Property Owners Mailing Addr~s
RECORD & RETURN TO:
Peconie Land Trust, Inc.
296 Hampton Road
PO BOX 1776
Southampton, NY 11969
Vacant Land
TI)
'rD
TD
7Co.[Name Title Company lnform.~Jon
Tide #
Suffolk County Recording & Endorsement Page
3'his page forms pan of the attached
(SPECIFY TYPE OF INSTRUMENT)
The premisez herein is situated in
SUFFOLK COUNTY, NEW YORK.
made by:
TO In the Township of ~0~ tJ!nO 1 ~
or ~ML~ of 0 ~)~m ~
BO~ 6 THRU 8 MUST BE TYPED OR P~D ~ BLACK ~K O~Y P~OR ~ ~CORD~G OR ~G.
(over)