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HomeMy WebLinkAbout1000-22.-3-18.15 OFFICE LOCATION: Town Hall Annex 54375 State Route 25 (cor. Main Rd. & Youngs Ave.) Southold, NY MAILING ADDRESS: P.O. Box 1179 Southold, NY 11971 Telephone: 631 765-1938 Fax: 631 765-3136 LOCAL WATERFRONT REVITALIZATION PROGRAM COORDINATOR TOWN OF SOUTHOLD MEMORANDUM To: James King, President Town of Southold Board of Trustees From: MarkTerry, Prlnclpalelanner~'(,5}~) LWRP Coordinato?-z--~ Date: February 27, 2008 Request for Wetland Permit for HENRY MAZZONI SCTM# 22-3-18.15 HENRY MAZZONI requests a Wetland Permit to clear (as necessary) up to 25' landward of the top of bluff and landward of the Coastal Erosion Hazard Boundary Line, for the purpose of improving the vacant subject parcel with a two-story dwelling and appurtenances located no closer than i 00' from the top of the bluflk Located: Stoney Beach Rd., East Marion. SCTM#22-3- 18.15 The proposed action has been reviewed to Chapter 268, Waterfront Consistency Review of the To;vn of Southold Town Code and the Local Waterfront Revitalization Program (LWRP) Policy Standards. Based upon the information provided on the LWRP Consistency Assessment Form submitted to this department, as well as the records available to me, it is my recommendation that the proposed action is INCONSISTENT with the denoted following Policy Standards and therefore is INCONSISTENT with the LWRP. The proposed action is subject to a 1995 Conservation Easement, dated December 29, 1995, filed with the Clerk of Suffolk County in Liber D00011756, Page 282; to the 1995 Conservation Easement, dated December 18, 1996, filed with the Clerk of Suffolk County in Liber D00011808, Page 661; the1997 Conservation Easement, dated December 29, 1997, filed with the Clerk of Suffolk County in Liber D00011869, Page 975; and Amendment of tbe1997 Conservation Easement was filed on April 9, 2004 with the Clerk of Suffolk County in Liber D00012312, Page 663. The cmnplete language of the Conservation Easements can be tbund in tile Planning Board file. Note that "Clearing cutting and grading within 50 feet of the top edge of the bluff shall be limited to that necessary for proper maintenance and removal of diseased, decayed or dead material and obnoxious plant species. Such clearing, cutting, and grading shall be subject to the prior written consent of the Grantee and review of the Planning Board..." In addition it is recommended that the Board evaluate the location of the residence in relation to the CEHA. 4.1 Minimize losses of human life and structures from flooding and erosion hazards. The following management measures to minimize losses of human life and structures from flooding and erosion hazards are suggested: A. Minimize potential loss and damage by locating development and structures away from flooding attd erosion hazards. 1. Avoid development other than water-dependent uses in coastal hazard areas. Locate new development which is not water-dependent as far away from coastal hazard areas as practical. b. Avoid hazards by siting structures to maximize the distance from Coastal Erosion Hazard Areas. Due to the length of the parcel, it is recommended that the Board require that the applicant relocate the residence to meet the above policy to the greatest extent practicable. Provide sufficient lot depth to allow relocation of structures and maintenance of required setbacks over a period of thirty years In the event that the action is approved, it is recommended that the following BMP to further Policies 5, Protect and improve water quality in the Town of Southold and 6.3, Protect and restore tidal and freshwater wetlands, item D (below) is required D. Provide adequate buffers between wetlands and adjacent or nearby uses a~td activities in order to ensure protection of the wetland's character, quality, values, and functions 1. Maintain a 50' non-disturbance buffer landward of the top-of bluff. Limit clearing of lot as per Deed of Conservation easement. Pursuant to Chapter 268, the Board of Trustees shall consider this recommendation in preparing its written determination regarding the consistency of the proposed action. Page 1 of 1 Cusack, Heather From: Cusack, Heather Sent: Tuesday, February 05, 2008 3:09 PM To: 'tcaufield @peconiclandtrust,org' Subject: Cove Beach Estates Dear Tim, Mark asked me to let you know that the Trustees have an application before them this month (Feb 27th meeting) for clearing 25' landward of the bluff on lot 5 in the Cove Beach subdivision, East Marion. He said to contact you because PLT holds the conservation easement there and may have some input into the proposal. Call me if you have any questions. 765-1938. Thanks Heather Cusack 2/27/2008 Memorandum To: Board of Trustees From: Heather Cusack Re: Henry Mazzoni SCTM#22-3-18.15 Please be advised that the above referenced applicant did not submit the attached required documentation (C & Rs - Deed of Conservation Easement). It is attached here with the areas that pertain to the application highlighted. Peconic Land Trust is an interested party regarding the Deed of Conservation Easement and it is recommended that you contact them. Town of Southold A. INSTRUCTIONS LWRP CONSISTENCY ASSF.~SMENT FORM ?. , A II apphcants for perm its* lnclud lng.,.T,i0 ~t~'I"~ 0u..lh01~a.C~.~s, shall c0m plett, f~ls C C A F for proposed act~0ns that are subject to th e"T)~ n of S0uth0),Fl¢'aterfr0nt C 0ns~stq,~;q;ev~ew Law. Th~s assessment is intended to supplem ent~t~4/infk'~vYi'i0n~sp,(by aT. own 09%uth01d agency in making a determination of consistency. *Ex~%morerx~qn~'aqO~hcludmgBuddmgPerrntts and other mmastertal perrmts not located wtthm the CoastafrE['o?ao}f~fazard Area. Before answering the questions in Section C, the prepare~ this form should review the exempt minor action list, policies and explanations of each policy contained in the Town of Southold Local Waterfront Revitalization Program. A proposed action will be evaluated as to its significant beneficial and adverse effects upon the coastal area (which includes all of Southold Town). If any question in Section C on this form is answered "yes" or "no", then the proposed action will affect the achievement of the LWRP policy standards and conditions contained in the consistency review law. Thus~ each answer must be explained in detail~ listing both supporting and non- suo~ortin~, facts. If an action cannot be certified as consistent with the LWRP policy standards and conditions, it shall not be undertaken. SCTM# 22 A copy of the LWRP is available in the following places: online at the Town of Southold's website (southoldtown.northfork.net), the Board of Trustees Office, the Planning Department, all local libraries and the Town Clerk's office. DESCRIPTION OF SITE AND PROPOSED ACTION 3 - 18.15 PROJECT NAME HENRY MAZZONI The Application has been submitted to (check appropriate response): TownBoard ~] Planning Board[--] Building Dept. [~ BoardofT'rustees~ 2008 Category of Town of Southold agency action (check appropriate response]: - L (a) Action undertaken directly by Town agency (e.g. capital [_ construction, planning activity, agency regulation, land transaction)- .... b Financial assistance (e g grant, loan, subsidy) d-.,.;:7 -- (c) Permit, approval, license, certification: [/NJ Nature and extent of action: CLEAR (AS NECESSARY) UP TO 25 FEET LANDWARD OF THE "TOP OF BLUFF AS SHOWN ON FILED MAP" AND LANDWARD OF THE "COASTAL EROSION HAZARD BOUNDARY LINE AS SHOWN ON FILED MAP" FOR THE PURPOSE OF IMPROVING THE VACANT SUBJECT PARCEL WITH A TWO-STORY DWELLING AND APPURTENANCES LOCATED NO CLOSER THAN 100 FEET FROM THE "TOP OF BLUFF AS SHOWN ON FILED MAP" AND THEREFORE BEYOND CHAPTER 275 AND CHAPTER 111 JURISDICTION, ALL AS DEPICTED ON THE SITE PLAN PREPARED BY YOUNG & YOUNG, LAST DATED JANUARY 24, 2008. Location of action: STONEY BEACH ROAD, EAST MARION Site acreage:. 2.36 Present land use: UNDEVELOPED ~ RESIDENTIAL Present zoning classification: R-80 If an application for the proposed action has been filed with the Town of Southold agency, the following information shall be provided: (a) Name of applicant: HENRY MAZZONI (b) Mailing address: 146-04 25TU STREET FLUSHING, NY 11354 (c) Telephone number: Area Code 347-672-2051 (d) Application number, if any:. Will the action be directly undertaken, require funding, or approval by a state or federal agency? Yes [--] No [~ If yes, which state or federal agency~ C. Evaluate the project to the following policies by analyzing how the project will further support or not support the policies. Provide all proposed Best Management Practices that will further each policy. Incomplete answers will require that the form be returned for completion. DEVELOPED COAST POLICY Policy 1. Foster a pattern of development in the Town of Southold that enhances community character, preserves open space, makes efficient use of infrastructure, makes beneficial use of a coastal location, and minimizes adverse effects of development. See LWRP Section III - Policies; Page 2 for evaluation criteria. [--']Yes [--] No [~] Not Applicable Attach additional sheets if necessary Policy 2. Protect and preserve historic and archaeological resources of the Town of Southold. See LWRP Section III - Policies Pages 3 through 6 for evaluation criteria ~ Yes [--1 No ~ Not Applicable Attach additional sheets if necessary Policy 3. Enhance visual quality and protect scenic resources throughout the Town of Southold. See LWRP Section III - Policies Pages 6 through 7 for evaluation criteria E Yes [--] No W1 THE PROJECT IS CONSISTENT WITH POLICY 3 AS ALL CONSTRUCTION WILL BE LOCATED MORE THAN 100 FEET FROM THE DEFINED TOP OF BLUFF, AND ASSOCIATED CLEARING ACTIVITIES WILL BE LIMITED TO A DISTANCE NO CLOSER THAN 25 FEET FROM THE DEFINED TOP OF BLUFF AND MORE THAN 100 FEET FROM THE SURFACE WATERS OF LONG ISLAND SOUND. THEREFORE, A NATURAL BUFFER GREATER THAN 100 FEET WIDE WILL BE MAINTAINED BETWEEN THE SURFACE WATERS OF LONG ISLAND SOUND AND THE DISTURBED PORTION OF THE PROPERTY. Attach additional sheets if necessary NATURAL COAST POLICIES Policy 4. Minimize loss of life, structures, and natural resources from flooding and erosion. See LWRP Section III - Policies Pages 8 through 16 for evaluation criteria [--]Yes ~ No ~ NotApplieable Attach additional sheets if necessary Policy 5. Protect and improve water quality and supply in the Town of Southold. See LWRP Section III - Policies Pages 16 through 21 for evaluation criteria ~ Yes ~ No [-~ Not Applicable THE PROJECT IS CONSISTENT WITH POLICY 3 AS ALL CONSTRUCTION WILL BE LOCATED MORE THAN 100 FEET FROM THE DEFINED TOP OF BLUFF, AND ASSOCIATED CLEAPdNG ACTIVITIES WILL BE LIMITED TO A DISTANCE NO CLOSER THAN 25 FEET FROM THE DEFINED TOP OF BLUFF AND MORE THAN I00 FEET FROM THE SURFACE WATERS OF LONG ISLAND SOUND. THEREFORE, ALL COVERAGE BY IMPERVIOUS SURFACES WILL BE LOCATED NO LESS THAN 190 FEET FROM THE SURFACE WATERS OF LONG ISLAND SOUND, AND TREATED SEPTIC EFFLUENT WILL BE LOCATED MORE THAN 230 FEET FROM LONG ISLAND SOUND. Attach additional sheets if necessary Policy 6. Protect and restore the quality and function of the Town of Southold ecosystems including Significant Coastal Fish and Wildlife Habitats and wetlands. See LWRP Section III - Policies; Pages 22 through 32 for evaluation criteria. ~Yes ~ No [-'~ Not Applicable THE PROJECT IS CONSISTENT WITH POLICY 6 BECAUSE IT COMPLIES WITH ALL STATUTORY AND REGULATORY REQUIREMENTS OF THE TOWN TRUSTEES AND NYS DEC AND FOR ALL THE REASONS IT IS CONSISTENT WITH POLICIES 3 AND 5 AS OUTLINED ABOVE. Attach additional sheets if necessary Policy 7. Protect and improve air quality in the Town of Southold. See LWRP Section III - Policies Pages 32 through 34 for evaluation criteria. [--] Yes ~ No ~ Not Applicable Attach additional sheets if necessary Policy 8. Minimize environmental degradation in Town of Southold from solid waste and hazardous substances and wastes. See LWRP Section III - Policies; Pages 34 through 38 for evaluation criteria. ["-] Yes [~ No [5~ Not Applicable PUBLIC COAST POLICIES Policy 9. Provide for public access to, and recreational use of, coastal waters, public lands, and public resources of the Town of Southold. See LWRP Section III - Policies; Pages 38 through 46 for evaluation criteria. Yes ~-~ No ~ Not Applicable Attach additional sheets if necessary WORKING COAST POLICIES Policy 10. Protect Southold's water-dependent uses and promote siting of new water-dependent suitable locations. See LWRP Section IH - Policies; Pages 47 through 56 for evaluation criteria. ~] Yes ~] No [~ Not Applicable uses in Attach additional sheets if necessary Policy 11. Promote sustainable use of living marine resources in Long Island Sound, the Peeonie Estuary and Town waters. See LWRP Section III - Policies; Pages 57 through 62 for evaluation criteria. ~] Yes ~] No [~] Not Applicable Attach additional sheets if necessary Policy 12. Protect agricultural lands in the Town of Southold. See LWRP Section III - Policies; Pages 62 through 65 for evaluation criteria. ~] Yes [~ No [5~ Not Applicable Attach additional sheets if necessary Policy 13. Promote appropriate use and development of energy and mineral resources. See LWRP Section III - Policies; Pages 65 through 68 for evaluation criteria. [---] Yes [--] No ~ Not Applicable PREPARED BY RoBER~E~ANN ' TITLE COASTAL MGMT SPECIALIST DATE 1/29/08 Amended on 8/1/05 DEED OF CONSERVATION EASEMENT THIS DEED OF CONSERVATION EASEMENT, is made on the ~¢'day of December, 1997 at Southampton, New York. The parties are Raoul J. Witteveen, residing at 368 Daniels Lane, Sagaponack, New York 11962 (herein called the "Grantor"), and the PECOHIC LAND TRUST, INCORPORATED, a not-for-profit New York Corporation, having a principal office at 296 Hampton Road (P.O. Box 2088), Southampton, New York 11969 (herein called "Grantee"). INTRODUCTION WHEREAS, the Grantor is the owner in fee simple of approximately 98.38 acres of real property located in the Town of Southold, Suffolk County, New York, known as Final Plat of Map of Cove Beach Estates, dated November 27, 1996, hereinafter more fully described in Schedule A, attached hereto and hereby made a part hereof, and hereinafter referred to as the "Property", further described as Suffolk County Tax Map Parcel Number 1000-22-3-15.1 and 18.3; and WHEREAS, the Property is located in the Low Density Residential R-80 Zoning 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; and WHEREAS, the Property is currently restricted by a Conservation Easement held by Peconic Land Trust executed on December 23, 1995, and recorded in the Suffolk County Clerk's Office on December 29, 1995 at Liber 11756 Pg. 282, and known as the 1995 Easement, which restricted the property from a yield of thirty four (34) single family residences to twenty six (26) single family residences; and WHEREAS, the 1995 Deed of Conservation Easement Was amended on December 18th, 1996, which Amendment of Deed of Conservation Easement was recorded on December 31, 1996 at the Suffolk County Clerk's Office, to further restrict the Property to seventeen (17) single family residences with appurtenant structures and improvements, thereby creating an Open Area equal to 46.70 acres, and a Development Area equal to 51.68 acres; and WHEREAS, Grantor wishes to further restrict the Property in consideration of the conservation values of the Property and as a product of his own charitable intentions by granting a Conservation Easement over the Property thereby restricting the Development Area to no more than ten (10) single family residences with appurtenant structures and improvements, and thereby increasing the Open Area from 46.70 acres to 68.82 acres (as described in Schedule B attached hereto) and to reduce the Development Area from 51.68 acres lo 29.56 acres (as described in Schedule C, attached hereto) so that a substantial portion of the Property shall remain in its open, undeveloped and scenic state, and to that end restates the restrictions applicable to the entire parcel; and WHEREAS, the Property contains soils classified as Class I and Class II worthy of conservation as identified by the United State's Department of Agriculture Soil Conservation Service's Soil Survey of Suffolk County. New York; 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 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, the Property has approximately 650 feet of frontage on Long Island Sound and approximately 450 feet of frontage on Dam Pond that provides the public with significant scenic vistas of contiguous woodland, wetlands and shoreline; and WHEREAS, the Property contains the following rare species, classified as S-1 by the Natural Heritage Program: Angelica Lucida, Maritime Red Cedar Forest (remnant), Erchtites Megalocarpa (fire weed), Petentilla anserina, sub species sb.pacifica (silver weed) and Digitada Filisormis species; and WHEREAS, the Property in its present scenic, agricultural and open space condition h&s substantial and significant value as an aesthetic and agricultural resource by reason of the fact that it has not been subject to any extensive development; and WHEREAS, the Grantor and Grantee recognize the value and special character of the region in which the Property is located, and the 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, the Grantee has determined it to be desirable and beneficial and has requested the Grantor, for itself and its successors and assigns, to grant a Conservation Easement to the Grantee in order to restrict the further development of the Property while permitting compatible uses thereof; NOW, THEREFORE: 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 qualified not-for-profit charitable organization under Section 170(h)(3) of the Internal Revenue Code of 1986, and any amendatory or supplemental legislation (herein called "the Code"), and incorporated under the Not-For-Profit Corporation Law of New York State for the purpose of conserving and preserving the unique environmental, agricultural, scenic and open space values of rural lands located in Suffolk County of Long Island. 0.03 Purpose The parties recognize the environmental, scenic, 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 perpetuity for environmental, scenic, agricultural and natural values, by preventing the use or development of the Open Area 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 Recoanitioq 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 enactment of Environmental Conservation Law, Article 49-0301, et. seq. and General Municipal Law, Section 247. Similar recognition by the federal government includes Section 170(h) of the Internal 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, as determined by its Board of Directors, at a duly constituted meeting of that Board on November 13, 1995, 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. 0.06 Documentatio~n The Grantee acknowledges by acceptance of this Easement that Grantor's historical and present uses of the Property are compatible with the purposes of this Easement. Grantor has made available to Grantee sufficient documentation to establish the condition of the Property at the time of the gift of this Easement. In order to aid in identifying and documenting the present condition of the Property's natural, wildlife, watershed, scenic, agricultural and aesthetic 2 resources and otherwise to aid in identifying and documenting the Property's open space values as of the date hereof, to assist the Grantor and Grantee with monitoring the development and use of the Property and ensuring compliance with the terms hereof, the Grantee has prepared, with the Grantor's full cooperation, an inventory of the Property's relevant features and conditions' (the "Baseline Documentation"). This Baseline Documentation includes, but need not be limited to: an aerial photograph, photographs of the Property, a topographical map, a description and site plan of existing land uses, features, and structures, if any, and an acknoWledgment page signed by the Grantor and the Grantee which verifies that the Baseline Documentation report accurately represents the condition of the Property at the time of the easement. The Grantor and Grantee acknowledge and agree that in the event a controversy arises with respect to the nature and extent of the Grantor's historical and present uses of the Property or its physical condition as of the date hereof, the parties shall not be foreclosed from utilizing any other relevant or material documents, surveys, reports, photographs, or other evidence to assist in the resolution of the controversy. 0.07 Recitation In consideration of the previously recited facts, mutua promises, undertakings and forbearances contained in this Easement, the parties agree upon its provisions, intending to be bound by it. ARTICLE ONE THE EASEMENT 1.01 Type This Deed conveys a Conservation Easement (herein called the "Easement"). This Easement shall consist of the covenants, restrictions, rights, terms, and conditions recited in this Deed. Reference to this "Easement" or its "provisions" in this Deed shall include any and alt of those covenants, restrictions, rights, terms and conditions. 1.02 Duratioq This Easement shall be a burden upon and run with the Property in perpetuity. .03 Effect The covenants, terms, conditions, restrictions and purposes of this Easement shall run with the Property as an incorporeal interest in the Property, and shall bind the successors and assigns of each of the parties respectively. This Easement shall extend to and be binding upon Grantor, Grantor's agents, tenants, occupants, heirs, personal representatives, suocessors and assigns and all other individuals and 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. ARTICLE Two GIFT GRANTOR hereby voluntarily grants, releases and conveys to Grantee, as an absolute gift, 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 and all future owners, tenants, occupants, assigns and possessors of said Properly. 3 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 The construction or placement of residential, commercial, industrial or other buildings, structures, or improvements of any kind or nature (including, but not limited to mobile homes), permanent or temporary, on, over or under the Property except pursuant to Section 4.05 and 4.06 hereof. Structures and improvements, including, but not limited to, driveways and agricultural structures as permitted in Sections 4.05 and 4.06 hereof, may not be made on, over, or under the Property without the prior written consent of the Grantee, which may be 9ranted if the structure or improvement does not defeat or derogate from the purposes of this Easement. 3.02 Excavation and Removal of Materialc The excavating, mining or filling of the Property except as may be necessary to develop and maintain the single-family residences and appurtenant structures and improvements permitted in the Development Area and allowable non-residential improvements on the Property and to construct and maintain the permitted structures and improvements in the Open Area with the prior written consent of the Grantee, The removal of topsoil, sand, or other materials shall not take place on the Property nor shall the topography of the Property be changed except to develop and maintain the single-family residences and appurtenant structures and improvements permitted in the Development Area, to construct and maintain the permitted structures and improvements in the Open Area and for purposes of erosion control and soil management. Any such activity shall require the written consent of the Grantee. 3 03 Subdivision The subdivision or partitioning of the Property without the prior written consent of the Grantee, which shall be granted if that subdivision or padition does not defeat or derogate from the purposes of this Easement. In no event shall the Development Area be subdivided into more than ten (10) single-family residential lots as provided in Section 4.06 hereof, and none of the 10 lots shall be further subdivided in perpetuity unless the lot lines merge. Any changes in lot lines subsequent to final subdivision approval must be authorized by the Town of Southold Pllanning Board. 3.04 Dumping The dumping or accumulation of unsightly or offensive materials including, but not limited to trash, garbage, sawdust, ashes or chemical waste on the Property. &'05 Sign~ The display of signs, billboards, or advertisements on tl~e Property except signs, whose placement, number, and design do not significantly diminish the scenic character of the Property and only for the following purposes: a) to state the name of the Property and the names and addresses of the occupants, b) temporarily to advertise the Property or any portion thereof for sale or rent, c) to post the Property to control unauthorized entry or use, and d) to announce the Grantee's conservation easement. 3.06 Clearing and Landscapinq Activities Clearing or grading within the Open Area, except with the prior written consent of Grantee and as approved by the Town of Southold Planning Board and as necessary for existing easements of record, if any, Otherwise, the Open Area shall remain in a natural state, and maintenance of the natural vegetation therein shall be the only use or activity allowed, except as provided in Section 4.05. The removal of trees, shrubs, or other vegetation from the Property, except as provided in Sections 4.04 and 4.06. 4 _~.07 Utilities The creation or placement of overhead utility transmission lines, utility poles, wires, pipes, wells or drainage and septic systems on the Open Area without the prior written consent' of the Grantee. Underground utilities must, to the extent possible, be constructed within 30 feet of the center line of roads or driveways, and may be used solely to service the permitted structures. ~.08 Uses The use of the Property for any commercial or industrial purpose except that agricultural uses expressly permitted in Section 4.05 shall not be considered a commercial or industrial use. 3.09 Development Riqht8 The use of the acreage of this Property burdened with this Easement for purposes of calculating lot yield on any other property. Grantor hereby grants to Grantee all residential development rights (and any further development rights that may be created through a rezoning of the Property) on the Properly, and the parties agree that such 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 tllis Easement, Grantor 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 apel cable local, New York State, and federal law which will not defeat or derogate from the purposes of this Easement. 4.04 LandscaDinq Activities Grantor shall have the right to continue the historical 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, dangerously decayed or damaged on the Property. Clearing, cutting and grading within 50 feet of the top edge of the bluff shall be limited to tllat necessary for proper maintenance and removal of diseased, decayed or dead material and obnoxious plant species. Such clearing, cutting and grading shall be subject to the prior written ,consent of Grantee and review by the Town of Southold Planning Board to insure proper maintenance and preservation of the natural buffer on Long Island Sound. :4.05 Agricultural Activities Grantor shall have the right to continue or restore the historical, locally typical and/or customary modes and levels of farming, including pasturing, grazing, feeding and care of livestock and cultivation of crops, provided that such agricultural activity shall be conducted in accordance with the purposes of this Easement and provided that care shall be taken to preserve and protect the rare species of plant life. No agricultural activity shall be conducted within 100 feet of the rare species so that agricultural use of the soil and the application of herbicides cannot affect the rare species. Normal agricultural fencing and accessory structures, as provided in 4.06 B, and as may be reasonab y necessary in connection with agricultural use and the maintenance on the Property of horses, sheep, beef or dairy cattle, or Similar domestic 5 livestock, may be construcled, maintained or replaced by Grantor with the prior written consent of the Grantee. 4.06 Structures A. Allowable Residential Improvements. Grantor shall have the right to construct no more than ten (10) single-family residences with appurtenant structures and improvements reasonably necessary to serve such residences including, without limitation, driveways, garages, storage sheds, septic systems and leaching poops, swimming pools, pool houses, tennis courts, or other family-scale athletic facilities. All such residences, structures and improvements shall be constructed, maintained and replaced within the Development Area as described in Schedule C except as provided in Section 3.O1. Clearing and grading within each residential lot shall be limited to that necessary for siting, constructing, renovating, expanding, converting or replacing the residences and appurtenant structures and improvements with the intent of preserving as much of the natural vegetation on the site as possible and minimizing storm water runoff and erosion. No storm water runoff resulting from the development and improvement of the subdivision or any of its lots shall be discharged down the face of the bluff. B. Allowable Non-Residential Improvements. Grantor shall have the right to erect and maintain the following non-residential improvements in the Open Area which are necessary to and consistent with the uses as permitted in Sections 4.05 and 4.06 hereof: Agricultural Structures, including but not limited to barns and sheds as is necessary for the agricultural use of the Open Area, placed such that they do not detract from and adversely affect the scenic value of this Easement; and (ii) Underground facilities normally used in connection with supplying utilities, removing sanitary sewage effluent, and controlling storm water runoff from the improvements permitted under the terms of this paragraph B hereof. Any such underground utilities must, to the extent possible, be constructed within 30 feet of the center line of roads or driveways, and may be used solely to service the permitted structures. No new sanitary disposal facilities or structures, with the exception of that stated in Paragraph (iii) below, shall be constructed or otherwise located between the high water mark and the one-hundred (100) foot setback from the top of the bluff; and Access Drives, to provide access to the improvements permitted by this paragraph 4.06 and any existing recorded rights-of-ways to adjacent properties. Access to the beach down the face of the bluff shall be only by means of a suitable structure. The structure shall be designed and constructed in a manner that will result in the least threat to the stability of the bluff and must be in accordance with all applicable permits; and ( i v) Fences, placed such that they do not detract from and adversely affect the scenic value of this Easement; and C. Replacement of Structures In-Kind. In the event of damage resulting from casualty loss to an extent rendering repair of an existing improvement impractical, erection of a structure of comparable size, bulk, use, and general design to the damaged structure shall be permitted within the same location subject to the review and written approval of Grantee. D. Environmental Sensitivity During and After Construction. The use and location of such improvements shall be consistent with the conservation purposes intended herein, and constructed by methods which are attentive to minimizing disturbances to the environment, including but not limited to minimal removal of vegetation, minimal movement of earth and minimal clearance of access routes for construction vehicles. No storm water runoff resulting from the development and improvement of the subdivision or any of its lots shall be discharged down the face of the bluff. 4,07 Notice Grantor shall notify Grantee, in writing, before taking any action or before exercising any reserved right with respect to the Property which could adversely affect the conservation purposes which are the subject of this Easement. This includes the construction of any permanent or temporary structures as provided in Section 4.06 herein. Grantor shall provide Grantee with complete documentation including architectural plans of any proposed structures which are subject to Grantees approval which shall not be unreasonably withheld. Such approval-, disapproval or comments of Grantee shall be given to Grantor within 45 days after all necessary documentation and information is submitted to Grantee. 4.08 Alienabilit Grantor shall have the right to convey all or any part 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 names and mailing addresses of all Grantees, 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 forth 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. ARTICLE FIV~E GRANTOR'S OBLIGATIONR 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. 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. 5.02 Indemnification Grantor shall indemnify and hold Grantee harmless from any charges or liens imposed upon Grantee arising from the physical maintenance and upkeep of the Property 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 Part,/ Claims 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 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. ARTICL~E SIX GRANTEE'S RIGHTS 6 01 Entry and inspection Grantee shall have the right to enter upon the Property at reasonable times, upon reasonable prior notice to Grantor, and in a manner that will not interfere with the 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 purpose, except as provided in Section 6.03, nor 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 the Grantee may reasonably deem necessary. However, it is understood and agreed by the parties hereto that the Grantor shall not be liable for any changes to the Properly resulting from causes beyond the Grantor's control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Property resulting from such causes. 6.03 Enforcement Rights of Granten 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 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 thirty (30) 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 Open Space 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 on the date hereof, or to such condition as is expressly permitted hereby or as may be pursuant to the terms hereof, as Grantee deems appropriate under the circumstances, 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, 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 directly or by reimbursement to Grantee, all reasonable attorneys' fees, court costs and other expenses incurred by Grantee (herein called "legal expenses") in connection with any proceedings under this Section 7.03. 6.04 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 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 Assignability 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 governmental unit 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. Any assignment by Grantee or Grantee's successors must require the Assignee or 8 Assignee's successors to carry out the purposes of this Easement. The Assignee and its successors and assigns shall have the same right of assignment. 6.06 Succession If at any time Grantee or any successor or assignee is unable to enforce this Easement fully or fails to do so, or if Grantee or any successor or 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 other 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. 6.07 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 unencumbered hereby (such difference, divided by the fair market value of the Property unencumbered by this Easement, is hereinafter referred to as the "Proportionate Share"). In the event a material unforeseeable change in the conditions surrounding the Property makes impossible its continued use for the purposes contemplated hereby, resulting in an extinguishment of this Easement or any material term or provision hereof by a judicial proceeding; then upon a subsequent transfer of title to the Property by sale, gift, devise, exchange, taking by eminent domain or by purchase in lieu of a taking, Grantor shall pay to Grantee an amount equal to the greater of (x) the consideration paid by Grantee to Grantor for this Easement or (y) the Proportionate Share of the proceeds of such transfer. ]f 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 the 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 from the taking. All expenses reasonably 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 Propodionate Share of the remaining recovered proceeds. The 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 exercise of powers of eminent domain as aforesaid. 6.08 No Public Access Nothing contained in this Easement grants, nor shall be interpreted to grant, to the public any right to enter upon the Property. Accordingly, Grantee shall not invite the public to enter upon the Property without the prior written consent of the Grantor. 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. This Easement is made with the intention that it shall qualify as a Conservation Easement in perpetuity under I.R.C. Section 170 (h). The parties agree to amend the provisions of this Easement in such manner as may be indicated by the internal Revenue Service, as a result of final determination after audit of the federal income tax return of the Grantor, to entitle the Grantor to the charitable deduction described in I.R.C. 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 can be terminated or modified only in accordance with the common and statutory law of the State of New York applicable to the termination and modification of easements and covenants running with the land. Grantor and Grantee recognize that circumstances could arise which would justify the modification of certain of the restrictions contained in this Easement. To this end, Grantee and Grantor shall mutually have the right, in their sole discretion, to agree to amendments to this Easement which are not inconsistent with the basic purposes of this Easement set forth in the Introduction hereof; provided, however, that Grantee sha~l 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 of the State of New York, as the same may be hereafter amended, any regulation issued pursuant thereto, or Section 170(h) of the Internal Revenue Code governing "Qualified Conservation Contributions." The parties acknowledge that the boundaries of the Open Area and the Development Area may have to be adjusted as provided herein, and the parties agree to cooperate in such boundary line adjustments as may be necessary, provided said adjustments would not result in diminution of the Open Area or an increase in the number of lots or primary structures to be developed by the Grantor. .7.03 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 which is determined to be invalid or unenforceable by a court shall be severed from the other provisions, which shall remain enforceable and effective. 7.04 Notice All notices required by this Easement must be written. Notices shall be given either by manual delivery or by mailing in a mail receptacle maintained by the United States Postal Service. Mailed notice must be contained in an accurately addressed, sealed envelope, marked for delivery by first class registered or certified mail, with sufficient prepaid postage affixed and with return receipt 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 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. 7.05 Governino Law 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. .7.06 Interoretation Regardless of any contrary rule of construction, no provision of this Easement shall be construed in favor of one of the padies 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 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 Eas. ement as intended by Grantor. Any rule of strict construction designed to limit the breadth of 10 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 Grantor. 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 /ts purposes. 7.07 Warrantie,~ The warranties and representation made by the parties in this Easement shall survive its execution. 7.08 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. 7.09__.~a d The headings, titles and subtitles herein have been inserted solely for convenient reference, and shall be ignored in its construction. 11 IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted and received this Deed of Conservation Easement on the day and year set forth above. ACK~PTED: B WitteveeY - '-- ,/Grantor) ACKNOWLEDGED AND ACCEPTED: PECONIC LAND TRUST, (Grantee) Its President STATE OF NEW YORK ) COUNTY OF SUFFOLK ) SS.: On this 2¢IP~ day of December, 1997, before me personally appeared Raoul J. Witteveen, who, being by me duly sworn, said that he resides at 368 Daniels Lane, Sagaponack, New York, 11962, the Grantor mentioned and described in, and who executed the foregoing instrument, and he duly acknowledged to me that he executed the same. N{~tary Public Julie G. ~ska No. 0~.TI5064466 Notary Public State of New York STATE OFNEWYORK ) Qualified in Suffolk County COUNTY OF SUFFOLK ) SS.: Commission Expires ~.~ls~.~ ~- On this ~¢" day of December, 1997, before me personally appeared JOHN v.H. HALSEY, who, being by me duly sworn, said that he resides at 469 Majors Path, Town of Southampton, New York, that he is President of PECQNIC LAND TRUST, INCORPORATED, the Grantee mentioned and described in and which acknowledged and accepted all of the rights and responsibilities under the foregoing instrument and this Easement conveyed therein; and that he signed his name thereto by authority of the Board of Directors of the said Corporation. N(Ctary Public Julie (~. Tiska N01 01TI5064466 Notary Public State of New York Qualified in Suffolk County Commission Expires SCHEDULE A: Metes and Bounds Description of the Property. SCHEDULE B: Metes and Bounds Description of the Open Area. SCHEDULE C: Metes and Bounds Description of the Development Area. 12 / / / / // \ / ?/ Lo~; .5 / / / / / S ~L:, ~ 'i', ,,' ,' JAN 3 0 2008 T'~ST HOLB ,-3 Young & Young ~Ut~V"E¥Ot~,'~ C~=~TIFICATION HENRY HAZZONI / / J / S I I I I \ \ \ / 2 57 / / / / / / ~/~ / ~/ / ? / \ / \\ / \\ /x \ \ Tt~$T HOLt// ¢4LJ JAN 3 0 2008 Yo~xg & Young ~U~J~'VI~J~O ~ I0 r_.,t=P, TIFIC. ATION r ~UP. VE'Y FOl~ I-I N ¥ I,,IAZZONI .LOT 5 "COVE BEA,C.H F:,~TA"]'~¢I' Al, E~e'c hd,mrfon, To~n o~ Oout:hold