HomeMy WebLinkAboutL 12625 P 238SUFFOLK COUNTY CLERK
RECORDS OFFICE
RECORDING PAGE
Type of Instrument: EASEMENT
~m~er of Pages: 27
Receipt N~m~er : 10-0059513
TRANS~R TAX NUMBER: 09-23564
District:
1000
Deed Amount:
Recorded:
At:
LIBER:
PAGE:
Section: Block:
018.00 04.00
EXAMINED AND CHARGED AS FOLLOWS
$1,421,310.10
Received the Following Fees For Above Instrument
Exempt
Page/Filing $135.00 NO Handling
COE $5.00 NO NYS SRCHG
TP-584 $5.00 NO Notation
Cert. Copies $17.55 NO RPT
Transfer tax $0.00 NO Comm. Pres
Fees Paid
TPJ~NSFER TAX NUMBER:
09-23564
THIS PAGE IS A PART OF THE INSTRUMENT
THIS IS NOT A BILL
05/19/2010
11:15:41 AM
D00012625
238
Lot:
007.007
Exempt
$20.00 NO
$15.00 NO
$0.00 NO
$30.00 NO
$0.00 NO
$227.55
JUDITH A. PASCALE
County Clerk, Suffolk County
JUN 1 4 2010
DEPT. OF LAND
PRESERVATION
Number of pages
This document will be public
record. Please remove all
Social Security Numbers
prior to recording.
Deed / Mortgage Instrument
31
Page / Filing Fee
Handling 5. 00
TP-584
Notation
EA-52 17 (County)
EA-5217 (State)
R.P.T.S.A.
Comm. of Ed. / 5. 00
Affidavit~.~ ~
Other
I
4 J Dist.
R~a Property
Tax Service
Agency
Verification
Deed / Mortgage Tax Stamp
6
Sub Total
Sub Total
Grand Total
I
~10010478 ieee oieoo 0400 oo7oo~
RECORDED
2010 May 19 11:15:41
JUDITH A. PASCALE
CLERK OF
SUFFOLK COUNTY
L D00012625
P 238
DT# 09-23564
Satisfactions/Discharges/Releases List Property Owners Mailing Address
RECORD & RETURN TO:
Mail to: Judith A. Pascale, Suffolk County Clerk
310 Center Drive, Riverhead, NY 11901
www. suffolkcountyny, gov/clerk
I. Recording
/ Filing Stamps
Mortgage Amt.
1. Basic Tax
2. Additional Tax
Sub Total
Spec./Assit~
or
Spec./Add.
TOT. MTG. TAX
Dual Town __ Dual County __
Held for Appointm~nt~__.~
Transfer Tax
Mansion Tax
The property covered by this mortgage is
or will be improved by a one or two
family dwelling only.
YES or NO
If NO, see appropriate tax clause on
page # of this insmament.
5 Commtmit~
CPF Tax Due $
Improved ~/,
Vacant Land
7 I Title Company Information
Co. Name ~.v,'t,c ./~4g~7~,~c;" '--/-MC.
I Title # ~,q'/- $. ~6,~, 3'-
rdin & Endo rse_rnent Pa e
v, maae ny:
(SPECIFY TYPE OF INSTRUMENT)
This page forms part of the attached
~>/zo z~v ~/ ,,,
The premises herein is situated in
SUvvOLK COUNTY, NEW YORK.
In the TOwN of~-~OO ~'~o~
In the VILLAGE
or HAMLET of :'
BOXES 6 THRU 8 MUST BE TYPED OR PRINTED IN BLACK INK ONLY PRIOR TO RECOI~ING OR FILING.
GRANT OF DEVELOPMENT RIGHTS EASEMENT
THIS GRANT OF DEVELOPMENT RIGHTS EASEMENT, is made on the
/ 3 day of May, 2010 at Southold, New York. The parties are Estate of Anna
T. Droskoski, by Patricia A. Sepenoski, Executrix, 27965 Route 25 (Main Road),
Orient, NY 11957 (herein called "Grantor'% and the TOWN OF SOUTHOLD, a
municipal corporation, having its principal office at 53095 Main Road, P.O. Box
1179, Southold, New York 11971 (herein called "Grantee'9 and the United States
of America (''United States'9 by and through the United States Department of
Agriculture (''USDA'9 Natural Resources Conservation Service ("NRCS") acting on
behalf of the Commodity Credit Corporation, as its interest appears herein.
INTRODUCTION
WHEREAS, Grantor is the owner in fee simple of certain real property
located in the Town of Southold, Suffolk County, New York, identified as part of
SCTM #1000-18-~,-7.1 more fully described in SCHEDULE "A" attached hereto
and made a part hereof and hereinafter referred to as the "Property" and shown
on the survey dated November 11, 2009 and last revised March 26, 2010
prepared by .lohn C. Ehlers Land Surveyor (a reduced copy of which is attached
hereto and made a part hereof and hereinafter referred to as the "Survey"; and
WHERE/IS, the Property is located in the R-80 Zoning District of the Town
of Southold; and
WHEREAS, the Property contains soils classified as Class I and Class II
worthy of conservation as identified by the United States Department of
Agriculture, Natural Recources Conservation Service's (formerly the Soil
Conservation Service) Soil Survey of Suffolk County, New York; and
WHEREA~, The Federal Farm and Ranch Lands Protection Program's
purpose is to assist in the purchase of conservation easements on land with
prime, unique, or other productive soil for the purpose of protecting topsoil from
conversion to nonagricultural uses (16 U.S.C. 3838h and 3838i). Under the
authority of the Farm and Ranch Lands Protection Program, the United States
Department of Agriculture, Natural Resources Conservation Service (hereinafter
the "United States" or "NRCS'g acting on behalf of the Commodity Credit
Corporation, has SEVEN HUNDRED FORTY-EIGHT THOUSAND THREE HUNDRED
FIVE DOLLARS AND 65/100 ($748,305.65) to the Grantee for the acquisition of
this Easement, entitling the United States to the rights identified herein.
WHEREA~, the Property is part of the New York State Agricultural District
#1, and the Grantor wishes to continue using the Property for agricultural
production as defined in this Easement; and
WHEREAS, the Property is currently used for row crops; and
WHEREA~ it is the policy of the Town of Southold (the "Town'3, as
articulated in the Town's Naster Plan of 1973, amended in 1986 and 1989 as
adopted by the Town Board, Town of Southold, and §272-a of the New York
Town Law ("Town Law'3 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
WHEREA~, the Property in its present scenic and agricultural condition has
substantial and significant value as an aesthetic and agricultural resource since it
has not been subject to any development; and
WHEREA~, Grantor and Grantee recognize the value and special character
of the region in which the Property is located, and Grantor and Grantee have, in
common, the purpose and objective of protecting and conserving the present
state and inherent, tangible and intangible values of the Property as an
aesthetic, natural, scenic and agricultural resource; and
WHEREA~, Grantee has determined it to be desirable and beneficial and
has requested Grantor, for itself and its successors and assigns, to grant a
Development Rights Easement to Grantee in order to restrict the further
development of the Property while permitting compatible uses thereof;
NOW THEREFORE, in consideration of ONE MILLION FOUR HUNDRED
TWENTY-ONE THOUSAND THREE HUNDRED TEN DOLLARS AND 10/100
($1,421,310.10) and other good and valuable consideration paid to the Grantor,
the receipt of which is hereby acknowledged, the Grantor does hereby grant,
transfer, bargain, sell and convey to the Grantee a Development Rights
Easement, in gross, which shall be binding upon and shall restrict the premises
shown and designated as the Property herein, more particularly bounded and
described on Schedule "A" annexed hereto and made a part of this instrument.
TO HA VEAND TO HOLD said Development Rights Easement and the
rights and interests in connection with it and as hereinafter set forth with respect
to the Property unto the Grantee, its successors and assigns forever, reserving,
however, for the direct use and benefit of the Grantor, its legal representatives,
successors and assigns, the exclusive right of occupancy and of use of the
Property, subject to the limitations, condition, covenants, agreements, provisions
2
and use restrictions hereinafter set forth, which shall constitute and shall be
perpetual servitudes upon and with respect to the Property.
The Grantor, for itself, and for and on behalf of its legal representatives,
successors and assigns, hereby covenants and agrees as follows:
0.01 Grantor's Warranty
Grantor warrants and represents to the Grantee that Grantor is the owner
of the Properb/described in Schedule "A", free of any mortgages or liens, as set
forth in Title Report No. 641 - S -03665 of Peconic Abstract, ][nc. and possesses
the right to grant this Easement.
0.02 Grantee's Status
Grantee warrants and represents to Grantor that Grantee is a municipal
corporation organized and existing under the laws of the State of New York and
is authorized under §64 of Town Law and §247 of the New York State General
Municipal Law (''General Municipal Law'3 to acquire fee title or lesser interests in
land, including development rights, easements, covenants, and other contractual
rights which may be necessary or desirable for the preservation and retention of
agricultural lands, open spaces and natural or scenic resources.
0.03 Purpose
The parties recognize the environmental, natural, scenic, conservation
and agricultural values of the Property and have the common purpose of
preserving these values by limiting nonagricultural uses of the Property. This
instrument is intended to convey a Development Rights Easement on the
Property by Grantor to Grantee, exclusively for the purpose of preserving its
character in perpetuity for its environmental, scenic, agricultural and natural
values by preventing the use or 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 Governmental Recognition
New York State has recognized the importance of private efforts to
preserve rural land in a scenic, natural, and open condition through conservation
restrictions by the enactment of General Municipal Law §247. Similar recognition
by the federal government includes §170(h) of the Internal Revenue Code and
other federal statutes.
0.05 Baseline Documentation
Grantee acknowledges by acceptance of this Development Rights
Easement that present uses of the Properb/are compatible with the purposes of
this Easement. in order to aid in identifying and documenting the present
condition of the Property's natural, scenic, agricultural, and aesthetic resources
and otherwise to aid in identifying and documenting the Property's agricultural
values as of the date hereof, to assist Grantor and Grantee with monitoring the
uses and activities on the Property and ensuring compliance with the terms
hereof, Grantee has prepared, with Grantors cooperation, an inventory of the
Property's relevant features and conditions (the "Baseline Documentation''). This
Baseline Documentation includes, but need not be limited to, a survey prepared
by .lohn C. Ehlers Land Surveyor dated November 11, 2009 and last revised
March 26, 2010, an aerial photograph of the Property, photographs maps on file
with the Town Land Preservation Department, and a Phase 1 Environmental Site
Assesment dated October 29, 2009 prepared by Nelson, Pope & Voorhis, LLC.
Grantor and Grantee acknowledge and agree that in the event a
controversy arises with respect to the nature and extent of the Grantors 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.
0.06 Recitation
In consideration of the previously recited facts, mutual promises,
undertakings, and forbearances contained in this Development Rights Easement,
the parties agree upon its provisions, intending to be bound by it.
ARTICLE ONE
THE EASEMENT
1.01 Type
This instrument conveys a Development Rights Easement (herein called
the "Easement"). This Easement shall consist of the limitations, agreements,
covenants, use restrictions, rights, terms, and conditions recited herein.
Reference to this "Easement" or its "provisions" shall include any and all of those
limitations, covenants, use restrictions, rights, terms and conditions.
4
1.02 Definitions
"Development Rights" shall mean the permanent legal interest and right
to prohibit or restrict the use of the Property for uses or purposes consistent with
the terms of this Easement, including agricultural production as that term is
presently referenced in §247 of the General Municipal Law and/or defined in
Chapter 70 of the Town Code of the Town of Southold (the "Town Code" or
"Code'~ and including the production of crops, livestock and livestock products as
defined in §301(2)(a)-0) of the New York State Agriculture and Markets Law
(''Agriculture and Markets Law'd, now or as such Laws and/or Code may be
amended. No future restrictions in said laws and/or Code or limitation in the
definitions set forth in said laws and/or Code shall preclude a use that is
permitted under the current law and/or Code.
"Improvement" shall mean any addition to raw land, such as structures,
fences, wells or drainage.
"Riding Academy" shall mean a business use of a lot for any of the
following purposes: the letting of horses for hire to individuals or groups
whether supervised or unsupervised, horseback riding instruction or the holding
of horse shows or other equine events.
"Structure" shall mean anything constructed or erected on or under the
ground or upon another structure or building, including walkways. Structures
shall not include trellis, posts and wiring, farm irrigation systems, nursery mats,
or fencing necessary for agricultural operations or to mark the boundaries of the
Property, including without limitation fencing to keep out predator animals,
including deer. Approvals for those items listed in the preceding sentence shall
be as required by applicable provisions of the Town Code.
1.03 Duration
This Easement shall be a burden upon and run with the Property in
perpetuity.
1.04 Effect
This Easement shall run with the Property as an incorporeal interest in the
Property, and shall extend to and be binding upon Grantor, Grantors agents,
tenants, occupants, heirs, personal representatives, successors and assigns, and
ail other individuals and entities and provides Grantee with the right to
administer, manage and enforce the Easement as provided herein. The word
"Grantor" when used herein shall include all of those persons or entities. Any
rights, obligations, and interests herein granted to Grantor and/or Grantee shall
also be deemed granted to each and every one of its subsequent agents,
successors, and assigns, and the word "Grantor" or "Grantee" when used herein
shall include all of those persons or entities.
AR'I-[CLE 'I'~VO
SALE
GRANTOR, for ONE MILLION FOUR HUNDRED TWENTY-ONE THOUSAND
THREE HUNDRED TEN AND 10/100 ($1,421,310.10) and such other good and
valuable consideration, hereby grants, releases, and conveys to Grantee this
Easement, in perpetuity, together with all rights to enforce it. Grantee hereby
accepts this Easement in perpetuity, and undertakes to enforce it against
Grantor.
ARTICLE THREE
PROHIBITED ACTS
From and after the date of this Easement, the following acts, uses and
practices shall be prohibited forever upon or within the Property:
3.01 Structures
No structures may be erected or constructed on the Property except as
permitted by the Southold Town Land Preservation Committee (''Land
Preservation Committee'~ and other applicable provisions of the Town Code and
1.02 and 4.06 of this Easement.
3.02 Excavation and Removal of Materials; Mining
The excavating or filling of the Property, except as may be necessary to
construct and maintain permitted structures and improvements on the Property
or in connection with necessary drainage or soil conservation programs, shall be
prohibited, without the prior written consent of Grantee. Mineral exploitation,
and extraction by any method, surface or subsurface, is prohibited. The removal
of topsoil, sand, or other materials shall not take place, nor shall the topography
of the Property be changed, except to construct and maintain the permitted
structures and improvements on the Property and for purposes of erosion control
and soil management, or in connection with normal agricultural/horticultural
activities, without the prior written consent of Grantee.
6
3.03 Subdivision
Except as prOvided in this Section 3.03, the Property may not be further
subdivided pursuant to Town Law §§265, 276 or 277 or § 335 of the Real
Property Law, as they may be amended, or any other applicable State or local
law. "Subdivision" shall include the division of the portion of the Property from
which the development rights are acquired into two or more parcels, in whole or
in part.
Grantor may, subject to approval by the Planning Board of the Town of
Southold and as otherwise required by apPlicable law, subdivide the property, or
reconfigure lot lines, provided that one of the resulting parcels contains at least
18.8253 acres of preserved agricultural land and all resulting parcels remain
preserved agricultural land and are subject to a development dghts easement or
other conservation instrument.
3.04 DumDina
The dumping or accumulation of unsightly or offensive materials including,
but not limited to trash, garbage, sawdust, ashes or chemical waste on the
Property shall be prohibited. This prohibition shall exclude materials used in the
normal course of sound agricultural practices, including fertilization, composting
and crop removal.
3.05 Sians
The display of signs, billboards, or advertisements shall be prohibited,
except signs whose placement, number, and design do not significantly diminish
the scenic character of the Property and only for any of the following purposes:
(a) to state the name of the Property and the names and addresses of the
occupants and the character of the business conducted thereon, (b) to
temporarily advertise the Property or any portion thereof for sale or rent, (c) to
post the Property to control unauthorized entry or use, or (d) with the consent of
the Grantor, to announce Grantee's Easement. Signs are subject to regulatory
requirements of the Town.
3.06 Utilities
The creation or placement of overhead utility transmission lines, wires,
pipes, wells or drainage systems ("utilities'~ on the Property to service structures
approved pursuant to Section 4.06 shall be prohibited without the prior written
7
consent of the Grantee. The Property may not be used for the creation or
placement of utilities to service any other properties.
3.07 Prohibited Uses
Except for uses specifically permitted by this Easement, the use of the
Property or structures on it for any residential, commercial or industrial uses,
permanent or temporary, including but not limited to a riding academy, shall be
prohibited. For the purposes of this section, agricultural production, as that term
is presently referenced in §247 of the General Municipal Law and/or defined in
Chapter 70 of the Town Code, and including the production of crops, livestock
and livestock products as defined in Section 301(2)(a)~(j) of the Agriculture and
Markets Law, now or as such Laws and/or Code may be amended, shall not be
considered a commercial use. Uses, improvements and activities permitted by
the Town Code now or in the future on agricultural lands protected by a
development rights easement or other instrument, including but not limited to
farm stands, shall not be considered a commercial use. No improvements, uses
or activities inconsistent with current or future agricultural production shall be
permitted on the Property.
3.08 Soil and Water
Any use or activity that causes or is likely to cause soil degradation or
erosion or pollution of any surface or subsurface waters shall be prohibited. This
prohibition shall not be construed as extending to agricultural operations and
practices (including, without limitation, the use of agrochemicals such as
fertilizers, pesticides, herbicides, and fungicides) that are in accordance with
sound agricultural management practices of the NRCS.
3.09 Conservation Plan
All agricultural operations on the Property shall be conducted in a manner
consistent with a resource management system (RMS) Conservation Plan (the
"Conservation Plan'~ prepared by the NRCS utilizing the standards and
specifications of the NRCS Field Office Technical Guide, 7 CFR Part 12 and
approved by the Suffolk County Soil and Water Conservation District. All lands
enrolled in the Farm and Ranch Lands Protection Program will be subject to the
Conservation Plan.
Grantor shall give Grantee copies of the Conservation Plan upon request
and advise Grantee of amendments thereto so as to enable Grantee to keep its
records current.
3.10 Conservation Compliance Provisions of the Conservation Plan
As required by Section 1238I of the Food Security Act of 1985, as
amended, the Grantor, its, successors, or assigns, shall conduct all agricultural
operations on the Property in a manner consistent with a conservation plan (the
"Conservation Plan") prepared in consultation with NRCS and approved by the
Suffolk County Soil and Water Conservation District. This Conservation Plan shall
be developed using the standards and specifications of the NRCS Field Office
Technical Guide (FOTG) and 7 CFR Part 12 that are in effect on the date of this
Easement. However, the Grantor may develop and implement a conservation
plan that proposes a higher level of conservation and is consistent with the NRCS
Field Office Technical Guide standards and specifications. NRCS shall have the
right to enter upon the Property, with advance notice to the Grantor, in order to
monitor compliance with the Conservation Plan.
In the event of noncompliance with the Conservation Plan, NRCS shall
work with the Grantor to explore methods of compliance and give the Grantor a
reasonable amount of time, not to exceed twelve months, to take corrective
action. If the Grantor does not comply with the Conservation Plan, NRCS will
inform Grantee of the Grantor's noncompliance. The Grantee shall take all
reasonable steps (including efforts at securing voluntary compliance and, if
necessary, appropriate legal action) to secure compliance with the Conservation
Plan following written notification from NRCS that (a) there is a substantial,
ongoing event or circumstance of non-compliance with the Conservation Plan,
(b) NRCS has worked with the Grantor to correct such noncompliance, and (c)
Grantor has exhausted its appeal rights under applicable NRCS regulations.
If the NRCS standards and specifications for highly erodible land are
revised after the date of this Easement based on an Act of Congress, NRCS will
work cooperatively with the Grantor to develop and implement a revised
conservation plan. The provisions of this section apply to the highly erodible
land conservation requirements of the Farm and Ranch Lands Protection
Program and are not intended to affect any other natural resources conservation
requirements to which the Grantor may be or become subject.
3.11 Drainage
The use of the Property for a leaching or sewage disposal field shall be
prohibited. The use of the Property for a drainage basin or sump shall be
prohibited, except in accordance with sound agricultural management practices
and in order to control flooding or soil erosion on the Property.
3.12 Development Rights
9
The use of the acreage of this Property for purposes of calculating lot
yield on any other Property shall be prohibited. Grantor hereby grants to
Grantee all existing development rights (and any further development rights that
may be created through a rezoning of the Property) on the Property, except for
the dght to use the property for agricultural production as set forth in ARTICLE
FOUR below and the right to construct, maintain and replace any pre-existing
structures, and to construct new structures, as such rights may be provided in
Section 4.06 or elsewhere in this Easement, and the parties agree that any other
such development rights shall be terminated and extinguished and may not be
used or transferred to any other parcels.
^R'rICLE FOUR
GRANTOR'S RIGHTS
4.01 Ownership
Subject to the provisions of ARTICLE THREE, Grantor shall retain all other
rights of ownership in the Property, some of which are more particularly
described in this ARTICLE FOUR.
4.02 Possession
Grantor shall continue to have the right to exclusive possession of the
Property.
4.03 Use
Grantor shall have the right to use the Property in any manner and for any
purpose consistent with and not prohibited by this Easement as well as
applicable local, State, or federal law. Grantor shall have the right to use the
Property for uses, improvements and activities that are not inconsistent with the
purpose, and that are not prohibited by, this Easement and that are permitted by
the Town Code, now or in the future, on agricultural lands protected by a
development rights easement or other instrument, including but not limited to
farm stands and for educational or training programs related to agricultural
production or activities.
4.04 Landscaoing Activities
Grantor shall have the right to continue the current and/or customary
modes of landscaping, pruning and grounds maintenance on the Property as
evidenced by the documentation set forth in Section 0.05. Grantor shall have the
right to remove or restore trees, shrubs, or other vegetation when dead,
lO
diseased, decayed or damaged or interfering with agricultural production, to thin
and prune trees to maintain or improve the appearance of the Property, and to
mow the Property.
'l.05 Aqricultural Activities
Grantor shall have the right to engage in all types of agricultural
production as the term is referenced in §247 of the General Municipal Law
and/or defined in Chapter 70 of the Town Code, and including the production of
crops, livestock and livestock products as defined in §301(2)(a)-0) of the
Agriculture and Markets Law, now or as such Laws and/or Code may be
amended, provided that such activity shall be conducted in accordance with the
purposes of this Easement and the Conservation Plan. No future restrictions in
said laws and/or Code or limitation in the definitions set forth in said laws and/or
Code shall preclude a use that is permitted under the current Law and/or Code.
Grantor may offer "U-Pick" operations and/or the use of a corn maze to
the general public, provided such activities are conducted in conjunction with
seasonal harvests, do no interfere with agricultural production and are otherwise
consistent with and do not derogate from or defeat the Purpose of this Easement
or other applicable laws.
Notwithstanding the definition of agricultural production in Chapter 70 of
the Town Code or any successor chapter, structures shall be prohibited except as
set forth in §4.06 herein and as permitted by the Town Code now or in the
future on agricultural lands protected by a development rights easement or other
instrument, including but not limited to farm stands.
4.06 Structures and Improvements
A. Allowable Improvements. Grantor shall have the right to erect and
maintain the following structures and improvements on the Property, as they
may be permitted by the Town Code now or as same may be amended and
subject to the approval of the Land Preservation Committee, provided the
structures are consistent with and do not derogate from or defeat the Purpose of
this Easement or other applicable laws:
Underground facilities used to supply utilities solely for the
use and enjoyment of the Property, and for the use and
enjoyment of any adjoining properties solely for use in
agricultural production.
11
(ii)
Construction of new structures, provided such structures are
necessary for or accessory to agricultural production and lot
coverage does not exceed ten (10) percent of the Property;
(iii)
Renovation, maintenance and repairs of any existing
structures or structures built or permitted pursuant to this
Section 4.06, provided the primary purpose of the structure
remains agricultural;
(iv)
Any improvement excluded from the definition of "Structure"
in Section 1.02;
B. Conditions. Any allowable improvements shall protect prime
agricultural soils, agricUltural production, open space and scenic vistas, and
otherwise be consistent with the Purpose of this Easement. No new construction
is permitted outside of the area described in paragraph 4.06A(ii) above.
C. Environmental Sensitivity During Construction. The use and location
of any improvement permitted hereunder shall be consistent with .the purposes
intended herein, and construction of any such improvement shall minimize
disturbances to the environment. Grantors shall employ erosion and sediment
control measures to mitigate any storm water runoff, including but not limited to
minimal removal of vegetation, minimal movement of earth and minimal
clearance of access routes for construction vehicles.
D. Replacement of Improvements. In the event of damage resulting
from casualty loss to an extent which renders repair of any existing
improvements or improvements built or permitted pursuant to this Section 4.06
impractical, erection of a structure of comparable size, use, and general design
to the damaged structure shall be permitted in kind and within the same general
location subject to the review and written approval of Grantee, pursuant to
applicable provisions of the Town Code.
4.07 Notice
Grantor shall notify Grantee, in writing, before the construction of any
permanent or temporary structures as permitted in Section 4.06 herein and shall
file all necessary applications and obtain all necessary approvals that may be
required by this Easement or by the Town Code, and shall provide
documentation as may be required for such applications.
4.08 Alienability
12
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 and the United States Secretary of Agriculture of
any conveyance of any interest in the Property, including the full name and
mailing address of any transferee, 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.
4.09 Further Restriction
Nothing in this Easement shall prohibit or preclude Grantor from further
restricting the use, improvements or structures on the Property. Any such
further restrictions shall be consistent with and in furtherance of the general
intent and purpose of this Easement as set forth in Section 0.03.
ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5.01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments and other
governmental or municipal charges, which may become a lien on the Property,
including any taxes or levies imposed to make those payments subject, however,
to Grantors right to grieve or contest such assessment. The failure of Grantor to
pay all such taxes, levies and assessments and other governmental or municipal
charges shall not cause an alienation of any rights or interests acquired herein by
Grantee.
5.02 General Indemnification
Grantee and the United States have no obligations whatsoever, express or
implied, relating to the use, maintenance or operation of the Property. Grantee's
or the United States' exercise of, or failure to exercise, any right conferred by
this Easement shall not be deemed to be management or control of the activities
on the Property. Grantee shall not be liable to Grantor for injuries or death to
persons or damage to property or any other harm in connection with Grantee's
administration and/or enforcement of this Easement, unless such harm is due to
the negligence of Grantee or its agents, in which case liability shall be
apportioned accordingly.
13
Grantor shall indemnify and hold harmless Grantee and the United States
of America, their employees, agents and assigns from any and all liabilities,
claims, demands, losses, expenses, damages, fines, fees, penalties, suits,
proceedings, actions and costs of actions, sanctions asserted by or on behalf of
any person or governmental authority, and other liabilities (whether legal or
equitable in nature and including, without limitation, court costs, and reasonable
attorneys' fees and attorneys' fees on appeal) to which Grantee or the United
States may be subject to or incur relating to the Property, which may arise from,
but are not limited to, Grantor's negligent acts or omissions or Grantors breach
of any representation, warranty, covenant, agreements contained in this
instrument, or violations of any Federal, State or local laws, including all
Environmental Laws.
5.02A Environmental Warranty
"Environmental Law" or "Environmental Laws" means any and all Federal,
State, local or municipal laws, rules, orders, regulations, statutes, ordinances,
codes, guidelines, policies or requirements of any governmental authority
regulating or imposing standards of liability or standards of conduct (including
common law) concerning air, water, solid waste, hazardous materials, worker
and community right-to-know, hazard communication, noise, radioactive
material, resource protection, subdivision, inland wetlands and watercourses,
health protection and similar environmental health, safety, building and land use
as may now or at any time hereafter be in effect:
"Hazardous Materials" means any petroleum, petroleum products, fuel oil,
waste oils, explosives, reactive materials, ignitable materials, corrosive materials,
hazardous chemicals, hazardous wastes, hazardous substances, extremely
hazardous substances, toxic substances, toxic chemicals, radioactive materials,
infectious materials and any other element, compound, mixture, solution or
substance which may pose a present or potential hazard to human health or the
environment.
Grantor warrants that it is in compliance with and shall remain in
compliance with, all applicable Environmental Laws. Grantor warrants that there
are no notices by any governmental authority of any violation or alleged violation
of, non-compliance or alleged non-compliance with or any liability under any
Environmental Law relating to the operations or conditions of the Property.
Grantor further warrants that it has no actual knowledge of a release or
threatened release of any Hazardous Materials on, at, beneath or from the
Property, as such substances and wastes are defined by applicable Federal and
State law.
]4
Moreover Grantor hereby promises to hold harmless and indemnify the
Grantee and the United States against all litigation, claims, demands, penalties
and damages, including reasonable attorneys' fees, arising from or connected
with the release or threatened release of any Hazardous Materials on, at,
beneath or from the Properb/, or arising from or connected with a violation of
any Environmental Laws by Grantor or any other prior owner of the Property.
Grantor's indemnification obligation shall not be affected by any authorizations
provided by Grantee or the United States to Grantor with respect to the Property
or any restoration activities carried out by Grantee at the Property; provided,
however, that Grantee shall be responsible for any Hazardous Materials
contributed a~er this date to the Property by Grantee.
5.03 Grounds Maintenance Reouirement
If Grantor leaves the Property open and does not engage in agricultural
production for two (2) consecutive years, then Grantor shall implement a Natural
Resources Conservation Plan (the "Plan'3 approved by Grantor (which approval
by Grantor shall not be unreasonably withheld) and by Grantee, including the
Land Preservation Committee, to maintain or restore the Property to the
condition in which it existed on the date of this Easement, as evidenced by the
documentation referred to in Section 0.05, in order to protect the environmental,
natural, scenic and agricultural values of the Property. In the event Grantor fails
to comply with the provisions of this section af~er reasonable written notice is
given to Grantor by Grantee, then, in addition to all other remedies set forth
herein, Grantee or its agents are hereby authorized to enter upon the Property to
implement the Plan, and to recover the costs of such implementation from
Grantor, as provided in Section 6.03.
ARTICLE SIX
GRANTEE'S RIGHTS
6.01 Entry and Inspection
Grantee shall have the right to enter upon the Property at reasonable
times, upon prior notice to Grantor, and in a manner that will not interfere with
Grantors 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. Representatives of the United States Department of Agriculture shall also
have the right to enter the Property for monitoring conservation plan
implementation, upon prior notice to Grantor and not more frequently than
annually without Grantor's consent. Grantee shall not have the right to enter
upon the Property for any other purposes, except as provided in Section 5.04
and 6.03, or to permit access upon the Property.
15
6.02 Restoration
In addition to Grantee's remedies under Section 5.04, Grantee shall have
the right to require the Grantor to restore the Property to the condition required
by this Easement and to enforce this right by any action or proceeding that
Grantee may reasonably deem necessary. However, Grantor shall not be liable
for any changes to the Property resulting from causes beyond the Grantors
control, including, without limitation, fire, flood, storm, earth movement, wind,
weather or from any prudent action taken by the Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to persons or to the
Property or crops, livestock or livestock products resulting from such causes.
6.03 Enforcement Riohts of Grantee
Grantor acknowledges and agrees that Grantee's remedies at law for any
violation of this Easement may be inadequate. Therefore, in addition to, and not
as a 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 ten (10) days' written notice thereof by
Grantee (which notice requirement is expressly waived by Grantor with respect
to any such breach, default or violation which, in Grantee's reasonable judgment,
requires immediate action to preserve and protect any of the agricultural values
or otherwise to further the purposes of this Easement), Grantee shall have the
right at Grantor's sole cost and expense and at Grantee's election:
(i)
To institute a suit to enjoin or cure such breach, default or violation
by temporary and/or permanent injunction,
(ii)
To enter upon the Property and exercise reasonable efforts to
terminate or cure such breach, default or violation and/or to cause
the restoration of that portion of the Property affected by such
breach, default or violation to the condition that existed prior
thereto, or
To enforce any term, provision, covenant or obligation in this
Easement or 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.
The cure period in this Section 6.03 may be extended for a reasonable time by
Grantee if such restoration cannot reasonably be accomplished within 10 days.
Under this Grant of Development Rights Easement, the United States is
granted the right of enforcement in order to protect the public interest. The
Secretary of the United States Department of Agriculture (the Secretary) or his or
her assigns, on behalf of the United States, may exercise this right of
enforcement under any authority available under State or Federal Law if the
Town of Southold fails to enforce any of the terms of this instrument, as
determined in the sole discretion of the Secretary.
6.04 Notice
All notices required by this Easement must be written. Notices shall be
delivered by hand or registered or certified mail, return receipt requested, with
sufficient prepaid postage affixed and with return receipts requested. Nailed
notice to Grantor shall be addressed to Grantor's address as recited herein, or to
such other address as Grantor may designate by notice in accordance with this
Section 6.04. Mailed notice to Grantee shall be addressed to its principal office
recited herein, marked to the attention of the Supervisor and the Town Attorney,
or to such other address as Grantee may designate by notice in accordance with
this Section 6.04. Mailed notice to the United States shall be addressed to the
State Conse~ationist, Natural Resources Conservation Service, The Galleries of
Syracuse, 441 South Salina Street, Suite 354, Syracuse, New York 13202 - 2450.
Notice shall be deemed given and received as of the date of its manual delivery
or three business days after the date of its mailing.
6.05 No Waiver
Grantee's exercise of one remedy or relief under this AR'I-[CLE SIX shall
not have the effect of waiving or limiting any other remedy or relief, and the
failure to exercise or delay in exercising any remedy shall not constitute a waiver
of any other remedy or relief or the use of such other remedy or relief at any
other time.
6.06 Extinguishment/Condemnation
At the mutual 'request of Grantor, Grantee and the United States of
America, a court with jurisdiction may, if it determines that conditions
surrounding the Property have changed so much that it becomes impossible to
fulfill the Purpose of this Easement described in Section 0.03, extinguish or
l?
modify this Easement in accordance with applicable law. The mere cessation of
farming on the Property shall not be construed to be grounds for extinguishment
of this Easement.
If at any time the Property or any portion thereof shall be taken or
condemned by eminent domain, approved in advance by the United States
Department of Agriculture NRC.S, by the Grantee or by any other governmental
entity, then this Easement shall terminate with respect to the Properb/, or
portions thereof so taken or condemned, and the Property shall not be subject to
the limitations and restrictions of this Easement. In such event, the Grantor, its
successors or assigns, shall not be required to pay any penalties, but the value of
the Property shall reflect the limitations of this Easement. Any condemnation
award payable to the Grantor shall be in proportion to the value attributable to
the residual agricultural value of the Property. If the condemnation is
undertaken by an entity other than the Grantee, then the remaining portion of
the condemnation award shall be payable to the Grantee in proportion to the
value attributable to the development rights transfer, red hereby, in accordance
with Section 7.12 (Proceeds).
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understanding
This Easement contains the entire understanding between the 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 may be amended only with the written consent of Grantee
and current Grantor(s) and with the written approval of the Secretary of the
United States Department of Agriculture, and in accordance with all applicable
State and local laws. Any such amendment shall be consistent with the Town
Code and any regulations promulgated thereunder and with the Purpose of this
Easement, and shall be duly recorded.
This Easement is made with the intention that it shall qualify as a
Conservation Easement in perpetuity under Internal Revenue Code §170(h). The
parties agree to amend the provisions of this Easement if such amendment shall
be necessary, to entitle Grantors to meet the requirements of §170(h). Any such
amendment shall apply retroactively in the same manner as if such amendment
or amendments had been set forth herein.
7.03 Alienation
No property rights acquired by Grantee hereunder shall be alienated
except pursuant to the provisions of Chapter 70 of the Town Code or any
successor chapter and other applicable laws, upon the adoption of a local law
authorizing the alienation of said rights and interest, following a public hearing
and, thereafter, ratified by a mandatory referendum by the electors of the Town
of Southold. No subsequent amendment of the provisions of the Town Code
shall alter the limitations placed upon the alienation of those property rights or
interests which were acquired by the Town prior to any such amendment. The
United States of America shall also consent to any such alienation.
In addition to the limitations set forth above, Grantee shall have the right,
to transfer all or part of this Easement to any public agency, or private non-
governmental organization, that at the time of transfer is a "qualified
organization" under §170(h) of the Internal Revenue Code, provided that
transferee expressly agrees to assume the responsibility imposed on the Grantee
by this Easement.
Any easement transfer must be approved by the Grantor or any
subsequent owner, and the United States Department of Agriculture, NRCS. If
the Grantee ever ceases to exist, a court of competent jurisdiction may transfer
this Easement to another qualified public agency that agrees to assume the
responsibilities imposed by this Easement. The United States Department of
Agriculture, NRCS, will be notified in writing, in advance of such transfer. The
NRCS State Office must approve the choice of any new non-governmental
organization in advance of any transfer of this Easement.
7.04 Severability
Any provision of this Easement restricting Grantor's activities, which is
determined to be invalid or unenforceable by a court shall not be invalidated.
Instead, that provision shall be reduced or limited to whatever extent that court
determines will make it enforceable and effective. Any other provision of this
Easement that is determined to be invalid or unenforceable by a court shall be
severed from the other provisions, which shall remain enforceable and effective.
7.05 Governing Law
]9
New York Law applicable to deeds to and easements on land located
within the State of New York shall govern this Easement in all respects, including
validity, construction, interpretation, breach, violation and performance.
7.06 Interpretation
Regardless of any contrary rule of construction, no provision of this
Easement shall be construed in favor of one of the parties because it was drafted
by the other party's attorney. No alleged ambiguity in this Easement shall be
construed against the party whose attorney drafted it. ]~f 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
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
affect 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 their right to use the Property, except as
otherwise recited herein, be construed at all times and by all parties to effectuate
its purposes.
7.07 Public Access
Nothing contained in this Easement grants, nor shall it be interpreted to
grant, to the public, any right to enter upon the Property, or to use images of the
Property. Grantee may use images of the Property only for non-commercial
reporting of this Easement.
7.08 Warranties
The warranties and representations made by the parties in this Easement
shall survive its execution.
7.09 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
20
7.11 Proceeds
The grant of this Easement gives rise to a property right, immediately
vested in Grantee and the United States, which, for purposes of calculating
proceeds from a sale or other disposition of the Property as contemplated under
Section 6.06 (Extinguishment of Easement), shall have a value equal to a
percentage of the value of the Property unencumbered by this Easement (the
"Proportionate Share"). The Proportionate Share is determined by dividing the
value of this Easement, calculated as of the date hereof, by the unencumbered
value of the Property, also calculated as of the date hereof. The Proportionate
Share is 76%. The Proportionate Share shall remain constant (subject to
reasonable adjustment to the extent permissible under §170(h) of the Internal
Revenue Code for any improvements which may hereafter be made on the
Property).
If any part or all of this Easement is extinguished pursuant to Section
6.06, the proportional shares of the Grantee and the United States of America
are 45%, and 50%, respectively, representing the proportion each party
contributed to the purchase price of the Easement
IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has
accepted and received this Grant of Development Rights Easement on the day
and year set forth above.
ESTATE OF ANNA T. DROSKOSKI, Grantor
By: Patricia A. Sepenosl~, Executrix
ACKNOWLEDGED AND ACCEPTED:
TOWN OF SOUTHOLD, Grantee
Russell
Supervisor
Acceptance of Property Interest by the Natural Resources Conservation Service
2!
The Natural Resources Conservation Service, United State Department of
Agriculture, an agency of the United States Government, hereby accepts and
approves the foregoing Grant of Development Rights Easement, and the rights
conveyed therein, on behalf of the United States of America.
)('uthorized Signatory fo~-th RCS
Astor F. Boozer, State Conservationist
State of New York )
County of ~,~',~-~ ), ss:
On the ! 3~ day of ~-~' in the year 2010 before me, the
undersigned, personally appeared Patricia A. Spenoski, personally known to me or
proved to me on the basis of satisfactory evidence to be the individual whose name
is subscribed to the within instrument and acknowledged to me that she executed
the same in her capacity, and that by her signature on the instrument, as
Executrix, execut~t o.~n 1~2~~f Anna T Droskoski. '
Signature/office'~)f individua a gJacknowledgement
I I 8t~ph~n P. gpanburgh
COUNTY OF SUFFOLK ) SS:
On this/S day of/~¥ in the year 2010 before me, the undersigned,
personally appeared Scott A. Russell, personally known to me or proved to me
on the basis of saUsfactory evidence to be the individual whose name
subscribed to the within instrument and acknowledged to me that he executed
the same in his capadty as Supervisor of the Town of Southold, and that by his
signature on the~bove instrument executed this instrument on behalf of the
22
On this / day of/f4~/~y in the year 2010 before me, the undersigned,
personally appeared Astor F. Boozer, personally knoWn to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in
his capacity as State Conservationist, and that he signed the above instrument
on behalf of the United States of America,
~o~r;/~t~l~./~ Notary Public
No. 01STS089252
County of Madison, State of lq.Y.
Commission F, xpirex
23
Title No.: 641-S-03665
Amended 516110
Schedule A Description - DEVELOPMENT RIGHTS EASEMENT
ALL that certain plot, piece or parcel or land, situate, lying and being at
Orient, in the Town of Southold, County of Suffolk and State of New York,
bounded and described as follows:
BEGINNING at a monument located on the northerly side of Main Road S.R.
25 from the corner formed by the intersection of the westerly side of Brown's
Hill Road with the northerly side of Main Road S.R. 25;
RUNNING THENCE along the northerly side of Main Road S.R. 25 South 79
degrees 20 minutes 40 seconds West 203.35 feet to the development rights
easement area about to be described and the true point or place of
BEGINNING.
THENCE along the northerly side of Main Road S.R. 25 South 79 degrees 20
minutes 40 seconds West 53.65 feet to land now or formerly of Sepenoski;
THENCE along said land now or formerly of Patricia Sepenoski North 31
degrees 54 minutes 50 seconds West, 300.00 feet;
THENCE South 75 degrees 08 minutes 20 seconds West, 260.25 feet;
THENCE South 47 degrees 20 minutes 30 seconds West, 134.50 feet;
THENCE North 42 degrees 39 minutes 30 seconds West 1377.39 feet to a
monument;
THENCE North 60 degrees 49 minutes 40 seconds ~t1~t'330.24 feet;
THENCE North 55 degrees 33 minutes 10 seconds East 277.71 feet to the
westerly side of Brown's Hill Road;
THENCE along the westerly side of Brown's Hill Road South 42 degrees 39
minutes 30 seconds East 1274.12 feet;
--page 2-.
THENCE South 47 degrees 20 minutes 30 seconds West 182.13 feet;
THENCE South 42 degrees 39 minutes 30 seconds East 117.29 feet;
THENCE South 31 degrees '54 minutes 50seconds East 319.45feet to the
northerly side of Main Road S.R. 25 and the TRUE POINT OR PLACE OF
BEGINNING.
m
JOHN C. EHLERS LAND SURVEYOR