HomeMy WebLinkAbout1000-121.-1-1 (2)
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DEED OF CONSERVATION EASE ENT Op
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THIS DEED OF CONSERVATION EASEMENT, is made on the 26th day of January, 1996 at
Southampton, New York. The parties are Thornton E. Smith residing at 44 Brookside Drive,
Plandome, New York 11030 (herein called the "Grantor"), and the PECONIC LAND TRUST,
INCORPORATED, anot-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 80.59 acres of certain real
property located in the Town of Southold, Suffolk County, New York hereinafter more fully
described in Schedule A attached hereto, and shown on Conservation Map marked Exhibit A
attached hereto, and further described as Suffolk County Tax Map Parcels #1000-113-7.0-
19.20 and #1000-121-1.0-1.1, and hereinafter referred to as the "Property"; and
WHEREAS, the 80.59 acre parcel of Property is comprised of approximately 34 acres of
productive farmland, 28 acres of woodland, 17 acres of open meadow, and .5 acres of freshwater
wetlands; and
WHEREAS, the Property is located in the AC 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 as outlined in the Town of Southold code, Section 100-30. This Zoning
District would allow for a yield of 20 single-family residences on the Property as per a letter
prepared by Young & Young, a licensed surveyor, dated January 26, 1996 and based on a
formula previously used by the Town of Southold to calculate yield.
WHEREAS, the Grantor wishes to grant a Conservation Easement on the 80.59 acre
Property so that a portion of the Property (hereinafter referred to as the "Nature Preserve")
comprising 13.41 acres of the Property, more fully described in Schedule B attached hereto,
shall remain in its open, undeveloped, and scenic state, and another portion of the Property
(herein after referred to as the "Development Area") comprising 33.29 acres of the Property,
more fully described in Schedule C attached hereto, may be further developed with no more than
six (6) single-family residences with appurtenant structures and improvements, and another
portion of the Property compromising 33.89 acres of agricultural land, upon which the
development rights have been sold to the Town of Southold (hereinafter referred to as the
"Agricultural Area") shall be maintained in agricultural production; and
WHEREAS, the Property is adjacent to a 5.6-acre winery to its south that currently has
productive grape arbors on site; and
WHEREAS, the Property is adjacent to 30 acres of agricultural land to the north that is
currently in use as productive farmland and upon which the development rights have been sold
to the Town of Southold; and
WHEREAS, the Property has a total of approximately 995 feet of road frontage on a
County Road, Route 48, which offers the public a significant vista of scenic, natural woodland;
and approximately 810 feet of road frontage on Bergen Avenue which offers the public scenic
views across protected open space; and
WHEREAS, the protection of the Property is part of a larger plan expressed by a clearly
delineated governmental 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 in its present scenic, natural and open space condition has
substantial and significant value as an aesthetic, scenic and open resource by reason of the fact
that it has not been subject to any extensive development; and
WHEREAS, it is the policy of the Town of Southold, as articulated in the Code of the Town
of Southold, Chapter 97, to protect the citizens of the Town of Southold by providing for the
protection and preservation of its wetlands; and
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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 Property as an aesthetic, scenic and open 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, scenic and open space values of rural lands located in
Suffolk County of Long Island.
9.03 Purpose
The parties recognize the environmental, scenic, open space and natural values of the
Property 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 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 Government 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 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 September 11, 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 Documentation
The Grantee acknowledges by acceptance of this Easement that Grantor's historical and
present use of the Property is 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, and aesthetic 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
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"Baseline Documentation"). This Baseline Docume lion includes, but need not be limited to, a
conservation easement map as shown in it , an aerial photograph, photographs of the
Property, a topographical map, a de iption d site plan of existing land uses, features, and
structures, as depicted on the plat repared y Young & Young, licensed land surveyors, on
October 10, 1995, and revised De ember 29, 995. The Grantor and Grantee acknowledge and
agree that in the event a controver arses ith respect to the nature and extent of the
Grantor's historical and present uses o e 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.
4.07 Recitation
In consideration of the previously recited facts, mutual promises, undertakings and
forbearances contained in this Easement, the parties agree upon its provisions, intending to be
bound by it.
ARTICLE ONE
THE EASEMEM'
1.01 Tv~e
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 all
of those covenants, restrictions, rights, terms and conditions.
1.02 Duration
This Easement shall be a burden upon and run with the Property in perpetuity.
1.03 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, successors 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 except as provided in Section 7.07.
ARTICLE TWO
SIFT
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 Property.
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 as follows:
3.01 Structures
The construction or placement of residential, commercial, industrial or other buildings
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or structures of any kind or nature (including, but not limited to mobile homes), permanent or
temporary, on, over or under the Property except pursuant to Sections 4.06 A. and B. hereof.
Structures and improvements may not be made on over, or under the Property without the
prior written consent of the Grantee, which may be granted if the structure or improvement
does not defeat or derogate from the purposes of this Easement.
3.02 Excavation and Removal of Materials
The excavating, mining or filling of the Development Area and the Nature Preserve
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 Nature Preserve without the prior written consent of the
Grantee. The removal of topsoil, sand, or other materials shall not take place on the
Development Area and the Nature Preserve nor shall the topography of the Development Area
and the Nature Preserve be changed except to develop and maintain the single-family residences
and appurtenant structures and improvements permitted in the Development Area without the
prior written consent of the Grantee.
3.03 Subdivision
The subdivision or partitioning of the Development Area and the Nature Preserve
without the prior written consent of the Grantee, which shall be granted if that subdivision or
partition does not defeat or derogate from the purposes of this Easement. In no event shall the
Development Area be subdivided into more than six (6) residential lots as provided in Section
4.06 hereof.
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 Development Area and Nature
Preserve.
3.05 Signs
The display of signs, billboards, or advertisements on the Development Area and Nature
Preserve except signs, whose placement, number, and design do not significantly diminish the
scenic character of the Development Area and Nature Preserve and only for the following
purposes: a) to state the name of the Development Area and Nature Preserve and the names and
addresses of the occupants, b) to advertise the home occupation of residences in the Development
Area as pursuant to Article III of the Southold Town Code, Chapter 100, c) to temporarily
advertise the Property or any
portion thereof for sale or rent, d) to post the Development Area and Nature Preserve to
control unauthorized entry or use, and e) to announce the Grantee's conservation easement.
3.06 Cutting of Timber
The cutting or harvesting of timber in the Development Area and the Nature Preserve
except for the following purposes: a) to clear and restore forest cover that has been damaged or
disturbed by forces of nature or otherwise, b) to prune and selectively thin trees to create
limited vistas in accordance with good forest management practices and the purposes of this
Easement, as determined by the Grantee in its sole discretion, c) to develop the single-family
residences and appurtenant structures and improvements permitted in the Development Area,
d) to maintain future driveways in the Development Area, e) to construct and maintain the
permitted structures and improvements in the Development Area and the Nature Preserve
without the prior written consent of the Grantee.
3.07 Landscaping Activities
The removal of trees, shrubs, or other vegetation from the Nature Preserve, except as
provided in Sections 4.04 and 4.05, without the prior written consent of the Grantee.
3.08 Utilities
The creation or placement of overhead utility transmission lines, utility poles and wires
in the Development Area and the Nature Preserve without the prior written consent of the
Grantee, except as pursuant to Sections 4.05 and 4.06.
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3.09 Uses
The use of the Development Area and Nature Preserve for any commercial or industrial
purpose. The raising of agricultural crops or animals for sale shall not be considered a
commercial use. The use of residences in the Development Area for home occupation as pursuant
to the Southold Town code, Chapter 100-3, Section C, as amended, shall not be considered a
commercial use.
3.10 Sewage Disposal
The use of the Development Area and Nature Preserve for a leaching or sewage disposal
field.
3.11 Development Rights
• The use of the acreage of the Property burdened with this Easement for purposes of
calculating lot yield on any other property. Grantor hereby grants to Grantee 14 residential
development rights on the Property 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 this 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 applicable local, New York State,
and federal law which will not defeat or derogate from the purposes of this Easement.
4.04 Landscaping Activities
Grantor shall have the right to continue the historical modes of landscaping, pruning and
grounds maintenance in 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.
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, nursery stock, orchards, vineyards, and cultivation of crops, provided that such
agricultural activity shall be conducted in accordance with the purposes of this Easement.
Normal agricultural fencing and accessory structures, as provided in Section 4.06 B, may be
constructed, 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 six (6) 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
fields, swimming pools, pool houses, tennis courts, or other family-scale athletic facilities.
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Grantor shall have the right to remove trees, shrubs, or other vegetation reasonably necessary
to renovate, expand, convert, construct or replace the six ((i) single-family residences and
appurtenant structures and improvements. All such residences, structures and improvements
shall be constructed, maintained and replaced within the Development Area as described in
Schedule C.
B. Allowable Non-Residential Improvements
Grantor shall have the right to erect and maintain the following non-residential
improvements in the Agricultural Area and the Development Area as are necessary to and
consistent with the uses permitted in this Easement.
(i) Agricultural Structures, including but not limited to small barns, sheds,
stables, etc., subject to regulatory approval and approval of Grantee;
(i i) Access Drives, as necessary to provide access to the improvements
permitted herein;
(iii) Vineyard posts, constructed, maintained and placed in a historically and
locally customary fashion;
(i v) Fences, constructed so as not to block the scenic vistas; and
(v) 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 and for drainage purposes as may be requested by a state,
county, or local government agency.
C. Environmental Sensitivity during 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
except as permitted in Section 4.05, 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 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 the Grantee.
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.
4.08 Alienability
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.
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ARTICLE FIVE
GRANTOR'S OBLIGATIONS
5 01 Taxes and Assessments
Grantor shall continue to pay all taxes, levies, and assessments and other governmental
or municipal charges which may become a lien on the Property, including any taxes or levies
imposed to make those payments. 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 for any liability, costs, attorney's
fees, judgments or expenses to Grantee or any of its officers, employees, agents or independent
contractors arising from the physical maintenance or condition of the Property or from any
taxes, levies or assessments upon it or resulting from this Easement, all of which shall be
considered Grantor's obligations.
5.03 Third Party Claims
Grantor shall indemnify and hold Grantee harmless for any liability, costs, attorney's
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.
ARTICLE SIX
GRANTEES RIGHTS
6.01 Entrv and Ins ep ction
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 Property 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.
The Grantee acknowledges that the Property is currently in the condition required by
this Easement as verified by the Baseline Documentation as noted in Section 0.06.
6.03 Enforcement Rights of Grantee
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,
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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 attorney's
fees, court costs and other expenses incurred by Grantee (herein called "legal expenses") in
connection with any proceedings under this Section 6.03.
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 anot-for-profit corporation, or a 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, which is organized or operated primarily or substantially for one of the conservation
purposes specified in Section 170(h)(4)(A) of the Code. Any assignment by Grantee or
Grantee's successors must require the Assignee or 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, subject to compliance with the provisions of this Subsection.
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 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
the Town of Southold, or if such Town will not accept this easement, then another qualified
organization, in accordance with a cy pres proceeding brought in any court of competent
jurisdiction.
6.07 Extinguishment
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
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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.
If all or any part of the Property is taken under the power of eminent domain by public,
corporate, or other authority, or otherwise acquired by such authority through a purchase in
lieu of a taking, so as to abrogate 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 Proportionate 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.
ARTICLE SEVEN
MISCELLANEOUS
7.01 Entire Understanding
This Easement contains the entire understanding between its parties concerning its
subject matter. Any prior agreement between the parties concerning its subject matter shall be
merged into this Easement and superseded by it.
7.02 Amendment
This Easement is made with the intention that it shall qualify as a Conservation Easement
in perpetuity under 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 purposes of this Easement set forth in the Introduction hereof; provided, however, that
Grantee shall have no right or power to agree to any amendments hereto that would result in this
Easement failing to qualify as a valid Conservation Easement under Article 49, Title 3 of the
Environmental Conservation Law 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 Agricultural Area, the Development
Area and the Nature Preserve may have to be adjusted to accommodate the Town of Southold at
such time that the Property is subdivided 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 Agricultural Area, the Development Area, or the Nature Preserve, or
an increase in the number of lots or primary structures to be developed by the Grantor.
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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 Governing 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 Interpretation
Regardless of any contrary rule of construction, no provision of this Easement shall be
construed in favor of one of the parties because it was drafted by the other party's attorney. No
alleged ambiguity in this Easement shall be construed against the party whose attorney drafted
it. If any 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 as intended by Grantor. Any rule of strict construction designed to limit the breadth of
the restrictions on use of the Property shall not apply in the construction or interpretation of
this Easement, and, this Easement shall be interpreted broadly to effect the purposes of this
Easement as intended by 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 its purposes.
7.07 Termination of Rights and Obligations
A party's rights and obligations under this Easement terminate upon transfer of the
party's interest in the Easement or Property, except that the liability for acts or omissions
occuring prior to transfer shall survive transfer.
7.08 Public Access
Nothing contained in this Easement grants, nor shall be interpreted to grant, to the
public any right to enter upon the Property.
7.09 Warranties
The warranties and representation made by the parties in this Easement shall survive
its execution.
7.10 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.
10
7.11 Headings
The headings, titles and subtitles herein have been inserted solely for convenient
reference, and shall be ignored in its construction
IN WITNESS WHEREOF, Grantor has executed and delivered and Grantee has accepted and
received this Deed of Conservation Easement on the day and year set forth above.
ACKNOWLED/~GEDAND.~ACCEPT~EE.~D:
BY: ~~~u~ ~-1 ~?ZfC .
Thornton E. Smith (Grantor)
ACKNOWLEDGED AND ACCEPTED:
PECONIC LAND TRUST, INCORPORATED (Grantee)
BY:
J n v.H. Halsey ,
s President
STATE OF NEW YORK )
COUNTY OF SUFFOLK) SS.:
On this 2(o day of January, 1996, before me personally appeared Thornton E. Smith,
who, being by me duly sworn, said that he resides at 44 Brookside Drive, Plandome, New York
11030, Grantor mentioned and described in, and who executed the foregoing instrument, and he
duly acknowledged to me that he executed the same .
Notary Public
MEUINIE A. TEBBENB
Notary Public, Stata of Nsw Ylxk
Na OiTE5035908, SuHoik Coumy
STATE OF NEW YORK ) ~"^t'~ia^ Espiras November it, 199Iy
COUNTY OF SUFFOLK ) SS.:
On this ~ day of January, 1996, 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 PECONIC 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.
Notary Public
MEIANIE A. TEBBENS
Notary Pubik, Stale of New Yank
No. O1TE5035908. Suflotk County /
Commission Ertpiros November 14, 199J¢.,
11
Schedule A: Metes and Bounds Description of the Property
Schedule B: Metes and Bounds Description of the Nature Preserve
Schedule C: Metes and Bounds Description of the Development Area
Schedule D: Metes and Bounds Description of the Agricultural Area
Exhibit A: Conservation Easement Map
12
SCHEDULE "A"
The Property
January 15, 1996
Surveyor's Description: Entire Parcel of Thornton Smith
Suffolk County Tax Map 1000-113-7-19.20 and 1000-121-1-1.1
All that certain plot, piece, or parcel of land with the
buildings and improvements thereon erected, situate, lying and
being, at Mattituck, Town of Southold, County of Suffolk and State
of New York, bounded and described as follows:
BEGINNING at a point on the easterly side of Bergen Avenue,
said point being situate North 32 deg. 34 min. 43 sec. West a
distance of 177.89 feet as measured along the easterly side of
Bergen Avenue from the intersection of the easterly side of Bergen
Avenue and the northerly side of Sound Avenue;
RUNNING thence North 32 deg. 34 min. 43 sec. West along the
easterly side of Bergen Avenue a distance of 810.07 feet to land
now or formerly Harry Checlcla and Don Schulman;
RUNNING thence North 61 deg. 11 min. 17 sec. East along land
now or formerly Harry Checkla and Don Schulman a distance of 668.61
feet to land now or formerly Minas Mihaltses and Vassilik
Mihaltses;
RUNNING thence North 64 deg. 04 min. 27 sec. East along land
now or formerly Minas Mihaltses and Vassilik Mihaltses a distance
of 824.90 feet to land now or formerly Catherine Simicich;
RUNNING thence along land now or formerly Catherine Simicich
the following four (4) courses and distances:
1. South 32 deg. 11 min. 03 sec. East 201.48 feet,
2. North 56 deg. OS min. 37 sec. East 817.41 feet,
3. North 51 deg. 23 min. 17 sec. East 51.06 feet,
4. North 56 deg. 07 min. 15 sec. East 679.13 feet to land now
or formerly Franklin Boeckman and Arlin Boeckman;
RUNNING thence South 33 deg. 00 min. 53 sec. East along land
now or formerly Franklin Boeckman and Arlin Boeckmen a distance of
464.48 feet to land now or formerly Walter Gatz and Marilyn Gatz;
RUNNING thence along land now or formerly Walter Gatz and
Marilyn Gatz and along land now or formerly Louis Buonaguro and
Maureen Buonaguro the following two (2) courses and distances:
1. South 53 deg. 24 min. 07 sec. West 678.81 feet,
2. South 32 deg. 25 min. 03 sec. East 1402.25 feet to the
northerly side of Sound Avenue;
RUNNING thence along the northerly side of Sound Avenue the
following three (3) courses and distances:
1. South 60 deg. 10 min. 57 sec. West 152.71 feet,
2. South 64 deg. 03 min. 57 sec. West 262.93 feet,
3. South 82 deg. 30 min. 50 sec. West 57.89 feet to land now
or formerly James T. Connolly and April L. Connolly;
RUNNING thence along land now or formerly James T. Connolly
and April L. Connolly, land now or formerly Guy Sobering and along
land now or formerly Frances Weiss the following four (4) courses
and distances:
Page 1
1. North 34 deg. O5 min. 40 sec. West 351.61 feet,
2. along the arc of a curve to Lhe left having a radius of
83.50 feet a distance of 118.94 feet,
3. South 64 deg. 17 min. 30 sec. West 503.04 feet,
4. South 16 deg. 33 min. 30 sec. West 97.20 feet to the
northerly side of Sound Avenue;
RUNNING thence along the northerly side of Sound Avenue the
following three (3) courses and distances:
1. North 84 deg. 12 min. 50 sec. West 24.74 feet,
2. South 77 deg. 28 min. 47 sec. West 318.33 feet,
3. South 74 deg. 35 min. 57 sec. West 178.07 feet to land now
or formerly Thomas Zaweski and Christine Zaweski;
RUNNING thence along land now or formerly Thomas Zaweski and
Christine Zaweski the following two (2) courses and distances:
1. North 15 deg. 24 min. 03 sec. West 329.33 feet,
2. South 80 deg. 00 min. 35 sec. West 220.16 feet to land now
or formerly Suffolk County Industrial Development Agency;
RUNNING thence along land now or formerly Suffolk County
Industrial Development Agency the following two (2) courses and
distances:
1. North 31 deg. 29 min. Ol sec. West 338.83 feet,
2. South 57 deg. 25 min. 17 sec. West 644.58 feet to the
easterly side of Bergen Avenue and the point or place of
BEGINNING.
CONTAINING an area of 80.5893 Acres.
Page 2
SCHEDULE "B"
The Nature Preserve
January 15, 1996
Surveyors Description: Lot No. 3 "Thornton Smith" - Parcel to be
transfered to the Peconic Land Trust.
Suffolk County Tax Map 1000-121-1-part of 1.I
All that certain plot, piece, or parcel of land with the
buildings and improvements thereon erected, situate, lying and
being, at Mattituck, Town of Southold, County of Suffolk and State
of New York, bounded and described as follows:
BEGINNING at a point on the northerly side of Sound Avenue,
said point being situate the following five (5) courses and
distances as measured along the northerly side of Sound Avenue from
the intersection of the northerly side of Sound Avenue and the
easterly side of Bergen Avenue:
1. South 74 deg. 44 min. 23 sec. East 113.59 feet,
2. South 74 deg. 24 min. 43 sec. East 167.17 feet,
3. South 78 deg. 17 min. 13 sec. East 248.78 feet,
4. South 88 deg. 10 min. 03 sec. East 195.59 feet,
5. North 74 deg. 35 min. 57 sec. East 227.07 feet;
RUNNING thence North 15 deg. 24 min. 03 sec. West along land
now or formerly Thomas Zaweski and Christine Zaweski a distance of
241.76 feet to a point;
RUNNING thence through land now or formerly Thornton Smith the
following seven (7) courses and distances:
1. North 74 deg. 35 min. 57 sec. East 506.44 feet,
2. North 13 deg. 03 min. 40 sec. West 172.05 feet,
3. North 60 deg. 35 min. 59 sec. East 235.73 feet,
4. South 42 deg. 45 min. 06 sec. East 229.41 feet,
5. North 67 deg. 53 min. 48 sec. East 691.03 feet,
6. North 32 deg. 25 min. 03 sec. West 626.79 feet,
7. South 57 deg. 34 min. 57 sec. West 54.14 feet to the
easterly terminus of a proposed Right of Way;
RUNNING thence along the arc of a curve to the left having a
radius of 60.00 feet and still through land now or formerly
Thornton Smith a distance of 44.83 feet to a point;
RUNNING thence North 57 deg. 34 min. 57 sec. East still
through land now or formerly Thornton Smith a distance of 97.93
feet to land now or formerly Walter Gatz and Marilyn Gatz;
RUNNING thence South 32 deg. 25 min. 03 sec. East along land
now or formerly Walter Gatz and Marilyn Gatz and along land now or
formerly Louis Buonaguro and Maureen Bounaguro a distance of
1217.72 feet to the northerly side of Sound Avenue;
RUNNING thence along the northerly side of Sound Avenue the
following three (3) courses and distances:
1. South 60 deg. 10 min. 57 sec. West 152.71 feet,
2. South 64 deg. 03 min. 57 sec. West 262.93 feet,
3. South 82 deg. 30 min. 50 sec. West 57.89 feet to land now
or formerly James T. Connolly and April L. Connolly;
RUNNING thence along land now or formerly James T. Connolly
and April L. Connolly, land now or formerly Guy Sobering and land
now of formerly Frances Weiss the following four (4) courses and
distances:
Page 1
1. North 34 deg. O5 min. 40 sec. West 351.61 feet,.
2. along the arc of a curve to the left having a radius of
83.50 feet a distance of 118.94 feet,
3. South 64 deg. 17 min. 30 sec. West 503.04 feet,
4. South 16 deg. 33 min. 30 sec. West 97.20 feet t'o the
northerly side of Sound Avenue;
RUNNING thence along the northerly side of Sound Avenue the
following three (3) courses and distances:
1. North 84 deg. 12 min. 50 sec. West 24.74 feet,
2. South 77 deg. 28 min. 47 sec. West 318.33 feet,
3. South 74 deg. 35 min. 57 sec. West 178.07 feet to land now
or formerly Thomas Zaweski and Christine Zaweski and the
point or place of BEGINNING.
CONTAINING an area of 13.4057 Acres.
Page 2
SCHEDULE "C"
The Development Area
January 15, 1996
Surveyor's Description: Development Area - Lot Nos. 4 Through 9
Inclusive and Parcel 'A' "Thornton Smith"
Suffolk County Tax Map 1000-113-7-19.20 and 1000-121-1-Part of 1.1
All that certain plot, piece, or parcel of land with the
buildings and improvements thereon erected, situate, lying and
being, at Mattituck, Town of Southold, County of Suffolk and State
of New York, bounded and described as follows:
BEGINNING at a point on the easterly side of Bergen Avenue,
said point being situate North 32 deg. 34 min. 43 sec. West a
distance of 217.89 feet as measured along the easterly side of
Bergen Avenue from the intersection of the easterly side of Bergen
Avenue and the northerly side of Sound Avenue;
RUNNING thence North 32.deg. 34 min. 43 sec. West along the
easterly side of Bergen Avenue a distance of 50.00 to a point and
the intersection of the easterly side of Bergen Avenue and the
northerly side of a proposed Right of Way;
RUNNING thence along the northerly side of a proposed Right of
Way and through land now or formerly Thornton Smith the following
eight (8) courses and distances:
1. North 57 deg. 25 min. 17 sec. East 675.00 feet,
2. along the arc of a curve to the right having a radius of
760.00 feet a distance of 263.77 feet,
3. North 77 deg. 18 min. 24 sec. East 50.00 feet,
4. along the arc of a curve to the left having a radius of
685.00 feet a distance of 243.99 feet,
5. North 56 deg. 53 min. 53 sec. East 50.00 feet,
6. along the arc of a curve to the right having a radius of
735.00 feet a distance of 336.63 feet,
7. North 83 deg. 08 min. 22 sec. East 50.00 feet,
e. along the arc of a curve to the left having a radius of
685.00 feet a distance of 236.06 feet to a point;
RUNNING thence North 33 deg. 51 min. 23 sec. West still
through land now or formerly Thornton Smith a distance of 648.73
feet to land now or formerly Catherine Simicich;
RUNNING thence along land now or formerly Catherine Simicich
the following three (3) courses and distances:
1. North 56 deg. 08 min. 37 sec. East 450.47 feet,
2. North 51 deg. 23 min. 17 sec. East 51.06 feet,
3. North 56 deg. 07 min. 15 sec. East 679.13 feet to land now
formerly Franklin Boeckman and Arlin Boeckman;
RUNNING thence South 33 deg. 00 min. 53 sec. East along land
now or formerly Franklin Boeckman and Arlin Boeckman a distance of
464.48 feet to land now or formerly Walter Gatz and Marilyn Gatz;
RUNNING thence along land now or formerly Walter Gatz and
Marilyn Gatz the following two (2) courses and distances:
1. South 53 deg. 24 min. 07 sec. West 678.81 feet,
2. South 32 deg. 25 min. 03 sec. East 184.53 feet to a point;
RUNNNING thence South 57 deg. 34 min. 57 sec West through land
now or formerly Thornton Smith a distance of 97.93 feet to the
easterly terminus of a proposed Right of Way;
Page 1
RUNNING thence along the arc of a curve to the right having a
radius of 60.00 feet and along the easterly terminus of a proposed
Right of Way a distance of 44.83 feet to a point;
RUNNING thence still through land now or formerly Thornton
Smith the following eight (8) courses and distances:
1. North 57 deg. 34 min. 57 sec. East 54.14 feet,
2. South 32 deg. 25 min. 03 sec. East 626.79 feet,
3. South 67 deg. 53 min. 48 sec. West 691.03 feet,
4. North 42 deg. 45 min. 06 sec. West 229.41 feet,
5. South 60 deg. 35 min. 59 sec. west 235.73 feet,
6. South 13 deg. 03 min. 40 sec. East 172.05 feet,
7. South 74 deg. 35 min. 57 sec. West 345.55 feet,
8. North 15 deg. 24 min. 03 sec. West 520.17 feet to a
point and the southerly side of a proposed Right of
Way;
RUNNING thence along the southerly side of a proposed Right of
Way and still through land now or formerly Thornton Smith the
following four (4) courses and distances:
1. along the arc of a curve to the right having a radius of
735.00 feet a distance of 164.19 feet,
2. South 77 deg. 18 min. 24 sec. West 50.00 feet,
3. along the arc of a curve to the left having a radius of
710.00 feet a distance of 246.41 feel,
4. South 57 deg. 25 min. 17 sec. West 675.00 feet to the
easterly side of Bergen Avenue and the point or place of
BEGINNING.
CONTAINING an area of 33.2908 Acres.
Page 2
' • • •
SCHEDULE "D"
The Agricultural Area- Lot #1
January 16, 1996
Surveyor's Description: Lot No. 1 "Thornton Smith".
Development Rights. To Be Conveyed To The Town of Southold.
Suffolk County Tax Map 1000-121-1-Part of 1.1
All that certain plot, piece, or parcel of land with the
buildings and improvements thereon erected, situate, lying and
being, at Mattituck, Town of Southold, County of Suffolk and State
of New York, bounded and described as follows:
BEGINNING at a point on the easterly side of Bergen Avenue,
said point being situate North 32 deg. 34 min. 43 sec. West a
distance of 267.89 feet as measured along the easterly side of
Bergen Avenue from the intersection of the easterly side of Bergen
Avenue and the northerly side of Sound Avenue;
RUNNING thence North 32 deg. 34 min. 43 sec. West along the
easterly side of Bergen Avenue a distance of 720.07 feet to land
now or formerly Harry Checkla and Don Schulman;
RUNNING thence North 61 deg. 11 min. 17 sec. East along land
now or formerly Harry Checkla and Don Schulman a distance of 668.61
feet to land now or formerly Minas Mihaltses and Vassililc
Mihaltses;
RUNNING thence North 64 deg. 04 min. 27 sec. East along land
now or formerly Minas Mihaltses and Vassilik Mihaltses a distance
of 824.90 feet to land now or formerly Catherine Simicich;
RUNNING thence along land now or formerly Catherine Simicich
' the following two (2) courses and distances:
1. South 32 deg. 11 min. 03 sec. East 201.48 feet,
2. North 56 deg. 08 min. 37 sec. East 366.94 feet to a point;
RUNNING thence South 33 deg. 51 min. 23 sec East through land
now or formerly Thornton Smith a distance of 648.73 feet to the
northerly side of a proposed Right of Way;
RUNNING thence along the northerly side of said proposed Right
of Way and still through land now or formerly Thornton Smith the
following eight (8) courses and distances:
1. along the arc of a curve to the right having a radius of
685.00 feet a distance of 236.06 feet,
2. South 83 deg. 08 min. 22 sec. West 50.00 feet,
3. along the arc of a curve to the left having a radius of
735.00 feet a distance of 336.63 feet,
4. South 56 deg. 53 min. 53 sec. West 50.00 feet,
5. along the arc of a curve to the right having a radius of
685.00 feet a distance of 243.99 feet,
6. South 77 deg. 18 min. 24 sec. West 50.00 feet,
7. along the arc of a curve to the left having a radius of
760.00 feet a distance of 263.77 feet,
8. South 57 deg. 25 min. 17 sec. West 675.00 feet to the
easterly side of Bergen Avenue and the point or place of
BEGINNING.
CONTAINING an area of 28.8633 Acres.
Page 1
SCHEDULE "D"
The Agricultural Area-Lot #2
January 15, 1996
Surveyor's Description: Lot No. 2 "Thornton Smith".
Development Rights To Be Conveyed To The Town of Southold.
Suffolk County Tax Map 1000-121-1-Part of 1.1
All that certain plot, piece, or parcel of land with the
buildings and improvements thereon erected, situate, lying and
being, at Mattituck, Town of Southold, County of Suffolk and State
of New York, bounded and described as follows:
BEGINNING at a point on the easterly side of Bergen Avenue,
said point being situate North 32 deg. 34 min. 43 sec. West a
distance of 177.89 feet as measured along the easterly side of
Bergen Avenue from the intersection of the easterly side of Bergen
Avenue and the northerly side of Sound Avenue;
RUNNING thence North 32 deg. 34 min. 43 sec. West along the
easterly side of Bergen Avenue a distance of 40.00 feet to the
southerly side of a proposed Right of Way;
RUNNING thence along the southerly side of a proposed Right of
Way and through land now or formerly Thornton Smith the following
four (4) courses and distances:
1. North 57 deg. 25 min. 17 sec. East 675.00 feet,
2. along the arc of a curve to the right having a radius of
710.00 feet a distance of 246.41 feet,
3. North 77 deg. 18 min. 24 sec. East 50.00 feet,
4. along the arc of a curve to the left having a radius of
735.00 feet a distance of 164.19 feet to a point;
RUNNING thence still through land now or formerly Thornton
Smith the following two (2) courses and distances:
1. South 15 deg. 24 min. 03 sec. East 520.17 feet,
2. South 74 deg. 35 min. 57 sec. West 160.89 feet to land now
or formerly Thomas Zaweski and Christine Zaweski;
RUNNING thence along land now or formerly Thomas Zaweksi and
Christine Zaweski the following two (2) courses and distances:
1. North 15 deg. 24 min. 03 sec. West 87.57 feet,
2. South 80 deg. 00 min. 35 sec. West 220.16 feet to land
now or formerly Suffolk County Industrial Development
Agency;
RUNNING thence along land now or formerly Suffolk County
Industrial Development Agency the following two (2) courses and
distances:
1. North 31 deg. 29 min. O1 sec. West 338.83 feet,
2. South 57 deg. 25 min. 17 sec. West 644.58 feet to the
easterly side of Bergen Avenue and the point or place of
BEGINNING.
CONTAINING an area of 5.0295 Acres.
Page 2
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