HomeMy WebLinkAboutL 11162 P 257 QRANT OF OPEN SPACE CONSERVATION EASEMENT
THIS GP-kNT ,4F OPEN SPACE CONSERVATION EASEMENT, is made on the •1 "kday
of ; 1990 at Orient. New York. The parties are
LLOYD 2 TERRY, Main Road, Orient, New York 11957 (herein called the
01Grantor" ) , and the PEOPLE OF THE STATE OF NEW YORK, acting by and through
1 Thomas C. Jorling, their Commissioner of Environmental Conservation who has
an office at 50 Wolf Road, NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL
CONSERVATION, 50 Wolf Road, Albany, New York 12233 , (herein called the
"Grantees" ) ;
INTRODUCTION
/ WHEREAS, the Grantor is the owner in fee of certain real property
hereinafter more fully described in EXHIBIT A attached hereto, and
hereinafter referred to as the Protected Property; and
WHEREAS, the Protected Property in its present natural, scenic, open
space and wooded condition has substantial and significant value as a
natural, aesthetic, scientific, and educational resource by reason of the
fact that it has not been subject to any extensive development or
exploitation; and
WHEREAS, the Protected Property; which lies directly north of Orient
'Beach State' Park-"and is separated from it by Little Bay, and lies directly
west' of and adjacent to other lands protected by an Open Space Easement of
which the State of New York is a beneficiary; consists of wetlands
J inventoried by the New York State Department of Environmental Conservation
pursuant to the New York State Tidal Wetlands Act, said wetlands being
classified as intertidal marsh, high marsh, and connected and buffering
upland of high quality; and
WHEREAS, the Protected Property is included in 460+ acres of land
proposed to to be acquired by the New York State Department of
Environmental Conservation pursuant to Environmental Conservation Law (ECL)
Section 3-0305 and the Eminent Domain Procedure Law (EDPL) ; and
n WHEREAS, the Southold Town Trustees have designated portions of the
Protected Property and contiguous land around Little Bay in Orient as a
"critical environmental area" under the provisions of the:. New York State
Envi'ronmE!htal Quality Review Act; (Article 8 of ECL) and as implemented by
regulations contained at 6 NYCRR PART 617; and
') WHEREAS, Nuw Yotk State' s Coastal Zone Management Plan has identified
jt4ae Little Bay area, including the Protected Property, to be an important
shell and finfish nursery area; and
WHEREAS, the Little Bay area, including the Protected Property,
represents a significant habitat frequented by the osprey (a threatened
species) and the diamond-back terrapin (a special concern species) as they
are identified under Section 11-0535 of the New York State Environmental
Conservation Law; and
WEREAS, the Grantor wishes to maintain the Protected Property in its
-u re t natural/open space condition; and 1
WHEREAS, the Protected Property is part of a larger area of adjacen
armland, open space, and wetlands which the Grantee is trying to-protect
i=n its entirety; and f
WHEREAS, the Grantor and the Grantee recognize the value and special
character of the region in which the Protected Property is located, and the
Grantor and the Grantee have, in common,. the purpose and objective of
prof=ecting and conserving the present state and inherent, natural tangible
and intangible values of the Protected Property as a natural, aesthetic,
scientific and educational resource; and
WHEREAS, an Open Space Conservation Easement on the Protected Property
contributes to the larger goal of protecting the environmental integrity of
1 $ EC I °E +
5705 READ ESTATE
OCT 30 1990
®
TRANSFER TAX T
SUFFOLK
Lung Beach Bay and complements efforts of the New York StateDepartment of
Environmental Conservation to accomplish e; and
WHEREAS, the Grantee has determined it to be desirable and beneficial
and has requested the Grantor, for itself and its successors
aiid assigns to grant an Open Space Conservation Easement to the Grantee in
order to further restrict the development of the Protected t it
permitting compatible uses thereof;
NOW, THEREFORE:
0 . 01 Grantor' s Warranty
Grantor warrants and represents to the Grantee that Grantor is the
owner in fee simple of certain unimproved real property located
hamlet of Orient, Town of Southold, Suffolk , New York, and
possesses the right to grant this Easement.
0. 02Grantee' s Status
Grantee warrants and represents to Grantor that Grantee is a
governmental entity qualified under Sectio 1 ) ) of the Internal
Revenue Code of 1954, and any amendatory or supplemental legis
(herein called "the e" ) , established for purposes whichinclude the
conservation reservation of unique environmental, scenic and natural
value of landwithin New York State.
0 . 03 Purpose
The parties recognize the environmental, scenic and natural values of
e Protected Property ave the common purpose of preserving
values. This Grant is intended o convey an Open Space Conservation
Easement on the Protected Property rantor to Grantee, exclusively
the purpose of preserving its open space character in perpetuity
environmental, scenic and natural values, by preventinguse or
development of the Protected Property for any purposenmanner
contrary to the provisions herein, in furtheranceYork
conservation policies clearly delineated by the New York Statutes.
0 .041`ecitation
1
y
Tn consideration of the previously recited facts, mutual promises,
undertakings and forbearances contained in thisEasement, and
valuable consideration, the parties agree o its provisions, intending to
be bound by i .
ARTICLE ONE
THE S
1 .01 Type
This Grant conveys an Open Space Conservation Easement called
the s nt" ) . The Easementconsists the covenants,
restr I ctions, rights, terms, and conditions recited in this Grant.
Reference t "the Easement" or its "provisions" in this Grant shall include
any and all of those covenants, restrictions, rights, terms' and conditions.
1.02 Duration
i
This Easement shall be a burdenrun with the property in
perpetuity.
1. 03 Effect
The Easement shall run with th6 Protected e c 1
Interest in the ProtectedProperty, or isGrantor's
es, tenants, heirs, personal representatives, successors and assigns,
and all other individual entities.
2
;RTI(`LE TWO
PROHIBITED ACTS
Ftom and after the date of this Easement, the followingacts, uses and
'` 'practices shall be prohibited forever upon or within the Protected
- pro et .
2.01 Structures
The construction or placement of buildings, structures (except for
atrr level regulation works) or improvements of any kind or nature,
including, but not limited to, roads, mobile homes, antennae and satellite
fishes, permanent or temporary, on, over or underProtected Property
except as specifically permitted e ei .
2 .02 Excavation and Removal of Materials
The dredging, excavating, mining or filling of the Protected .
The removal of topsoil, sand, or other materialsall not tae place on
the Protected Property nor shall the topography of the Protected
e changed. Such activities may be allowed, however, in accordance
sound management r cice designed to pr6tect, maintain or enhance
natural qualities of the Hallock' s Baytidal wetland resource, as
determined by the Grantee, provided all applicable Federal,- State, and
local laws and regulations are met. Subject to the reserved right of the
Grantor, his heirs successors and assigns, to repair, protect and maintain
the earthen, i e on the protected property so long as adjacent
remaining lands of the Grantor shall be wholly or partiallyused for
agricultural purposes.
f. . 03 Subdivision
The subdivision of partitioningof the ProtectedProperty.
2.04 Cutting of Timber
The cutting f harvesting of timber except for the followinq purposes:
a) to clear and restore forest cover that has been
v forces of nature or otherwise, and b) to prune and selective)
trees ire accor ance with sound cep forest management practices
determined y the Grantee, and c) to cut and remove firewood
p I ersonal residential use of Grantor and hisheirslong as he or they
retain fee ownership f the adjacent land. ,:1
2 . 05 Dumping
The dumping or accumulation of trash, , garbage, sawdust, ashes,
chemical waste or other unsightly offensive material on the Protected
Pro e .
t. . 06 Signs
he display ,of signs, billboards, or advertisements tett
rope ty except signs, whose placement, number, and design , do not .
significantly i inin scenic character of the Protected
on ' for the following pur oses: ) to state the name of the Protected
Property and the names and addresses of the occupants, temporarily to
,advertise the ProtectedProperty ,
a to post the Protectedr ,
in accordance with licb provisions of law.
2 .07 Landscaping viies
The removal of trees, shrubs, or other vegetationfrom rotect
Property, except as provided by Section5.
.2 . 00 Utility Lines
=The creation or placement of utility transmission i e , utility
toles, or wires or other utility facilities on the Protected
except with the Grantee' s prior written consent, or in accordance
Section 9-0307 of the New York State Environmental Conservation Law.
2 . 09 Uses
The use of the Protected Property for any commercial, industrial,
.residentialpurpo's' e except as may be specifically permitted by a provision
of this Easement.
ARTICLE THREE
GRANTOR' S IG
3 . 01 ownership
Subject to this Easement, Grantor shall retain all other customary
rights of ownership in this Protected Property, some of whichmore
particularly described in this ARTICLE THREE.
3 . 02 Possession
Grantor shall continue to have the right to exclusive possession
the Protected Property.
3 . 03 Use
Grantor shall have the right to use -t e Protected Property in any
manner and for any purpose consistent with and not prohibited
Easement as well as applicable New York State law and whichof
defeat or derogate from the purpose of the Easement.
3 .04 Landscaping Activities
Grantor shall have the right to continue the historical modes
landscaping, ri , and grounds maintenance ( see terms of section
thiseasement) of the Protected Property, provided t -
wetlandl species shall not e intro Protected
With Grantee' s written consent, Grantor shall have the right
trees, shrubs, or other vegetation when- dead, isse , or dangerously
decayed.
3 .05 Firewood Cutting
, filo E. Te n i is all ht cut and remove
firewood for personal residential use for so long as he or his heirs retain
the fee ownershipf the lands adjacent o the lands described Exhibit
attache . Such ri shall not a je o consent vis
3 . 06 Dike, Camp and BridgeMaintenance
Grantor shall have the right to operate, repair and maintain, of
i proe or expand, the existing earthen dike, camp building and bridge
locatid on the premises and in connection therewith the right or ingress,
egress and regress across the premises provided, however, :that nothing
herein contained shall be construed as r6lieving the owner of the
obligation securing all necessary approvals of any governmental
having jurisdiction, including the NYS rs t to Article 25 of the
Environmental Conservation Law. Said reservation shall remain in force and
e in effect for so long as the adjacentr i lands of the owner shall
e wholly or partiallyused for agricultural purposes and practices
same are defined by the provisions of the Agriculture and Markets Law.
3. 07 Notice
Grantor shall notify Grantee, in writing, before taking any actio
4
vers u.ant to the terms of Section 2.02 or 2. 04 of this Easement, or before
exercising any reserved right pursuant to the terms of Section 3 .03, or
3 - 04 cif this Easement, with respect to the Protected Property, or any
of her reserved right which could adversely affect the conservation purposes
which are the subject of this Easement.
3 .08 ' Aliettability
Grantor shall have the right to convey or lease the Protected
Property but only subject to this Easement. Grantor shall promptly notify
3 Grantee of any conveyance of any Interest in the Property, including the
A full names and mailing addresses of all Grantees, and the individual
A- principals thereof, under any such conveyance. The instrtument of arrry such
conveyance shall specifically set forth that the interest thereby conveyed
is subject to this Easement, without modification or amen dment 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 all not affect Grantee' s rights hereunder.
ARTICLE FOUR
GRANTOR' S OBLIGATIONS
4.01 Maintenance
Grantor, at Grantor' s sole cost 'and expense, shall co
intinue to
mantain the Protected Property in the same physical condition as it is on
-the date of, and in conformance with, this Easement.
4 '. 02 Taxes and Assessments
Grantor shall continue to pay all. taxes, levies, and assessments and
other governmental or municipal charges is may become a lien on the
Protected Property, including any taxes or levies imposed to make those
payments.
ARTICLE FIVE
INDEMNIFICATION
5 .01 Indemnification by Grantee
"The Grantee, for itself and its successors and assigns agrees to
indemnify and hold the Grantor harmless against claims, loss, dantage and
expense the Grantor may suffer as a result of the Grantee' s negligence in
properly cunstructing, maintaining, repairing, replacing or managing any
recreational antenities and actionable conduct of the Grantee as permitted
by the Court of Claims Act and Section 17 of the Public officers Law.
5 .02' Grantors Obligations
"The duty to indemnify and save harmless -prescribed by this
paragaph shall be conditioned upon ( 1) delivery to the Attorney General by
the Glan-tor of the original or a copy of any surmmons, complaInt, pro ss,
notice, demand or pleading within five days after it is served with such
document, ( ii) representation by the Attorney General or representzation by
private counsel of Grantor' s choice, subject to the approval of the
Attorney General, whenever the Attorney' General determines in his sole
discretion based upon his investigation and review of the facts and
circumstances of the case that representation by the Attorney General would
be inappropriate, and ( iii) the full cooperation of the Grantor in the
defense of such action or proceeding and in defense of any action or
proceeding against the Grantee based upon the same act or omission, and in
t'he 'Prosecution of any appeal."
AR`T'ICLE SIX
GRANTEE' S RIGHTS
6 , 01 Entry for Tsection Purposes
Grantee shall have the right to enter upon the Protected Property
at reasonable times, upon reasonable prior notice to Grantor, and in a
14 inaer that will .not interfere with the Grantor' s quiet use and enjoyment
,- of the Protected Property, for the purpose of Inspection to determine
whether the Easement and its purposes and provisions are being upheld, and
for purposes of scientific research such as collection of data and the
laceet and monitoring of resource sampling and data collecting
q-lipment
6 . 02 Access
The Grantee and its employees or agents may enter upon the Protected
Property in order- to protect, maintain or enhance the natural qualities
the alloc ' s Bay tidal wetland resource. Such activities may include, but
are not limited to, the clean-up of pollutants from jacewaters
upland point or non-point sources, the protection of the wetlands from such
pollutants or the protection of indigenous bird, fish, am.i l or botanical
populations. Prior notice shall be given to the Grantor of the need for
such access. However, no prior notice to Grantor shall be required in order
to respond < to an emergency; in order to save human Life or natural
resources. In no event may the Grantee admit the general publico the
Protected Property or use or permit the use of the Protected Property for
recreational or commercial purposes . The State' s right to enter the
Protected Property is for the limited and temporary purposes indicated.
Upon the completion of any such activities, employees or agents of the
Grantee shall leave the Protected Property in its natural condition
shall remove any equipment or supplies or materials they have brought onto
the Protected Property.
Nothing contained in thisEasement grants, nor shall be interpreted
grant, to the public any right to enter upon the Protected , except
or educational and scientific purposes with the priorwritten
both the Grantor and Grantee.
6. 03, Enforcement Rights of Grantee
In the event of a breach of any of the covenants, restrictions,
terms or conditions of this easement, the Grantee shall notify the G rantor,
or its successors or assigns, o any such reach. Suchnotification all
be in writing, addressed to the Grantor at its address as stated herein, or
any other address provided by the Grantor or its successors or assigns, and
sent by registered or certified-mail, return receipt requested.
Grantor upon receipt of such notification shall promptly cure the breach
O ceasing the proscribed activity or conduct and ) restoring the
Protected Property to the natural state in which it existedimmediately
preceding the breach. The parties agree- that, the natural state of the
Protected Property as documented by the inspection by the Grantee most
recently preceding the breach shall be the natural state of the Protected
Propety immediately rece i the breach. Teobligation of the Grantor to
recto e the property to such natural state shall include, as determined
the 'Grantee, the repair or replacement of previousman-made alterations to
the Protected Property or the carrying out of further man-made alterations
s is necessary for the purpose of stopping or remedying environmental harm
resulting from the breach in question.
The Grantor acknowledges that this easement, all of its terms,
conditions, covenants and restrictions may be enforced by the Grantee, and
its successors, by any action or proceeding, at law or in equity, as the
Grantee, or its successors, may elect; provided, however, that the Grantee
may not commence any such action or proceeding prior to the 'expirationf
thirty ( ) days after the delivery o .the notice herein referred .
It is understood and agreed by the parties hereto that the Grantor,
its successors and assigns shall not be liable for any changes
Protected Property caused by any natural disaster or act of God.
6 ,04 -No Waiver
Grange' s exercise of one remedy or reliefe this ARTICLE SIX
shall of have the effect of waivingor limiting ny other remedy or
relief, and the failure to exercise or delay in exercisingremedy
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 of any other time.
ATeICLE SEVEN
` MISCELLRNEOUS
7 . 01 Entire Understanding
01
This Easement contains the entire understanding betweenits parties
....�oncerninq its subject matter. Any prior agreement between the parties
concerning its subject matter shall be merged into this Easement and
3uperseded by i .
7 .02 Amendment
This Easement can be terminated i i only in accordance with
the common and statutory law of the State of New York applicable
termination o ification of Easements and covenants running
land. Grantor and Grantee recognize that circumstances could arise which
would justify the modification of certain of the restrictions contained
this Easement. To this end, Grantee and Grantorshall mutually have the
right, in their sole discretion, to agree to amendments to this Easement
which are not Inconsistent with the basic purpose of the Easement set fort
in Section 1 hereof; provided, however, that Grantee shall have no right o
power to agree to any amendments hereto that would result in this Easement
failing a i as a valid conservation Easement under Article
3 of the Environmental Conservation Law of the State of NewYork, as the
same may be hereafter amended, and any regulation issued pursuant thereto,
or 170 (h) of the Internal Revenue Coe governing "Qualified Conservation
contributions ." , as the same may be hereafter amended.
7 .03 Severability
Any provision of thisase e , restricts ' s activities,
which is .,determined to be invalid r 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 determinedo be
invalid or unenforceable by a court shall be severed from e other
provisions , which all remain eorc 'a effective.
7:. 04 ;Notice
ARTICLE I
GRANTEE' S7
6 .01 ElLtry for Inspection Purposes
Grantee shall have the right to enter upon the Protected Property
at reasonable -ti s, upon reasonable prior notice to Grantor, and in a
manner that will not interfere with theGrantor' s quiet use and enjolyne
y of the Protects Property, for e purposef Inspection o eterm$ne
l whether the Easement and its =epurposes and provisions are being upheld, and
3lacement
or purposes of scientific research s s collection data
and the
and monitoring of resour e sa lin ata collects
- uipment.
6 . Access
The Grantee and its employees or agents may enter upon the Protected
Property eprotect, maintain or enhance
the allot ' s Bay tidal wetland resource. Such activitiese,
but
are not limited t , the clean-up o from ce t
waters or
---land pointor non-point sources, the protection e
tlands from such
llutants or the protectionof indigenous it
pulations. Prior notice shall be given to the Grantorof the need for
„r.+ ;. ter, r_rnni-nr Thal l },p rprmirpri in order
}
7 .06 Interpretation
'Regardless of any contrary rule of construction, o provision
Easement shall be construed in favor of one of the parties because it was
drafted e otherparty' s attorney. No allegedambiguity in this
Easement shall be construed against e party whose attorney drafted. If
any provision of this Easement is ambiguous or shall be subject two or
Ir"nore, interpretations, one of which would render that provision invalid,
.7. then that provision shall be given such interpretation as would ren t
;valid and be consistent with 'the purposes of this ase s intended
rantcr . Any rule of strict constructions designated limit
f the restrictions on use of the Pro ectPropertyall not apply in the
-onstructlon orinterpretation of this ase , i ase all
e InLerpreted broadly to effect the purposes of the Easement as intended
y Grantor. The parties intend that the Easement, which is by nature
character primarily negative in that Grantor has restricted
Grantor' s right to use the Protected Property, except as otherwise cite
herein, be construed at all times and by all parties to effectuate its®
purposes.
7 . 07 Warranties
The warranties and representation made by the parties in this
Easement shall survive its execution.
7 .08 Bi in
The covenants, terms, conditions restrictions and purposesof this
Easement with the exception of the personal right of Lloyd E. Terrys
heirs to cut firewood as provided by Sec 3 .05 above, shall run with the
Protected 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, heirs, personal representatives,
successors and assigns. Any rights, obligations, and interestser
granted to Grantee shall also be deemedits agents,
successors, and assigns and eachsuch following successor
tine won "Grantee" when used herein shall include allthose persons
entities.
7 Recording
Grantee shall have the right to record thisase at any time
without notice to Grantor.
7 . 10 ea ings
The headings, titles and subtitles herein have been inserted solely
for convenient reference, and shall be ignored in its construction.
7 .11 Physical Inspection
The Grantor and Grantee agree that the New York State Department of
Environmental Conservation Map Number 1 "Report of Physical
inspection" of the protected property accurately completely describe
the n tural, scenic, open space and woodad condition and existing
improlements of the Protected. Propertyon the date hereof
for that purpose by either party hereto in any subsequentaction or
proceeding er copy of said aOffice
the Suffolk County Clerk simultaneously irecording- of this
indenture. Each party has been furnished said a t of
Physical Inspection, dated 3/15/90.
WiTNESS WHEREOF, Grantor has executed And deliveredand Grantee has
accepted and received this Grant n Space Conservation sem e
tray and year set forth above.
Ll yd Terry (Grar, ,r)
�41EW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION
BY: ith � � '�
1,11;1 all
Langdon-=t rsh, E7xecu+-ive DeputyCommissioner
STATE OF NEW YORKSj)
S
COUNTY OF _ 1
day r l ;? before
On ,his personally appeared
a - to'me known and known to me to be the
gran 4mentioned n escribe i , and who executed the foregoing
instrument, and he/she duly acknowledge to me that he/she
s,ame.
4
# �
Notary Public
'J`ATRICIA 13.ZIELENSKI
Higary Public,State cf Now Y
-50 Qualified tri Sf
STATE � YORK ) a0raa 90
COUNTY OF
On this day of1990,, before esoLangdon
Marsh, to me known, who bein by me duly sworn, did deposea that he
residesat �� a is eDeputy
Co ivsine o the e York 'State Departmentnviro
Conservation, and thate executed the foregoing n behalf of the New York
State Department of Environmental Conservation pursuant of authority
my delegated.
; Not y Public
NftY PUNIC,State of New or
QtAVW In lar Co. 05980685
My Commission Expires May 31 . 9
EXHIBIT "A"
ALI, THAT TRACT or parcel of land situate at Orient in the
Town of Southh ld, County of Suffolk and Sate of New York
CO being more particularly bounded and described as follow
GII G point forme the intersection the
c
easterly line of the land of Frank B. Zimmer with the westerly
line of the land of the State of NewYork, the coordinate in the
New York State Plane Coordinate System, Long Island Zone being N.
339 , 904 . 29 , E. 2 , 479 ,748 . 44 , and
running thence .from said point of beginning . 2 ® " W.
along the land of Frank B. Zimmer 121 . 99 Feet to other
Lloyd Terry;
thence S. 88" 31 52" E. alongother land of LloydTerry
499 . 45 feet to the land of Constance Terry and others;
thence S. 28" 31 4711 E. along the, land of V. Constance Terry
and others to a point in the high water mark of Little Bay;
thence westerly, southerly southwesterly along the high
water mark of Little Bay to the landof the State of NewYork,
tie line along the high water mark of Little Bay having the
ollowiacorses and distances :
1 . N. 76" 13 ' 18" W. 36 . 03 feet,
2 . S. 37" 56 ' 0099 E. 86 . 22 feet,
3 , S. " 48 ' 2" E. 160 . 13 feet,
4 S. 64" 18 ' 039' W. 88 .78 feet, P 10TR
IN
WN XP* -M U-mt;L a
5 . S . 5 ' 05" W. 69 . 85 feet , L93
6 . S . " 51 ' " W. 95 . 86 feet,
7 . S . 57" 21 ' 43" W. 200 . 99 feet ;
thence northerly, westerly, and again northerly along the
land of The State of New York the following courses, an
distances :
1 . N. 6`° 35 ' 1" W. E97 .71 feet,
. S . 82' 30 ' 390 . 00 feet,
3 . N. " 27 ' E. 302 . 06 feet,
4 . N. `° 2 ' " W. 80 . 01 feet to the point
lace of beginning, containing an area of 10. 0214 acres,
less.
The bearings as set forth in the above describedarc
land are referenced to Gridort York tate Plane.
Coordinate s , Long Island one.
t
BEING a part of lands described in a deed from Marcus W. Terry
and Clara G. Terry to Caroline M. Terry dated January 27, 1927 and
recorded arch 28 , 1933 in Liber 1671 of Deeds at Page 442 . The
said Caroline M. Terry died February 21, 1958 leaving a Will which
was duly admitted to probate in SuffolkCounty by the terms of which
Will the subject premises was devised to the grantor herein.