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HomeMy WebLinkAboutMcLeod Conservation Easement McLeod Cons Date:03/04/2009 Subject:Intent to create grazing land-at 848.Strong Road. To:Town of South Windsor Planning Department C/O Mr.Jeff Foiger,Environmental Planner/Conservation Officer Mr.Foiger, Pursuant to our conversation on 03/03/2009 I am submitting this letter to inform the Town of South.Windsor on my intent to utilize the area-shown on the plot plan submitted with this letter for grazing land for one horse at this time.In the future this land may be used by more horses or other animals as allowed by the Town's ordinances and specifically outlined in the original property record.. With this letter I am also including a copy of the original property record that details the owners rights and intended use for this property which specifically states the following: "The Grantor reserves the right to itself,it's successors and assigns to continue to use the Easement Area for any purposes which do not interfere with the purpose for which the easement is granted,including,but not limited to:(a)farming,the grazing of faun animals,gardening and outdoor recreational activities,including field_trails,nature study, horseback riding,cross country skiing and fishing,(b)farm ponds of 3 ayes or less.Fill to;remain on the applicable lot;(c)other ponds,subject to review and approval by the Inland-Wetlands Commission of the Town of South Windsor:(d)Jogging or horseback riding trails and paths: (e)maintenance or retention of any water drainage system." As part Of this effort to create a grazing area I will not be using the area that is a natural water course that is also shown on the submitted plot plan. In order to create this land to be suitable and.safe for the horse it will require cutting down all tree's in the proposed area,removal of all associated stumps and dead debris and cultivating.the land to plant an appropriate source of food that will not harm the horse.This tree removal and cultivation will require using motorized equipment such as chain saws,stump removal equipment and tractors to turn the soil and plant seeding for feed lay. I would appreciate a formal response back notifying me of the Town's decision to allow this under the current ordinances and original intent of the property record or a reason why the town will not allow this if that is the decision. Respectfully, Todd McLeod 848 Strong Road South Windsor,CT.06074 (860)-289-3355 r Volume 467 Page N° 150 :5 CONSERVATION EASEMENT AND �- DECLARATION OF RESTRICTIONS OF USE • 0785 KNOW ALL MEN BY THESE PRESENTS, that WILL MAR 'IXCONSTRUCTION'CORPORATION corporation having its a Connecticut co u c" .} principal place of business in the Town of South Windsor. Connecticut. acting herein by William Aman. its duly authorized president ` (hereinafter "Grantor', hereby desires to create a conservation easement and to declare certain use restrictions on certain premises located in the Town of South Windsor, County of Hartford and State of Connecticut. shown as Lots 1 through 7 (collectively the "Lots,3 inclusive on a certain map or plan (the "Map")entitled"Podunk River Estates. Owner,Developer William Aman, 643 Strong Road. South .� Windsor. Connecticut Palmberg &Russo. Land Surveyors& Professional Engineers. Bloomfield. Connecticut.Date 6-23-86 Final Revision 12-15-86 Scale 1"=40"'.which Map has been recorded of even date with the recording _ hereof in the South Windsor Town Clerk's Office. to which reference'may be had. r i 4 L Declaration of Restrictions of Use. Grantor hereby declares that the Lots shall be held, transferred. sold, conveyed. leased. rented. r" ` a developed and occupied subject to the following restrictions (the"Declaration"c 1. All Lots shall be developed and used only for residential purposes. Expressly permitted as an accessory use shall be the care and keeping of farm animals, including horses. subject to the zoning regulations of the Town of South Windsor. 4 2. All.buildings, roads. out-buildings and other structures shall be located only os9 those portions of the Lots designated as "Non-Easement •+ Areas", as more particularly shown wt the Map. i 3. This Declaration and the restrictions set out herein shall run . with and bind the land. and shall inure to the benefit interest in the Lots. or any of them. and by any successor owner of the Lots. or any of them ;y forever. IL Conservation Easement. Grantor does hereby create a conservation easement on those portions of the Lots designated as "Conservation f ': Easement"as more particularly set forth on the Map(collectively the Masement Area"). The purpose of this easement is to perpetually retain 3. Athe Easement Area predominantely in its natural. scenic and open condition d r and to protect the natural and watershed resources of theTown of South ' Windsor pursuant to the provisions of Sections 47-42a. 47-42b and 47-42c _ of the Connecticut General Status. + The Grantor, for itself, its successors and assigns, agrees that it will not do any of the following activities on the Easement Areas (a) the' i construction, or placing of buildings, roads or other structures or signs or q billboards; (b) the dumping or placing of soil or other substance material as landfill, or the dumping or placing of trash, waste or other unsightly ' f material; (c)the clear-cutting of live trees; (d) activities detrimental to drainage, flood control. water conservation, soil'conservation or wildlife; 1 • ":,' (a) use of motorizedl recreational vehicles or other motorized recreational equipment;and(f)any other acts or uses detrimental to retention of the Easement Area in its natural, scenic and open condition. The Town of South Windsor is granted the right to enter the ,. Easement Area. by its duly elected or appointed officials. its employees =Ys yaSG. and agents, for the purpose of inspecting the Easement Area and enforcing 'F -b. . .e..•' • Volume 467 Page N° 151 the provisions of this easement. The right hereby granted shall be in addition to any other remedies available to the Town of South Windsor for , f; the enforcement of the provisions of this easement. This easement shall run wit};the land and shall bind the Grantor. 1its successors and assigns. and shall inure to the benefit of the Town of 1 South Windsor. in perpetuity. provided. however. that nothing herein contained shall be construed as granting to the public the right to enter the Easement Area for any purpose whatsoever. If the Easement Area. or any part thereof. shall be taken by condemnation. this easement shall terminate automatically as to that ¢s sr •- .,--•• property taken so that the Grantor. or its successors or assigns. may be _ -•� as fully compensated as though the easement had never bees granted. fT The Grantor reserves the right to itself. its successors and assigns. y. •.:: ;c: !' to continue to use the Easement Area for any uses and purposes which do ;, not interfere with the purpose for which this easement is granted, including. S but not limited tot (a)farming. the grazing of farm animals, gardening and outdoor recreational'activitiea. including field trials. nature study. S = horseback riding, cross country skiing and fishing; (b) farm ponds of 15, 3 acres or less. fill to remain on the applicable Lots (c) other ponds. A '' subject to review and approval by the Inland-Wetlands Commission of the Town of South Windsor;..-(d� Jogging or horseback riding trails and thsl s t: g Pa maintenance or retention of any water drainage system. ; } i +y•: ' { IN WITNESS WHEREOF, Grantor has hereunto set I t hand and i seal this_ /9� day of G Ex2;,f84986. f;°• ri Wi sera •• . . ! ?� M.:., •; WILL MAR CONSTRLiC�T�DDN• P:�''•. y. j `_� I; �• �T Byt�l^'','�� rL Qyyr e• ° _ w '-fit ;( LeR+�Aw t pAvt.0O-S William Amara s`e' rs>' 4 STATE OF CON Its President ••..Lo,. ••••t„� j { NECTICUT) / •a�+n+"'"••_ 'j ?4 tar $OO�t W/.basG� a. •F 3 x COUNTY OF HARTFORD The foregoing.instrument was acknowledged before me this (�*� day of V" 1986. by William Aman. President of Will Mar Construction 4. Corporation. a Connecticut corporation. on behalf of the corporation. NEC=FOR REM— Commissioner of the Superior Court ) ��//�� w TCU-1 QerlC HALLORAN G.L Lynch Susan O'Donnell SAG E LLP Joseph Y ' n Troy A.Batarlle Scott S.McKessy Joseph T.Sweeney Kevin M.Roche A T T O R N E Y S A T L A W Rebecca Jacobsen**** Ronald M.Levin* George Royster David G.Hill Amy E.Markham Laurel A.Ryan*- Vincent M.Marino Daniel P.Scapellati Timothy J.McGuire Elizabeth Lovejoy Richard C.Tynan Robert B.Cos Jeffrey F.Gostyla Michael P.Kenney Steven B.Ryan Victoria Metaxas William P.Borchert Thomas P.O'Dea,Jr. James V.Somers Jonathan P.Ciottone David W.Cohvick COUNSEL Margaret M Doherty James J.Szerejko Dan E.LaBelle Melissa Rotenbcrg Aram Michael S.Wrona Tracy L Montalbano John W.Lemega Jeffrey V.Phelon William J.McGrath,Jr. Duncan J.Forsyth Ralph W.Johnson,III Eric P.Daigle Joanna M.Czekajcwski Thomas J.Hagarty,Jr. Christopher J.Lynch Ann M.Catino Kevin J.Greene Maria Alexander Taylor L Norton Paul V.Knopf Paul D.Meade James P.Maher Kathleen A.St Onge June M.Sullivan Joaquin L Madry Alan S.Rubenstein 'Admitted in Washington,DC Joseph G.Fortner,Jr. Carl R Ficks,Jr. William S.Wilson,II Joshua M.Auxier Eric D.Bemheim Michael C.Collins and Maryland only Stephen P.Fogerty Theresa W.Hajost* Brett M.Szczesny Regen O'Malley James L Carlson Lawrence P.Weisman "Admitted in Washirom,DC and Califomia only Peter G.Boucher Thomas P.Lambert Alan P.Curto Brian D.Rich Lee S.Sharp R Jack Lucas ***Admitted in New York and Steven H Malitz Janice D.Lai Joseph J.Andriola Thomas C.Blatchley Katie Lewis Bordeau Suzanne M.Selll& Mamcht only John B.Farley Richard P.Roberts Alfred A.DiVincentis Brian J.Gedicks Christopher J.Novak Leslie E.Grodd —*Admitted in Maryland only David B.Losee Robert A.Rhodes Kelley Galics.Peck Thomas E.Brennan Coleman C.Duncan Vincent S.T irola Mark T.Altermatt J.Randolph MacPherson** Laum Pascale Zaino Timothy J.Grady Michael F.MacDonald Gerald T.Giaimo Henry M.Beck,Jr. Kenneth R.Slater,Jr. Bruce J.Gelston Christine P.Plourde Jaimee L Zuboff Renee M.Reed May 21, 2009 Jeffrey H. Folger Environmental Planner Town of South Windsor 1540 Sullivan Avenue South Windsor, 'CT 06074 Re: McLeod Property—828 Strong Road Dear Jeff: We have, at your request, reviewed certain information in an effort to determine whether the proposal by Todd and Loretta McLeod to establish a grazing area on the rear portion of their property is in conformance with the restrictions set forth in a Conservation Easement and Declaration of Restrictions of Use recorded in Volume 647 at Page 150 of the South Windsor Land Records. ("Conservation Easement") In examining this request, we have reviewed the following documents: 1. Letter from Todd McLeod, dated March 4, 2009; 2. Conservation Easement and Declaration of Restrictions of Use, dated December 18, 1986, and recorded in Volume 467 at Page 150 of the South Windsor Land Records; 3. Pool Plan prepared for Todd.& Loretta McLeod by J.R. Russo & Associates, dated June 13, 2007; 4. Key Map— Podunk River Estates, dated June 23, 1986, revised to December 15, 1986 —Sheet 1 of 13; One Goodwin Square,225 Asylum Street,Hartford,Connecticut 06103 860 522-6103 Fax 860 548-0006 www.halloran-sagc.com Hartford I Middletown I Westport I Washington,D.C. Jeffrey H. Folger May 21, 2009 Page 2 5. Memorandum of Decision in the case of Patricia A. Conrad, et al v. Jeffrey S. Mattis, et al, dated December 19, 2000. The property owned by the McLeods is depicted as Lot 6 on the Key Map of Podunk River Estates. According to the Memorandum of Decision the lot contains 2.75 acres and has a depth of 600 feet, the rear half of which is subject to the Conservation Easement. The Conservation Easement was conveyed by Will Mar Construction Corp. as part of the seven lot Podunk River Estates subdivision. Article I, Section 1 of the Conservation Easement states: "All Lots shall be developed and used only for residential purposes. Expressly permitted as an accessory use shall be the care and keeping of farm animals, including horses, subject to the zoning regulations of the Town of South Windsor. The final paragraph of the Conservation Easement states: "The Grantor reserves the right to itself, its successors and assigns, to continue to use the Easement Area for any uses and purposes which do not interfere with the purpose for which this easement is granted, including, but not limited to: (a) farming, the grazing of farm animals, gardening and outdoor recreational activities, including field trails, nature study, horseback riding, cross country skiing and fishing; . . . " Thus, the proposed grazing area appears to have been contemplated by the Grantor when the Conservation Easement was executed. The next issue to be addressed is the indication that the creation of the grazing area "will require cutting down all trees in the proposed area, removal of all associated stumps. and dead debris and cultivating the land to plant an appropriate source of food that will not harm the horse." Article II of the Conservation Easement lists various prohibited activities including: "(c) the clear-cutting of live trees;" At first blush, this restriction appears to be in conflict with the proposed allowed use of the keeping of horses and the grazing of farm animals. Two legal concepts seem to address this apparent conflict. First and foremost, the court in the Conrad case dealt with the issue of whether Mr. & Mrs. Mattis, the McLeods' predecessors in title, could construct a vegetable garden within the Conservation Easement area since such,would allegedly-include:the cuttift.bf 6eas in.violation of the prohibition against "the clear-cutting of live trees" set forth in the Conservation Easement. However, the Conrad court concluded that"clear-cutting" is a term "used to describe the practice of cutting down trees for commercial purpose in an area in such a manner as to leave virtually no trees left in the area except those unsuitable for commercial purposes." (emphasis added) It does not appear that the McLeods are clear-cutting for commercial purposes as defined by the Conrad court and that holding would likely be deemed res judicata or collateral estoppel as against certain parties to the previous lawsuit. "Collateral estoppel, or issue preclusion, . . . prohibits the relitigation of an issue when that issue was actually Since Article I, Section 1 includes horses in the term"farm animals"we will assume a similar intention in the last paragraph of the Conservation Easement which provides for the grazing of farm animals. Jeffrey H. Folger May 21, 2009 Page 3 litigated and necessarily determined in a prior action between the same parties or those in privity with them upon a different claim." Powell v. Infinity Insurance Company, 282 Conn. 594, 600 (2007). Secondly,.restrictive covenants are in derogation of common law property rights and are to be narrowly construed. Rossini v. Freeman, 136 Conn. 321, 323 (1949) Further, if the covenant's language is ambiguous it will be construed against rather than in favor of the restrictions in covenant. 5011 Community Organization v. Harris, 16 Conn. App. 537, 541 (1988). Thus, to the extent that the restriction of tree cutting is inconsistent with the express use of the property for horses the latter would likely prevail, although the McLeods should be encouraged to keep as many trees as possible consistent with the express use of grazing land for horses. We hope that you find the above analysis useful. If you have any questions or comments, please do not hesitate to contact us. Very truly y urs, Halloran & S , L P Duncaar yth DJ F/ses cc: Matthew B. Galligan 1473465v.1 °� J /� r ... ..�. •.un i• ? Mal 4.n i• • p I iMy� M��fMi�Si♦ � ♦ C ♦ MIM,rWitr• ` r ��1AwF f� f 3 _ - •��, ""�•"'+•�!+�rrr~wrM fw A�v"7t�1�.w 4.al.�.R. ,�y �_�� A � �`• •i „�'.+,r...*�ww�„•w�~�K`'..+r,�,*tt„ ,r\,• �'�l— Sew {il • LOT lip g a ; PRO a4�"�`et sou { •V IMI•• IM� � t 1 2� � � _.+...• 0. err T • ••yy MM •riM• MMrI ♦�y My ./r . • ♦ � +t Y � ' � � :{� {�/��(i ' lm�ft, z,,• fir""' �. �._ :. _ _ Ir -Roviv? 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