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
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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
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