Using Affirmative Covenants in Conservation Easements

Transcription

1 Using Affirmative Covenants in Conservation Easements Conservation Law Forum 2017 CCLT March 9 Ellen Fred Stephanie Tavares-Buhler Crystal Simons

2 Affirmative covenants illustrated three ways: Agricultural easement variations East Agricultural easement variations West Resource protection easement

3 Agricultural Easement affirmative obligation variations - EAST Peconic Land Trust (NY) approach and example Vermont Housing and Conservation Board approach and example Legal issues and comparisons

4 Affirmative Covenants in Agricultural Conservation Easements Why Did We Do This? Enabling Statute and MALT s Approach And Practical Stewardship Considerations Stephanie Tavares-Buhler, MALT Easement Project Manager

5 Why did we do this?

6 Nice view you protected there, MALT I think I ll enjoy it from the verandah

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8 We put easements on all of this, we re good, right?

9 Not so much.

10 Then it happened again.

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12 Where d the cows go?

13 These cows too?

14 It doesn t even have to be cows

15 What s an ag land trust to do?

16 Obligatory MALT cheese photo

17 The level of agriculture required is established through a plan

18 MALT has the right to find a lessee if ag use stops

19 But is it legal?

20 Enforcement & remedies All the affirmative ag. covenants are in Section

21 Mandatory Ag in Practice The Good

22 Mandatory Ag in Practice The Challenge

23 Affirmative Obligations in a Resource Protection Easement Sonoma Land Trust s Tolay Creek Riparian Easement

24 Resource Protection Easement Affirmative Obligations Acquisition & Project Goals Tolay Creek Regional Park project 1650 acre acquisition (2007) SLT owned fee title with OSD easement; transfer to Regional Parks in 2017(!)

25 Resource Protection Easement Affirmative Obligations Acquisition & Project Goals Tolay Creek Regional Park project 1650 acre acquisition (2007) SLT owned fee title with OSD easement; transfer to Regional Parks in 2017(!) Tolay Creek Riparian Easement 32 ac within 1650 ac acquisition Protects 1.5 mile (~8000 ) segment of Tolay Creek Dynamic easement boundary extends 200 from top of bank

26 Resource Protection Easement Affirmative Obligations Tolay Creek Riparian Easement boundary language RECITALS C. Grantor desires to grant to SLT and SLT desires to obtain on its behalf an easement for a riparian corridor extending 200 feet from the Top of Bank (as defined below) of Tolay Creek, as the creek location moves over time ("Creek") into the Retained Property, which corridor includes those areas of the Retained Property located between the Creek and the westerly boundary of the Retained Property (but such areas of the Retained Property not to exceed 400 feet from the Top of Bank at any point, such maximum to account for the potential of future northeasterly movement in the location of the Creek's channel and Top of Bank), and which corridor excludes those vineyards and the roadway immediately adjacent thereto that exist as of the date this Agreement is executed, as shown on the Baseline Documentation Report described herein, and in an area generally depicted in Exhibit B, attached hereto and incorporated herein by this reference (hereinafter "the Riparian Corridor"). D. The term "Top of Bank" is defined as the elevation of the water surface at bankfull discharge. Bankfull discharge is the stream discharge (flow rate, such as cubic feet per second) that forms and controls the shape and size of the active channel and creates the flood plain. This discharge generally occurs once every 1.5 years on average. The floodplain is the flat area of land adjacent to a stream that is formed by current flood processes. (As defined by the Natural Resources Conservation Service in National Water and Climate Center Technical Note 99-1).

27 Resource Protection Easement Affirmative Obligations Restoration & Stewardship Tolay Creek Riparian Enhancement Plan Moore $$ assessments, management planning, riparian fencing WHY: incised creek channel, erosion, overgrazed, poor riparian habitat WHAT: manage erosion, eliminate grazing pressure WHO/HOW: 10yr plan (in yr 5) STRAW (Zone A) 10,000 trees CalTrans (Zone B) - $1.1M mitigation

28 RECITALS Resource Protection Easement Affirmative Obligations Tolay Creek Riparian Easement erosion and channel incision

29 Resource Protection Easement Affirmative Obligations Tolay Creek Riparian Easement planted trees, riparian corridor, ranch road/trail

30 Resource Protection Easement Affirmative Obligations Tolay Creek Riparian Easement affirmative covenants from the stewardship experience Standard CE template language Sections (monitoring access, etc) Language that works Section 3.5 Public Access & Development for Recreational Purposes Section 3.6 Riparian Management, Restoration and Enhancement Affirmative rights to Grantee Sections Plus No notice language Covenants aren t theoretical No language push-back from Grantor, or successor landowner (so far)

31 Resource Protection Easement Affirmative Obligations Tolay Creek Riparian Easement OpenRoad with Doug McConnell (NBC TV) Sunday, March 12 6:30pm