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What Happens To Property Rights...

To: landtrust@indiana.edu landtrust@indiana.edu
Date: Wed, 15 Nov 2000 12:15:22 -0500
Subject: violation response

I have a violation to which I need some negotiation recommendations. I have a property with a conservation easement that prohibits construction of any permanent structures additional to what existed at the time the easement was granted (1975). It was discovered during a routine monitoring that these folks put in an in ground pool. The property owners are very apologetic, they admit their ignorance of the easement and are anxiously awaiting our decision how to handle it. Has anyone else had a similar situation and how did you negotiate a remedy/fine/compensation?
Thanks!

Conservation Biologist
Heritage Conservancy
85 Old Dublin Pike
Doylestown, PA

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To: landtrust@indiana.edu
Date: Wed, 15 Nov 2000 13:17:18 EST
Subject: Re: violation response

Kelly,
Not knowing the full facts or circumstances, I would evaluate the violation in terms of the conservation values which are being protected. Plus, I would look at the easement to see if there is any specific reference to "swimming pools". This would appear to be somewhat of a gray area, since a swimming pool may not be viewed as a "structure" in the same light as a new house,
barn, etc. Also, from your description, an above ground swimming pool would not have been prohibited.
So...it's an interesting dilemma of how to fairly deal with these people who apparently did not violate the easement on purpose (if, indeed, they did at all). I guess my main question would be: how does this swimming pool affect the conservation values which are being permanently protected. If it is a large parcel of land, the swimming pool could conceivably be viewed as an
incidental use of the existing house with little impact on the conservation values. If, however, it were an historic preservation easement, with the primary conservation value embodied in protection of the home site, then your response may be different.
I hesitate to make any recommendation without a full knowledge of the facts, but if the swimming pool is truly an insignificant alteration in view of the total conservation values, I would tend to be a little lenient. In fact, it may be appropriate to turn the tables and ask them to come up with a
proposed resolution, which you could then negotiate. A donation of $500 or $1,000 may be appropriate, but I would be wary of establishing such a precedent in dealing with violations, technical or otherwise. It may also be appropriate to determine the useful life of the swimming pool. Would that be 20 years? 30 years? Perhaps one thing to consider would be a requirement that they remove the pool after such time, if, in fact, the pool is detrimental to the conservation values.
You have definitely raised an interesting situation, pointing out the need to carefully craft easements so that important conservation values are protected. It also reminds us that in our efforts to protect land, our most important task is working with people.
Best wishes in your deliberations.

President
Southeast Michigan Land Conservancy
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landtrust@indiana.edu
Date: Wed, 15 Nov 2000 13:56:40 -0500
Subject: Re: violation response

Kelly,
Mr. xxxx answered the immediate question, but you should also consider what measures can be taken to avoid such situations in the future. Obviously you consider the pool to be a violation of the easement, and thus it's important to make sure that all of your easement folks (including successive owners) have some kind of documentation that establishes the baseline of your
expectations. The same applies to the abutters of your fee holdings...they too should receive some kind of correspondence about your land and your expectations. This can prevent
encroachments/violations at all scales, and will most likely add to your membership rolls or lead to future gifts. We find that people get all sorts of strange ideas about "the land trust next door" until we make concerted efforts to meet them or send something in the mail. In most cases, we end up with an extra, and perhaps primary, set of eyes on the properties.

Kind regards,
Conservation Ecologist
Weantinoge Heritage, Inc.
New Milford, CT

xxx wrote:
 I have a violation to which I need some negotiation recommendations. I have a property with a conservation easement that prohibits construction of any permanent structures additional to what existed at the time the easement was granted (1975). It was discovered during a routine monitoring that these folks put in an in ground pool. The property owners are very apologetic, they admit their ignorance of the easement and are anxiously awaiting our decision how to handle it .... <snip>
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White's Land Trust Service
Sandy Brook Road, Colebrook, CT