Vergilis,Stenger,RobertsDavis&Diamond (5)SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF WESTCHESTER
Index No. 306/2008
CRANBERRY HILLS, LLC,
Petitioner , ENVIRONMENTAL
CLAIMS PART
For a Judgment Pursuant to Article 78 of the Civil
Practice Law and Rules,
- a g a i n~ t-
THE PLANNING BOARD of the TOWN of
WAPPINGER, and the CHAIRMAN of the
PLANNING BOARD of the TOWN of
WAPPINGER,
Respondents.
RESPONDENTS' MEMORANDUM OF LAW IN
SUPPORT OF MOTION TO DISMISS THE PETITION
Respectfully Submitted,
Vergilis, Stenger, Roberts & Davis, LLP
By: Albert P. Roberts, Esq.
James P. Horan, Esq.
1136 Route 9
Wappingers Falls, New York 12590
(845) 298-2000
TABLE OF CONTENTS
TABLE OF CONTENTS
PR EL IMINA R Y S TA TEMENT
STATEMENT OF FACTS
LEGAL ARGUMENT
1
3
7
Factual Allegations of Petition Deemed True in Motion to Dismiss in Point of Law Under CPLR
§ 7804(f) 8
Town Law § 276(7) Imposes A Duty Upon Chairman to Certify That Requirements Stated In
Conditional Approval Have Been Completed
8
Certifying That Requirements Have Been Completed Is Not a Ministerial Act 9
The Chairman's Determination that Conditional Approval Requires Approval of ACOE Has a
Rational Basis and Should Not Be Disturbed 12
Cranberry Conveniently Omits Three ACOE Approvals Required by Review Letter 13
Conditional Approval Has. Expired By Operation of Town Law §276(7)(c) 16
CONCLUSION l6
Respondents, Planning Board of the Town of Wappinger (hereinafter the "Planning
Board") and the Chairman of the Planning Board of the Town of Wappinger (hereinafter the
"Chairman"), through their attorneys Vergilis, Stenger, Roberts & Davis,. LLP, submit this
Memorandum of Law in support of the Respondents' Motion to Dismiss the Petition.
PRELIMINARY STATEMENT
The Petitioner, Cranberry Hills, LLC (hereinafter "Cranberry"), commenced the instant
Article 78 proceeding, in the nature of mandamus, to obtain an order directing the Chairman to
sign its final subdivision plat. The Chairman refused to sign the plat because, in his judgment
and discretion, Cranberry had not complied with all of the conditions imposed by the conditional
Resolution of Final Subdivision Plat Approval dated December 12, 2006 (hereinafter
"Conditional Approval"). Cranberry asks this Court to intervene on its behalf, to overrule the
Chairman's rational interpretation of the plain language of the Conditional Approval and to
substitute Cranberry's interpretation of the Resolution.
Cranberry's argument, that the only remaining act required by the Chairman in
connection with its application was purely "ministerial," is overly simplistic and ignores specific
mandates to the Chairman contained in Town Law. Specifically, Town Law § 276(7)(c) imposes
a mandatory duty upon the Chairman to certify the completion of the conditions of a resolution
of conditional final approval before a plat can be signed. Determination of whether or not a
condition is met is not a "ministerial" act; instead, it is an act that requires interpretation,
judgment and discretion. The Chairman first must analyze the resolution of conditional final
approval and determine the conditions imposed. Not all conditions are self-evident, some, as in
the instant case, require interpretation, judgment and the exercise of discretion by the Chairman.
Then, after ascertaining the conditions contained in the conditional final approval, the Chairman
1
must again exercise judgment and discretion in determining whether the applicant has satisfied
the conditions. The process involves significantly more than checking off items on a grocery
list. If a dispute arises as to the meaning or applicability of a condition - as in this case -then
the Chairman is required by Town Law to determine what the disputed condition requires and
whether such requirements have been met, all prior to performing the "ministerial" act of signing
the plat. Statutorily, the Chairman's signature is a certification that the applicant has fulfilled all
of the conditions of approval.
Like other actions of a planning board, the Chairman's interpretation of a resolution shall
not be disturbed by a Court if such interpretation has a rational basis. The Chairman must be
given sufficient power to reasonably interpret the conditions set forth in a resolution of
conditional approval. Allowing Courts to second guess the Chairman as to the scope of a
condition and whether such condition has been met would eviscerate the police power of the
Planning Board to set reasonable conditions on land development in the first instance and unduly
burden the courts with duplicative analysis of every condition disputed by a developer.
In the case at bar, it was reasonable for the Chairman to read the Conditional Approval to
require that the permit and approvals from the Army Corps of Engineers ("ACOE") be obtained
before the plat could be signed. Prima facie evidence of the reasonableness of this reading is the
°=~` evidence of the fact that the Conditional Approval was understood in that manner by all
concerned during the numerous meetings held between and among the Town's and Cranberry's
professionals. Indeed, the Conditional Approval was read in this manner until the first week of
December 2007, when it became clear to Cranberry that it would not receive the ACOE permits
and approvals prior to the expiration of the Conditional Approval. Only when Cranberry learned
that it would not receive the ACOE permits and approvals prior to the expiration of the approval
2
period, did it -for the first time in the multi-year process -assert that the ACOE permits and
approvals only were required before construction activity could take place and not as a condition
of final approval.
The letter from the ACOE dated December 7, 2007 was non-committal and did not
satisfy the requirements of the Conditional Approval for road crossings, wetland mitigation,
wildlife crossings and culverts. The Chairman properly refused to sign the plat. The ACOE
letter provided no approvals at all and only indicated that the Corps' review would continue.
This conclusion is bolstered by a letter received from the Fish and Wildlife Commission dated
January 21, 2008, which recommended that the ACOE not issue any permits until the additional
information sought had been gathered because plan changes might be required.
The Respondents recognize that Cranberry's professionals worked diligently with the
Planning Board's professionals and made great efforts to reach the goal of satisfying the
numerous conditions of the Conditional Approval. However, in the end, they came up short.
Town Law § 276(7)(c) provides that the Chairman must certify that all of the conditions have
been completed before he may sign the plat. Where the conditions have not been satisfied, he
may not sign the final plat.
The Chairman's actions in this case in refusing to sign the plat, were justified and
constituted a fair reading of the terms of the Conditional Approval. The Chairman's actions were
neither arbitrary, nor capricious and, Cranberry's Petition should therefore be dismissed.
STATEMENT OF FACTS
The facts of this case are set forth at length in the Affirmation of Albert P. Roberts, Esq.,
Attorney to the Town and the Planning Board, dated February 27, 2008, the Affidavit of Robert
L. Valdati, Chairman of the Planning Board, dated February 23, 2008, the Affidavit of David H.
3
~.
Stolman, the Town Planner, dated February 26, 2008 and the Affirmation of James P. Horan,
Esq. dated February 27, 2008. The following is a brief recapitulation of the pertinent facts.
Under the authority of Local Law No. 14 of 2002, the Planning Board reviewed the
Cranberry Hills Subdivision application as a Conservation (Cluster) Subdivision pursuant to
§ 240-19(B) of the Town of Wappinger Zoning Code. On October 21, 2002, the Planning Board
granted conditional preliminary subdivision approval.
On July 10, 2006, Cranberry filed a final subdivision plat for approval; the submission
contained approximately 110 sheets of engineering drawings, architectural plans, landscape
plans, wetland maps, wetland mitigation plans and associated documents. (See Town Return,
Exhibit "C" at 2-3 for a complete listing of the submissions made by Cranberry). On October
12, 2006, Cranberry's attorneys sent a letter to the Town Clerk demanding default approval of its
plat. (Town Return Exhibit "E," Demand for Default Letter). The Town Clerk did not honor the
demand and subsequently Cranberry's professionals worked with the Planning Board consultants
to draft a resolution to conditionally approve Cranberry's final subdivision plat. (Town Return
Exhibit "H," Minutes of Special Meeting of Planning Board dated December 12, 2006).
At a special meeting held on December 12, 2006, the Planning Board and its consultants
reviewed the resolution with Cranberry's representatives and the Conditional Approval was
adopted with certain changes noted in the record. (Town Return Exhibit "H," Minutes of Special
Meeting of Planning Board dated December 12, 2006). The Town Planner incorporated the
noted changes and submitted the final document to the Chairman of the Planning Board for his
signature. Chairman Phillip DiNonno signed the Conditional Approval on February 4, 2007 and
it was filed with the Town Clerk on February 5, 2007. (Town Return Exhibit "C," Conditional
Approval).
4
..
As a condition of approval, the Conditional Approval incorporates by reference the Town
Engineer's review letter of November 8, 2006. (Town Return Exhibit "G," Review Letter of
Town Engineer, Paggi, Martin & Del Bene, LLP, dated November 8, 2006). The Town Planner
included the Town Engineer's review letter by reference in order to insure that no condition was
omitted inadvertently. The exact language of the Conditional Approval incorporating the Town
Engineer's review letter is found in paragraph 14:
The following are the conditions and modifications which must be satisfied prior
to the signing of the 232-lot Final Subdivision Plat by the Chairman of the
Planning Board: .. .
f. The Applicant shall revise the plans to address all comments contained in
the Town Engineer's November 8, 2006 letter to the Planning Board, to
the satisfaction of the Town Engineer. (Emphasis added.)
Cranberry argues that this language only applies to revisions to the plans and does not
apply to any permits or approvals. However, a review of all the comments in the Town
Engineer's November 8, 2006 letter reveals that many of the comments are not related to the
plan revisions, but rather to various approvals and reviews that were deemed necessary. The
clear intent is to incorporate all comments from this review letter into the Conditional Approval.
Cranberry's engineers responded to all of the comments in the Review Letter, not just those that
dealt with plan revisions.
The Town Engineer's November 8, 2006 Review Letter specifically lists four approvals
that are required from the ACOE:
On page 2:
A. WETLANDS:
4. Pendin .Army Corps of Engineers (ACOE) permits must be obtained
for construction activities on Pearlberry Road (Station 2+40 - 4+70)
and Huckleberry Court (Station 2+30 - 2+50). The Applicant has
indicated that the Joint Application For Permit was submitted on
November 30, 2004, and they are awaiting approval. The Town
5
Planner should determine if the plans satisfactorily address Town
Wetlands.
5. Pendin .The March 17`h , 2003 Evans Wetland Mitigation and
Restoration Plans were approved by the NYSDEC on February 7`h,
2006, but are also subject to the review and approval [ofJ the ACOE,
and the Town Planner.
8. Pendin .The proposed "Wild Life Crossings" were approved by the
NYSDEC on February 7a', 2006, but are also subject to the review and
approval of the ACOE, and the Town Planner.
On page 4:
B. GRADING & DRAINAGE:
35. The following should be addressed for the seven (7) proposed box culverts:
o Pendin .The aluminum, arch type box culverts are subject to
the review and approval of the Town Highway
Superintendent, and the ACOE. The culverts have been
approved by the NYSDEC.
(Town Return Exhibit "G," Review Letter of Town Engineer, Paggi, Martin & Del Bene, LLP,
dated November 8, 2006). It should be noted that "construction activities" are only referenced in
item A.4.
After the Conditional Approval was adopted, Cranberry's engineers complied with all
comments of the November 8, 2006 Review Letter, except for the four items listed above. (See
Town Return Exhibit "L," Town Engineer Review Letter dated December 5, 2007.)
For the first time, on December 4, 2007, Cranberry's attorneys informed the Town
Attorney that it was Cranberry's position that the ACOE permits and approvals were not required
in order for the Chairman to sign the plat; Cranberry maintained that the Permit only was
required before construction activities could commence. On December 6, 2007, a compliance
review meeting was held at the Town Hall of the Town of Wappinger. The purpose of the
meeting was for the Planning Board consultants to determine if Cranberry had complied which
6
each and every condition of the Conditional Approval. The consultants determined that
Cranberry had not met the conditions in the Town Engineer's Review Letter listed above. The
Planning Board consultants suggested that, if Cranberry could obtain a letter from the ALOE that
it had complied with all of the ACOE requirements and that the actual permits and approvals
would issue as a ministerial act by the ACOE in the normal course of business, such a letter
would be deemed by the Chairman to be in compliance with the Conditional Approval.
On December 7, 2007, Cranberry's representatives appeared at Town Hall and presented
a letter from the ACOE. The parties contacted James Cannon of the ACOE on a speakerphone
conference call to discuss the contents of the letter. While Mr. Cannon stated in substance that it
was likely that the reviewed permit would issue, he stated that he could give no guarantee. Mr.
Cannon also stated that the ACOE might require that changes be made before permits and
approvals would issue, necessitating revision of the subdivision plans. Based on this
conversation, the Town Attorney, the Town Engineer and the Town Planner advised the
Chairman of the Planning Board that, since the applicant had not met all of the conditions of the
Conditional Approval, he should not sign the final subdivision plat.
Cranberry commenced the instant Article 78 Proceeding to compel the Chairman of the
Planning Board to sign the Final Subdivision Plat.
LEGAL ARGUMENT
The instant Petition is in the nature of mandamus and is brought to compel the Chairman
to sign the final subdivision plat presented by Cranberry. Cranberry alleges that the Chairman
"failed to perform a duty enjoined upon [him] by law." C.P.L.R. §7803(1). Mandamus against
the Chairman cannot lie because, as a matter of law, determining compliance with conditions
stated in the Conditional Approval is a discretionary act, not a ministerial one. Furthermore, the
7
Chairman's refusal to sign the final plat had a rational basis, because Cranberry failed to satisfy
all the conditions of the Conditional Approval.
FACTUAL ALLEGATIONS OF PETITION DEEMED TRUE IN MOTION TO DISMISS IN POINT OF
LAW UNDER CPLR ~ 7804(F)
Respondents bring the instant motion to dismiss the Petition in Point of Law under CPLR
§ 7804(f). For purposes of this motion the factual allegations of the Petition are deemed to be
true and the petition may only be dismissed as a matter of law when there is no question of fact.
Abrams v. New York City Transit Authority, 39 N.Y.2d 990, 998, 387 N.Y.S.2d 235 (1976);
Mattoli v. Casscles, 50 A.D.2d 1013, 377 N.Y.S.2d 264 (3d Dept 1975). In the instant case, the
facts plead by Cranberry are not disputed and, taken in the light most favorable to it, do not
entitle it to relief and the Petition must be dismissed.
TOWN LAW ~ 276(7) IMPOSES A DUTY UPON CHAIRMAN TO CERTIFY THAT REQUIREMENTS
STATED IN CONDITIONAL APPROVAL HAVE BEEN COMPLETED
The Conditional Approval adopted by the Planning Board at the Special Meeting held on
December 12, 2006 was a "conditional approval of a final plat". Town Law § 276(4)(e). Town
Law § 276(7)(a) sets forth additional requirements for conditional approval:
In the case of a conditionally approved plat, such resolution shall include a
statement of the requirements which when completed will authorize the signing
thereof. Upon completion of such requirements the plat shall be signed by said
duly authorized officer of the planning board and a copy of such signed plat shall
be filed in the office of the clerk of the planning board or filed with the town clerk
as determined by the town board.
The act of a duly authorized officer of the Planning Board signing a plat in final form
after all the conditions specified in a resolution granting conditional approval of the plat are
completed is defined as "Final plat approval." Town Law § 276(4)(e). "Such final. approval
qualifies the plat for recording in the office of the county clerk or register in the county in which
such plat is located." Id.
8
Town Law § 276(7)(c) states:
(c) Duration of conditional approval of final plat. Conditional approval of the
final plat shall expire within one hundred eighty days after the resolution granting
such approval unless all requirements stated in such resolution have been certified
as completed. The planning board may extend by not more than two additional
periods of ninety days each, the time in which a conditionally approved plat must
be submitted for signature if, in the planning board's opinion, such extension is
warranted by the particular circumstances. (Emphasis added.)
In addition to setting the duration of the conditional approval of the final plat, Town Law
§ 276(7)(c) imposes upon the Chairman the duty to certify that all requirements stated in the
Conditional Approval have been completed. This duty is more than merely signing the final plat;
it requires reviewing the Resolution and determining whether or not requirements have been
completed. These are not "ministerial" acts.
CERTIFYING THAT REQUHtEMENTS HAVE BEEN COMPLETED IS NOT A MINISTERIAL ACT
"Mandamus is available, however, only to enforce a clear legal right where the public
official has failed to perform a duty enjoined by law." New York Civil Liberties Union v. State
of New York, 4 N.Y.3d 175, 184, 791 N.Y.S.2d 507 (2005). "[M]andamus does not lie to
enforce the performance of a duty that is discretionary, as opposed to ministerial." Id.; Brusco v.
Braun, 84 N.Y.2d 674, 679, 621 N.Y.S.2d 291 (1994). "A discretionary act `involve[s] the
exercise of reasoned judgment which could typically produce different acceptable results
whereas a ministerial act envisions direct adherence to a governing rule or standard with a
compulsory result."' N.Y. Civil Liberties Union v. State of New York, su ra (citing Tango v.
Tulevech, 61 N.Y.2d 34, 41, 471 N.Y.S.2d 73, (1983)). "The availability under article 78 of
mandamus to compel performance of a duty by an administrative agency depends not on the
applicant's substantive entitlement to prevail, but on the nature of the duty sought to be
9
commanded i. e., mandatory, nondiscretionary action." Hamptons Hospital v. Moore, 52 N.Y.2d
88, 97, 436 N.Y.S.2d 239, 243 (1981).
Cranberry argues that "compulsory language - "shall siun" and shall be signed" -leaves
no room whatsoever for discretion. See, Mennella v. Lopez-Torres, 229 A.D.2d 153, 156, 655
N.Y.S.2d 604, 605 (2d Dept. 1997). The Court of Appeals has held that even though the word
"shall" is used in reference to the issuance of a permit, a clerk has some discretion:
In issuing permits under section 215 of the municipal ordinance, the city clerk is
not intended invariably to act as an automaton. If a permit may lawfully be issued,
he is the officer designated for that purpose. Here is an instance where the word
`shall' ought not to be interpreted in a mandatory sense.... Generally, but not
always, the city clerk's duties are ministerial, yet surely he could not be compelled
to perform an act which would result in crime, fraud, or even public deception. He
cannot be coerced into participating in transactions which are forbidden by law or
by rules having the force of law. While his power to exercise discretion is
extremely limited, he is not, on the facts before us, entirely without some measure
of it. (Citations omitted.)
Dr. Bloom Dentist, Inc. v. Cruise, 259 N.Y. 358, 365, 182 N.E. 16, 18 (1932), peal dismissed,
288 U.S. 588 (1933). The Court of Appeals has also held that the determination of whether
something is "mandated in a particular case is, at its essence, a discretionary determination."
Grant v. Cuomo, 73 N.Y.2d 820, 823, 537 N.Y.S.2d 115 (1988).
The Chairman must exercise "reasoned judgment" to determine whether or not Cranberry
has completed all of the requirements of the Conditional Approval and his determination does
not lead to a "compulsory result", therefore his actions are discretionary and thus not subject to
an action for mandamus. N.Y. Civil Liberties Union v. State of New York, supra.
To determine whether or not all of the requirements of the Conditional Approval have
been completed, the Chairman must first read the Resolution and determine what all of the
requirements are. Because resolutions of conditional approval are complicated by nature, the
Chairman must exercise his "reasoned judgment", relying upon the advice of the Planning Board
10
consultants, to ascertain the meaning of all of the conditions. In addition, the conditions set forth
in a conditional approval are, in many instances, flexible, because the Planning Board has to
project into the near future. Because of the passage of time, or a change in circumstances, the
nature of a condition may change from the time it was imposed by the Planning Board at the time
a resolution of conditional approval was adopted until the time compliance is determined by the
Chairman. The action of the Chairman in ascertaining the true meaning of the conditions
imposed by the Conditional Approval is clearly a discretionary act. Grant v. Cuomo, supra.
By way of example, consider condition 14(n) of the Conditional Approval which deals
with the "streetscape". (It is undisputed that Cranberry completed this requirement.)
n. The streetscape plans including fire hydrant locations, streetlights and
specifications, street trees, sidewalks and curbing details shall be submitted
by the Applicant and shall meet the satisfaction of the Planning Board, as
recommended by the Fire Prevention Bureau and the Town Highway
Superintendent, and as required by the Town Board pursuant to Local Law
No. 14 of 2002. Curbing shall be concrete and sidewalks shall be a minimum
width of four (4) feet. Street trees shall be required, on average, at a minimum
of one-and-one-half trees per street frontage for each lot with one hundred
(100) feet of street frontage or less and two trees per street frontage for each
lot with a street frontage greater than one hundred (100) feet. Street trees shall
be placed on the "yard side" of the proposed sidewalks as per direction by the
Town Highway Superintendent.
Ascertaining the meaning of this condition clearly does not lead to a "compulsory result."
Certifying that Cranberry completed this requirement most certainly requires the exercise of
"reasoned judgment;" in fact it requires quite a bit of technical expertise. The same is true of
virtually every other condition in the Conditional Approval. About the only condition that does
not require the use of reasoned judgment by the Chairman is: "The Applicant shall submit a
statement signed by the Town's Tax Collector that all taxes due on the subject parcel have been
paid."
11
As has been shown, determining compliance with the requirements of the Conditional
Approval is a discretionary act requiring "reasoned judgment" and thus mandamus does not lie.
Furthermore, the actions of the Chairman were not arbitrary or capricious.
THE CHAIRMAN'S DETERMINATION THAT CONDITIONAL APPROVAL REQUIRES APPROVAL
OF ALOE HAS A RATIONAL BASIS AND SHOULD NOT BE DISTURBED
It is well settled that "[t]he reviewing court in a proceeding pursuant to CPLR article 78
may not substitute its judgment for that of a planning board unless the planning board's
determination is arbitrary and capricious, illegal, or an abuse of discretion." Pagnozzi v. Planning
Board of Village of Piermont, 292 A.D.2d 613, 739 N.Y.S.2d 742 (2d Dept. 2002); Terra Homes
v. Smallwood, 247 A.D.2d 394, 395, 667 N.Y.S.2d 920 (2d Dept. 1998). A Planning Board's
determination of the satisfaction of requirements of resolutions of conditional approval is
reviewed by the courts under the arbitrary and capricious standard. Putnam Country Club Assoc.
v Planning Board of Town of Carmel, 294 A.D.2d 507, 742 N.Y.S.2d 847, 848 (2d Dept. 2002).
"In applying the `arbitrary and capricious' standard, a court inquires whether the
determination under review had a rational basis. Under this standard, a determination should not
be disturbed unless the record shows that the agency's action was "arbitrary, unreasonable,
irrational or indicative of bad faith." Halperin v. City of New Rochelle, 24 A.D.3d 768, 770, 809
N.Y.S.2d 98 (2d Dept. 2005). "A determination will be deemed rational if it has some objective
factual basis, as opposed to resting entirely on subjective considerations such as general
community opposition." Id. at 772. A court may not overturn the decision of the Chairman
"merely because it would have reached a contrary conclusion." Sullivan County Harness Racing
Assoc. v. Glasser, 30 N.Y.2d 269, 278, 332 N.Y.S.2d 622 (1972); 6 N.Y. Jur. 2d Article 78 § 15.
In the instant case, the Chairman's interpretation of the requirements of the Conditional
Approval has an "objective factual basis" -its plain words. The Conditional Approval clearly
12
incorporates by reference "all comments contained in the Town Engineer's November 8, 2006
letter." See Town Return, Exhibit C, Conditional Approval at ¶ 14.) Cranberry argues that this
paragraph refers to only those comments that necessitate a revision to the plans and does not
refer to the issuance of a permit. This interpretation cannot be correct because of the use of the
word "all." Furthermore, most of the Review Letter contains comments that do not refer to
changes in the plans. Lastly, as was demonstrated by the conversation with James Cannon of the
ACOE on December 6, 2007, the ACOE may require relocation of wetlands crossings as part of
its permit process, so changes to the subdivision plans may result from the issuance of the ACOE
permit. This is precisely why the Chairman did not sign the plat. Cranberry acknowledged that
the Town Engineer's Review letter of November 8, 2006 was a requirement of the Conditional
Approval because it satisfied every comment in the letter to the satisfaction of the Town
Engineer, except for the receipt of the ACOE permit and approvals.
CRANBERRY CONVENIENTLY OMITS THREE ALOE APPROVALS REQUIRED BY REVIEW LETTER
On December 4, 2007, after Cranberry determined that the ACOE Permit was not
forthcoming, it advanced the argument that the ACOE permit was required prior to the
commencement of construction activities, but not prior to the Chairman signing the plat. The
basis for this position is this comment on page 2 of Town Engineer's Review Letter:
A. WETLANDS:
4. Pendin .Army Corps of En ing_ eers ~ACOEZpermits must be obtained
for construction activities on Pearlberry Road (Station 2+40 - 4+70)
and Huckelbeny Court (Station 2+30 - 2+50). The Applicant has
indicated that the Joint Application For Permit was submitted on
November 30, 2004, and they are awaiting approval. The Town
Planner should determine if the plans satisfactorily address Town
Wetlands. (Emphasis supplied by Cranberry at page 9 of its
Memorandum of Law.)
13
Cranberry conveniently omits the three other comments in the Review Letter that require
approvals from the ACOE:
On page 2: A. WETLANDS:
5. Pending. The March 17th , 2003 Evans Wetland Mitigation and
Restoration Plans were approved by the NYSDEC on February 7th,
2006, but are also subject to the review and approval of the ACOE,
and the Town Planner.
8. Pendin .The proposed "Wild Life Crossings" were approved by the
NYSDEC on February 7th, 2006, but are also subject to the review and
approval of the ACOE, and the Town Planner.
On page 4: B. GRADING & DRAINAGE:
35. The following should be addressed for the seven (7) proposed box culverts:
o Pending. The aluminum, arch type box culverts are subject to
the review and approval of the Town Highway
Superintendent, and the ACOE. The culverts have been
approved by the NYSDEC.
(Town Return Exhibit "G", Review Letter of Town Engineer, Paggi, Martin & Del Bene, LLP.)
These comments refer to items that appear on plans that need to be approved by the ACOE. The
Wetlands Mitigation and Restoration Plans and the culvert details that require approval are
shown in ACOE Public Notice Number NAN-2007-01130-WCA. See Town Return Exhibit
"K"). Issuance of the ACOE permit means that these items were "approved." Nothing reference
is made to "construction" in these comments.
At the compliance review meeting on December 6, 2007, the Town Engineer told
Cranberry that ACOE "approval" could be completed by if it obtained an approving letter which
stated that these items were approved, that Cranberry had fulfilled all conditions of the permit
and that a permit would issue as a routine act of the ACOE. Cranberry obtained a letter from
ALOE dated December 7, 2007, but this letter did not state that a permit would issue it stated
that "[a]s a result of this commitment, the Corps of Engineers will continue to conclude our
14
decision making process." (See, Town Return Exhibit "M"). The ACOE did not approve the
mitigation plans or the culvert details. In the conference call with James Cannon of the ACOE,
on December 7, 2007, he indicated that because of the Indiana Bat, the ACOE could require
changes to the subdivision plans and that would not be known until after mist-netting was
completed after May 1, 2008. See Town Return Exhibit "N", Letter of US Fish & Wildlife
Service.
Under the plainest of meanings, the Conditional Approval incorporates by reference all
the comments in the Town Engineer's Review Letter of November 8, 2006. Those comments
require ACOE approval of plans before the Chairman can sign the plat, not before construction
commences. This is the clear meaning of the words and the "objective factual basis" that makes
the decision of the Chairman rational. In order to save its project, Cranberry has developed a
creative reading of the Conditional Approval. Even if this Court were to adopt Cranberry's
meaning of the Resolution, the Chairman's decision should not be disturbed because it is rational
and supported by an "objective factual basis". This Court may not overturn the decision of the
Chairman "merely because it would have reached a contrary conclusion." Sullivan County
Harness Racin~Assoc. v. Glasser, 30 N.Y.2d at 278, 332 N.Y.S.2d 622 (1972); 6 N.Y. Jur. 2d
Article 78 § 15.
Deference should be shown to the Chairman's interpretation of the Conditional Approval
because it does not rest on a question of law. Raritan Development Corp. v. Silva, 91 N.Y.2d 98,
102, 667 N.Y.S.2d 327 (1997). While zoning ordinances must be construed in favor of the
property owner, there is no requirement that a Planning Board's resolution be construed in that
manner because Planning Board actions are deferentially reviewed. See, Allen v. Adami, 39
15
N.Y.2d 275, 347 N.E.2d 890, 383 N.Y.S.2d 565 (1976); Golden v. Planning Board of the Town
of Ramapo, 30 N.Y.2d 359, 285 N.E.2d 291 (1972).
CONDITIONAL APPROVAL HAS EXPIItED BY OPERATION OF TOWN LAW ~276(7)(C
Town Law §276(7)(c) states:
(c) Duration of conditional approval of final plat. Conditional approval of the
final plat shall expire within one hundred eighty days after the resolution granting
such approval unless all requirements stated in such resolution have been certified
as completed. The planning board may extend by not more than two additional
periods of ninety days each, the time in which a conditionally approved plat must
be submitted for signature if, in the planning board's opinion, such extension is
warranted by the particular circumstances. (Emphasis added).
The Planning Board granted two ninety day extensions so the conditional approval of the
final plat expires 360 days from "the resolution granting such approval." The resolution granting
approval was adopted by the Planning Board on December 12, 2006. 360 days from December
12, 2006 is measured to be December 7, 2006. Cranberry correctly points out that the resolution
was not signed by Chairman Phillip DiNonno until February 5, 2007 and filed with the office of
the Town Clerk on February 6, 2007. 360 days from the latest date, February 6, 2007, would be
February 1, 2008.
Cranberry has not received approval from the ACOE within the measuring time period so
"conditional approval of the final plat shall expire" because completion of the requirements of
the Conditional Approval has not been certified by the Chairman. The expiration is automatic
and no action by the Planning Board is required. Rosenberg v. Town of Lloyd Planning_Board,
181 A.D.2d 959, 581 N.Y.S.2d 467 (3d Dept. 1992).
CONCLUSION
For the foregoing reasons, this Court should dismiss the instant Article 78 petition
because the Chairman properly determined that the requirements of the Conditional Approval
16
had not been met, therefore the final plat could not be signed. The decision of the Chairman was
not arbitrary and capricious. The Court should further order that the Conditional Approval for the
final plat has expired pursuant to Town Law §276(7)(c).
Dated: Wappingers Falls, New York
February 27, 2008
Vergilis, Stenger, Roberts & Davis, LLP
By:
Albert P. Roberts, Esq.
James P. Horan, Esq.
1136 Route 9
Wappingers Falls, New York 12590
(845) 298-2000
17
CONSERVATION EASEMENT
This INDENTURE establishing a Conservation Easement is entered into this day of June,
2003, between
TOWN OF WAPPINGER,
A Municipal Corporation,
with offices located at Town Hall, 20 Middlebush Road,
Wappingers Falls, New York 12590,
hereinafter referred to as "GRANTOR" or the "LANDOWNER"
and
COUNTY OF DUTCHESS,
A Municipal Corporation,
with offices at 22 Market Street,
Poughkeepsie, New York 12601
hereinafter referred to as "GRANTEE" or the "COUNTY"
and
DUTCHESS LAND CONSERVANCY, INC.,
a New York Not-For-Profit Corporation,
with an office at 2908 Route 44,
Millbrook, New York 12545,
hereinafter referred to as "GRANTEE" or the "CONSERVANCY"
RECITALS
WHEREAS, the LANDOWNER is the owner in fee of real PROPERTY known as the "Carnwath
Estate" (hereinafter referred to as the "PROPERTY"); and
WHEREAS, the PROPERTY consists of approximately 99.5 acres located along Wheeler Hill
Road in the Town of Wappinger with vistas and scenic views of the Hudson River; and
WHEREAS, the PROPERTY is improved with several buildings, a 19th Century mansion, a large
dormitory building, a large chapel building, a carriage house and other related buildings; and
WHEREAS, the LANDOWNER wishes to impose a Conservation Easement on a portion of the
PROPERTY excluding the area surrounding the buildings above-described; and
WHEREAS, the LANDOWNER wishes to impose this Conservation Easement on a portion of the
PROPERTY consisting of approximately 76.714+ acres of land, more particularly described in Exhibit "A"
attached hereto and incorporated by reference in this INDENTURE; and
0:\Wappinger\Town Board\Camwath fna Greystone\Conservation Easement\E-Conservation.doc
WHEREAS, the PROPERTY is shown on the Conservation Easement map attached hereto as
Exhibit "B" and incorporated by reference, and on a survey map entitled "Conservation Easement from
Town of Wappinger" prepared by Paggi, Martin & Del Bene, LLP, dated ,last revised
and filed in the Office of the Dutchess County Clerk simultaneously with this
Indenture granting a Conservation Easement as Map No. ;and
WHEREAS, the COUNTY is qualified to hold conservation easements pursuant to Article 49, Title
3, of the Environmental Conservation Law of the State of New York ("The Conservation Law") and has
agreed to accept the role of the municipal sponsor for the New York State Department of Agriculture and
Markets Farmland Protection Grant, which has provided approximately 75% of the funds necessary for the
purchase of this Easement; the remaining funds being appropriated through the Dutchess County Open
Space and Farmland Protection Matching Grant Fund; and
WHEREAS, the CONSERVANCY is anot-for-profit conservation organization within the
meaning of Article 49, Title 3, of the Environmental Conservation Law of the State of New York and is
qualified to acquire conservation easements, and be the GRANTEE of tax-deductible conservation
easements pursuant to Section 170(h) of the United States Internal Revenue Code of 1986, as amended; and
WHEREAS, the parties recognize the following:
1. The COUNTY has determined that acquiring a conservation easement on the PROPERTY
will help further the COUNTY'S conservation and economic purposes as further hereinafter set forth and
the CONSERVANCY has determined that acquiring a conservation easement on the PROPERTY which
protects the agricultural* values of the PROPERTY and which promotes the use of sound agricultural*
practices will further its charitable purposes of preserving the natural, ecological, cultural and scenic value
of the Hudson River Valley.
2. The PROPERTY is characterized by scenic views and vistas, open meadows, woodlands,
and natural beauty, and is highly visible from Wheeler Hill Road and the Hudson River. The PROPERTY
consists of frontage along the properties of the Metropolitan Transit Authority and which is adjacent to
the Hudson River as well as frontage along Wheeler Hill Road.
3. The CONSERVANCY, in its role as a conservation organization, has obtained extensive
experience monitoring and administering conservation easements, and is willing to make its services and
experience available to the COUNTY to monitor and administer this Conservation Easement as hereinafter
set forth.
4. It is important to the conservation of the open, scenic and natural character and beauty of the
area to maintain the PROPERTY'S agricultural* use, open fields and forestlands while restricting
development so that it is compatible with the natural surroundings.
5. The PROPERTY is in close proximity to other private lands, which are already permanently
protected by conservation easements.
6. The Master Plan of the Town of Wappinger states, "that there be a strong encouragement
provided to the agricultural* community for the maintenance of agricultural* activities and the associated
preservation of the irreplaceable agricultural* resources. The TOWN can assist in maintaining the
traditional viability of agriculture for this generation, and future generations, by encouraging the
conservation of areas with prime agricultural* soils, segregating agricultural* and incompatible non-
2
agriculture uses in the interest of the agricultural* pursuits, reducing pressures to convert agricultural* land
to other uses, and implementing programs which encourage and support farm operations".
* * * NOTE: ZS #6 ACCURATE? CHECK YVITH DA1V WERY_
7. The expanse of farmland found in Dutchess County is important to the natural, ecological,
cultural, scenic and historical values of the Hudson River Valley.
8. The Dutchess County Legislature adopted the Dutchess County Agricultural* and Farmland
Protection Plan on May 11, 1998, which states that, "Farms and farmland contribute to the COUNTY'S
economy as a whole, through the jobs and dollars generated and to the COUNTY'S open landscapes,
character, and sense of identity, and environmental quality". The Plan recommends the purchase of
development rights as an important tool in encouraging LANDOWNER to keep their farms in production,
and states that Dutchess County should develop partnerships with knowledgeable professionals in the
private sector, particularly the County's land conservancies, to facilitate the development and improvement
of a Dutchess County Development Rights Acquisition Program. In furtherance of this recommendation,
the COUNTY is contributing $200, 000 (VERIFY WITH JOR R UGGIERO OR ROGER AKELEY) towards
the purchase of this Conservation Easement through the Dutchess County Open Space and Farmland
Protection Matching Grant Fund and in addition has accepted the role of municipal sponsor for a New York
State Agriculture and Markets Grant, which is providing $ .Both amounts are
exclusive of miscellaneous related acquisition expenses.
9. The Dutchess County Legislature, in the County Master Plan, Directions, adopted by the
Dutchess County Legislature in 1988, has identified the area in which the PROPERTY is located as an area
in which agricultural* lands should be preserved. Directions emphasizes the preservation of prime
agricultural* soils, floodplains and wetlands and encourages open space land uses and the protection of
scenic resources. Policy 5.16 supports measures to preserve the COUNTY'S prime and important
agricultural* soils. Policy 5.20 advocates the preservation of the COUNTY'S scenic resources and
significant natural areas. Policy 5.24 encourages the preservation of woodland "greenbelt" corridors
through communities, especially along streams, floodplains, wetlands, and other sensitive areas to provide
recreational space, wildlife habitat natural buffers and aquifer protection. Directions recommends low
density development to prevent degradation of the area's rural, natural and scenic characteristics through
subdivision and development; Policy 11.21 supports the use of conservation easements to preserve
agricultural* lands in rural areas.
10. Subdivision and development pressure threaten the continued agricultural*, rural, scenic,
ecological, forested, and open space character of the PROPERTY and the scenic view along Wheeler Hill
Road.
11. The PROPERTY will be used as part of the Dutchess County Greenway Trial System.
(* * * TO BE VERIFIED WITH ENNESSER * * *)
WHEREAS, the CONSERVANCY has determined that acquisition of a Conservation Easement on
the PROPERTY will further its charitable purposes of protecting areas of rural, scenic and relatively
natural character in Dutchess County; and -
3
WHEREAS, the LANDOWNER shares the land conservation goals of the CONSERVANCY and
desires to ensure that the rural, scenic and ecological characteristics of the PROPERTY will be preserved
for the benefit of future generations; and
WHEREAS, the parties desire to ensure that the agricultural * characteristics of the PROPERTY
will be protected for the benefit of future generations, and desire to preserve the character of the
PROPERTY in perpetuity by entering into this Conservation Easement Deed pursuant to the provisions of
Article 49, Title 3, of the Conservation Law; and
* * * `VERIFY "AGRICULTURAL" .ABOVE
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained
herein, the parties agree as follows:
1. RECITATIONS INCORPORATED.
The recitations above set forth are incorporated in this Conservation Easement as if fully set forth
and adopted herein.
2. INDENTURE OF ESTABLISHING A CONSERVATION EASEMENT.
The LANDOWNER grants to the GRANTEES, a perpetual Conservation Easement over the
PROPERTY described in Exhibit "A" on the terms contained in this Indenture (the "Conservation
Easement"). The Conservation Easement shall encumber the PROPERTY.
3. PURPOSE.
The primary purpose of this Conservation Easement is to conserve productive agricultural* lands.
The secondary purpose of this Conservation Easement is to protect the scenic and natural resources
associated with the PROPERTY for the benefit of the public and for future generations as long as they do
not conflict with the primary purpose of this Conservation Easement. The LANDOWNER and the
GRANTEES share the common desire to conserve these resources by the conveyance of this Conservation
Easement, in order to prevent the use or development of the PROPERTY for any purpose or in any manner
which would conflict with the maintenance of these resource values.
4. RESERVED RIGHTS.
The LANDOWNER reserves for itself and its successors in interest all rights with respect to the
PROPERTY or any part thereof, including without limitation the right of exclusive possession and
enjoyment of the PROPERTY or any part thereof and the right to sell, transfer, lease, mortgage or
otherwise encumber the PROPERTY or any part thereof, as owner, subject to the restrictions and covenants
set forth in this Conservation Easement Deed. This Conservation Easement does not grant the general
public any right to enter upon any part of the PROPERTY. This Conservation Easement does not restrict an
owner of the PROPERTY or part thereof from imposing further restrictions upon conveyance or otherwise.
5. RESTRICTIONS APPLICABLE TO THE PROPERTY.
4
By this Conservation Easement, the LANDOWNER agrees to restrictions that apply to the
"Farmstead Complex" and additional restrictions that apply only to the "Farm Area(s)", as set forth in
Section 6. The LANDOWNER may take certain actions relating to the PROPERTY only after giving the
Conservancy prior notice or obtaining the CONSERVANCY'S prior consent.
6. DEFINITIONS.
As used in this Conservation Easement, the term LANDOWNER includes the owner of fee simple
title and of any beneficial equity interest in the PROPERTY or any portion thereof, and includes the
original GRANTOR, its heirs, successors and assigns, all future owners of all or any portion of the
PROPERTY, and any party entitled to possession or use thereof, and the term "GRANTEE" includes the
original GRANTEE and its successors and assigns.
The term agricultural* purposes means planting, raising, harvesting and producing agricultural*,
aquacultural, horticultural and forestry crops and products of every nature and description, breeding,
raising, training, pasturing, grazing, boarding and sale of horses and livestock of every nature and
description; equestrian activities (including horseback riding instruction, husbandry and other [non-
commercial] equestrian activities); breeding and raising bees, fish, poultry and other fowl; and the primary
processing, storage and sale, including direct retail sale to the public of crops and products, which are
primarily harvested and produced on the PROPERTY and in addition, those agricultural* purposes
provided for in Section 301 of the New York State Agriculture and Markets Law.
*** NOTE: PARTS OF PARAGRAPH 6 and MOST OF 7 ARE NOT ,APPLICABLE. TO BE
_,
REVIEWED WITH COUNTY ATTORNEY. ***
7. RESTRICTED USES.
The restrictions imposed upon the Property are as follows:
7.1. Use and Building Prohibitions. No residential, commercial, industrial or mining
activities shall be permitted, and no building, structure, appurtenant facility or improvement
shall be constructed, created, installed, erected or moved onto the Property, except as
expressly permitted by this Conservation Easement.
7.2. Si~na~e Restrictions. No internally-lit or neon signs shall be erected or displayed on
the Property. No billboards shall be erected or displayed on the Property. Billboards are
defined for the purposes of this Conservation Easement as signs larger in size than 32 square
feet.
7.3. Waste Management. The dumping, collection, recycling, or storage of trash, human
waste, refuse or debris on the Property shall not be permitted. However, farmers shall be
allowed to store and collect such wastes if they are used for agricultural production purposes
on the Property and they are managed in an environmentally and agronomically sound
manner. This prohibition shall not apply to the storage and spreading of manure, lime, or
other acceptable fertilizers or soil conditioners for agricultural practices and purposes or the
temporary storage of trash in receptacles for periodic off-site disposal, and the storage or
placement of organic material generated by agricultural uses of the Property, all of which are
5
hereby permitted provided that any such activity shall be in accordance with sound
agricultural practices.
7.4. Chemicals. All pesticides, herbicides, fertilizers, or other chemical treatment of the
Property shall be used in accordance with the directions on the chemical labels and/or
applicable federal or state law.
7.5. Mining Prohibitions. There shall be no excavation, removal of topsoil, sand, gravel,
rocks or minerals, in any manner, except as may be reasonably necessary and incidental to
carrying out the agricultural improvements and uses permitted on the Property by this
Conservation Easement. No quarry, gravel pit, mining or drilling, or other mining or drilling
activities prohibited under applicable provisions of Section 170(h) of the Internal Revenue
Code are permitted on or under the Property. This shall not prevent the installation of local
and residential utility lines, wells, septic systems or other utilities as reasonably necessary to
serve the structures permitted herein, or the construction of ponds or driveways as permitted
herein.
7.6. Reaffirmation. No use shall be made of the Property, and no activity thereon shall be
permitted which, in the reasonable opinion of the Conservancy, is or is likely to become
inconsistent with the purposes of this Conservation Easement as stated in Section 2 herein.
8. ADDITIONAL COVENANTS AND PROVISIONS.
8.1. Subdivision.
8.1.A. For Farming Purposes. The Property may be partitioned or subdivided only
with the prior written permission of the Conservancy, which permission shall be granted
only if all parcels of land thereby created will remain viable for agricultural production
either individually, or as part of an established farming operation. Such subdivision shall not
include the right to construct any new habitable or commercial structures, or relocate any
existing habitable or commercial structures, regardless of whether such structures would
otherwise be permitted by this Agricultural Conservation Easement. Any partition or
subdivision must comply with all applicable land use and subdivision regulations.
Mortgages, or other non-possessory interests in land do not constitute subdivisions for the
purpose herein, provided such interests encompass the whole Property.
8.1.B. For Residential Lots. Subdivision to create parcels for residential,
commercial or industrial use is prohibited.
8.2 Existing Conditions: Baseline Data Report. By its execution of this Conservation
Easement, the Grantees acknowledge that the present uses of the Property are permitted by
this Conservation Easement. In order to evidence the present condition of the Property
(including both natural and man-made features) so as to facilitate future monitoring and
enforcement of this Easement, a Baseline Data Report, including photographs, describing
such condition at the date hereof, has been prepared and subscribed by all parties, and a
copy thereof is on file with each of the Grantees and the Landowners.
8.3 Monitoring. The Conservancy shall view the Property from the air or the ground, at its
sole discretion, in a systematic manner to assure compliance with the terms of this
6
Conservation Easement, at least annually. An annual report of the results of such
monitoring, including advice of compliance or any apparent violations of this Conservation
Easement, shall be provided both (1) to the Landowners, or successors of their right, title or
interest in the Property and (2) to Dutchess County, with an office at c/o the Dutchess
County Attorney, Poughkeepsie, New York (hereinafter the "County").
8.4 Enforcement. The County has the exclusive right to enforce this Conservation
Easement at law or in equity, including, without limitation, pursuant to the provisions of
Article 49, Title 3 of the Conservation Law, against any or all of the owners of the Property
or any part thereof. If there is a violation, or threatened violation, of this Conservation
Easement, the Conservancy shall, on behalf of the County, notify the party in violation or
threatening the violation, who shall, in the case of an existing violation, promptly cure the
violation by (a) ceasing the same or (b) restoring the Property to the condition before such
violation, or (c) both, or, in the case of a threatened violation, refrain from the activity that
would result in the violation. If a violation continues for more than 30 days after notice is
given without the Conservancy taking steps to cure the same, or at any time if the violation
or a threatened violation threatens immediate and irreparable harm to the resource values of
the Property that this Conservation Easement is intended to protect, the County may seek
immediate injunctive relief and shall have the right, but not the obligation, to correct it by
direct action as well as by pursuing all available remedies at law or in equity. If a violation is
determined to have occurred, the Landowner shall reimburse the County for all expenses
including reasonable attorneys fees, incurred in enforcing this Conservation Easement and
curing the violation. Failure to enforce any restriction or covenant herein contained shall in
no event be deemed a waiver of a right to do so thereafter as to the same violation or breach
or as to one occurring prior or subsequent thereto.
8.5 Co-operative Enforcement. Although the Conservancy shall be primarily responsible
for monitoring (8.3) the Property, the County shall nevertheless, have the independent
authority to monitor and inspect the Property, as well as to exercise its enforcement rights.
The County and the Conservancy shall make a good faith effort to coordinate their
monitoring and enforcement roles and may execute and from time to time amend a
memorandum of understanding with respect thereto. The County shall notify the
Conservancy of its intent to monitor or inspect the Property or to exercise its enforcement
rights at least ten days prior to exercising any of such rights. This requirement of ten day
notification shall not apply where its application may result in significant harm to the
conservation purposes of this Conservation Easement.
8.6 Rights Vest In County. In the event that the Conservancy were to cease to exist, cease
to be a qualified organization under Section 170(h) of the Internal Revenue Code, cease to
be qualified to acquire and hold conservation easements under Article 49, Title 3, of the
New York Environmental Conservation Law, or fail to provide an annual monitoring report
pursuant to paragraphs 8.3 above for a period of more than forty-five (45) days after notice
of that failure is delivered by the County to the Conservancy at its last known address, then
the Conservancy's rights and obligations under this Conservation Easement shall
immediately vest in the County. If the Conservancy were to remain in existence at the date
at which its rights in this Conservation Easement were to become vested in the County as
provided herein, the Conservancy shall execute and record in the Dutchess County Clerk's
Office an assignment of this Conservation Easement in accordance with Article 49, Title 3,
of the New York Environmental Conservation Law. If the Conservancy were not to be in
7
existence at the date at which its rights were thus to become vested in the County, or if the
Conservancy were to fail to execute such a requisite assignment, then the County may
compel such an assignment by appropriate action in a court of competent jurisdiction.
8.7. Amendment.
8.7.A. General. This Conservation Easement may be amended only by a recorded
instrument signed by the Landowner and Grantees. Such amendment shall require the
written consent of the Department of Agriculture and Markets. If the County agrees to
amend the conservation easement, the Conservancy shall be obligated to sign the
amendment consenting thereto. Any such amendment: (i) shall be consistent with the
proposes of this Conservation Easement; (ii) shall comply with Section 170(h) of the
Internal Revenue Code, or any regulations promulgated in accordance with that Section, and
(iii) shall be consistent with Article 49, Title 3, of the Environmental Conservation Law and
any regulations promulgated pursuant to that law. Notice of such proposed amendment,
including the full text thereof, shall be sent to The New York State Department of
Agriculture and Markets.
8.8 Approvals In Writing. Any approval, waiver, or other form of consent or permission
required or permitted to be given by the County or the Conservancy under this Conservation
Easement shall only be effective if in writing and duly executed on behalf of the County or
the Conservancy, as this Easement may otherwise specifically require, except in such cases
where permission is, pursuant to this Conservation Easement, expressly deemed granted if
no response is given by the Conservancy within a specific time period.
8.9 Encumbrance by Conservation Easement. Any subsequent conveyance, including,
without limitation, transfer, lease or mortgage of the Property, shall be subject to this
Conservation Easement, and any deed or other instrument evidencing or effecting such
conveyance shall contain language substantially as follows: "This {conveyance, lease,
mortgage, easement, etc.} is subject to a Conservation Easement which runs with the land
and which was granted to the County of Dutchess and the Dutchess Land Conservancy, Inc.,
by instrument dated , 200 ,and recorded in the office of the Clerk
of Dutchess County at Document # .The failure to include such language
in any deed or instrument shall not, however, affect the validity or applicability of this
Conservation Easement to the Property. Nothing in this Conservation Easement shall be
construed as limiting the rights of the holder of such conveyance or mortgage from
foreclosing or otherwise enforcing its rights there under, provided that any such foreclosure
or enforcement of a subsequent or otherwise subordinated or junior mortgage, or other
property interest, or other action shall not extinguish this Conservation Easement and the
Conservancy's rights hereunder. The Landowners' shall provide 30 days notice to the
Conservancy prior to any such action occurring, but the Landowners' failure to provide such
notice shall not adversely affect the rights of any holder of any mortgage or other security
instruments.
8.10 Taxes and Assessments. Each owner of the Property shall pay all taxes and
assessments lawfully assessed against the Property or portion thereof owned by such owner,
who shall provide receipted tax bills to the Conservancy upon request.
8
8.11 Severability. Invalidation of any provision of this Conservation Easement by court
judgment, order, statute or otherwise shall not affect any other provisions, which shall be
and remain in force and effect.
8.12 Binding Effect. The provisions of this Conservation Easement shall run with the
Property in perpetuity and shall bind and be enforceable against the Landowners and all
future owners and any party entitled to possess or use the Property or any portion thereof
while such party is the owner or entitled to possession or use thereof. Notwithstanding the
foregoing, upon any transfer of title, the transferor shall, with respect to the Property
transferred cease being the Landowners or an owner with respect to such Property for
purposes of this Conservation Easement and shall, with respect to the Property transferred,
have no further responsibility or liability hereunder for acts done or conditions arising
thereafter on or with respect to such Property, but the transferor shall remain liable for
earlier acts and conditions done or occurring during the period of his or her ownership or
conduct.
8.13. Liability; Indemnification.
8.13.A. The Grantees shall have no obligations whatsoever, express or implied,
relating to the use, maintenance or operation of the Property.
8.13.B. The Grantees shall not be responsible for injuries or death to persons or
damage to property in connection with the administration and/or enforcement of this
Conservation Easement or otherwise with respect to the condition of the Property.
8.13.C. The Landowners agree to indemnify and hold the Grantees harmless from
any and all costs, claims or liability, including but not limited to reasonable attorneys fees
arising from any personal injury, accidents, negligence or damage relating to the Property,
or any claim thereof, unless due to the negligence of the Grantees or their agents.
8.13.D. The Landowners further agree to indemnify and hold the Grantees harmless
from and against any and all claims, costs, expenses, fines, penalties, assessments, citations,
personal injury or death, and the like arising from or out of the existence (actual or alleged)
of any and all environmentally hazardous or toxic substances or materials whatsoever on or
under the Property.
8.13.E. The Grantees shall have no liability whatsoever to the Landowners or any
other owner for acts taken in good faith in connection with the administration of this
Conservation Easement.
8.14 Further Acts. Each party shall perform any further acts and execute and deliver any
documents, including amendments to this Conservation Easement, which may be reasonably
necessary to carry out the provisions of this Conservation Easement or which are necessary
to qualify this instrument as a conservation easement under Article 49, Title 3, of the
Conservation Law or any regulations promulgated pursuant thereto.
8.15 No Forfeiture. Nothing contained herein will result in a forfeiture of the Landowners'
title in any respect.
9
8.16 Controlling Law. The interpretation and performance of this Conservation Easement
shall be governed by the Laws of New York State.
9. QUALIFIED CONSERVATION CONTRIBUTION COVENANTS.
9.1. Continuity. The GRANTEES agree that they will assign their rights under this
Conservation Easement only to an assignee that: (a) is a qualified organization as defined in
Section 170(h) of the Internal Revenue Code and which (b) agrees to continue to carry out
the conservation purposes of this Conservation Easement as defined under Section 170(h)
and the regulations thereunder and (c) which, in the event of an assignment by the
CONSERVANCY, has been approved by the COUNTY as a successor to the
CONSERVANCY. Any assignee other than a governmental unit must also be an entity
able to enforce this Conservation Easement, having purposes similar to those of the
CONSERVANCY which encompass those of this Conservation Easement. If the
CONSERVANCY ever ceases to exist or no longer qualifies under Section 170(h) or
applicable state law, its rights under this Easement shall vest in the COUNTY as set forth in
paragraph 8.6 hereof.
9.2. Notice. The LANDOWNER shall give the CONSERVANCY written notice before
exercising any reserved right, the exercise of which may have an adverse impact on the
conservation interests of this Conservation Easement. The LANDOWNER shall notify the
CONSERVANCY of any conveyance, lease or transfer of all or any part of the
PROPERTY, such notice to be given in writing at least thirty (30) days in advance of such
conveyance, lease or transfer. Any notice required or desired to be given under this
Conservation Easement shall be in writing and shall be deemed given when received or
three days after mailing, by public or private delivery service which provides receipt of
delivery, properly addressed as follows: (a) if to the CONSERVANCY, at the address set
forth above; (b) if to the LANDOWNER, at the. address set forth above; or (c) if to any
subsequent owner, at the address of the PROPERTY. Any party can change the address to
which notices are to be sent to him, her or it by duly giving notice pursuant to this
paragraph.
9.3. Inspection. The CONSERVANCY, the COUNTY and the Department of Agriculture
and Markets, and their duly authorized representatives shall have the right to enter onto the
PROPERTY at reasonable times, in a reasonable manner, and, where practicable, after
giving a minimum of 48 hours prior notice, to inspect for compliance with the terms of this
Conservation Easement. In the instance of a violation or suspected violation of the terms of
this Conservation Easement, which has caused or threatens to cause irreparable harm to any
of the resource values this Conservation Easement is designed to protect, no such advance
notice is required.
9.4. Extinguishment. If a subsequent unexpected change in the conditions surrounding the
PROPERTY make impossible the fulfillment of the conservation purposes of this
Conservation Easement, and if the restrictions are extinguished by judicial proceeding, then,
upon any subsequent sale, exchange or involuntary conversion by the LANDOWNER, the
County shall be entitled to that portion of the proceeds equal to the proportionate value of
the conservation restrictions as provided immediately below. For such purposes only, the
LANDOWNER agree that the conveyance of this Conservation Easement to the County
10
gives rise to a PROPERTY right, immediately vested in the County, with a fair market value
that is equal to the proportionate value that the conservation restrictions hereby created at
the date hereof bears to the value of the PROPERTY as a whole at the date hereof (subject
to reasonable adjustment to the extent permissible under Section 170(h) of the Internal
Revenue Code for any improvements which may hereafter be made on the PROPERTY).
The County agrees to use its share of such proceeds in a manner consistent with the
conservation purposes of this Conservation Easement. The cessation of farming on the
PROPERTY shall not be construed to be grounds for extinguishment of this Conservation
Easement.
9.5. Interpretation. This instrument is intended to create a "qualified real PROPERTY
interest" for "conservation purposes" as defined in Section 170(h) of the Internal Revenue
Code, and shall be interpreted consistently with such intention. In the event any provision
has been omitted from this instrument necessary to qualify the interest hereby granted as
such a "qualified real PROPERTY interest" for "conservation purposes," such provision
shall be deemed incorporated herein to the extent necessary to cause the interest hereby
granted to be so qualified.
9.6. Transfer of Develoament Rights. No development rights in and to the PROPERTY, or
any part thereof which have been encumbered or extinguished by this Conservation
Easement shall be transferred to any location outside the PROPERTY, whether pursuant to a
cluster development plan or any other agreement or plan for transferable development rights.
IN WITNESS WHEREOF, the parties have executed this instrument as of the day and year first
above written.
TOWN OF WAPPINGER, Landowner and Grantor
By:
Joseph Ruggiero, Supervisor
DUTCHESS LAND CONSERVANCY, INC., Grantee
By:
COUNTY OF DUTCHESS, Grantee
By:
ACKNOWLEDGEMENTS
11
STATE OF NEW YORK )
ss:
COUNTY OF DUTCHESS )
On June _, 2003, before me, the undersigned, personally appeared JOSEPH RUGGIERO known to
me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his capacity, and that by his
signature on the instrument, the individual, or the person upon behalf of which the individual acted,
executed the instrument.
Notary Public
STATE OF NEW YORK )
ss:
COUNTY OF DUTCHESS )
On June _, 2003, before me, the undersigned, personally appeared
known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that she/he executed the same in her/his
capacity, and that by her/his signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
Notary Public
STATE OF NEW YORK )
ss:
COUNTY OF DUTCHESS )
On June _, 2003, before me, the undersigned, personally appeared
known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is
subscribed to the within instrument and acknowledged to me that she/he executed the same in her/his
capacity, and that by her/his signature on the instrument, the individual, or the person upon behalf of which
the individual acted, executed the instrument.
Notary Public
12