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San Juan Preservation Trust Prevails with Terrafirma’s Help

August 13, 2014 | Land Trust Alliance | Washington, D.C.

The San Juan Preservation Trust (WA), with Terrafirma’s backing, obtained payment of a $100,000 settlement from a neighboring landowner who cut a wide swath of conserved trees to get water views for a bed and breakfast. The payment will help replant the trees.

The owner of an Anacortes bed & breakfast establishment has agreed to pay a $100,000 settlement for illegally clear-cutting a waterfront nature preserve on Fidalgo Island in the San Juan Islands of Washington State. The nature preserve owned by the San Juan Preservation Trust, a private land trust that protects open space throughout the San Juan Islands, includes a steep slope between the bed & breakfast and the shoreline.  The tree cutting removed materially all trees from a one-quarter acre area extending from the top of the bank down to the beach enhancing water views from the establishment. The cuttings damaged important shoreline wildlife habit, destabilized the steep bank by eliminating native vegetation and undermined its natural water drainage patterns. The bed and breakfast advertised to the public substantial water views of Burrows Bay and Puget Sound as part of the accommodations and surroundings available at the Ship House lnn.

The clear-cut property is part of the Preservation Trust’s 1.25-mile long “John H. Geary Shoreline Preserve,” a 38-acre collection of 22 contiguous parcels along the west side of Fidalgo Island that was permanently conserved in 1992 by a coalition of neighbors concerned about a proposed development along this steep hillside. The preserve follows Fidalgo’s western shoreline beginning north of Sunset Lane, around Edith Point, and then south toward Biz Point. The Geary Preserve is managed as an undeveloped wildlife habitat and scenic view-shed. The SJPT's property runs along the shoreline, and encompasses a steep bank declining to the water.

“No one likes to embark on litigation, but this community worked very hard to protect this shoreline,” said Keith Gerrard, president of the San Juan Preservation Trust’s Board of Trustees. “We have a responsibility to defend all of our nature preserves in perpetuity, and we won’t shy away from that commitment.”  We were pleased that our insurer, Terrafirma RRG worked with us, and selected our preferred counsel to prosecute an injunctive relief and damage civil action.

According to Mr. Gerrard, “we were happy to report that the settlement was also able to reimburse Terrafirma’s litigation costs, as well. By the terms of Terrafirma’s insurance policy, the member-based insurer funded the litigation and was entitled to recover those costs.  Funds recovered will be used to help fund future legal challenges to land and conservation easements for Terrafirma’s member organizations.  The Preservation Trust, which has agreed to drop the pending lawsuit, intends to use the remaining recovery (approximately 87.5% of the settlement)  to restore lost vegetation, re-stabilize the steep bank, educate upland neighbors about the nature preserve, and implement new strategies to avoid future violations.

There are over three dozen homes adjacent to the Geary Preserve. While some of the neighbors that fought to establish this preserve in 1992 still remain, many of these homes have changed hands since then. To educate new homeowners when they move in, the Preservation Trust sends out welcome letters that provide background on the preserve and offer an opportunity to meet with Preservation Trust staff to ask questions and walk the property lines. The Trust also sends out periodic educational mailings, conducts stewardship presentations to neighbors, and provides copies of a survey that establishes all of the property boundaries. The Trust intends to use some of the settlement funds to increase this neighborhood outreach effort.

The land trust did an exemplary job on expert documentation of the trespass as well as superb communication with the neighbor. They kept precise records of all conversations and activities and could produce accurate maps and photos quickly along with an accurate chronology.

The land trust prevailed in the case so readily in part due to promptly and clearly notifying the neighbor in writing and verbally of the trespass.  They also called the Skagit County Sherriff’s office to report the tree cutting and got a case number. Within a month they had experts to the site to assess damage and had their reports and recommendations in writing within two months of the report of trespass from a forestry firm on the appraisal process for the cut trees; a landscape firm for replanting the slope and a geologist for a geotechnical assessment on slope stability

The settlement and stipulation specified that

  1. Trust awarded judgment joint and severally against all defendants
  2. Each party pays own attorney fees and other costs
  3. Defendants permanently enjoined from entering the Trust’s Property

Legal and expert fees in the matter totaled just over $12,500 but did not include staff time. The matter went as far as serving discovery and almost to summary judgment motions before the homeowner’s insurance company defending the trespassing neighbor settled in the face of a compelling legal argument from counsel regarding the full potential of damages should the matter be pushed to trial, specifically unjust enrichment and full geology reports to determine any slope instability. The attorneys were strategically and proportionally assertive and timely in moving the matter to resolution.  Pitch perfect handling of a potentially explosive matter by all.  Terrafirma Risk Retention Group provided conservation defense liability insurance coverage for this matter and the SJPT.

About the San Juan Preservation Trust

Founded in 1979, the San Juan Preservation Trust is a nationally accredited private, non-profit and membership-based land trust dedicated to helping people and communities conserve land in the San Juan Islands of Washington State. The Preservation Trust has permanently protected more than 280 properties, 39 miles of shoreline, 21 miles of trails and 15,000 acres on 20 islands, including land now managed as public parks, nature preserves, wildlife habitat, and working farms and forests.

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