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Seeing Green Instead of Red Can Keep You Out of Court

June 19, 2013 | Land Trust Alliance | Washington, D.C.

A land trust resolved a serious encroachment case without filing a lawsuit by keeping calm and relying good community relationships.  With the help of the homeowners’ association and the zoning board, Farmington Land Trust in Connecticut convinced the landowner to sign a comprehensive reforestation agreement (view a template).

Farmington Land Trust holds easements protecting the natural areas surrounding the historic Farmington canal system. There are remnants of this system throughout the area – walls and gates that remind people of a time when the canal system was an important part of life. A 1970s housing development, known as “Devonwood”, contains a significant portion of the canal system. As a result of the preserved canal area, the development is heavily wooded. The residents are justifiably proud of their landscape and the homeowners association protects trees by charging heavy fines to homeowners who cut trees without permission.

A local government official first informed the land trust of the encroachment on the canal system. A resident encroached upon the conserved area by cutting down trees and filling a portion of the old canal with soil. The government official noticed approximately 250 cubic yards of fill on the property. Over 100 cubic yards requires a permit, which the landowner had neglected to obtain. But the real violation was clearly to the conservation values of the property. So the official reported to the land trust and let the land trust work with the landowner.

Doug Pelham, the president of Farmington Land Trust, is an attorney.  He knows the law and understood that the landowner didn’t have any valid justification for his actions. But he also knows the system and understood that even a successful lawsuit takes time and money, which could be saved by a diligent effort to settle the matter out of court.

With the firm support of the homeowners’ association, Doug was able to negotiate an agreement with the owners – in which they would remove all of the fill they added, establish a mulch mixture to replenish the soil, establish an understory, and plant native trees.  

The reforestation agreement addressed important issues such as 1) a paragraph agreeing to the designation of a licensed forester to oversee the project, 2) a paragraph agreeing to submit the forester’s report , 3) a paragraph addressing the completion of any deficiencies of reforestation, 4) a paragraph agreeing to allow the land trust to perform the work in the event the landowner fails to follow the agreement in a timely and workmanlike manner, 5) a paragraph agreeing to reimbursement to the land trust in the event the land trust has to do the work.  Each step of the agreement contained specific dates to ensure speedy compliance.  This year the landowner will complete these steps and the forest will be on its way back to its former glory, which means the Farmington Land Trust can stay in the forest and out of the courts.

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Christian Freitag, attorney-at-law and executive director at Sycamore Land Trust (IN), says "I view Conservation Defense Insurance as another step the land trust community is taking to keep our promises. We claim that we will help people protect their land in perpetuity. With this program, the public can be more confident than ever that we take that commitment seriously."

 

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