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New York Land Trust Wins $600,000 Lawsuit

Western New York Land Conservancy Prevails Against Wealthy Neighbor

The beloved summer retreat of an extended family will continue as a nature preserve and education center after the Western New York Land Conservancy prevailed in litigation against a wealthy neighbor who clear cut three large areas for roads and a pond. The Kenneglenn Nature Preserve is 130 acres located in Wales, New York. The Land Conservancy acquired the property in 2000 and the New York State Department of Parks holds a back-up conservation easement on the parcel.

In a unanimous jury decision, The Land Conservancy was awarded almost $600,000 of which half a million dollars were punitive damages. The high damages for “punishment” of the neighbor’s actions “really makes a statement”, according to Executive Director Patricia Szarpa, calling the decision “a victory for land conservation in Western New York!”


Legal Actions

Components of a Successful Case

Lessons Learned

Celebrating Permanence and Upholding Promises


Before the Land Conservancy bargain purchased the 130 acre preserve, the family sold their manor home and a 12 acre landlocked parcel to a private buyer. The manor home is served by a driveway and utility right of way through the Preserve. The Preserve completely encircles the 12 acre house site.

After the manor sustained a major fire, the first owner sold it to the current owner, a wealthy and powerful businessman. The current owner trespassed repeatedly on the Preserve while rebuilding the home and redesigning the landscaping. After the property transfer, The Land Conservancy called and wrote letters to the new neighbor to introduce themselves but received no response.

In March 2005, Land Conservancy volunteer caretaker for Kenneglenn, Rev. Jack Printzenhoff, discovered that the neighbor had extended a new pond onto the Preserve by 120 feet. Testimony at trial by the contractors working on the neighbor’s land confirmed that he knew he had crossed the property boundary. He told the workers to cross the line, and pull boundary stakes and clear cut a successional hardwood swamp of 80 years of growth.

The Land Conservancy immediately called and wrote to the neighbor to attempt to resolve the issue and restake the property boundary, but had no response. The non-resident neighbor ignored repeated efforts to negotiate and resolve the matter by The Land Conservancy.

The neighbor also owned a farm next to the Preserve where he was staging the construction work for his new mansion. At approximately the same time as the pond encroachment, his workers cut a 20’ foot wide road across the Preserve for access between the staging area and the mansion. He installed culverts, removed trees, vegetation and topsoil, and placed gravel rather than use the designated ROW and public road back to the driveway and entrance of the farm property he owned.

The Land Conservancy responded with more calls and letters to the neighbor, again with no response. They located the property manager working at the site and got his attention. The Land Conservancy chained the new road and demanded that the neighbor cease all trespass. In response, the neighbor cut another 20’ road across the Preserve to the staging area.

Legal Actions

After The Land Conservancy gave written warning that they may need to take legal action, the neighbor sued them for interference with his quiet enjoyment of his property. The Land Conservancy responded with counterclaims for the encroachments. Just before trial, the neighbor dropped all his charges.

Attorney Anthony Rupp represented The Land Conservancy. Robert Besanceney a real estate attorney and Land Conservancy board member, acted as liaison between Tony Rupp and the organization for the last 2 years during all phases of the litigation. Pat Szarpa estimates that Robert devoted at least 1000 hours of time to the case. “We could not have done it without Rob’s dedication to this case and all of the volunteer time he gave to this organization in working with our attorney,” said Pat, “the work of the organization over the last two years may have been greatly compromised without it.” The remainder of the board and staff put in at least another additional 500 hours, not counting Tony Rupp’s time. The effort cost the Land Conservancy at least $70,000 in out of pocket expenses. This represented an investment of 35% of The Land Conservancy stewardship fund that they will now need to replace.

The attorneys feel certain that the neighbor is likely to appeal the jury verdict. It may be quite some time before the Land Conservancy receives any of the $600,000 award assuming that they continue to win on appeal. Appeal costs will continue to diminish the award unless the organization is able to add those costs to the award and is able to actually collect the award. In the next few weeks the Court will convert the jury's verdict into a judgment. The judgment will confirm the jury's award and grant other remedies that have been requested by the Land Conservancy.

Robert Besanceney in reporting the result to the board said that, “this is a wonderful result and reaffirms the efforts the Land Conservancy has taken to defend it rights and property. Our attorney, Tony Rupp, deserves tremendous credit for directing this effort and masterfully handling an extremely difficult opponent. To be sure, this is not over. (The neighbor) will certainly appeal the judgment. Even if his appeal fails, we may not actually receive any funds for year or more.”

Components of a Successful Case

Pat Szarpa says that what made this a successful case was a combination of basic respect for the neighbor (despite severe provocation) and dedication to the land. In reverse, the intentional and repeated acts of the neighbor, despite the Land Conservancy’s strong efforts to talk and stop the damage without retaliating was, in her opinion, one of the critical points in the jury’s decision. Pat says that staying calm and treating the neighbor respectfully was key. No one at the Land Conservancy ever demeaned or attacked the neighbor in public. Pat would not even use his name publicly. The Land Conservancy took the high road and it paid off in the jury award.

Another critical component was that The Land Conservancy retained independent engineers to visit the land and give a dispassionate assessment of the damage to the Preserve. The engineers were able to quantify and model the loss of 80 years of successional growth and soil quality. They were also able to effectively make the point to the jury that it will take another 80 years to replace what was lost because you can’t go to a store and buy that kind of growth.

Hiring outside experts was critical according to Pat. She said that it took the Land Conservancy’s opinion out of it and the jury heard from experts about damage, restoration and costs. The engineers used a damages theory based on total restoration costs. The court will consider trebling the tree damages portion ($57,742) of the compensatory award due to intentional acts. This was the organization’s first major violation that went to trial.

The baseline documentation report was also critical to proving their case. They could produce the photos and narrative to show the property condition prior to the damage. The biologist, Dr. Paul Rutledge, who did the BDR also testified. Pat reported that his testimony was essential to the success of the case. Dr. Rutledge was on the stand for a day and a half. His testimony coupled with the engineers’ testimony overwhelmed the jury.

Finally, good recordkeeping is critical. The Land Conservancy was able to produce in court all the letters they sent to the neighbor as well as the contemporaneous with closing BDR. It documented their good faith attempts to resolve the matter and also demonstrated the neighbor’s contempt for property rights and his general incivility.

Lessons Learned

Overall the lesson the Western New York Land Conservancy learned from the case is to make sure every land trust has proper and orderly documentation for their properties. Pat felt that the case demonstrated how absolutely important every bit of documentation was from the BDR to correspondence and board reports. She also believes that the land trust accreditation process will be really helpful in making sure land trusts are fully prepared for any future litigation by improving all land trust systems, especially documentation.

The case for Pat proves the importance of proper recordkeeping because a land trust never knows what will happen when. If land trusts do not have good records on their properties, Pat emphasizes, “then get them done now.”

She also stressed that learning who your neighbors are and getting to know them is critical. According to Pat, land trusts should “go the extra mile and maintain good relationships with everyone. Litigation should be your last resort.”

Celebrating Permanence and Upholding Promises

Robert Besanceney summed up everyone’s feelings when he said, “For now, we can clearly enjoy the feeling that what we did was right. We defended ourselves against a wealthy and powerful opponent and protected property that is special to all of us!”

For more information call Patricia Szarpa Executive Director Western New York Land Conservancy at 716-687-1225 or The Land Conservancy has 2 staff and is 17 years old with an active and expert board. The Land Conservancy has more than 4,000 acres conserved in 8 counties in western New York. They hold 38 conservation easements and 14 fee properties.

From March 10, 2008 eNews

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