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Clash of Conservation Values over Wolves

August 16, 2011 | Washington, D.C.

The New York State Supreme Court awarded Westchester Land Trust (NY) an important victory by upholding a natural habitat conservation easement. This ruling confirmed the value of conservation law and the land trust’s ability to protect irreplaceable resources.

In 2010, the Town of Lewisboro signed a lease agreement with the Wolf  Conservation Center (WCC) that would allow the WCC to construct enclosures within the conservation easement boundaries. The town - after being notified by the land trust that the terms of the easement required review and determination by the trust - executed the lease without that determination. “We would have preferred to avoid legal action, but because the town insisted on proceeding with the Wolf Center lease, it left us with no choice but to act,” said Executive Director Candace Schafer. “The dispute was not about the Wolf Conservation Center’s mission, it was about the obligation to uphold the explicit purposes and restrictions of the conservation easement,” she added.

In 2000, the Leon Levy Preserve was designated by the Town of Lewisboro’s Conservation Advisory Committee as one of the most important properties for permanent preservation in the town. When the Town of Lewisboro bought the Leon Levy Preserve for $8.3 million in 2005, it did so with a $5.5 million contribution from the Jerome Levy Foundation and $500,000 from the Dextra Baldwin McGonagle Foundation. Westchester Land Trust drafted and holds a conservation easement that protects all 370 acres of the Preserve.  

The easement provides that the entire property will be "held in perpetuity in an undeveloped state" and used solely for specified "passive recreational activities" by the public. Any use inconsistent with those purposes is prohibited. The conservation easement guarantees public access to all of the preserve. The conservation easement was approved by the town board, signed by the town Supervisor in 2005, and filed with the Westchester County Clerk in 2006.

This contemplated use of the preserve reflected in the executed lease would entail, among other things, double layer 12’ high fence construction and excavated footings, land grading to create wolf habitat, tree clearing on both sides of the constructed fence to prevent falling trees from breaching the enclosures, and the exclusion of the public from those eight acres of the preserve. These uses are all contrary to the purposes of the conservation easement and are expressly prohibited. The easement is silent on whether wolf habitat is a permitted use, which the town attempted to use in its arguments before the Court. The Court opined that “there can be no serious argument” but that the wolf habitat creation would disrupt the natural habitat; an action expressly prohibited by the easement.

On July 12, 2011 the Court upheld the conservation easement. The ruling is specific in stating that any development required for the habitat, including the clearing of trees, placing of culverts and fencing, and digging of artificial ponds is a violation of the easement and ‘no matter how laudable the goal’ the clear restrictions against changes in topography or vegetation could not be avoided. The Court found the easement to be “unambiguous on its face” and not requiring interpretation or gleaning of intent of the parties and therefore found that the Town’s arguments urging ambiguity and requesting determination by the Court that the wolf habitat would enhance the general intent of the easement were without merit.

The Court also cited the “extraordinarily detailed Preserve management plan” in determining that indigenous fauna did not include wolves and would “strain credulity” to believe that it would be necessary to build fences and other improvements to contain the movements of indigenous fauna.  The Court also stated that because the proposed development violated express terms of the easement that the Court could not disregard those express restrictions merely because only 8 of 370 acres are affected or because only tens of the thousands of tress present would be removed.

“We are pleased that the court agreed that the intent of the easement language is clear and important. Westchester Land Trust supports the educational purpose of wolf habitats and the mission of the WCC.  With this decisive ruling, it is the hope of Westchester Land Trust that we can begin the steps towards implementing the Leon Levy Preserve plan for an accessible, natural preserve for the recreation and enjoyment of the residents of Lewisboro and others. WLT and its donors are eager to work with the Town of Lewisboro to implement the original management plan, to help find funding sources if necessary to make that happen, and to create a true partnership in the spirit of the community’s love of its natural environment,” said Candace.

Currently, the WCC operates it main facility on another property partially conserved with a land trust easement. The easement specifically provides for appropriate wolf facilities. Based on WCC’s testimony and statements with regard to the case, its leaders believed that the easement on the new preserve could be easily modified or overlooked.

For Candace, the litigation greeted her on her first day as the Executive Director of the land trust nine months ago. She reflects “the concept of protection in perpetuity is a bit daunting. Clearly, easement language needs to be precise, based on accurate baseline information, and defensible. Fortunately, the language on this easement was just that.” Candace notes that “we were lucky to have pro bono legal representation by a talented firm; however, we cannot always count on having such volunteer resources to assist us in every future legal challenge. We realize the need for a litigation safety net that Terrafirma Risk Retention Group can provide.”

Since 1988, Westchester Land Trust has written 184 conservation easements to protect and preserve over 7,500 acres throughout the county.  Easements are drafted after careful documentation of all natural habitat, indigenous flora and fauna, and mapping research on watershed patterns. It is the language of the easement and the resolve of the people charged with upholding the easement that protects the value of these documented natural resources. Having the resources to support that resolve is critical to every land trust in America.

Read more on the Westchester Land Trust website.

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