Encroachment Lawsuit in Madison
Teresa Gallagher
Interesting example of the relatively new CT Encroachment Law being used…
Madison Land Trust Prevails in Encroachment Case
Article courtesy of Diana Insolio, President
Unwanted
tree-cutting on land trust open space is never a pretty picture. Yet that
is what the Madison Land Conservation Trust (MLCT) had on its hands in 2008;
two encroachments, one on either end of town, which left, among other stumps,
the ghost of a Black Oak that measured 41" dbi (diameter inside
bark). As always, MLCT attempted to resolve the problems by speaking with
the encroachers/adjacent landowners in hopes of a peaceable settlement.
Unfortunately, this approach proved ineffective. It would have been
easier on the psyche to walk away from the problem at that point -- we
are tree huggers, not fighters -- but, having adopted LTA Standards and
Practices, we knew our responsibility as stewards of land entrusted to us for
the public good. We had a responsibility to take appropriate
action.
Prior to 2006, walking away may have been, in fact, the appropriate response.
In those days, the remedy for tree-cutting was the value of the cut wood as
firewood or timber -- barely enough to pay for court costs, let alone
attorney's fees. But in 2006, thanks to the efforts of many individuals
and groups, including Charles Leach of the Farmington Land Trust and the
Council for Environment Quality, the Connecticut legislature passed what
is now codified as C.G.S. § 52-560a, which offers a real remedy for nonprofit
land conservation organizations, municipalities, and the state.
C.G.S. 52-560a provides that an encroacher who damages or alters open space
owned by any of these entities must either restore the land to its former
condition or pay the cost of restoration, including management costs. In
addition, the court may order the encroacher to pay the plaintiff's attorney's
fees and costs, as well as punitive damages.
As the first step on the road to legal action the MLCT hired a forester.
The cut trees were too large to be replaced with nursery stock. A
forester, therefore, had to determine the appraised value of the trees that had
been felled. Using professional standards, the forester extrapolated the
value of each tree from the size of the stump, the cost of the largest
transplantable tree available, and the cost of installation. He then
adjusted the value based upon the species, condition, and location of each
tree. The forester determined that the replacement value of the nine
trees cut on our parcel on the west side of town was $61,541.22. The replacement
value of 14 trees cut on the east side of town was $19,524.04.
The MLCT then hired an attorney to file suit, beginning with an application for
a "prejudgment remedy" to allow us to place liens on the landowners'
properties while we waited for a trial date. In response to the
prejudgment remedy actions, the defendants finally took our initial advice and
contacted their homeowners insurance carriers. Their attorneys, faced
with the powerful language of C.G.S. § 52-560a, agreed in each case to a fair
settlement. From those settlements, the land trust netted a total of $49,
810. MLCT will use the funds to restore the affected properties and to
set up a stewardship reserve fund. Perhaps more importantly, the MLCT, by
using C.G.S. § 52-560a, sent the message - to itself and to the community -
that the land trust will not (because we should not) tolerate encroachments
that damage the lands we preserve.
Teresa Gallagher
Conservation Agent
City of Shelton
54 Hill Street, Shelton, CT
McCreery, Edward P.
From: shel...@googlegroups.com [mailto:shel...@googlegroups.com] On Behalf Of Teresa Gallagher
Sent: Wednesday, December 23, 2009 11:42 AM
To: shel...@googlegroups.com
Subject: SheltonCC Encroachment Lawsuit in Madison
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