Open Space Inventory: 2.01, 2.02

[Teresa Gallagher]

http://www.sheltonconservation.org/OS/OSproperties/OS_2_Pine_Rock_Playground/OS_2_Pine_Rock_Playground.html

 

Teresa Gallagher

Conservation Agent

City of Shelton

54 Hill Street, Shelton, CT 06484

(203) 924-1555 x315

www.sheltonconservation.org

 

[Tom Harbinson - Personal]

Do we need to do anything on the land records to reinforce a deed restriction or preservation?  I seem to recall reading or hearing somewhere about the need to update such protections after a certain number of years.  Doesn't make sense, but I do recall something about that and if I was correct, during this review would be a good time to take any reqd action.

 

Teresa, your tax assessors map should differentiate between parcel 2.01 and 2.02: the page has them both labeled the same.

[Teresa Gallagher]

Yeah, I caught that after I got home.  I’ve changed that and also colored in the tax accessor’s maps because I think they were confusing otherwise.

 

Teresa Gallagher

Conservation Agent

City of Shelton

54 Hill Street, Shelton, CT 06484

(203) 924-1555 x315

www.sheltonconservation.org

 

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[McCreery, Edward P.]

This is not a legal opinion.  I leave that for the City Attorney.  With that said - in my opinion - you do not have to "update" the land records to designate something as open space that was already conveyed to the City as open space pursuant to a recorded map.   There are two other concepts intertwined with this thought.  The first is whether the City could encumber its own property with a more restrictive covenant to keep future generations from developing a certain open space parcel?....assuming it was not already encumbered by such a restriction or was bought with State or Federal money that will in turn have their own restrictions.   

 

The general answer is that you would need a third party to be the recipient of those restrictions [rights].  You cannot just record a deed to yourself saying.... I hereby restrict my property from such and such.  Because you [or your successor] can just undo that in the future by saying...I take that back.   Additionally, there is a rule that with respect to municipalities, the elected representatives of one generation are not supposed to do something that can't be undone by future generations of elected officials who may in the future think it unwise.  Thus the current BoA might pass a resolution saying Parcel X shall be forever open space....but 50 years from now the next BoA could reverse that. 

 

Thus for the City to add additional encumbrances to an open space parcel, it would have to deed those rights out to a third entity.  [I think that is unlikely to happen]. 

 

Now the next issue, which is probably closer to what Tom was thinking...is the implications of the Marketable Record Title Act.  On this I am no expert.  But as I understand it, the concept is that if an encumbrance is not in the "chain of title" [meaning mentioned in a deed] sometime during the last 40 years, its deemed not to exist.....unless the land records have been updated to reflect the matter.   That rule would not impact an open space parcel owned in fee....but I have heard talk that it might impact the long term viability of a conservation easement....but I have also not researched the issue in any great detail to see if any reported decision has addressed this.

 

Here is how it might be a problem.  Lets say that a property owner granted a conservation easement to the city in 1968.  The easement gets recorded.  The boundaries of the easement are never delineated with markers. The property then is sold twice in the intervening 40 years, and neither deed mentioned the conservation easement [which would be unusual- as they normally would] .  Further you must assume that even if there was a map recorded in 1968 that showed the easement, none of the deeds make a reference to that map.  Then the third buyer acquires the property in 2009 and starts to cut all the trees.  The City moves to stop them.  The new 2009 buyer  may be able to claim the easement was extinguished as they had no notice of it and it was not in the chain of title for the last 40 years.  

 

So you can see that it would be a rare set of circumstances indeed where an easement might be extinguished.  Off the top of my head I am not aware of any case claiming that has occurred.  I think that T.G.'s inspection schedule which in turn will alert us to any missing boundary markers is the best way to police against this rare risk absent a system to know when each easement was recorded and diaring for future generations to every 30+ years record a reminder notice of the easement on the land records.    Just my humble opinion. 

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From: shel...@googlegroups.com [mailto:shel...@googlegroups.com] On Behalf Of Teresa Gallagher
Sent: Tuesday, October 20, 2009 10:01 AM

[TB Lauriat]

thanks Ed, even I understood your "opinion". A handfull of whereas's and heretofores would dress it up just like lawyerspeak.

[McCreery, Edward P.]

I would add - that City should make sure it actually obtains a deed for conservation easements granted as part of new developments and shouldn't just rely upon the reference to the easement on an application map submittal.  I assume that is being done.  

 

This is the same attention to detail that requires land use approvals to set forth in writing all the conditions you want the development to comport with and not rely upon a notation in the margin of a map, plan or survey.  Similarly, a land use board should add as a written condition of approval all the developers promises....and to not just rely upon the oral representations made during the presentation to get the approval.   Again - I hope that protocol is being followed in Shelton.  I have seen it lacking in some towns and it always come back to bite them.

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From: shel...@googlegroups.com [mailto:shel...@googlegroups.com] On Behalf Of McCreery, Edward P.
Sent: Tuesday, October 20, 2009 10:37 AM

[Teresa Gallagher]

<I think that T.G.'s inspection schedule which in turn will alert us to any missing boundary markers>

 

My inspections are not encompassing all boundary markers. If they did, we would be on the 20 year inspection plan rather than the 5 year plan.

 

Locating boundary lines, and even existing markers, takes a LOT of time.  First, the only way to check for existing markers, which face outward, is to walk onto abutting private property so I can see them, and I don’t have permission to do so. Second, the boundaries usually do not have monuments or even pins, so I would need to estimate where I think the boundary is. That can be done, but it is very time consuming.  It’s important not to make a mistake and place open space signs on private property or, conversely, have them placed so far in from the boundary that neighbors get the impression their property is bigger than it is.  In tight quarters it’s usually best to pace off distances from structures but again, that’s on private property.

 

I see a future where technology allows me to use a more accurate gps and just plug in the coordinates for the boundary lines.  I think it will happen, but we’re not quite there yet. I can’t even get coordinate information from Engineering or from Regis with the GIS system (the coordinates have to be translated to the WSG84 system that gps receivers use).

 

In the meantime, I can look for major encroachments by putting a tax accessor’s map over a relatively recent satellite photo, and more closely examine certain boundary lines out in the field.  But to do them all would be a full time job.

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[McCreery, Edward P.]

The primary point of my comment is whether there are ANY markers - not that they are accurately placed.  That should be the focus of your inspections for conservation easements.  A property owner who buys a piece of land with markers along the trees cannot later be heard to complain they had no notice of a conservation easement under the Marketable Record Title Act.  So I think [personally] that all your inspections - whether for land owned in fee - or for conservation easements - should make note of the status of any observed boundary markers - or if they appear to be totally lacking.  Ed

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From: shel...@googlegroups.com [mailto:shel...@googlegroups.com] On Behalf Of Teresa Gallagher

Sent: Tuesday, October 20, 2009 12:05 PM

[Teresa Gallagher]

I agree, in an ideal world where I have more than 20 hours per week.  Note that I’m not just doing Conservation, I am also effectively the “Anti-Litter Agent” … today I’m looking up addresses of Clean Sweep participants and preparing awards because we are having a ceremony on the 28^th and need to get out invitations, at the Mayor’s request.   

 

As for conservation easements, I don’t even have a listing of where they all are.  I know Rick has some in a file upstairs, and it’s definitely been on my to-do list to compile a file for each easement and then to inspect them all.  But currently my five-year inventory only includes the open space properties that are owned in fee.  

 

Placing boundary markers sounds easy on paper but can easily take one to two days per property to do it right, of which we have over 250 properties in fee, not including conservation easements.

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[McCreery, Edward P.]

All I was saying was to look for them when you do the site visits - nothing else.  Ed

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From: shel...@googlegroups.com [mailto:shel...@googlegroups.com] On Behalf Of Teresa Gallagher

Sent: Tuesday, October 20, 2009 12:28 PM

[Teresa Gallagher]

<All I was saying was to look for them when you do the site visits - nothing else.  Ed>

 

I need to be clear that this commission is not under the impression that I am walking the perimeter of these sites at this time and checking for open space signs.  I agree that it should be done, I just wouldn’t be able to get through 250+ parcels within 5 years if I were to do that.  

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