From wean@whidbey.net Tue Nov 2 12:04:35 2004 Received: from mxe7.u.washington.edu (mxe7.u.washington.edu [140.142.32.169]) by lists.u.washington.edu (8.13.1+UW04.08/8.13.1+UW04.08) with ESMTP id iA2K4Zqd032736 for ; Tue, 2 Nov 2004 12:04:35 -0800 Received: from mailout.whidbey.net (mailout.whidbey.net [209.166.64.124]) by mxe7.u.washington.edu (8.13.1+UW04.08/8.13.1+UW04.09) with ESMTP id iA2K4Y5d005248 (version=TLSv1/SSLv3 cipher=DHE-RSA-AES256-SHA bits=256 verify=NO) for ; Tue, 2 Nov 2004 12:04:34 -0800 Received: from [209.166.88.161] (helo=[192.168.1.100]) by mail2.whidbey.net with esmtp (Exim 4.43) id 1CP4tM-00082L-T0; Tue, 02 Nov 2004 12:04:33 -0800 Mime-Version: 1.0 X-Sender: (Unverified) Message-Id: In-Reply-To: <4187CFD3.3010702@panix.com> References: <4187CFD3.3010702@panix.com> Date: Tue, 2 Nov 2004 11:55:35 -0800 To: mavs@panix.com, consbio@u.washington.edu, massland@massland.org From: Steve Erickson Subject: Re: WSL/Destruction of Native Tree Transplantings by Neighbors Cc: Richard Stafursky Content-Type: text/plain; charset="iso-8859-1" ; format="flowed" Content-Transfer-Encoding: quoted-printable X-Uwash-Spam: Gauge=IIIIIII, Probability=7%, Report='__C230066_P5 0, __CT 0, __CTE 0, __CTYPE_CHARSET_QUOTED 0, __CT_TEXT_PLAIN 0, __FRAUD_419_BADTHINGS 0, __HAS_MSGID 0, __MIME_VERSION 0, __PORN_PHRASE_15_0 0, __SANE_MSGID 0' "as a matter of law, the term =EBbrush=ED includes all vegetation." The above statement (presumably in writing) by the easement holder is=20 inconsistent with the terms of the easement, which states "for the sole purpose of cutting grass and brush no larger than two=20 (2) inches in diameter when measured one (1) foot from the ground". A general definition of "brush" as including "all vegetation" is=20 constrained by the specific terms of the easement which specifically=20 states that cutting must be limited to stems 2 inches or less in=20 diameter. So, planted vegetation larger than 2 inches diameter may=20 not be cut under the terms of the easement. However, the stated purpose of the easement may also enter into what=20 a judge may decide. If the language you've included here is all of=20 the easement language, then the neighbor can't rely on a claim based=20 on an unstated purpose of the easement that wold allow cutting of=20 larger vegetation. (than 2 inches dia.). You may just have to only plant stock that's larger than 2 inches diameter. As for disagreements about surveys, these are always messy. In anye vent, the situation sounds like you'll need to get legalistic=20 to enforce the easement - you need an attorney. -Steve =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D=3D= =3D=3D=3D=3D=3D=3D=3D=3D=3D=3D At 1:20 PM -0500 11/2/04, Richard Stafursky wrote: >Content-Type: text/plain; charset=3Dwindows-1252; format=3Dflowed >X-MIME-Autoconverted: from 8bit to quoted-printable by=20 >list1.u.washington.edu id iA2IMY5S013276 > >11/02/2004 >Ladies and Gentlemen: > >The WSL is a 501(c)(3), conservation organization out of Delaware=20 >and now relocated to Vermont. We have foreign corporation status in=20 >the state of Massachusetts. > >We are looking for ideas regarding the following situation. > >A neighbor is owner of a two acre home site having an easement area=20 >(see below) on the 86 acre WSLF. Since early 2002, each year, he has=20 >been overcutting on, dumping on and otherwise harming non-easement=20 >WSLF land in many ways without permission. Furthermore, on the=20 >easement acres, among other things, he has been destroying native=20 >tree transplantings, destroying the stakes and guys of these clearly=20 >marked trees, and removing wildlife enhancement features. It has=20 >escalated this year when he has destroyed all the above mentioned=20 >things. > >Our attorney will be advising us very soon as to our rights and=20 >obligations in this situation, however, we would like the share with=20 >him any input from the CONSBIO and MASSLAND communities. > >The donor of the 86 land donation is alive and has asked the WSL to=20 >uphold the terms of the easement and his agreement with the WSL to=20 >the fullest extent. > >For the sake of privacy, at this time, names have not been reproduced here. > >This short, simple text is from the deed found at the Franklin=20 >County court house: > >=EC...conveying to the Grantees the right to enter on to the parcel=20 >set forth below for the sole purpose of cutting grass and brush no=20 >larger than two (2) inches in diameter when measured one (1) foot=20 >from the ground, excluding any cutting of grass and brush on wooded=20 >land as shown on said survey of the three acre easement. This wooded=20 >area is not to be cut and is not part of the cutting area...=EE >=EC >The WSL signed a declaration accepting the gift as follows: > >=EC We the undersigned members of the Board of Directors of WSL - NFR=20 >have voted unanimously to accept a gift of land for the protection=20 >of its natural landscape in perpetuity... has pledged to donate=20 >eighty-six acres comprised of forested mountains in Western=20 >Massachusetts. There are no buildings of any kind on the property.=20 >The land will be open to the public in accordance with a=20 >conservation plan to be created by the WSL - NFR. This donation is=20 >in full compliance with Internal Revenue Service sections 501(c)(3)=20 >and 170(h)...=EC > >Here is the only correspondence received to date from the neighbors: > >=ECDear Mr. Stafursky: > >=ECPleased be advised that I represent ... > >=ECI understand that the World Species List is the owner of the=20 >underlying land upon which the easement is located. I wish to give=20 >you notice, as President of the organization, that my clients will=20 >be exercising their rights under the easement in accordance with the=20 >terms set forth in the deed. > >=ECMy clients have had a surveyor confirm for them the location of the=20 >wooded section within the easement in order to insure that no=20 >cutting is conducted outside the allowed areas. > >=ECAlthough it appears that you disagree with my clients as to the=20 >scope of that easement, as a matter of law, the term =EBbrush=ED=20 >includes all vegetation. > >=ECAccordingly, within the easement area, my clients will be cutting=20 >all existing vegetation with a =EBbrush hog=ED (there is no requirement=20 >in the easement or bylaw that my clients contact you prior to=20 >exercising their rights under the easement). No cutting will occur=20 >on the portion of the easement identified in the deed and plan as=20 >=EBwooded=ED or =EBwooden=ED land. > >=ECMy clients would encourage you to not plant any additional=20 >vegetation, including trees, in the easement cutting area(s). If you=20 >do so, that vegetation will be cut, as my clients are entitled to=20 >maintain those area(s) in their present state under the easement.=20 >Not planting such vegetation will insure that you not lose the value=20 >of any expenses you might incur in such plantings.=EE > >The the attached photo is from WSLF easement area. The box,=20 >photographed in situ, was actually found by the WSL on non-easement=20 >WSLF land. > >Thanks > >Richard Stafursky >World Species List - Natural Features Registry Institute > >Attachment converted: Macintosh HD:wsl box of destroyed stakes=20 >(JPEG/prvw) (0025E42C) **************** Whidbey Environmental Action Network is a non-profit membership-based=20 organization dedicated to the preservation and restoration of the=20 native biological diversity of Whidbey Island and the Pacific=20 Northwest. If you are not already a member, please consider joining!=20 Dues are $35 per year. Members receive our newsletter and periodic=20 action alerts. WEAN P.O. Box 53 Langley, WA 98260 phone (360) 579-4202 fax (360) 579-4080 email: wean@whidbey.net .