First Easement of Jefferson County Farmland Protection Board
DEED OF SCENIC AND OPEN SPACE CONSERVATION EASEMENT
THIS DEED OF SCENIC CONSERVATION EASEMENT ("Conservation Easement") is made this 22nd day of December, 2004, by and between EUGENE L. OLCOTT AND MARGARET W. OLCOTT, TRUSTEES OF THE EUGENE L. OLCOTT AND MARGARET W. OLCOTT LIVING TRUST DATED 28 July 1998, having an address of 59 Norman Lane, Shepherdstown, WV 25443 ("Grantor"), and THE POTOMAC CONSERVANCY, INC., a nonprofit organization organized under the laws of the State of Maryland, having its principal office at 10 South Loudoun Street, Winchester, VA 22601 and the JEFFERSON COUNTY FARMLAND PROTECTION BOARD, a nonprofit organization organized under the laws of the State of West Virginia, having an address of P.O. Box 731, Charles Town, WV 25414-0731 (collectively "Grantees").
WHEREAS, The Potomac Conservancy, Inc., is a publicly supported, tax-exempt nonprofit land trust whose primary purpose is protect the lands vital to the health, beauty, and enjoyment of the Potomac River and its tributaries, and is authorized by the State of West Virginia to accept, hold and administer conservation easements in West Virginia; and
WHEREAS, the Jefferson County Farmland Protection Board is a publicly supported, tax-exempt nonprofit organization whose mission is to implement identified goals, objectives and policies for the protection and preservation of Jefferson County land best suited for farming in accordance with West Virginia Code § 8-24-72; and
WHEREAS, The State of West Virginia has authorized the creation of conservation easements pursuant to the West Virginia Conservation and Preservation Easements Act, West Virginia Code §20-12-1 et seq., and Grantor and Grantee wish to avail themselves of the provisions of that law; and
WHEREAS, the West Virginia Conservation and Preservation Easements Act of 1995 (West Virginia Code, § 20-12-2), specifically recognizes the importance and public benefit of protecting the natural, historic, agricultural, open space and scenic resources of West Virginia and the West Virginia Voluntary Farmland Preservation Act of 2000 (West Virginia Code § 8-24-72) provides authorization for the creation of local farmland protection boards to assist in the protection of farm and woodland; and
WHEREAS the Jefferson County Commission resolved on July 13, 2000 to create the Jefferson County Farmland Protection Board and resolved on January 23, 2003 to adopt the Jefferson County Farmland Protection Plan; and
WHEREAS the Comprehensive Plan of Jefferson County (1994) states that one of the goals of the Comprehensive Plan is to "promote the conservation of the natural, and historical resources and preserve the County's scenic beauty," and identifies the need to protect scenic views through scenic easements; and
WHEREAS the Property contains significant conservation and agricultural features that are worthy of permanent protection including one (1) linear mile of riparian land on the Potomac River, an undeveloped and wooded or vegetated shoreline, significant forested land, agricultural fields, and steep slopes, which have critical important to the protection, maintenance and enhancement of water resources;
WHEREAS the Property is situated on the Potomac River and is visible from the Potomac River, and the C & O Canal National Historic Park, and possesses significant scenic, natural, agricultural, woodland, ecological, historical and aesthetic values (collectively, "Conservation Values") described more explicitly in Exhibit B and documented specifically in "Baseline Documentation" in Exhibit C;
WHEREAS the Potomac River is a natural, cultural and historic landscape of national significance which forms a grand entrance to the nation's capital, the continued integrity of which is of immense importance to the people of the United States, the states of West Virginia, Virginia and Maryland and the District of Columbia, to countless visitors from around the world, and to future generations;
WHEREAS the importance of preserving the integrity of the Potomac River and its landscape has long been officially recognized, as evidenced by the 1901 report of the McMillan Commission, the 1928 plan for the Potomac River in its regional context prepared by City Planner Charles W. Eliot II in his capacity as the first Chairman of the National Capital Planning Commission, enactment by the United States Congress of the Capper-Cramton Act of 1930 and the acquisition of fee interests by the United States of America on both sides of the Potomac River pursuant to that Act (particularly for the preservation of Civil War fortifications at Fort Marcy and the creation of the George Washington Memorial Parkway in Virginia and the C & O Canal National Historical Park in Maryland, all under National Park Service jurisdiction), the Nation's River initiatives of Lyndon Baines Johnson, the naming of the river in 1998 as one of the 14 American Heritage rivers, the acquisition of scenic easements on nearby parcels by the National Park Service;
WHEREAS Grantor owns in fee simple 115 acres more or less of certain real property situate, lying and being in Jefferson County, West Virginia, and more particularly described in Exhibit A attached hereto, (hereinafter "Property") and this Conservation Easement shall protect a portion of the Property, and such portion contains ninety-four (94) acres, (hereinafter the "Conservation Property") which is legally described in Exhibit A and identified in the Survey contained in Exhibit C;
WHEREAS Grantor is willing to grant a perpetual Conservation Easement on the Conservation Property thereby restricting and limiting the use of the land, on the terms and conditions and for the purposes hereinafter set forth, and Grantees accept such Conservation Easement; and
WHEREAS Grantor and Grantees recognize the open-space, agricultural, and scenic conservation value of the Conservation Property in its present state, as a natural and scenic area that has identified significant conservation features documented in the "Baseline Documentation," Exhibit C, incorporated by reference in Article V. hereto;
WHEREAS Grantor and Grantees have a common purpose in conserving the dominant scenic, agricultural, riparian, cultural, and woodland character of the Conservation Property, and except as hereinafter provided, preventing the use of development of the Conservation Property for any purpose or in any manner that would conflict with the maintenance of the property in its scenic, natural and open space condition, and its contribution to the integrity of the Potomac River landscape.
WHEREAS this conservation easement is intended to constitute a "Perpetual Conservation Restriction" for purposes of the Internal Revenue Code, as amended at Title 26, U.S.C.A., Section 170(h) (1)-(6) and Sections 2031(c), 2055, and 2522, and under Treasury Regulations at Title 26 C.F.R. 1.170A-14 et seq, as amended;
WHEREAS Grantees accept this Conservation Easement under the terms and conditions hereinafter described, and Grantees are both "qualified organizations" within the meaning of Sections 501(c)(3) and 170(h) of the Internal Revenue Code;
NOW THEREFORE, for good and valuable consideration, Grantor unconditionally and irrevocably grants and conveys unto Grantees, their successors and assigns, forever and in perpetuity a Conservation Easement of the nature and character and to the extent hereinafter set forth, with respect to the Conservation Property.
The Purpose of this Conservation Easement is to preserve and protect the environment of the Conservation Property and especially to maintain permanently the significant agricultural, riparian and water resources, particularly the natural, vegetated, and wooded character of the riparian buffer and steep slopes, to protect the wildlife habitat contained on the Conservation Property, and to protect the Conservation Property's dominant scenic, topographic, historic, cultural, agricultural and woodland character as described more particularly in Exhibit B, Conservation Values.
To achieve these objectives, the following conditions and restrictions are set forth:
ARTICLE I. DURATION OF EASEMENT
This Conservation Easement shall be perpetual. It is an easement in gross and as such is inheritable and assignable in accordance with Article VI and runs with the land as an incorporeal interest in the Conservation Property, enforceable with respect to the Conservation Property by Grantees against Grantor and his personal representatives, heirs, successors and assigns.
ARTICLE II. PROHIBITED AND RESTRICTED ACTIVITIES
The Conservation Property may not be divided or subdivided except for the following:
1) With written notice to Grantees, a single two-acre Homesite parcel may be created in the designated Homesite Area that is identified more particularly in Exhibit C;
2) Such division or subdivision of the Homesite parcel must be approved by Jefferson County;
3) Should such division or subdivision occur, the Homesite parcel may not be conveyed separately from the remainder of the Conservation Property and the provisions of this Conservation Easement shall apply to the Homesite parcel;
4) Should such division or subdivision occur, and if at some future time it is legally permissible to consolidate the Homesite with the Property, then such consolidation shall be permitted and the provisions of this Conservation Easement shall apply to the entire Conservation Property, including what was previously the Homesite parcel.
A. Development Rights:
Notwithstanding Article II.A., Grantor hereby grants to Grantees all other development rights that are now or hereafter allocated to, implied, reserved or inherent in the Conservation Property identified in Exhibit C, and the parties agree that such rights are terminated and extinguished, and may not be used or transferred to any portion of the Conservation Property as it is now or hereafter may be bounded or described, or to any other property adjacent or otherwise, nor used for the purpose of calculating permissible lot yield of the Conservation Property or any other property.
B. Construction and Improvements:
No building, facility, means of access or other structure shall be constructed on the Conservation Property after the date of this Conservation Easement, except:
D. To construct not more than one (1) permanent residential structure and associated structures, such as garage and shed, provided that the residential structure and such associated structures are located completely within a two-acre area identified as the Homesite Area in Exhibit C. No structures within the Homesite Area shall exceed forty (40) feet in height. Grantor shall attempt to locate well and septic within the Homesite area if practicable and Grantor shall make reasonable efforts to minimize disturbance to trees and vegetation for installation of the septic system;
E. To construct reasonable accessory structures designed, constructed and utilized for the purpose of passive recreational use, such as wildlife viewing stands, bird boxes, or benches, so long as such structures do not interfere with the scenic, natural and agricultural character of the Conservation Property and the view of the Conservation Property from the Potomac River as determined by the Grantee;
F. To repair, replace and reasonably expand existing agricultural structures such as barns, stables, fences, and other structures so long as the Conservation Values identified in Exhibit B are not compromised and provided that no agricultural structure exceeds 4,000 square feet;
G. Subject to Article II.A, to construct and maintain reasonable access to the Homesite Area and to permit installation of utilities such as electricity, telephone and computer lines, sewer and water, to the permitted uses and structures on the Conservation Property. Grantor shall minimize any disturbance to trees or vegetation to accommodate a septic system;
H. To allow reasonable recreational access to the water so long as no permanent impermeable surfaces are constructed or placed in the Riparian Buffer described in Article II. F.
I. The total surface coverage of impervious surfaces on the Conservation Property shall be subject to the limitations defined below:
a. Impervious surfaces shall be defined as any material which covers land and inhibits the percolation of storm water directly into the soil, including, but not limited to buildings, the area covered by permanent or nonpermanent structures, macadam and pavement, gravel and stone driveways and parking areas.
b. The total area covered by impervious surfaces, including the residential dwelling and associated structures, accessory structures, and agricultural structures, shall not exceed two (2) percent of the total acreage of the Conservation Property, including the potential Homesite Area, or 82,200 square feet.
The Grantors shall notify the Grantees at least thirty (30) days prior to submitting any required permit applications for said construction to local, state, or federal agencies, or if no governmental permits are required, at least thirty (30) days in advance of any work whether for construction or preparatory to construction regarding the location of any new residential, associated, agricultural or accessory structure, the location of any replacement residential structure if different from the location of the replaced structure, and the location of a new means of access to a residential structure. If the Grantee seeks to change the location of access to a residential structure or to change the location of the Homesite Area, such change shall be subject to prior written approval of the Grantees.
For the purpose of protecting the scenic integrity of the Conservation Property, no major public or private utility installation, such as cellular telephone towers or exchanges, electric generating plants, electric power substations, high tension electric power transmission lines, gas generating plants, gas storage tanks, water storage tanks or reservoirs, sewage treatment plants, or microwave relay stations shall be constructed or placed on the Conservation Property. This provision is intended to provide the Grantee such an interest in and to this Conservation Property as is sufficient to prohibit the exercise of eminent domain by public utility companies without prior written notice and approval by the Grantee.
B. Management of Woodland Resources:
Removal, destruction and cutting of trees, shrubs, and other vegetation is prohibited except:
1) For non-commercial forestry activities which shall include the following: agriculturally related low-impact timber harvest including management of the forest for wildlife and forest health that are conducted in accordance with a Forest Stewardship Plan that is prepared or reviewed by a licensed, registered West Virginia forester and is updated no less than every ten (10) years, growing and sale of Christmas trees, orchard products and nursery stock, growing and sale of ornamental plants and woodland products grown for human consumption. All such activities shall be conducted outside of the Riparian Buffer identified in Exhibit C. Commercial timber harvest shall be prohibited.
2) To the extent necessary for application of sound disease or insect control practices and removal of non-native invasive species;
3) To control or prevent fire, damage to improvements, and the endangerment of life;
4) To cut firewood on the Conservation Property;
5) For construction or maintenance of structures or landscaping within the Homesite Area or agricultural or accessory structures or for access otherwise permitted in this Conservation Easement.
A. Riparian Buffer:
The Grantors agree to maintain a forested buffer, hereinafter "Buffer," along the Potomac River, which is identified more particularly in Exhibit C. In the Buffer, there shall be no burning, mowing, cutting, plowing, tilling or destruction of trees, shrubs, grasses, or other vegetation (collectively "Vegetation") except for: (1) removal of nonnative, invasive or noxious Vegetation; (2) removal of dead, insect infested, or diseased Vegetation; (3) removal of trees damming or backing up the normal flow of the Potomac River; (4) removal of Vegetation in full compliance with a management plan for the purpose of protecting rare, threatened and endangered species; (5) to allow passive private access to the River such as for canoes or kayaks, and so long as such access does not include permanent impermeable surfaces and does not impact the scenic integrity of the Potomac River shoreline.
B. Industrial or commercial activities:
Industrial or commercial activities are prohibited on the Conservation Property except for:
1) Non-commercial forestry practices as defined in Article II.E. Commercial timber harvest shall be prohibited.
2) Agricultural activities including but not limited to the production of food and fiber, grain and field crops, cattle grazing, dairy farming, raising of poultry and livestock, equestrian activities, nursery or greenhouse activities, produce stand, and cottage industry activities;
3) Activities conducted from a home office or craft studio within permitted structures which are incidental to home ownership and are consistent with the cottage industry requirements of the Jefferson County Zoning and Development Ordinance; and
4) Activities for religious, charitable, or education purposes or to foster tourism, provided that such activities do not conflict with the Conservation Values protected by this easement and provided that such activities do not exceed de minimis commercial recreational activity as it is described under Section 2031(c)(8)(b) of the Code.
C. Display of billboards or signs:
Display of billboards, signs or advertisements is prohibited on or over the Conservation Property, except (1) to state solely the name and/or address of the Conservation Property and/or the owners; (2) to advertise the sale or lease of the Conservation Property; (3) to commemorate the history of the Conservation Property, its recognition under State or Federal historical registers, or its protection under this Conservation Easement; provided that no sign or billboard on the Conservation Property shall exceed three feet by three feet. Multiple signs shall be limited to a reasonable number, shall not damage living trees, and shall be placed in accordance with local regulations.
D. Dumping of materials:
No materials may be dumped, placed, applied or stored on the Conservation Property including, but not limited to, ashes, sawdust, bark, trash, garbage, rubbish, dredge spoil, chemicals, pesticides, fertilizers, abandoned vehicles, appliances, or machinery. However, the Grantor may (1) place otherwise legally permitted pesticides to the extent necessary to control any weeds, insects, pests and other species destructive to the purpose of this Conservation Easement set forth in the recitals hereinabove (all such uses of pesticides shall be consistent with all existing federal, state and local regulations) and, if practicable, outside of the period between April 15 and August 15; (2) place soil, rock, other earth materials, vegetative matter, and compost reasonably necessary for the purpose of combating erosion or flooding; and (3) create a wetland or wetlands subject to prior written approval of Grantees.
Excavation, dredging, mining and removal of loam, gravel, soil, rock, sand, coal, petroleum and other materials are prohibited except for (1) the purpose of combating erosion or flooding; or (2) for the construction and/or maintenance of permitted structures and wildlife habitat.
There shall be no diking, draining, dredging, channeling, filling, leveling, pumping, impounding or related activities in wetlands on the Conservation Property unless the activity is related to restoration for wildlife habitat or water quality.
G. Right of Inspection:
Grantees, their employees and agents and their successors and assigns, have the right to enter the Conservation Property at reasonable times for the purpose of inspecting the Conservation Property to determine whether the Grantors, their personal representative, heirs, successors or assigns are complying with the Terms of this Conservation Easement.
H. Reserved Rights:
Except to the extent that prior written approval of the Grantees is required by any paragraph of this Article, all rights reserved by the Grantors or not prohibited by this Conservation Easement shall be exercised so as to prevent or minimize, to the extent reasonable under the circumstances, damage to water quality, air quality, land/soil stability and productivity, wildlife, scenic, environmental and cultural values, and the natural topographic and open-space character of the Conservation Property. If the Grantors have any doubt with respect to whether or not any particular use of the Conservation Property is prohibited by the Terms of this Conservation Easement, the Grantors may submit a written request to the Grantees for consideration and approval of such use.
ARTICLE III. PUBLIC ACCESS
The granting of this Conservation Easement does not convey to the general public the right to enter the Conservation Property for any purpose whatsoever.
ARTICLE IV. ENFORCEMENT AND REMEDIES
Upon any breach of the terms of this Conservation Easement by Grantor, Grantees may, after reasonable notice to Grantor, exercise any or all of the following remedies:
(1) seek and obtain legal and or equitable relief as may be necessary to enforce the terms of this Conservation Easement, which relief may be obtained in ex parte proceedings and or permanent injunction either prohibitive or mandatory; and
(2) require that the Conservation Property be restored promptly to the condition required by this Conservation Easement.
The Grantees' remedies shall be cumulative and shall be in addition to any other rights and remedies available to the Grantees at law or equity. If the Grantors are found to have breached any of the Terms under this Conservation Easement, the Grantors shall reimburse the Grantees for any costs or expenses incurred by the Grantees, including costs of restoration necessitated by Grantor's violation of the terms of this Conservation Easement, court costs and reasonable attorney's fees. If Grantor prevails in such an action, each party shall bear its own costs.
B.Effect of Failure to Enforce:
No failure on the part of the Grantees to enforce any Term hereof shall discharge or invalidate such Term or any other Term hereof or affect the right of the Grantees to enforce the same in the event of a subsequent breach or default.
C.Effect of Multiple Grantees:
At the time that this easement is signed, there are two Grantees, The Potomac Conservancy and the Jefferson County Farmland Protection Board. Additional Grantees may be added only with the written agreement of the Grantor. Each Grantee shall have independent authority to enforce the provisions of this Conservation Easement. In the event that the Grantees do not agree as to whether the Grantor is complying with the Terms, each Grantee may proceed with enforcement actions without the consent of the other Grantee.
Grantor hereby waives any defense of laches, estoppel, or prescription.
E.Change to Property Beyond Grantor's Control:
Nothing contained in this Conservation Easement shall be construed to entitle Grantees to bring any action against Grantor for any injury to or change in the Conservation Property resulting from causes beyond the Grantor's control, including, without limitation, fire, flood, storm, and earth movement, or from any prudent action taken by Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Conservation Property, any buildings or other structures now or hereafter located on the Conservation Property or resulting from such causes, unless and only to the extent that such damage is greater or of a different nature due to violation by Grantor of the terms of this Conservation Easement than such damage would have been absent such violation.
ARTICLE V. EXHIBITS
A.Exhibit A: A Legal Description of the Property and the portion known as the Conservation Property is attached hereto and made a part hereof;
B.Exhibit B: A Summary of Conservation Values is attached hereto and made a part hereof;
C.Exhibit C: Baseline Documentation
Baseline Report is kept on file at the office of the Grantee and is fully incorporated into this Conservation Easement as though attached hereto and made a part thereof, including:
i.Narrative description of the history of the Conservation Property, the natural features, structures, surrounding land use and summary of easement;
ii.Labeled survey identifying the Conservation Property, Homesite Area, structures, existing access roads (if applicable) and Riparian Buffer;
iii.Maps and aerial photo of the Conservation Property;
iv.Photo documentation of existing conditions of the Conservation Property;
D.Exhibit D: Letter from Eugene Olcott to Roger Dailey
ARTICLE VI. MISCELLANEOUS
Grantees may assign, upon prior written notice to Grantor, their rights under this Conservation Easement to any "qualified organization" within the meaning of Section 170(h)(3) of the Internal Revenue Code or the comparable provision in any subsequent revision of the Code and the Code of West Virginia only with assurances that the purposes of this Conservation Easement will be maintained. No assignment may be made by Grantees of their rights under this Conservation Easement unless Grantor agrees to such assignment in writing and Grantees, as a condition of such assignment, require the assignee to carry out the conservation purposes of this Conservation Easement.
B.Sale or Transfer:
Grantor agrees that, in the event of any subsequent sale or transfer of the Conservation Property, Grantor shall notify the Grantees in writing of the names and addresses of any party to whom the Conservation Property is to be granted, conveyed or otherwise transferred at or prior to the time said transfer is consummated. The Grantors shall make specific reference to this Conservation Easement in a separate paragraph of any subsequent deed or other legal instrument by which any interest in the Conservation Property is granted, conveyed or otherwise transferred. The Grantor shall provide a copy of this Conservation Easement to all subsequent grantees of the fee simple interest of any part or all of the Conservation property.
C.Notices to Grantee and Grantor:
Any notices, demand, request, consent, approval, or communication that either party desires or is required to give to the other shall be in writing and served either personally or sent by registered or certified mail, return receipt requested, addressed to:
Grantor: Eugene and Margaret Olcott, 59 Norman Lane, Shepherdstown, WV 25443
Grantee: The Potomac Conservancy, 10 South Loudoun Street, Winchester, VA 22601
Grantee: Jefferson County Farmland Protection Board, P.O. Box 731, Charles Town, WV 25414-0731
or to such other address as the Grantor or Grantee may establish in writing on notification to each other. Mailed notices shall be deemed given on the date which is three (3) days after the date deposited in the United States mail, properly addressed and postage prepaid.
D.Approval of Grantee:
In any case where the Terms of this Conservation Easement require the approval of the Grantee, such approval shall be requested by written notice to the Grantee. Such approval shall be deemed to have been given unless within sixty (60) days after receipt of notice the Grantee mails notice to the Grantor of disapproval and the reason therefore. Unless the Grantee's approval is deemed to have been given in accordance with the prior sentence, any approval shall be written. The Grantee will take into account the Terms and purpose of this Conservation Easement in determining whether to give such approval, but the decision shall be final and in their sole discretion. In the event that there are multiple Grantees, the Grantees will coordinate their review; however, the approval of one Grantee shall in no way be deemed to be the approval of all Grantees, it being the intention that each Grantee has independent authority to disapprove and enforce the Terms of this Conservation Easement.
E.Retained Responsibilities of Grantor:
Grantor retains all responsibilities and shall bear all costs and liabilities of any kind related to the ownership, operation, upkeep, and maintenance of the Conservation Property. Grantor shall keep the Conservation Property free of any liens arising out of any work performed for, materials furnished to, or obligations incurred by Grantor, or liens relating to nonpayment of taxes.
F.Condemnation or Extinguishment:
(1) If circumstances arise in the future that render the entire purpose of this Conservation Easement impossible to accomplish, this Conservation Easement may only be terminated or extinguished whether with respect to all or part of the Conservation Property by judicial proceedings or in a court of competent jurisdiction. In the event of sale of all or a portion of the Conservation Property (or any other property received in connection with an exchange or involuntary conversion of the Conservation Property) after such termination or extinguishment, and after the satisfaction of prior claims and net of any costs or expenses associated with such sale, Grantors and Grantees shall divide the proceeds from such sale (minus any amount attributable to the value of additional improvements made by Grantors after the effective date of this Conservation Easement, which amount is reserved to Grantors) in accordance with their respective percentage interests in the fair market value of the Conservation Property, as such percentage interests are determined under Article IV.L., adjusted, if necessary, to reflect partial termination or extinguishment of this Conservation Easement. All of the Grantees' compensation, if any, shall be used by Grantee in a manner consistent with Grantees' conservation purposes.
(2) If all or any part of the Conservation Property is taken under the power of eminent domain by public, corporate or other authority, or otherwise acquired by such authority through a purchase in lieu of a taking, Grantors and Grantees shall join in the appropriate proceedings at the time of such taking to recover the full value of the interests in the Conservation Property subject to the taking and all incidental or direct damages resulting from the taking. All expenses reasonably incurred by the parties to this Conservation Easement in connection with such taking shall be paid out of the recovered proceeds. Grantors and Grantees shall be respectively entitled to compensation from the balance of the recovered proceeds in conformity with the provisions of Article IV.L. (with respect to allocation of proceeds). The respective rights of Grantors and Grantees set forth in this provision shall be in addition to, and not in limitation of, any rights they may have at common law with respect to a modification or termination of this Conservation Easement by reason of the exercise of powers of eminent domain as aforesaid.
Grantor and Grantee may jointly amend this Conservation Easement provided that no amendment shall be allowed that will affect the qualification of the Conservation Easement or the status of Grantee under §501(c)(3) and §170(h) of the Internal Revenue Code or Chapter 10.1, §1009 et seq. and Article 12, §20-12-1, et al, of the Code of West Virginia (or any successor provision then applicable). Any amendment of this Conservation Easement may not conflict with and must be consistent with the purpose of this Conservation Easement, and shall not affect its perpetual duration. Any such amendment shall not be effective unless and until recorded in the land records of Jefferson County, West Virginia.
H.Effect of Laws Imposing Affirmative Obligations on the Grantors:
If any applicable State or federal law imposes affirmative obligations on owners of land which if complied with by the Grantors would be a violation of a Term of this Conservation Easement, the Grantors shall: (i) if said law requires a specific act without any discretion on the part of the Grantors, comply with said law and give the Grantee written notice of the Grantors' compliance as soon as reasonably possible, but in no event more than thirty (30) days from the time the Grantors begin to comply; or (ii) if said law leaves to the Grantors discretion over how to comply with said law, use the method most protective of the purpose of this Conservation Easement set forth in the recitals hereinabove.
I.Effect of Laws and Other Restrictions on the Property:
The Terms of this Conservation Easement shall be in addition to any local, State or federal laws imposing restrictions to the Property and any real estate interests imposing restrictions to the Conservation Property.
J.Mortgages and Deeds of Trust:
The Grantors certify that a copy of this Conservation Easement has been provided to all mortgagees, and trustees and beneficiaries of deeds of trust affecting the Conservation Property, if any, as of the date of this Conservation Easement, and each such mortgagee, trustee and beneficiary has subordinated the mortgage or deed of trust to this Conservation Easement, by signing a subordination agreement which shall be recorded in the land records at the time of recording of this Conservation Easement.
K.Easement held exclusively for conservation purposes:
Grantee agrees to hold this Conservation Easement exclusively for conservation purposes as defined in Section 170(h)(4)(A) of the Internal Revenue Code.
L.Property Right Vests in Grantees:
The conveyance of this Conservation Easement gives rise to a property right, immediately vested in Grantees, with a fair market value equal to the proportionate value that the Conservation Easement bears to the value of the Conservation Property as a whole. The Jefferson County Farmland Protection Board shall be entitled to a percentage of such proceeds in accordance with its contribution of funding towards the purchase of this Conservation Easement.
M.Underground Storage Tanks:
Grantor agrees that to his or her knowledge there are no known underground storage tanks on the Conservation Property, or, if such underground storage tanks are found or discovered, Grantor agrees to remove or remedy such tanks provided that such activity does not negatively impact the Conservation Values protected by this Conservation Easement.
Grantor agrees that to his or her knowledge there are no known hazardous materials (as defined under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 U.S.C. §§9602 et seq., ("CERCLA")) placed or stored on the Conservation Property and that if such hazardous materials are found to exist, Grantees shall not be construed to have control or management responsibilities over the Conservation Property that would give rise to liability under CERCLA.
Grantor and Grantee agree that the terms of this Easement shall survive any merger of the fee and easement interests in the Conservation Property.
P.Effect of Multiple Grantees:
This Conservation Easement is based upon a form that assumes there is one Grantor and two Grantees. In the event that this assumption is wrong for this Conservation Easement, then, as appropriate, any Term assuming one Grantor or two Grantees shall be interpreted to mean multiple Grantors or Grantees, as the case may be.
This Conservation Easement shall be construed pursuant to the purpose of this Conservation Easement and the laws of the State of West Virginia.
R.Entire Agreement and Severability:
This instrument sets forth the entire agreement of the parties with respect to the Conservation Easement and supersedes all prior discussions, negotiations, understandings or agreements relating to the Conservation Easement. If any Term is found to be invalid, the remainder of the Terms of this Conservation Easement, and the application of such Term to persons or circumstances other than those as to which it is found to be invalid, shall not be affected thereby.
The terms "Grantor" and "Grantee" wherever used herein, and any pronouns used in place thereof, shall include, respectively, the above-named Grantor and his personal representatives, heirs, successors, and assigns and the above-named Grantees and their successors and assigns.
T.Real Property Taxes:
Except to the extent provided for by State or local law, nothing herein contained shall relieve the Grantor of the obligation to pay taxes in connection with the ownership or transfer of the Property.
Grantees shall record this instrument in a timely fashion in the official records of Jefferson County, West Virginia and may re-record it at any time as may be required to preserve their rights under this Conservation Easement.
V.Servitude Running in Perpetuity:
The covenants, terms, conditions, and restrictions of this Conservation Easement shall be binding upon, and inure to the benefit of, the parties hereto and their respective personal representatives, heirs successors, and assigns and shall continue as a servitude running in perpetuity with the Conservation Property.
The captions in this Conservation Easement have been inserted solely for convenience of reference and are not a part of this instrument. Accordingly, the captions shall have no effect upon the construction or interpretation of the Terms of this Conservation Easement.
TO HAVE AND TO HOLD unto the Grantees, their successors and assigns, forever. The covenants agreed to and the terms, conditions, restrictions and purposes imposed as aforesaid shall be binding upon Grantor and Grantees, their respective survivors, agents, personal representatives, heirs, assigns and all other successors to them in interest, and shall continue as a servitude running in perpetuity with the Conservation Property.
AND said Grantors have hereunto set their hands and seals the day and year above written.
EUGENE L. OLCOTT, TRUSTEE OF THE EUGENE L. OLCOTT AND MARGARET W. OLCOTT LIVING TRUST
MARGARET W. OLCOTT, TRUSTEE OF THE EUGENE L. OLCOTT AND MARGARET W. OLCOTT LIVING TRUST
THE POTOMAC CONSERVANCY a Maryland non-profit corporation By: Matthew Logan, President
JEFFERSON COUNTY FARMLAND PROTECTION BOARD By: Roger Dailey, Chairman
This document has been prepared and/or reviewed by a West Virginia licensed attorney:
S. Walter Washington, Esq., Law Offices of John Dorsey, 108 West Congress Street, Charles Town, WV 25414, (304) 728-6000
Summary of Conservation Values
Description of Conservation Property and Natural Features
The Conservation Property contains 94 acres, and is a portion of the Property that contains in whole 115 acres, all located in Jefferson County, West Virginia. The Conservation Property lies along the Potomac River River, approximately 1 mile upstream from James Rumsey Bridge which cross the Potomac River from Maryland into Shepherdstown, West Virginia. There are currently no structures on the Conservation Property other than fencing. One of the most significant natural features of the Conservation Property is one mile of scenic, undeveloped frontage on the Potomac River, containing undisturbed riparian forest and vegetation that provides benefits to water quality and wildlife. The Conservation Property contains working farmland including open pasture, which produces hay.
The significant frontage on the Potomac River has a mature riparian forest ranging in width from 50 feet to over 1,000 feet. The Riparian Buffer is divided into two sections, one being a roughly 65 foot wide strip along the broad floodplain and the other covering the entire steep cliff from the River to the top of the bluff, as identified more particularly in Exhibit C. The woodlands include upland hardwood and other species including white ash, tulip poplar, red oak, white oak, black oak, chestnut oak, sugar maple and black walnut.
More than 50% of the Conservation Property has soils that are classified as important farmland and Highly Erodible Soils in Jefferson County, West Virginia. The broad floodplain on the southern side of the property is currently open meadow and has recently been used for hay production.
Conservation Purposes and Significant Public Benefit
Preservation of this Conservation Property satisfies the "conservation purposes" as defined in Treasury Regulation Section 1.170A-14(d) because it protects open space, scenic areas and important agricultural resources and this Conservation Easement is pursuant to a clearly delineated government policy intended to protect farmland in Jefferson County, known as the Jefferson County Farmland Protection Program, which was adopted by the Jefferson County Commission on July 13, 2000, and a farmland protection plan was adopted by this same Commission on January 23, 2003. The Jefferson County Farmland Protection Board has identified this Conservation Property as worthy of protection for conservation purpose. The landowner has submitted the required application, and the Jefferson County Farmland Protection Board has found that the Conservation Property satisfies all of its requirements and has provided funding to purchase this Conservation Easement. This Conservation Easement is the first to be executed in accordance with the Jefferson County Farmland Protection Plan adopted by the Jefferson County Farmland Protection Board. The Jefferson County Farmland Protection Board found that the Conservation Property satisfies the land evaluation criteria set forth in the Farmland Protection Plan including having a NRCS Conservation Plan. The Conservation Property adjoins other permanently protected open space, includes frontage on the Potomac River, contains more than 10 acres of mature forest, includes area within the 50 year floodplain. On December 18, 2003, the Jefferson County Commission approved permanent protection of this Conservation Property through the Jefferson County Farmland Protection Program.
Permanent protection of this Conservation Property provides significant public benefits. First, the Conservation Property's scenic values are significant to the local community, users of the Potomac River, and the millions of people who visit the C&O Canal National Historic Park every year. The Conservation Property is visible from both the Potomac River and the C&O Canal National Historical Park (the tow path). If it were not permanently protected, this Conservation Property is under significant development pressure, and could therefore be subdivided into many dozens of lots, and developed into many dozens of homes, right along the scenic bluff of the Potomac River, thereby permanently scarring and destroying the natural scenic integrity of the Potomac Riverfront. The Conservation Property provides habitat for a variety of wildlife including songbirds, red-tailed and harrier hawks, bald eagles, deer, foxes, squirrels and other small mammals. The intact riparian buffer also provides the public with a water quality benefit by filtering sediment and other pollutants from runoff created by surrounding development.
Other properties protected by conservation easements are in the vicinity of the Conservation Property. The Property is adjacent to another property of 75 acres protected by a conservation easement held by the Potomac Conservancy. The Conservancy also holds an easement on an 8.5 acre parcel approximately ¼ mile downstream of the Conservation Property. Across the Potomac, Maryland Environmental Trust holds easements on several thousand acres of land adjacent to the Antietam National Battlefield.
Summary of Baseline Documentation
A Baseline Report is kept on file at the office of the Grantee and is fully incorporated into this Conservation Easement as though attached hereto and made a part thereof, including: Conservation Property summary, easement summary, description of scenic and natural features, description of existing structures, description of the surrounding community, USGS map, copy of Conservation Easement, property survey, including identification of designated Homesite and Riparian Buffer, aerial photograph of Conservation Property, map of surrounding protected land, current forest management plan, NRCS Conservation Plan, soils map, title search, tax map, map showing location of where photos were taken, photo documentation showing the condition of the Conservation Property at the time the easement is donated, and the resolution by the Board of Potomac Conservancy and the Jefferson County Commission providing authority to accept this Conservation Easement.
Letter from Eugene Olcott to Roger Dailey
Subject: Timbering Activities under Olcott Conservation Easement
The purpose of this letter is to advise the JCFPB of our intentions relating to timbering on the easement property. We will be in compliance with Section E, Management of Woodland Rescources and are as follows:
1. Restrict any timber cutting to diseased trees and mature trees which are preventing regrowth of the younger trees or otherwise are at the ed of their life span and subject to approaching the state of a dead tree. These trees will be marketed, insofar as feasible, primarily because it is harmful to the forest to leave them lying on the ground to decay. Income from any sales is not even listed as an objective on page 1 of the forest management plan.
2. The Mead-Westvaco agreement will in no way influence the extent of tree cutting- That isour option as stated in the management plan. Moreover, our intention is to have the WV forester, James Gucerin, oversee this activity. He has inspected our forest and has agreed to do this. Four different foresters have inspected our forest and they have all been ecstatic about the qality of the trees.
Please believe that the Olcotts are tree lovers and often recall the beautiful words of the poem, TREES, by Joyce Kilmer, a fitting tribute to such stately beings.
Eugene L. Olcott
Margaret W. Olcott
JEFFERSON COUNTY, WV FILED December 31, 2003, 10:57:23 TRANSACTION NO: 2003034198
JOHN E OTT COUNTY CLERK BOOK OF DEEDS Book: 00984 Page: 00009