Gardiner’s revived Open Space Commission drafts model conservation easement

Reconstituted in April 2018 following more than three years of inactivity, and its effective dissolution after all its members’ terms had expired, the Open Space Commission (OSC) of the Town of Gardiner has been doing its homework. A presentation at the September 3 Town Board meeting of its progress so far on the topic of codifying procedures for conservation easements earned the OSC high praise from the board and town supervisor.

“Terrific job!” effused councilman Warren Wiegand. “I’ve been working on open space in this town since 2005, and this review is by far the most thorough and comprehensive that I’ve seen. Open space preservation was on hiatus, but now we’re back because of this group.”

OSC chair Jean-Ann McGrane gave a PowerPoint presentation recapping the work that the Commission has accomplished since its reactivation and listing its priorities for next steps for the town to take. First was a request for the Town Board to review the template that the group has prepared for a model conservation easement, based on best practices used in other rural municipalities. A second such document geared toward agricultural easements is currently being drafted by the OSC. Next, McGrane recommended that the Town Board review and update Gardiner’s existing Open Space Plan, adopted in 2006. The fourth priority was to research the town’s options for funding the ongoing monitoring of easements once established, and the fifth to implement the monitoring program.

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OSC representatives shared with the board a document prepared by OSC alternate member Linda Geary that plainly lays out which municipal boards, commissions and employees have jurisdiction over which specific aspects of creation and management of conservation easements. Such easements are mandated under Gardiner’s zoning law whenever a major subdivision is proposed in the two most restrictive of the town’s Shawangunk Ridge Protection Districts, SP-2 and SP-3, as well as for any development proposal anywhere in the township that seeks to benefit from the incentives of being designated an Open Space Development.

Geary’s chart illustrates that the Planning Board carries most of the weight in negotiating the terms of a conservation easement with the landowner, but the Town Board, Environmental Conservation Commission, OSC and code enforcement officer all have specific roles to play. The latter is tasked with monitoring the status of conservation easements annually in perpetuity, unless that role for a particular parcel is assigned to a third party such as a not-for-profit land trust.

OSC member Laura Wong-Pan pointed out that Section 155-11 of Gardiner’s Zoning Code “mandates that the town adopt specimen conservation easements for both agricultural and non-farm types…So far, there has not been uniformity. The usual procedure has been for the developer’s attorney to present a document written on behalf of the landowner.” Such developer-driven terms often become unwieldy for the town, especially in situations where a third-party monitor who has not been involved in the negotiations later takes over enforcement. “The land trust gets stuck with the language,” she said.

The remedy for this weak bargaining position, according to OSC, is for the Town Board to establish easement templates as soon as possible. Wong-Pan briefly reviewed the terms of the model document that the group is recommending, which goes into considerable detail regarding prohibited acts, reserved rights and obligations of the grantor (the landowner) and the rights of the grantee (the town). But the most important part, she said, was Article One, which lays out the “conservation purpose” of such an easement: to maintain, protect and improve water, biological, soil or scenic resources or ecosystem services. “It needs to be spelled out,” she said. “It’s not just any field that we found.”

The Town Board accepted the proposed template enthusiastically and promised to review it. “We’ve been working on the easement for the Heartwood property, and if this had existed, it could have saved us a lot of trouble,” noted supervisor Marybeth Majestic. “This is unbelievable work that you’ve done.”

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