Friday, July 18, 2003
Conservation restrictions are enforced: a cautionary tale
A report from Carlisle Conservation Restriction Advisory Committee (CRAC) Chair David Kelch brought an atmosphere of palpable angst to the final half hour of the Carlisle Conservation Commission (ConsCom) meeting July 10. Kelch announced that in the performance of their charter to monitor compliance with the terms of conservation restrictions held by the Town of Carlisle and managed by the commission, committee members Kelch, Wayne Davis, Eunice Knight and Tom Brownrigg had come upon a clear infringement on property in the Tall Pines subdivision.
The location was especially significant because, back in the mid 1990s, when Tall Pines Realty Trust was negotiating with both the local commission and the state Department of Environmental Protection for the right to develop the environmentally sensitive property, the Trust had granted two restrictive conservation easements "in perpetuity" in order to protect the historic Carlisle Pines and preserve sensitive wildlife habitat. One easement permitted limited trail access and forbade any change or improvement within its confines, while a second did roughly the same but made an allowance for septic systems and wells only.
The reported violation was located in the more restrictive of the two areas and involved a basketball court and a relatively new well. The owners of the Hutchins Road property, long-time Carlisle residents Dennis and Linda Chateauneuf, were present at the meeting and explained contritely that they had made the mistake of assuming that the conservation easement pertained only to land at the rear of the house toward Carlisle Pines State Forest, not realizing that it also extended to property on the side. When their children were younger, they had put in a swing set and later added the basketball court.
Commission Chair Tricia Smith explained regretfully that the easements involved had been "very hard fought" in the past when the developers were seeking a free hand to lay out the subdivision, and neighbors, town officials and a group of concerned townspeople battled to protect the Carlisle Pines and critical wildlife corridors. Seeking to clarify the legal realities, commissioner Roy Watson said, "If I understand you, you don't question the existence of an infraction?" Chateauneuf replied in the negative, repeated that he deeply regretted the error and stressed that it was completely inadvertent. To which Watson responded, "You know that [under the law] ignorance is no defense." Chateauneuf nodded agreement but pleaded for some sort of compromise that might permit the family to retain the play area or at least postpone the time of reckoning.
While expressing genuine sympathy, Watson declared, "If we could accommodate you, we would.But we fail to serve our town if we fail to hold you to the restrictions, particularly since the matter was so hard fought in the pastYou need to remove it [the basketball court] and the area needs to be allowed to naturalize." Chateauneuf said he was "saddened" that the commission felt there was no way to compromise. "It's going to be costly and it's going to kill my children," he added. Other commissioners gently explained that if they were to allow him to infringe on the easement, then other property owners holding land within conservation easements, whether in Tall Pines or elsewhere in town, would argue that they too should be forgiven or accommodated, and soon a conservation restriction would be meaningless.
For his part CRAC member Davis told the unhappy couple, "We have done this job [walking the CR areas] with the hope that we would not find any problems, and we too are saddened by all this." He explained further that the committee's main objective in calling the owners and walking the territories was to educate the property owners about the environmental sensitivity of areas they live in. To a question about the deed restrictions supposed to be in homeowners' deeds (and contained in the Chateauneuf's deed) , he replied that even if the restrictions were somehow dropped as ownership changed hands, not even that eventuality could extinguish the CR's provisions.
Because the Chateauneufs had mentioned the possibility of seeking legal counsel and had been advised that although this was certainly their right, in this case it would only add to their eventual costs, the commissioners suggested that they talk further with CRAC members. They also indicated no action would be taken immediately, although the final outcome was inevitable. As the unfortunate homeowners departed, a pall descended on the group, with members of both CRAC and ConsCom expressing deep regret that an innocent mistake had to cause so much pain.
© 2003 The