HomeMy WebLinkAboutAgenda - 03-27-2007-5iORANGE COUNTY
BOARD OF COUNTY COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: March 27, 2007
Action Agenda
Item No. .~'' 1
SUBJECT: Resolution of Approval -Conservation Easement for Stillhouse Creek
DEPARTMENTS: ERCD, NRCS/Soil and Water PUBLIC HEARING: (Y/N) No
Conservation District
ATTACHMENT(S):
Resolution of Approval
Site Map
Draft Conservation Easement
INFORMATION CONTACT:
David Stancil, 245-2590
Rich Shaw, 245-2591
Brent Bogue, 245-2750
PURPOSE: To consider a resolution to approve the granting of a conservation easement by
Orange County to the State of North Carolina for the Stillhouse Creek Restoration Project.
BACKGROUND: Stillhouse Creek is a tributary of the -Eno River that runs through the
Orange County governmental campus in downtown Hillsborough. The Stillhouse Creek
restoration project was completed in May 2006.
The project restored a 1,400-foot section of the stream from Margaret Lane (behind the John
Link Government Services Center) to the Eno River. Substantial erosion had occurred along
this segment of the stream during the past 20 years., and this project was needed to minimize
future erosion and to restore streamside vegetation.
The restoration project design, construction, and oversight were completed by the Orange
Soil and Water Conservation District, the NC Division of Soil and Water Conservation, and
the. USDA-Natural Resource Conservation Service along with the cooperation of various
County departments, including ERCD, Recreation & Parks, and Public Works. The project
was funded entirely by the NC Ecosystem Enhancement Program (EEP) for $239,000.
The creek restoration project was completed in May 2006. Activities to restore the stream
included re-establishing a vegetated buffer comprised of over 500 native trees and shrubs.
Portions of the stream were re-routed to decrease erosion and new "wetland pools" were
created to enhance aquatic habitat. The project design was coordinated with the planned
County courthouse expansion and River Park project.
The County entered into the project agreement with the State knowing that the County would,
following the restoration phase of the project, grant a conservation easement to State. The
easement will ensure permanent protection for the stream corridor (2.09 acres) while allowing
for maintenance of stream crossings for walking trails and utilities.
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ERCD staff has worked with the State and the County Attorney to prepare a draft
conservation easement agreement that meets. the needs all affected parties. The easement
will accommodate the planned River Park, Farmers Market structure, courthouse expansion,
and future maintenance of pedestrian bridges and utility crossings.
The Orange Soil & Water Conservation and ERCD staffs intend to use this project for
environmental education programs that will include signage and teaching areas to explain the
purpose and process of the stream restoration project.
FINANCIAL IMPACT: There would be no County expenditures to implement this action.
The conservation easement would be administered by the Environment and Resource
Conservation Department, which would entail periodic monitoring of the easement area and
reporting findings and recommendations to the appropriate parties.
RECOMMENDATION: The Manager recommends that the Board adopt the resolution
approving the granting by Orange County of the conservation easement and authorize the
Chair and the Clerk to sign the conservation easement agreement, subject to final review by
staff and county attorney, with a closing and recordation of the document expected to occur
on or about April. 30, 2007.
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ORANGE COUNTY BOARD OF COMMISSIONERS
RESOLUTION
Approval of a Conservation Easement between
Orange County and the State of North Carolina
WHEREAS, Orange County has adopted goals that promote the preservation of natural
areas, wildlife habitat, farmland and open space in the County; and
WHEREAS, Orange County established the Lands Legacy Program for the purpose of
protecting the most significant natural and cultural resources through partnerships with
landowners and other conservation entities; and
WHEREAS, Orange County, through its Lands Legacy Program, works to preserve important
natural areas, wildlife habitat and riparian buffers within water supply watersheds; and
WHEREAS, one of the conservation measures employed by the County to protect sensitive
resource lands is by entering into a conservation easement agreement; and
WHEREAS, Orange County worked in partnership with the Natural Resources Conservation
Service, the Orange Soil and Water Conservation District, and the NC Ecosystem
Enhancement Program to restore the 1,400-foot section of Stillhouse Creek that flows
through County property between Margaret Lane and the Eno River; and
WHEREAS, the County entered into a agreement with the NC for Ecosystem Enhancement
Program to restore this section of Stillhouse Creek with the knowledge that it would grant a
conservation easement to protect this site from future degradation; and
WHEREAS, a conservation easement on this 2.09-acre area along Stillhouse Creek would
ensure the preservation of this site.for enhanced water quality, aquatic habitat, and
environmental education purposes:
NOW, THEREFORE, BE IT RESOLVED that the. Orange County Board of Commissioners on
behalf of Orange County does hereby 1) grant to the State of North Carolina the conservation
easement to protect the Stillhouse Creek restoration area owned by Orange County; 2)
approve the execution of this conservation easement agreement with the State of North
Carolina, in accordance with the terms of the proposed easement agreement, subject to final
review by staff and the county attorney; and 3) authorize the Chair and the Clerk to sign the
easement agreement on behalf of the Board, with a closing to occur on or about April 30,
2007.
This the 27th day of March, 2007.
Moses Carey Jr., Chair
Orange County Board of Commissioners
Donna Baker, Clerk to the Board
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STATE OF NORTH CAROLINA
ORANGE COUNTY
CONSERVATION EASEMENT
THIS CONSERVATION EASEMENT DEED, made this day of
2007, by and between Orange County, North Carolina, having an address of
Post Office. Box 8181, Hillsborough, NC 272'78 (hereinafter "Grantor"), and the State of North
Carolina (hereinafter "Grantee"), whose mailing address is State of North Carolina, Deparment
of Administration, State Property Office, 1321 Mail Service Center, Raleigh, NC 27699-1321.
The designations Grantor and Grantee as used herein shall include said parties, their heirs,
successors, and assigns, and shall include singular, plural, masculine, feminine, or neuter as
required by context.
WITNESSETH:
WHEREAS, pursuant to the provisions of N.C.. Gen. Stat. 3 143-214.8 et seq., the State
of North Carolina has established the. Wetlands Restoration Program (as defined in N.C. Gen Stat.
3 143-214.8) within the Department of Environment and Natural Resources for the purposes of
acquiring, maintaining, restoring, enhancing, and creating wetland and riparian resources that
contribute to the protection and improvement of water quality, flood prevention, fisheries, aquatic
habitat, wildlife habitat, and recreational opportunities; and
WHEREAS, The State of North Carolina is qualified to be the Grantee of a Conservation
Easement pursuant to N.C. Gen. Stat. § 121-35; and
WHEREAS, the Ecosystem Enhancement Program in the Department of Environment
and Natural Resources has approved acceptance of this instrument; and
WHEREAS, the Department of Environment and Natural Resources, the North Carolina
Department of Transportation and the United States Army Corps of Engineers, Wilmington
District entered into a Memorandum of Agreement, (MOA) duly executed by all parties in
Greensboro, NC on July 22, 2003. This MOA recognizes that the Ecosystem Enhancement
Program is to provide for compensatory mitigation by effective protection of the land, water and
natural resources of the State by restoring, enhancing and preserving ecosystem functions; and
WHEREAS, the acceptance of this instrument for and on behalf of the State of North
Carolina has been granted to the Department of Administration by resolution as approved by the
Governor and Council of State adopted at a meeting held in the City of Raleigh, North Carolina,
on the 8~' day of February 2000; and
WHEREAS, Grantor owns in fee simple certain real property situated, lying, and being
in Hillsborough Township, Orange County, North Carolina (the "Protected Properly"), and being
more particularly described as that certain parcels of land identified as:
1) PIN# 9874-1S-2S17
2) PIN# 9874-15-0218
3) PIN# 0874-OS-8541
4) PIN# 0874-OS-6653
WHEREAS, Grantor is willing to grant a Conservation Easement on the Protected
Property, thereby restricting and limiting the use of the Protected Property to the terms and.
conditions and for the purposes hereinafter set forth, and Grantee is willing to accept such
easement. This Conservation Easement shall be for the protection and benefit of the waters of
Stilihouse Creek, its tributaries, and the Eno River.
NOW, THEREFORE, in consideration of the mutual covenants, terms, conditions, and
restrictions hereinafter set :forth, Grantor unconditionally and irrevocably hereby grants and
conveys unto Grantee, its successors and assigns, forever and in perpetuity, a Conservation
Easement of the nature and character and to the extent hereinafter set forth, over a portion of the
Protected Property, referred to hereafter as the Easement Area, for the benefit of the people of
North Carolina, and being all of the tracts of land as ident~ed as Areas 1, 2, 3, & 4 containing
2.09 acres as shown on a plat of survey entitled "Conservation Easement Survey of Stillhouse
Creek Restoration for NC Ecosystem Enhancement Program" dated 1/2/07, certified by Randy S.
Raxnbeau, Sr., PLS, McKim & Creed, and recorded in Map Book ,Page Orange
County Registry. The "Areas" being more particularly described as follows below and on Exhibit
A attached hereto and incorporated into:
Area 1- 39,878 SF or 0.92 Acres
Area 2 - 13,463 SF or 0.31 Acres
Area 3 - 30,516 SF or 0.70 Acres
Area 4 - 7,147 SF or 0.16 Acres
The purposes of this Conservation Easement are to maintain, restore, enhance, and create
wetland and/or riparian resources in the Easement Area that contributes to the protection. and
improvement of water quality, flood prevention, fisheries, aquatic habitat, wildlife habitat, and
recreational opportunities; to maintain permanently the Easement Area in its natural condition,
consistent with these purposes; and to prevent any use of the Easement Area that will
significantly impair or interfere with these purposes. To achieve these purposes, •the following
conditions and restrictions are set forth:
I. DURATION OF EASEMENT
This Conservation Easement shall be perpetual. It is an easement in gross, runs with the
land, and is enforceable by Grantee against Grantor, their personal representatives, heirs,
successors, and assigns, lessees, agents, and licensees.
II. GRANTOR RESERVED USES AND RESTRICTED ACTIVITES
The Easement Area shall be restricted from any development or usage that would impair
or interfere with the purposes of this Conservation Easement. Unless expressly reserved as a
compatible use herein, any activity in, or use of, the Easement Area by the Grantor is prohibited
as inconsistent with the purposes of this Conservation Easement. Any rights not expressly
reserved hereunder by the Grantor have been acquired by the Grantee. Maintenance of the area
shown on the plat as "Occoneechee Village Palisades" within the easement is excepted. The
following specific uses are prohibited, restricted; or reserved as indicated:
A. Recreational Uses. Grantor expressly reserves the right to undeveloped recreational
uses, including hunting, bird watching, hiking, and fishing, and access to the
Easement Area for the purposes thereof. Usage of motorized vehicles in the
Easement Area is prohibited, except as they are used exclusively for management,
maintenance, or stewardship purposes, and on existing trails; paths, or roads.
B. Educational Uses. The Grantor reserves the right to undeveloped educational uses
and the right of access to the Easement Area for such purposes including organized
educational activities such as site visits, studies, and observations. Educational uses
of the property shall not alter vegetation, hydrology, or topography of the site.
C. Vegetative Cutting. Except as related to the removal of non-native plants diseased
or damaged trees, and vegetation that obstructs, destabilizes, or renders unsafe the
Easement Area to persons or natural habitat, all cutting, removal, mowing, harming,
or destruction of any vegetation in the Easement Area is prohibited.
D. Industrial Use. Industrial activities in the Easement Area are prohibited.
E. Residential Use. Residential use of the Easement Area is prohibited.
F. Commercial Use. Commercial activities in the Easement Area are prohibited.
G. Agricultural Use. All agricultural use of the Easement Area including use for
cropland, waste lagoons, or pastureland is prohibited.
H. New Construction. There shall be no building, facility, mobile home, or other
structure constructed or placed in the Easement Area. Existing bridges may be
repaired, reasonably enlarged and replaced at their current locations, as shown on
Exhibit B, with the advance written approval of the Grantee.
I. Signs. No signs shall be permitted in the Easement Area except interpretive signs
describing restoration activities and the conservation values of the Easement Area,
signs identifying the owner of the Protected Property and the holder of the
Conservation Easement, and signs giving directions or proscribing rules and
regulations for the use of the Easement .Area or for the adjacent County-owned land.
J. Dumping. Dumping of soil, trash, ashes, garbage, waste, abandoned vehicles,
appliance or machinery, or other material in the Easement Area is prohibited.
K. Grading, Mineral Use, Excavation, Dredging. Except for the construction of
bridges authorized under Paragraph H, there shall be no grading, filling, excavation,
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dredging, mining, or drilling; no removal of topsoil, sand, gravel, rock, peat,
minerals, or other materials.
L. Water Quality and Drainage Patterns. There shall be no diking, draining,
dredging, channeling, filling, leveling, pumping, impounding or related activities, or
altering or tampering with water control structures or devices, or disruption or
alteration of the restored, enhanced, or created drainage patterns. In addition;
diverting or causing or permitting the diversion of surface or underground water into,
within or out of the easement area by any means, removal of wetlands, polluting or
discharging into waters, springs, seeps, or wetlands, or use of pesticide or biocides is
prohibited. In the event of an emergency interruption or shortage of all other water
sources, water from within the Easement Area may be temporarily used for good
cause shown as needed for the survival of livestock and agricultural production.
M. Subdivision. No further subdivision, partitioning, or dividing of the Easement Area
is allowed. Unless agreed to by the Grantee in writing; any future conveyance of the
Easement Area. and the rights as conveyed herein shall be as a single block of
property. Any future conveyance of the remaining fee simple rights shall be subject
to this Conservation Easement. Grantor agrees for itself, its successors and assigns,
that in the event it transfers the Property, or any portion thereof, such transfer is
subject to the Grantee's right of ingress, egress, and regress over and across .the
Property to the Easement Area for the purposes set forth herein.
N. Development Rights. All development rights are removed from the Easement Area
and shall not be transferred.
O. Disturbance of Natural Features. Any change, disturbance, alteration or
impairment of the natural features of the Easement Area or any intentional
introduction of non-native plants, trees and/or animal species by Grantor is
prohibited.
P. Utilities. Through, over, under and across the Easement Area, the following
numbered conditions shall apply: .
1) All existing utility easements and facilities as shown on the plat entitled "Conservation
Easement Survey of Stillhouse Creek Restoration for the NC Ecosystem Enhancement
Program" dated 1/2/07 are exempt from the requirements described below.
2) Pipeline and utility line construction will be minimized to the greatest extent
reasonably practicable.
3) A1T disturbed facilities; features and vegetation will be restored to their original
condition to the greatest extent reasonably practicable. Due to the environmental
sensitivity of the Easement Area, disturbed and removed vegetation in access
areas, staging areas, constructed areas, excluding the permanent utility easement,
will be replaced with herbaceous species such that the Protected Property
achieves a rapid recovery from the disturbance. The permanent utility easement
will be vegetated with suitable grass vegetation.
4) Corridor and clearing width for both crossings and parallel construction will be
limifed to the minimum necessary to construct the needed facilities, subject to
line size, equipment size and work zone. The temporary construction easements
will be vegetated with native herbaceous species at the completion of
construction.
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5) Utility construction will minimize the disturbance of structures used for grade control,
habitat and bank stabilization. If disturbance occurs in order to provide service, the
structure will be restored to its original condition to the greatest extent reasonably
practicable. .
6) Permanent utility easement corridors will be minimised to the greatest extent reasonably
practicable and are limited to fifteen (15) to thirty (30) feet in width depending upon
pipeline size and depth.
7) Vegetative clearing and general construction disturbance will be minimised to the
greatest extent reasonably practicable.
8) Crossings will be perpendicular to the greatest extent reasonably practicable.
9) Crossings will be accomplished by drilling, boring and jacking methods to the greatest
extent reasonably practicable. When crossings must be constructed using open trench
excavation, temporary discharge of excavated or fill material will be minimized in both
quantity and duration to the greatest extent reasonably practicable.
10) Erosion control devices shall be utilized to contain all disturbed materials and will
conform to State requirements. Crossing of the waterway, wetland or other water feature
will be accomplished in a timely manner such that environmental and flooding impact is
minimized to the greatest extent reasonably practicable.
11) Depth of underground construction shall be to a sufficient depth to avoid future exposure
due to scouring to the greatest extent reasonably practicable.
12) Utilities constructed parallel to stream corridors will be a minimum of twenty (20) feet
from the top of stream bank unless explicit exception is granted. The area between the
utility and the top of stream bank shall remain undisturbed except at crossings.
The Grantor may request permission to vary from the above restrictions for good cause
shown, provided that any such request is consistent with the purposes of this Conservation
Easement. The Grantor shall not vary from the above restrictions without first obtaining written
approval from the Wetlands Restoration Program, whose mailing address is 1652 Mail Services
Center, Raleigh, NC 27699-1652.
III. GRAI~TTEE RESERVED USES
A. Ingress, Egress, Regress and Inspection. The Grantee, its employees and
agents, successors and assigns, receive the perpetual right of general ingress, egress, and regress
to the Easement Area over the Property at reasonable times to undertake any activities to restore,
manage, maintain, enhance, and monitor the wetland and riparian resources of the Easement
Area, in accordance with restoration activities or a long-term management plan. Unless otherwise
specifically set forth in this Conservation Easement, the rights granted herein do not include or
establish for the public any access rights. .
B. Restoration Activities. These activities include planting of trees, shrubs and
herbaceous vegetation, installation of monitoring wells, utilization of heavy equipment to grade,
fill, and prepare the soil, modification of the hydrology of the site, and installation of natural and
manmade materials as needed to direct in-stream, above ground, and subterraneous water flow.
IV. ENFORCEMENT AND REMEDIES
A. Enforcement. To accomplish the purposes of this Conservation Easement,
Grantee is allowed to prevent any activity within the Easement Area that is inconsistent with the
purposes of this Easement and to require the restoration of such areas or features of the Easement
Area that may have been damaged by such activity or use. Upon any breach of the terms of this
Conservation Easement by Grantor, their successors or assigns, that comes to the attention of the
Grantee, the Grantee shall, except as provided below, notify the Grantor, their successors or
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assigns in writing of such breach. The Grantor shall have ninety (90) days after receipt of such
notice to correct the conditions constituting such breach. If the breach remains uncured after
ninety (90) days, the Grantee may enforce this Conservation Easement by appropriate legal
proceedings including damages, injunctive and other relief. The Grantee shall also have the
power and authority, consistent with its statutory authority: (a) to prevent any impairment of the
Easement Area by acts which may be unlawful or in violation of this Conservation Easement; (b)
to otherwise .preserve or protect its interest in the Property; or (c) to seek damages from any
appropriate person or entity. Notwithstanding the foregoing, the Grantee reserves the immediate
right, without notice, to obtain a temporary restraining order, injunctive or other appropriate relief
if the breach of the term of this Conservation Easement is or would irreversibly or otherwise
materially impair the benefits to be derived from this Conservation Easement. The Grantor and
Grantee acknowledge that under such circumstances damage to the Grantee would be irreparable
and remedies at law will be inadequate. The rights and remedies of the Grantee provided
hereunder shall be in addition to, and not in lieu of, all other rights and remedies available to
Grantee in connection with this Conservation Easement.
B. Inspection. The Grantee, its employees and agents, successors and assigns, have
the right, with reasonable notice, to enter the Easement Area over the Property at reasonable
times for the purpose of inspection to determine whether the Grantor, their successors or assigns
are complying with the terms, conditions and restrictions of this Conservation Easement.
C. Acts Beyond Grantor's Control. Nothing contained in this Conservation
Easement shall be construed to entitle Grantee to bring any action against Grantor, their
successors or assigns, for any injury or change in the Easement Area caused by third parties,
resulting from causes beyond the Grantor's control, including, without limitation, fire, flood,
storm, and earth movement, or from any prudent action taken in good faith. by the Grantor under
emergency conditions to prevent, abate, or mitigate significant injury to life, damage to property
or harm to the Property resulting from such causes.
D. Costs of Enforcement. Beyond regular and typical monitoring, any costs
incurred by Grantee in enforcing the terms of this Conservation. Easement against Grantor, their
successors or assigns, including, without limitation, any costs of restoration necessitated by
Grantor's acts or omissions in violation of the terms of this Conservation Easement, shall be
borne by Grantor.
E. No Waiver. Enforcement of this Easement shall be at the discretion of the
Grantee and any forbearance, delay or omission by Grantee to exercise its rights hereunder in the
event of any breach of any term set forth herein shall not be construed to be a waiver by Grantee.
IV. MISCELLANEOUS
A. 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 provision is found to be invalid, the
remainder of the provisions of the Conservation Easement, and the application of such provision
to persons or circumstances other than those as to which it is found to be invalid, shall not be
affected thereby.
B. Any notices shall be sent by registered or certified mail, return receipt requested
to the parties at their addresses shown above or to other address(es) as either party establishes in
writing upon notification to the other.
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C. Grantor shall notify Grantee in writing of the name and address and any party to
whom the Protected Property or any part thereof is to be transferred at or prior to the time said
transfer is made. Grantor further agrees to make any subsequent lease, deed, or other legal
instrument by which any interest in the Protected Property is conveyed subject to the
Conservation Easement herein created.
D. The Grantor and Grantee agree that the terms of this Conservation Easement shall
survive any merger of the fee and easement interests in the Property or any portion thereof.
E. This Conservation Easement may be amended, but only in a writing signed by all
parties hereto, .and provided such amendment does not affect the qualification of this
Conservation Easement or the status of the Grantee under any applicable laws, and is consistent
with the purposes of the Conservation Easement.
F. The parties recognize and agree that the benefits of this Conservation Easement are in
gross and assignable provided, however, that the Grantee hereby covenants and agrees, that in the
event it transfers or assigns this Conservation Easement, the organization receiving the interest
will be a qualified holder under N.C. Gen. Stat. § 121-34 et seq. and § 170(h) of the Internal
Revenue Code, and the Grantee further covenants and agrees that the terms of the transfer or
assignment will be such that the transferee or assignee will be required to continue in perpetuity
the conservation purposes described in this document.
V. QTT~T ENJOYMENT
Grantor reserves all rights accruing from ownership of the Protected Property, including
the right to engage in or permit or invite others to engage in only those uses of the Easement Area
that are expressly reserved herein, not prohibited or restricted herein, and are not inconsistent
with the purposes of this ,Conservation Easement. Without limiting the generality of the
foregoing, the Grantor expressly reserves to the Grantor, and the Grantor's invitees and licensees,
the right of access to the Easement Area, and the right of quiet enjoyment of the Easement Area.
TO HAVE AND TO HOLD the said rights and easements perpetually unto Grantee for
the aforesaid purposes.
.AND Grantor covenants that Grantor is seized of said premises in fee and has the right to
convey the permanent easement herein granted; that the same are free from encumbrances and
that Grantor will warrant and defend title to the same against the claims of all persons
whomsoever.
[The remainder of this page is intentionally left blank. Signature page follows.]
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IN TESTIMONY WHEREOF, the Grantor has hereunto set his hand and seal; the day
and year first above written,
Grantor
ORANGE COUNTY, NORTH CAROLINA
By:
Moses Carey Jr., Chair
Orange County Board of Commissioners
ATTEST:
Donna S. Baker, Clerk'to the
Board of Commissioners
(Notary Seal)
NORTH CAROLINA
COUNTY OF ORANGE
I, a Notary Public of the County and State aforesaid, certify that Donna S. Baker
personally came before me this day and acknowledged that she is Clerk to the Board of
Commissioners for Orange County, North Carolina and that by authority duly given and as the act
of said County, the foregoing instrument was signed in its name by the Chair of said Board of
Commissioners and attested by her as Clerk to said Board of Commissioners.
Witness my hand and ofFcial stamp or seal, this the day of , 200,
Notary Public
My commission expires:
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