HomeMy WebLinkAboutConservation Easement - Carl and Eve Shy, PIN: 9831-20-1870, PIN: 9831-10-8624 FILED
23 OCT 2002, at 10:53:06am
Gook 2757, Page 110 – 133
Joyce H. Pearson
Box 2757 °a 110 Register of Deeds,
Orange County, N. C.
Shy Conservation Easement
Prepared by and return to: Geoffrey E.Gledhill;Coleman,Gledhill&Hargrave;
P.O.Drawer 1529;Hillsborough,NC 27278
NORTH CAROLINA
COUNTY OF ORANGE
CONSERVATION EASEMENT
This Grant of Conservation Easement(hereinafter"Conservation Easement")is made the
day of OC,+'s 6 t-4— ,2002 by CARL M.SHY and EVE CAROL SHY,husband and wife,
having an address at 6626 Bradshaw Quarry Road,Efland,NC 27243(hereinafter"Grantors")and
ORANGE COUNTY,NORTH CAROLINA,having an address of Post Office Box 8181,
Hillsborough,NC 27278(hereinafter"Grantee").
The designation Grantors and Grantee as used herein shall include said parties,their
heirs,successors and assigns,and shall include singular,plural,masculine,feminine or neuter
pronouns as required by context.
RECITALS
A. The Grantors are the sole owners in fee simple of those two contiguous tracts of
real property located in Bingham Township,.Orange County,North Carolina,and described as
follows:
1. Being all of that 32.95-acre tract designated as Lot 1-R(consisting of Lots 1-A
and I-B)on the plat of property titled"Property of Carl M.Shy and Eve Carol
Shy,"prepared by ENT Land Surveys,Inc.,which plat is recorded at Plat Book 90
Page 2,Orange County Registry(PIN:9831-20-1870I TMBL 6.15..1 IC);and
2. Being all of that 11.77-acre tract shown as Lot 2 on the plat of property titled
"Property of Carl M.Shy and Eve Carol Shy,"prepared by ENT Land Surveys,
Inc.,which plat is recorded at Plat Book 90 Page 2,Orange County Registry
(PIN:9831-10-8624,TMBL 6.15..1 IT).
0
These two tracts together,comprising 44.72 acres,are hereinafter collectively referred to either
"the Grantors'Property"or the"Easement Area."
3. To the extent practicable,the Grantors wish to maintain the Grantors'Property as
a combination of woodland and open space suitable as habitat for the native-flora and fauna of
the North Carolina Piedmont,and to protect the quality of water running off from this land and
into a stream that enters the Cane Creek Reservoir.
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Shy Conservation Easement BOOK 2757 57 PAGE III
B. The Grantee is a body politic existing under Chapter 153A of the North Carolina
General Statutes.
C. The Easement Area is a significant natural area that qualifies in its present
condition as a"...relatively natural habitat of fish,wildlife,or plants, or similar ecosystem,"as
that phrase is used in P.L. 96-541, 26 UCS 170(h)(A)(ii), as amended, and in regulations
promulgated thereunder. Specifically,the Easement Area is habitat for a variety of native plants
and animals described for this area on Pages 41-42 of the Inventory of the Natural Areas and
Wildlife Habitats of Orange County,North Carolina,written by Dawson Sather and Stephen
Hall and conducted for the Triangle Land Conservancy in coordination with the North Carolina
Natural Heritage Program in December 1988. The native plants and animals include chestnut
oak,red oak, shagbark hickory,red-tailed hawk, scarlet and summer tanagers,yellow-throated
vireos,white-tailed deer,red foxes, eastern chipmunks and gray squirrels. Following is an
excerpt from the Natural Heritage Inventory:
"Reasons for significance: Three of the low peaks surrounding the Cane Creek Reservoir
are still relatively undeveloped and possess good examples of upland hardwood forests
typical of the Piedmont. Collectively, these uplands are extensive enough to provide
good habitat for several animals sensitive to human disturbance. Situated in the Cane
Creek valley, it is an important habitat node within an extensive wildlife corridor
connected to the Haw River system."
The Easement Area also includes land within a zone designated by Orange County as a
"critical area"of a protected water supply watershed for the Cane Creek Reservoir. Another
primary purpose of this Easement to protect the largely undeveloped nature of the Grantors'
Property and,in doing so,helping to protect the high quality of that drinking water supply
serving the people of southern Orange County.
The Easement Area also includes productive agricultural land. The majority of the soils
on the Grantors' Property are classified as "prime soils"by the Natural Resources Conservation
Service,U.S. Department of Agriculture,which in part has allowed the property to qualify for the
special use ad valorem property tax assessment for lands used for silvicultural, agricultural or
horticultural purposes, set forth in N.C. Gen. Stat. 105.277.3 et seq. It is a secondary purpose of
this Easement to protect the agricultural soils and agricultural viability and productivity of the
Grantor' Property.
The Easement Area also contributes to the rural and scenic character of Bingham
Township in southwestern Orange County. Bradshaw Quarry Road(State Road 1115)is
identified as a scenic road corridor in the Orange County Comprehensive Plan. Although
forested buffers along that road obscure views of the Easement Area, interior views are highly
scenic with mixed woodlands surrounding rolling pastures,meadows and a pond. It is a further
purpose of the Easement to help to protect the rural character and open space of Bingham
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Shy Conservation Easement BOOK 2757 PAGM2
Township.
The natural habitat and agricultural resources of the Grantors' Property,and its
contribution to the protection of the area water supply and rural character are collectively referred
to as the"conservation values" of the Easement Area.
D. The characteristics of the Easement Area,its current use and state of
improvement, are described in a report entitled`Baseline Report on the Carl and Eve Shy
Property,"dated September 26, 2002(hereafter"the Baseline Report")prepared by Grantee for
the Grantors,of which a summary is attached as Exhibit A to this Conservation Easement. The
Grantors worked with the Grantee to ensure that the report is a complete and accurate description
of the Easement Area as of the date of this Conservation Easement. It will be used by the
Grantors and Grantee to assure that any future changes in the use of the Easement Area will be
consistent with the terms of this Conservation Easement. However, the Baseline Report is not
intended to preclude the use of other evidence to establish the present condition of the Easement
Area if there is a question about its use.
E. The Grantors and Grantee have the common purpose of conserving the
above-described conservation values of the Easement Area in perpetuity, and the State of North
Carolina has authorized the creation of Conservation Easements pursuant to the terms of the
North Carolina Conservation and Historic Preservation Agreements Act,N.C. Gen. Stat. §
121-34 et seq., and N.C. Gen. Stat. §§ 160A-266-279,which provide for the enforceability of
restrictions, easements, covenants or conditions"appropriate to retaining land or water areas
predominantly in their natural, scenic or open condition or in agricultural,horticultural, farming,
or forest uses," and which provide for tax assessment of lands subject to such agreements "on the
basis of the true value of the land and improvements less any reduction in value caused by the
agreement"; and the Grantors and Grantee wish to avail themselves of the provisions of those
laws.
NOW,THEREFORE,the Grantors, for and consideration of the facts recited above and
of the mutual covenants,terms,conditions and restrictions contained herein and as an absolute
and unconditional gift,hereby gives,grants and conveys unto the Grantee, its successors and
assigns,forever and in perpetuity for the benefit of the people of North Carolina, a Conservation
Easement over the Easement Area of the nature and character as follows:
1. PURPOSE. The purposes of this Conservation Easement are to ensure that the
Easement Area will be retained forever predominantly in its natural, forested, and open space
condition;to protect native plants and animals, or plant communities on the Easement Area,
while allowing traditional uses on the Easement Area that are compatible with and not
destructive of the conservation values of the Easement Area such as gardening and propagation
of native plants, selective timber harvesting,farming of existing pastures and fields,and artistic
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and recreational activities; and to prevent any use of the Easement Area that will impair or
interfere with the conservation values or interests of the Easement Area.
Grantors will not perform,nor knowingly allow others to perform,any act on or affecting
the Easement Area that is inconsistent with the purposes of this Conservation Easement.
However,unless otherwise specified below,nothing in this Conservation Easement shall require
the Grantors to take any action to restore the condition of the Easement Area after any act of God
or other event over which Grantors had no control. Grantors understand that nothing in this
Conservation Easement relieves them of any obligation or restriction on the use of the Easement
Area imposed by law.
2. EASEMENT AREA USES. Any activity on, or use of,the Easement Area
inconsistent with the purposes of this Conservation Easement is prohibited. The Easement Area
shall be maintained in its natural, scenic and open condition and restricted from any development
that would impair or interfere with the conservation values of the Easement Area. Without
limiting the generality of the foregoing,the following is a listing of activities and uses which are
expressly prohibited or which are expressly allowed. Grantors and Grantee have determined that
the allowed activities do not impair the conservation values of the Easement Area. Additional
retained rights of Grantors are set forth in Paragraph 3 below.
2.1 Subdivision and Residential Use. The portion of the Easement Area
included in Lot 1-R maybe subdivided,partitioned, or conveyed into no more than two lots as
defined by Exhibit B to this Conservation Easement—: one parcel of approximately 14.32 acres
in size that includes the Grantors' residence and is identified on Exhibit B as Lot 1-A, and the
other lot of approximately 18.63 acres in size and identified on Exhibit B as Lot 1-B. Only one
permanent residence is allowed on Lot 1-A. No permanent residence may be constructed on Lot
1-B. Only one permanent residence may be constructed on Lot 2,which is a tract of
approximately 11.77 acres,and this tract may not be subdivided or partitioned.
2.2 Construction. Grantors shall have the right to construct and maintain two,
and only two,permanent residences within the Easement Area. The first residence currently
exists on the 14.32-acre Lot 1-A. The second residence is being constructed on Lot 2 and within
a Residential Envelope identified on Exhibit B. Grantors may construct driveways,utilities,
wells,and accessory structures whose use is incidental to and serves the two residences. Grantors
may also construct driveways to provide access to Castell Lane from other parts of Lot 1 A or Lot
1B. Grantors may also construct outbuildings for agricultural,horticultural, educational, artistic
or recreational purposes or for their own home-based small business so long as authorized by
Orange County zoning regulations and consistent with permits required by and issued by Orange
County under its laws and ordinances for such buildings and land uses. Furthermore, there shall
be no constructing or placing of any airplane landing strip,billboard or other advertising display,
utility pole,utility tower, conduit or line on or above the Easement Area other than those
necessary to service the Easement Area's improvements and remaining compatible with the
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E
Shy Conservation Easement BOOK 2757 PAr114
conservations values or interests of the Easement Area. Outdoor lighting shall be placed and
shielded so as to minimize the impact on surrounding areas.
2.3 Existing Improvements. Grantors shall have the right to maintain,
remodel, and repair existing structures,water tanks,water wells, fences,header dams,utilities,
and other improvements, and in the event of their destruction,to reconstruct any such existing
improvements with another of similar size,function,capacity,location and material so long as
authorized by Orange County zoning regulations and consistent with permits required by and
issued by Orange County under its laws and ordinances for such reconstruction.
2.4 Agricultural Use. Grantors shall have the right to plant,raise and harvest
crops in existing fields on the Easement Area. Grantors may not establish or maintain any
commercial feeder operation on the Easement Area,which is defined for the purpose of this
Conservation Easement as an intensive animal raising operation that takes place within a
building and for the most part the feed is not produced on the tract, and the processing is fully or
partly automated.
2.5 Timber Harvest. Commercial timbering of the woodland currently
existing on the Easement Area at the time of the initiation of this Conservation Easement is
prohibited. However,trees may be planted for harvesting on portions of the Easement Area
currently used for hay crops,and those trees may be harvested for commercial purposes provided
that the harvesting of the new tree plantings remains consistent with the conservation goal of
preserving habitat for native flora and fauna. Trees may be cleared from a portion of Lot 2 for a
home site and also if but only if additional cleared land is required to make a total of five cleared
acres to qualify for horticultural use valuation,provided such clearing is consistent with the
conservation goals of this Conservation Easement. Otherwise,the woodland existing at the time
of initiation of this Conservation Easement shall not be clear cut from either Lot 1-R or Lot 2 but
shall remain as a habitat for native flora and fauna.
Trees may be removed,cut and otherwise managed to control insects and disease,to prevent
personal injury and property damage, for firewood and other uses,including construction of
permitted improvements and fences on the Grantors' Property. Cutting,removal or harvesting of
trees except as expressly allowed in this Section 2.5,including clearing land for cultivation, shall
be specifically approved by the Grantee or shall be in accordance with a Forest Management Plan
which shall be in writing and approved by both Grantors and Grantee and provided further that
all timber roads shall be constructed of permeable materials and shall be no wider than ten(10)
feet.
2.6 Grazing. Grantors may graze or pasture domestic animals on the
Easement Area so long as authorized by Orange County zoning regulations and consistent with
permits required by and issued by Orange County under its laws and ordinances and so long as
the animals are fenced out of the streams and ponds located on the Easement Area. The
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BODK 2757 ParE 115
Shy Conservation Easement
authorization in the previous sentence includes the grazing or pasturing of animals for Grantors'
or their guests' recreation, or the boarding of horses or maintenance of a riding stable, or
pasturing of domestic animals used in connection with activities expressly allowed on the
Easement Area.
2.7 Home Business. No commercial or industrial enterprise,other than a
small,home-based business or enterprise consistent with the conservations values and interests
of the Easement Area, and other than those activities specifically mentioned above in Sections
2.2,2.4,2.5 and 2.6, shall be allowed on the Easement Area. Any such commercial or industrial
use of the Grantors' Property must be authorized by Orange County zoning regulations and be
consistent with permits required by and issued by Orange County under its laws and ordinances
for such land uses.
2.8 Recreational Use. Consistent with the purpose of and the limitations
contained in this Conservation Easement, Grantors shall have the right to engage in and permit
others,whether or not for consideration, to engage in recreational uses of the Property, including,
but not limited to, gardening,hiking,picnicking,horseback riding,non-motorized bicycling,
lawful hunting and fishing, and other recreational uses so long as authorized by Orange County
zoning regulations and consistent with permits required by and issued by Orange County under
its laws and ordinances. Recreational motorized vehicle use is prohibited from any land area of
the Conservation Easement. Pursuit of wildlife by any form of motorized transportation is not
allowed. Grantors may also construct and maintain fences,footpaths, and or non-motorized
vehicle trails incidental to such purposes. Grantors reserve the right to promulgate and enforce
reasonable rules and regulations for all activities incident to recreational use of the Easement
Area,including but not limited to the right to prohibit any recreational use that could
significantly impair the conservation values of the Easement Area.
2.9 Excavation.There shall be no filling,mining or drilling;no removal of
topsoil,sand,gravel,rock,peat,minerals or other materials,and no change in the topography of
the land in any manner except as necessary to allow a)the construction of the improvements
allowed above,b)the maintenance of roads,hiking,horseback and non-motorized vehicle trails
permitted hereunder, c)the combating of erosion or flooding, and d)the construction of one pond
not to exceed one acre on Lot 2 and of no more than five small ponds,none of which would
exceed 1/10 acre,to enhance the plant and animal ecosystems native to the locality.
2.10 Destruction of Plants. Grantors shall have the right to cut and remove
diseased trees, shrubs,or other plants,to cut and remove invasive(usually non-native)trees,
shrubs and other plants, and to cut firebreaks. Grantors shall also have the right to cut and
remove trees, shrubs, or other plants to accommodate the activities expressly allowed under this
Conservation Easement. There shall be no additional removal, harvesting,destruction or cutting
of native trees, shrubs or other plants. Except for use around improvements or in gardens, there
shall be no planting of non-native trees, shrubs, or other plants in the Easement Area.
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Furthermore, except to accommodate the activities expressly permitted in this easement,there
shall be no use of fertilizers,plowing, introduction of non-native animals,or disturbance or
change in the natural habitat in any manner.
' 2.11 Water Quality and Drainage Patterns. There shall be no pollution of
surface water,natural water courses, lakes,ponds,marshes, subsurface water or any other water
bodies,nor shall activities be conducted on the Easement Area that would be detrimental to water
purity or, except as specified herein,that could alter the natural water level or flow in or over the
Easement Area. Other than the construction of a well to serve allowed improvements and of
small ponds as permitted by Section 2.9 of this agreement,there shall be no alteration or
depletion of surface water,natural water courses,lakes,ponds,marshes, subsurface water or any
other water bodies on the Easement Area. Diking,draining, filling or removal of wetlands is
prohibited. Grantors reserve the right to extract water from existing and proposed ponds for
irrigation of plantings within the Easement Area.
2.12 Signage. No signs or billboards or other advertising displays are allowed
on the Easement Area except as follows: signs authorized by Orange County zoning regulations
whose placement,number and design do not significantly diminish the scenic character of the
Easement Area may be displayed to identify trails and the conservation values of the Easement
Area,to identify the name and address of the Easement Area and the names of persons living on
the Easement.Area,to give directions,to advertise or regulate permitted uses on the Easement
Area and prescribe rules and regulations for recreational use of the protected Easement Area,to
advertise the Easement Area for sale or rent, and to post the Easement Area against trespassers.
2.13 No Biocides. There shall be no use of pesticides or biocides, including but
not limited to insecticides, fungicides,rodenticides, and herbicides, except as required to control
invasive species detrimental to the conservation values of the Easement Area, and except as
needed around improvements on the Easement Area and in existing agricultural fields.
2.14 No Dumping. There shall be no storage or dumping of trash, garbage,
abandoned vehicles, appliances,or machinery,or other unsightly or offensive material,hazardous
substance,or toxic waste on the Easement Area(except the short-term storage of household
garbage,and waste). There shall be no changing of the topography through the placing of soil or
other substance or material such as land fill or dredging spoils,nor shall activities be conducted
on the Easement Area that could cause erosion or siltation on the Easement Area.
2.15 Predator Control. Grantors shall have the right to control,destroy,or trap
predatory and problem animals that pose a material threat to livestock and/or humans by means
and methods approved by the Grantee. The method employed shall be selective and specific to
individuals,rather than broadcast,nonselective techniques.
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BOD057 P46E I17
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2.16 Commercial Development. Except as otherwise provided in this
Conservation Easement, all commercial or industrial use of or activity within the Easement Area
is prohibited. This restriction on use shall not be construed to prohibit use of the Easement Area
for recreational, educational, artistic,and scientific purposes, as long as such activities are
otherwise consistent with this Conservation Easement.
2.17 Development Rights. With the exception of the right to construct and use
buildings expressly authorized elsewhere in this Conservation Easement, Grantors convey to
Grantee all development rights that are now or hereafter allocated to, implied,reserved or
inherent in the Easement Area,and the parties agree that such rights are terminated and
extinguished, and may not be used on or transmitted to any portion of the Easement Area,as it
now or hereafter may be bounded or described,or to any other property.
3. ADDITIONAL RIGHTS RETAINED BY GRANTORS. Grantors retain the
following additional rights:
(a) Existing Uses. The right to undertake or continue any activity or use of the
Easement Area not prohibited by this Conservation Easement. Prior to making any change in use
of the Easement Area, Grantors shall notify Grantee in writing to allow Grantee.a reasonable
opportunity to determine whether such change would violate the terms of this Conservation
Easement.0
(b) Transfer. The right to sell, give,mortgage, lease,or otherwise convey the
Easement Area is subject to the terms of this Conservation Easement.
(c) Right of Access. Permanent 60 feet wide right-of-access to Bradshaw Quarry
Road for lots now existing or hereafter created included in the Easement Area shall be via Castell
Lane as shown on Exhibit B and on the plat recorded at Plat Book 90,Page 2,Orange County
Registry. As provided in Section 2.2, Grantors shall have the right to construct driveways as
necessary to provide access to Castell Lane.
4. GRANTEE'S RIGHTS. To accomplish the purpose of this Conservation
Easement,the following rights are granted to Grantee by this Conservation Easement:
(a) Right to Protect. The right to preserve and protect the conservation values of the
Easement Area and enforce the terms of this Conservation Easement.
(b) Right of Entry. Grantee, its employees,representatives, and agents and its
successors and assigns,have the right, after prior written notice to Grantors,to
enter the protected Easement Area at least once yearly for the purposes of: (a)
inspecting the protected Easement Area to determine whether the Grantors, their
representatives, assigns,heirs and successors are complying with the covenants
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and purposes of this Conservation Easement; and(b)monitoring and research as
described below.
(c) Monitoring and Research. The right,but not the obligation,to monitor the native
plant and wildlife populations,plant communities and natural habitats on the
Easement Area. Grantee agrees that all monitoring activity, inventory and
assessment work or other natural resource research conducted by Grantee or
others shall be reported to Grantors. Grantors agree that all monitoring activity,
inventory and assessment work or other natural resource research conducted by
Grantors or others shall be reported to Grantee.
(d) Management of Exotics and Invasive Species. The right,but not the obligation, to
control,manage or destroy exotic non-native species or invasive species of plants
and animals that threaten the conservation values of the Easement Area. Grantee
will consult with Grantors prior to implementing control activities.
Grantee shall,to the extent permitted by law and to the extent of coverage available from policies
of insurance maintained by Grantee from time to time,indemnify and hold Grantors harmless
from any liability, damage, loss,cost or expense,including reasonable attorney fees, for personal
injury or property damage(including damage to the Easement Area)to Grantors or any third
party,resulting in any manner from Grantee's exercise of any of its rights hereunder.
5. RESPONSIBILITIES OF GRANTOR AND GRANTEE NOT AFFECTED.
Other than as specified herein, this Conservation Easement is not intended to impose any legal or
other responsibility on the Grantors,or in any way to affect any existing obligation of the
Grantors as owners of the Easement Area. Among other things,this shall apply to:
(a) Taxes -The Grantor shall be solely responsible for payment of all taxes and
assessments levied against the Easement Area.
(b) Upkeep and Maintenance-The Grantee shall have no obligation for the upkeep or
maintenance of the Easement Area. The granting of this Conservation Easement
shall not in and of itself be construed to create or impose upon the Grantors any
obligation for the upkeep or maintenance of the Easement Area except to the
extent elsewhere required by this Conservation Easement.
6. ACCESS. No right of access by the general public to any portion of the
Easement Area is conveyed by this Conservation Easement. However,the public has the right to
view the Easement Area from adjacent publicly accessible areas such as public roads and
waterways.
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7. ENFORCEMENT. The Grantee shall have the right to prevent and correct
violations of the terms of this Conservation Easement.
(a) With advance written notice the Grantee may enter the Easement Area for the
purpose of inspecting for violations. If the Grantee finds a violation, it may, in its discretion,
take appropriate legal action. Except when an ongoing or imminent violation could substantially
diminish or impair the conservation values of the Easement Area,the Grantee shall give the
Grantor written notice of the violation and sixty(60)days to correct it(or begin good faith efforts
to correct in the event the violation is something which cannot be reasonably corrected in sixty
(60)days)before filing any legal actions.Grantee has the right to enforce the terms of this
Conservation Easement by civil action, including the remedy of injunction,mandatory and
prohibitory. The failure of the Grantee to discover a violation or to take immediate legal action
shall not bar it from doing so at a later time.
(b) Grantee shall not bring any action against Grantors for any injury or change to the
Easement Area caused by third parties,or resulting from causes beyond the Grantors' control,
including,without limitation, fire, flood, storm and naturally caused earth movement,or from
any prudent action taken in good faith by the Grantors under emergency conditions to prevent,
abate, or mitigate significant injury to life, damage to the Easement Area or harm to the
Easement Area resulting from such action.
8. TRANSFER OF EASEMENT. The parties recognize and agree that the benefits
of this easement are in gross and assignable. The Grantee agrees that should it decide to transfer
or assign this Conservation Easement to a"qualified organization"under Section 170(h) of the
U.S. Internal Revenue Code, it will give the Triangle Land Conservancy right of first refusal. If
the Triangle Land Conservancy is unwilling or unable to accept such transfer or assignment, then
Grantee shall have the right to transfer or assign this Conservation Easement to another
"qualified organization"of its choosing provided the organization expressly agrees to assume the
responsibility imposed on the Grantee by this Conservation Easement. If the Grantee ever ceases
to exist or no longer qualifies under Sec. 170(h)or applicable state law, a court with jurisdiction
is hereby authorized to transfer this easement to another qualified organization having similar
purposes that agrees to assume the responsibility,with first preference given to the Triangle Land
Conservancy.
9. TRANSFER OF EASEMENT AREA. Grantors shall notify Grantee,in
writing,at least thirty(30) days prior to any conveyance by Grantors of the Easement Area or any
interest in the Easement Area,with the exception of Lot 2 which may be conveyed to an
immediate member of the Grantors' family without such notice to Grantee being required. The
document of conveyance shall expressly refer to this Conservation Easement and,by its terms,
the conveyance shall be made subject to and subordinate to this Conservation Easement.
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10. AMENDMENT OF EASEMENT. This easement may be amended only with
the written consent of Grantors and Grantee. Any such amendment shall be consistent with the
purposes of this Conservation Easement and shall comply with Sec. 170(h)of the Internal
Revenue Code,or any regulations promulgated in accordance with that section. Any such
amendment shall also be consistent with the Uniform Conservation and Historic Preservation
Agreements Act,N.C. Gen. Stat. § 121-34 et seq.,or any regulations promulgated pursuant to
that law. The Grantors and Grantee have no right or power to agree to any amendment that
would affect the enforceability of this Conservation Easement.
11. TERMINATION OF EASEMENT. If it is determined by a court of jurisdiction
that conditions on or surrounding the Easement Area have changed so much that it is impossible
to fulfill the conservation purposes set forth above, a court with jurisdiction may, at the joint
request of both the Grantors and Grantee,terminate this Conservation Easement.
If condemnation of a part of the Easement Area or of the entire Easement Area by public
authority renders it impossible to fulfill these conservation purposes,the Conservation Easement
may be terminated by a court with jurisdiction.
At the time of the conveyance of the Conservation Easement to the Grantee,this
Conservation Easement gives rise to a real Easement Area right,immediately vested in the
Grantee. If the easement is terminated and the Easement Area is sold or taken for public use,
then,as required by Sec. 1.1 70A-I 4(g)(6)of the IRS regulations, the Grantee shall be entitled to
a percentage of the gross sale proceeds or condemnation award(minus any amount attributed to
new improvements made after the date of the conveyance,which amount shall be reserved to the
Grantors), equal to the ratio of the appraised value of this easement to the unrestricted fair market
value of the Easement Area, as these values are determined on the date of this Conservation
Easement. The Grantee shall use the proceeds consistently with the conservation purposes of this
Conservation Easement.
12. INTERPRETATION. This Conservation Easement shall be interpreted under
the laws of North Carolina,resolving any ambiguities and questions of the validity of specific
provisions as to give maximum effect to its conservation purposes.
13. TITLE. The Grantors covenant and represent that they are the sole owners and
are seized of the Easement Area in fee simple and have good right to grant and convey this
Conservation Easement; that the Easement Area is free and clear of any mortgages not
subordinated to this Conservation Easement, and that the Grantee shall have the use of and enjoy
all the benefits derived from and arising out of this Conservation Easement,subject to any
easements or encumbrances of record.
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14. NOTICES. Any notices required by this Conservation Easement shall be in
writing and shall be personally delivered or sent by first class mail,to Grantors and Grantee,
respectively, at the following addresses, unless a party has been notified by the other of a change
of address.
To the Grantors: To the Grantee:
Carl M. and Eve Carol Shy Orange County Environment and
6626 Bradshaw Quarry Road Resource Conservation Department
Efland,NC 27243 Orange County,North Carolina
P.O.Box 8181
Hillsborough,NC 27278
15. ENVIRONMENTAL CONDITION. The Grantors warrant that it has no actual
knowledge of a release or threatened release of hazardous substances or wastes on the Easement
Area.
16. SEVERABILITY. If any provision of this Conservation Easement is found to be
invalid,the remaining provisions shall not be altered thereby.
17. PARTIES. Every provision of this Conservation Easement that applies to the
Grantors or Grantee shall also apply to their respective heirs, executors,administrators, assigns,
and all other successors as their interest may appear. This Conservation Easement shall not be
construed to benefit or to create any rights in any third parties,including but not limited to the
general public.
18. RE-RECORDING. In order to ensure the perpetual enforceability of the
Conservation Easement,the Grantee is authorized to re-record this instrument or any other
appropriate notice or instrument. Grantee agrees to notify the Grantors of any such re-recording,
provided,however, Grantee's failure to so notify Grantors shall not affect the re-recording.
19. MERGER. The parties agree that the terms of this Conservation Easement shall
survive any merger of the fee and easement interest in the Easement Area.
20. SUBSEQUENT LIENS ON EASEMENT AREA. No provisions of this
Conservation Easement should be construed as impairing the ability of Grantors to use the
Easement Area as collateral for subsequent borrowing,provided that any mortgage or lien arising
from such a borrowing is made subordinate to this Conservation Easement.
Page 12 of 16
BOOK 2757 PAGE 122
Shy Conservation Easement
21. EXHIBITS AND DOCUMENTATION.
(a) Documentation Report. The parties acknowledge that the Baseline Report, a copy
of which is on file at the offices of the Grantee, accurately establishes the uses, structures,
conservation values and condition of the protected Easement Area as of the date hereof. See
summary attached as Exhibit A.
(b) Future Subdivision and Construction. Exhibit B is a GIS map and sketch showing
the configuration of the property owned by the Grantors. The map also shows the location of a
new residence that is being constructed on Lot 2 and the approximate locations of future ponds
that may be constructed on the Easement Area.
22. ENTIRE AGREEMENT. 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 this 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.
23. ACCEPTANCE AND EFFECTIVE DATE. As attested by the Clerk of the
Grantee and the signature of its authorized representative affixed hereto,the Grantee hereby
accepts without reservation the rights and responsibilities conveyed by this Conservation
Easement. This Conservation Easement is to be effective the date recorded in the Orange County
Registry of Deeds.
24. ATTORNEY'S FEES. In connection with any litigation arising out of this
Contract,the prevailing party shall be entitled to recover from the other party all costs incurred
by it, including reasonable attorneys'fees,which shall include fees on appeal.
TO HAVE AND TO HOLD,this Grant of Conservation Easement unto the said Grantee
forever.
IN WITNESS WHEREOF,the Grantors and Grantee,intending to legally bind
themselves,have set their hands on the date first written above.
GRANTORS:
Carl Mi hae r§5y
— i��— C4-�1fr
Eve Carol Shy
Page 13 of 16
m:2757 F=123
Shy Conservation Easement
Accepted:
GRANTEE:
O%arryJ NTY, OR C LINA
B
, r ty d rTH
mi ssioners
ATTEST:
Donna S. Baker, Clerk to the
Board of Commissioners
Page 14 of 16
Shy Conservation Easement =2757 ,m124
Acknowledgments
STATE OF NORTH CAROLINA
COUNTY OF ORANGE
a Notary Public in and for said County and State do
hereby certify that and hue personally appeared
b. fore me this day and duly ac owledged the execution oft the foregone Conservation Easement.
WITNESS my hand and notarial seal,this /6" Day of 6kh4u, ,2004
(Seal)
Notary Public
My commission expires: �-�$ Zoot� �.� MSt T•"•.,
,;��AAO••••••••
s�lpTggY=
(Notary Seal)
p% p!/81.%G ,t02�e
,•'''94;,% COIN
age
',
NORTH CAROLINA
COUNTY OF ORANGE
I, a Notary Public of the C&nty and State aforesaid,certify that Donna S. Baker
personally came before me t*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 official stamp or seal,this e 2 st-jof0
Notary PWic Y ' y.,.,..
My commission expires: r ; ► ``.i ` .;y " .
��,
J J' i t; • v
/NJ Yti. "� 1 r
Page 15 of 16
800K2757 PAA25
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52
Opt
Joyce H. Pearson
Register of Deeds
Orange County
North Carolina
State of North Carolina,County of Orange
The foregoing certificate/s of Carol D. Melton and Nancy, iga, Notary/Notaries Public for the
Designated Governmental units is/are certified to be Zct. filing certificate herein.
This day October 23,2002
JOYCE H.PEARSON,REGISTER OF DEEDS By:
Deputy/Aat Register of e
Shy Conservation Easement BDOK 2757 PAGE 126
EXHIBIT A. BASELINE REPORT(SUMMARY)
EXHIBIT B. SURVEY SHOWING POTENTIAL FUTURE PERMISSIBLE DEVELOPMENT
Page 16 of 16
Bwr.2757 PwA27
Exhibit A
Baseline Report Summary
Present Condition Report
Carl and Eve Shy Property
Prepared by Orange County ERCD
September 26,2002
This is a Baseline Report(also known as "Present Condition Report") for a conservation
easement to be granted to Orange County by the landowners, Carl and Eve Shy,husband and
wife, having an address of 6626 Bradshaw Quarry Road,Efland,NC 27243.
Background
The Shys are the sole owners in fee simple of approximately 45 acres of land that will be
subject to the conservation easement. The property is located in Bingham Township (Orange
County)along the east side of Bradshaw Quarry Road(SR 1115) at the intersection with Oak
Grove Church Road(SR 1117). The property is located southwest of Thompson Mountain
(also known as"Thunder Mountain")and northwest of the Cane Creek Reservoir. A location
map is provided as Attachment A.
The Shys purchased the property in 1979-80 and have resided there since 1982. The property
is comprised of two adjacent tracts: Lot 1-R(32.95 acres)and Lot 2 (11.77 acres). Lot 1-R
is comprised of Lot 1-A,which includes the Shys'primary residence, and Lot 1-B,which has
frontage on Bradshaw Quarry Road and Apple Mill Road. Lot 2 is bounded on three sides by
Lot 1-R and will to be conveyed to the Shys' daughter for her future home site. A map of the
lot configuration and owners of adjacent parcels is provided as Attachment B.
The property is zoned in Orange County as Agricultural Residential(AR)and is within the
Cane Creek Protected Watershed District. A large portion of the property is in the watershed
"Critical Area,"or within one-half mile of the reservoir. Subdivision rules require a five-acre
minimum lot size,but would allow up to five lots as small as two acres in size for existing
lots of record as of October 1999. The Shys' could possibly subdivide their two large lots
into 10-14 smaller lots depending on the subdivision configuration, impervious surface
limitations,well and septic standards,and other subdivision requirements.
Page 1 of 6
gwr2757 PxtI28
Conservation Values
The subject property has many important conservation values that have been protected by the
Shys over their many years of owning and caring for this land. Some of the values that will
receive further, long-term protection by the conservation easement are described below.
1) Natural area and wildlife habitat
It is a primary purpose of the Easement to protect the natural areas and wildlife habitat
that exists on the property. The large undeveloped portions of the property provide habitat
for a variety of native plants and animals described for this area on Pages 41-42 of the
Inventory of the Natural Areas and Wildlife Habitats of Orange County, North Carolina
(Sawther and Hall, 1988). The native plants and animals known to be within this area
include chestnut oak,red oak,shagbark hickory,red-tailed hawk, scarlet and summer
tanagers, yellow-throated vireos,white-tailed deer,red foxes, eastern chipmunks and gray
squirrels. Although the subject property is not within the boundaries of the natural area
identified by Sawther and Hall as Site C01 (Cane Creek Reservoir),the property contains
many of the same attributes and values described for that area.
The site description and map of Cane Creek Reservoir natural area(Site CO1) is provided as
Attachment C. The following is an excerpt from that description:
"Reasons for significance: Three of the low peaks surrounding the Cane Creek
Reservoir are still relatively undeveloped and possess good examples of upland
hardwood forests typical of the Piedmont. Collectively, these uplands are extensive
enough to provide good habitat for several animals sensitive to human disturbance.
Situated in the Cane Creek valley, it is an important habitat node within an extensive
wildlife corridor connected to the Haw River system."
2) Water supply watershed
It is a primary purpose of the Easement to protect the largely undeveloped nature of
the property and the high quality of water that flows from this property to the Cane
Creek Reservoir. The property includes land within the zone designated by Orange County
as a"critical area"of a protected water supply watershed for the Cane Creek Reservoir. The
critical area is defined as that area within one-half mile of the normal pool of the reservoir or
to the ridgeline of the watershed,whichever is less. A topographic map showing the
reservoir and the watershed boundary is provided as Attachment D. The conservation
easement will reduce the potential number of home sites on the property from 14 to just two,
thereby greatly reducing potential adverse affects of development on the water supply.
3) Prime agricultural land
It is a secondary purpose of the Easement to help protect the agricultural soils and
agricultural viability and productivity of the property. The property includes productive
agricultural land, portions of which the Shys have leased to an area farmer for crop
production. The majority of the soils on the property are classified as "prime soils"by the
Natural Resources Conservation Service(U.S. Dept. of Agriculture). The soils are identified
Page 2 of 6
by the Orange County Soil Survey as Georgeville B silt loam,Herndon B/C silt loam and
Lignum silt loam,which are all well suited for crop and hay production. [With the exception
of Lignum soil,the potential for urban uses such as houses and streets is also high.] A soils
map is provided as Attachment E. The land qualifies for the special use ad valorem property
tax assessment for lands used for silvicultural, agricultural or horticultural purposes, set forth
in N.C. Gen. Stat. 105.277.3 et. seq. The Shys have participated in the County's Land Value
Program and intend for that to continue following execution of the conservation easement.
4) Rural character and"open space"
It is a secondary purpose of the Easement to help to protect the rural character and
open space present in this area of Bingham Township. The property is located in a highly
rural and scenic area of Bingham Township in southwestern Orange County. Bradshaw
Quarry Road is identified in the Orange County Comprehensive Plan as one of the County's
more scenic rural roads(Attachment F). Although woodland buffers block views of the
property from Bradshaw Quarry,interior views within the property are quite scenic with a
mix of hardwood and pine forest surrounding rolling pastures,an open meadow and pond.
The combination of natural habitat and agricultural resources existing on the property, and
the land's contribution to the protection of the area water supply and rural character/open
space are referred to as the "conservation values" of the Easement Area.
Property Description
The property is comprised of 44.72 acres. As noted above,the property is divided into two
contiguous tracts—one about 33 acres in size and the other about 12 acres. A 1998 aerial
orthophoto of the property is provided as Attachment G. The two tracts were recently
reconfigured in accordance with the survey plat dated January 28,2002 by ENT Land
Survey, Inc. of Hillsborough,NC. The property will be described with reference to the
proposed new configuration of the two lots: Lot 1-R(32.95 acres) and Lot 2(11.77 acres).
A copy of the survey plat is provided at Attachment H.
Lot 1-R
Lot 1-R is irregularly-shaped and is comprised of parcels 1-A (14.32 acres)and 1-B(18.63
acres).represented on the ENT survey plat(January 2002). Lot 1-R surrounds Lot 2 on three
sides and is bounded to the west by Apple Mill Road and Bradshaw Quarry Road,to the
north by agricultural land(Snipes),to the east by residential property(Smith),and to-the
south by undeveloped wooded property(Smith and OWASA)and Mitchell Mountain Road,
a private, gravel roadway owned and maintained by Orange Water and Sewer Authority
(OWASA). Across Mitchell Mountain Rd. are two forested lots owned by the Apple family.
The conservation easement would allow Lot 1-R to be subdivided into two separate lots,
illustrated as Lots 1-A and 1-B. That delineation is used to further describe the property.
Lot 1-A
This parcel includes the Shy residence, five outbuildings, a grassed meadow(about 2
acres) and a one-acre pond. The outbuildings include a carport,one-story cabin,
tractor shed(15'x16% garden shed(10'x10'), and small storage shed (4'x10'). An
additional two-story structure sits along the driveway and overlooks the pond. The
Page 3 of 6
=2757 w130
former house was moved to this site from a nearby Snipes family property and is used
as a music studio(unheated).
A former private road that once bisected the property and led from Bradshaw Quarry
Road down to Cane Creek was closed off in May 1988. The road was relocated and
renamed Mitchell Mountain Road,and begins on the east side of Apple Mill Road.
The Shys' donated an acre of land along their southwest boundary for construction of
the new entrance to Mitchell Mountain Road. The former roadway(now Castell
Lane)is a private road serving only the Shy residence and a future home site on Lot
2. See Attachment H.
The meadow is located between the house and pond, and includes two native
wildflower plots established by the Shys in recent years. The pond is fed by an
unnamed stream,which flows into Lot 1-A from the Smith property. The stream
flows from the pond spillway into Lot 1-B,then under Bradshaw Quarry Road to
Tom's Creek,which flows south to Cane Creek Reservoir.
Roughly 80 percent of Lot 1-A is wooded with a robust stand of 50-to 60-year-old
hardwoods(e.g.,oaks,hickory,shagbark hickory,poplar). The canopy is largely
intact,which has helped to minimize the introduction of invasive exotic plant species.
Former logging roads are maintained as walking trails. One such trail begins east of
the house and loops around the southeast corner of the property. The beginning of the
trail features a stony area where native flowers are planted and cared for. Whimsical
ornaments hang from trees for the amusement of the Shys' grandchildren. The trail
winds clockwise through the forest,past some fallen trees downed during recent
windstorms,past an area designated as a future Shy family cemetery, and back north
toward the house and outbuildings. An abandoned section of the former roadway is
growing in with young pines through the gravel.
Lot 1-B
This parcel is comprised of roughly one-half woodlands(mixed hardwoods)and one-
half cleared agricultural field. The private road(Castell Lane)bisects this parcel into
two sections. The area north of the road is entirely wooded and includes an unnamed
stream,which flows into Lot 1-B from the pond(Lot 1-A) and under Bradshaw
Quarry Road. South of the road is mostly rolling pasture leased for agricultural
production. An intermittent stream flows through the southwest corner of the
property and under Bradshaw Quarry Road. A forested buffer is maintained along
both sides of the stream.
Lot 2
The irregularly shaped Lot 2 is surrounded on three sides by Lot 1-R and is accessed from
Castell Lane,which also helps form the northern boundary. Lot 2 is bounded to the south by
Mitchell Mountain Road(private) and an undeveloped woodland property owned by
OWASA. Across Mitchell Mountain Rd. is a forested tract owned by the Apple family.
About 60 to 70 percent of Lot 2 is forested with mixed hardwoods(30-70 years old). A
narrow band of pines grow along the edge of the woodlands. An open field runs from Castell
Lane through the middle of Lot 2 and west into Lot 1-R(Lot 1-B). The field is leased to an
Page 4 of 6
,2757 fm l3l
area farmer who grows hay and corn for feeding livestock. [Carl Shy mows the field
boundary regularly to keep the woodlands from encroaching.]
One of the Shys' daughters is building a house just inside the forest fringe and overlooking
the agricultural field. A new driveway has been built across the southeast corner of the field
to access the new house from Castell Lane. An area of trees has been cleared for the new
home site. The approximate location of the residential building envelope is shown on
Attachment H.
One of the former logging roads(now a footpath) leads from the home site south and east
past rocky outcrops and through mature trees to the section of abandoned roadway that helps
form the eastern boundary between Lot 2 and Lot 1-R(Lot 1-A).
Easement Summary
It is the purpose of this Conservation Easement to a) ensure that the Easement Area will be
retained forever predominantly in its natural, forested,and open space condition;b)to protect
native plants and animals,or plant communities on the Easement Area,while allowing
traditional uses that are compatible with and not destructive of the conservation values of the
Easement Area such as selective timber harvesting, farming of existing pastures and fields,
and artistic activities;and c)to prevent any use of the Easement Area that will impair or
interfere with the conservation values or interests of the Easement Area.
Activities that would affect the Easement Area and are inconsistent with the purposes of this
Conservation Easement are not permitted.
Photo'Documentation
A variety of ground photos of the Easement Area were taken by the ERCD staff to help
document the condition of the property. A list of photos and a map showing the locations of
the photos is provided as Attachment I. The photos will be maintained in a file of baseline
information for this conservation easement at the Orange County ERCD.
Page 5 of 6
som 2 157 FA%13.2
Shy Conservation Easement
Present Condition Report
List of Attachments
A. Location Map
B. Current Lot Configuration with Adjacent Landowners
C. Site Description and Map,Cane Creek Natural Area(Site COI)
D. Topographic Map and Cane Creek Watershed Critical Area Boundary
E. Soils Map
F. Scenic Road Corridors, Orange County
G. Aerial Orthophoto of Shy Property(1998)
H. GIS Map and Sketch of Shy Property(Recorded October 2002)
I. Photos of Shy Property
Page 6 of 6
Exhibit B
Shy Property
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