HomeMy WebLinkAboutAgenda - 09-04-2018 8-g - Ratification – Conservation Easement for Tunnel’s End Horse Farm1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: September 4, 2018
Action Agenda
Item No. 8 -g
SUBJECT: Ratification — Conservation Easement for Tunnel's End Horse Farm
DEPARTMENT: Environment, Agriculture, Parks
and Recreation (DEAPR)
ATTACHMENTS INFORMATION CONTACT:
1. Location Map David Stancil, 245 -2510
2. Site Map Kim Livingston, 245 -2514
3. Executed Conservation Easement
PURPOSE: To ratify the County Manager's decision to accept an agricultural conservation
easement for Tunnel's End Horse Farm.
BACKGROUND: The acquisition of conservation easements to protect highly important
natural and cultural resource lands in Orange County is a longstanding goal of the Board of
Commissioners, and is a priority of the Lands Legacy program. Since 2001, the County has
partnered with landowners and other entities to protect 2,313 acres of significant natural
areas and prime farmland with permanent conservation easements.
Ms. Marianne Wegner contacted the County just before the Board of County Commissioners'
summer break and expressed her wishes to donate to the County a conservation easement
on her 16 -acre horse farm in an expedited fashion due to health reasons. Tunnel's End
Horse Farm is located on Walnut Grove Church Road (Cedar Grove Township) just south of
the Underwood property which already holds an Orange County conservation easement.
Given the extenuating circumstances, the County Manager, after consulting with the BOCC
Chair and Vice - Chair, accepted this conservation easement, and the transaction closed on
August 15, 2018.
The 16 -acre farm property is located in the Little River Protected Watershed, a priority
watershed for acquiring agricultural easements in a dual effort to protect prime farmland and
drinking water quality. The farm has 200 feet of frontage along the South Fork Little River,
which supplies drinking water for the City of Durham. There are also two Natural Heritage
Areas just 500 -feet downstream of this property — South Fork Little River Marsh and Little
River Aquatic Habitat.
Ms. Wegner donated a permanent conservation easement that restricts future development
to protect prime farmland and streams, as well as scenic views of the farmland from Walnut
Grove Church Road. There is one existing residence on the property. The easement
prohibits future subdivision of the property and protects forested stream buffers located on
the farm. Future farm activities will be in accordance with a Conservation Plan prepared for
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this farm by the Orange Soil & Water Conservation District. DEAPR staff will monitor the
property on an annual basis.
The agricultural conservation easement area is depicted on the attached site map. The
executed deed of conservation easement is also provided.
FINANCIAL IMPACT: The owner of Tunnel's End Horse Farm donated the conservation
easement to Orange County. The cost to the County was $2,551 in transaction costs,
including title search and closing fees. Those funds came from existing funds budgeted in
the Conservation Easements Capital Project.
The Tunnel's End Horse Farm property is enrolled in the Present Use Value taxation
program, so the conservation easement does not lessen the amount of property taxes paid to
the County. The decrease in the property's market value caused by the conservation
easement (and extinguishing of its development rights) will not lower the property value to a
level that is less than the present farm use value.
SOCIAL JUSTICE IMPACT: The following Orange County Social Justice Goal is applicable
to this item:
• GOAL: ENSURE ECONOMIC SELF - SUFFICIENCY
The creation and preservation of infrastructure, policies, programs and funding
necessary for residents to provide shelter, food, clothing and medical care for
themselves and their dependents.
This farm conservation easement will help ensure that this prime farmland remains available
for cultivation and food production, helping to provide healthy local food to County residents
and others.
RECOMMENDATION(S): The Manager recommends the Board ratify the acceptance of the
County Manager's decision to accept the conservation easement due to the extenuating
circumstances.
Wegner Horse Farm Conservation Easements Held By County N
Conservation Easements Held By Others or e "`
Parcels DEAPR
Streams Streets 1 inch = 175 feet Date: 4/23/2018
0 Wegner 0 County Parks and Open Space
Conservation Easements Held By County 0 Non County Parks And Open Space
Conservation Easements Held By Others Streets
Reserviors
Major Streams
Date: 4/23/2018 1 inch = 5,935 feet
FILED Mark Chilton
Register Of Deeds, Orange Co, NC
Recording Fee: $46.00
NC Real Estate TX: $.00
20180815000156930 DEED
Bk: 6509 Pg: 96
08/15/2018 01:03:35 PM 1 / 20
This instrument prepared by and return to: John L. Roberts, Office of the Orange County Attorney
Box 8181, Hillsborough, NC 27278
Revenue Stamps: $0.00
NORTH CAROLINA
COUNTY OF ORANGE
WARRANTY DEED
OF AGRICULTURAL CONSERVATION EASEMENT
This Deed of Agricultural Conservation Easement (hereinafter "Conservation Easement ")
is granted on this /S-' day of , 2018, by MARIANNE WEGNER,
unmarried, having an address of 640 alnut Grove Church Road, Hurdle Mills, NC 27541,
(referred to as "Grantor "), to ORANGE COUNTY, NORTH CAROLINA, having an address
of Post Office Box 8181, Hillsborough, NC 27278 (referred to as "Grantee ").
The designation Grantor and Grantee as used herein shall include said parties, their
respective heirs, successors and assigns, and shall include singular, plural, masculine, feminine or
neutral pronouns as required by context.
WHEREAS:
Grantor is the sole owner in fee simple, of certain farm Property (hereinafter the
"Property "), which consists of approximately 15.82 acres of land, located in Cedar Grove
Township, Orange County, North Carolina having Orange County PIN Number: 9878 -07 -7188
and identified on the plat of property titled "Survey for Marianne Wegner," prepared by William
C. Walker, Jr. Registered Land Surveyor, which plat is recorded at Plat Book 72, Page 113,
Orange County Registry, hereafter referred to as "the recorded Plat for this Conservation
Easement;" and being the same property described as BEING all of Lot Numbers 2B, 3, 5A, 5B,
and 6A, as shown on "Recombination Plat for Howard C. Hochman" dated May 1989 by
William C. Walker, Jr. RLS, recorded at Plat Book 52, Page 184, and said lots shall hereinafter
be treated as one merged lot.
submitted electronically by "Kennon Craver, PLLC"
in compliance with North Carolina statutes governing recordable documents
and the terms of the submitter agreement with the orange County Register of Deeds.
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Lf
The Property consists primarily of productive agricultural land. The majority of the soils
on the Property are classified as "prime" or "statewide important" soils by the Natural Resources
Conservation Service, United States Department of Agriculture (also referred to as "NRCS ").
The property includes South Fork Little River that flows generally southeast into Little River
Reservoir, a City of Durham public water supply. The entire Property is located within the
designated Little River Protected Watershed.
The primary purposes of this Conservation Easement are to protect the agricultural soils
and agricultural viability and productivity of the Property, and to protect the quality of surface
waters in the Little River Protected Watershed.
The Property also includes riparian and woodland habitats for a variety of wildlife species
of importance to the Grantor and Grantee, the people of Orange County and the people of North
Carolina. Furthermore, the Property contains outstanding scenic qualities that can be enjoyed by
the general public, namely the views along Walnut Grove Church Road. It is a secondary
purpose of this Conservation Easement to protect these natural and scenic resources.
The agricultural resources of the Property, and its contribution to the protection of prime
farmland soils, a public water supply, natural and wildlife habitat, and the other conservation
interests described herein to be preserved by this Conservation Easement are collectively referred
to as the "Conservation Values" of the Property.
The specific Conservation Values of the Property and its current use and state of
improvement are described in a Baseline Documentation Report ( "Report") prepared by the
Grantee with the cooperation of the Grantor, and acknowledged by both parties to be accurate as
of the date of this Conservation Easement. This Report may be used by the Grantee to document
any future changes in the use or character of the Property in order to ensure the terms and
conditions of this Conservation Easement are fulfilled. The Report, however, is not intended to
preclude the use of other evidence to establish the present condition of the Property if there is a
controversy over its use. The Grantor and Grantee have copies of this Report, and said report
will remain on file at the offices of the Orange County Department of Environment, Agriculture,
Parks and Recreation.
The Grantor and Grantee agree that the current agricultural use of, and improvements to,
the Property are consistent with the conservation purposes of this Conservation Easement.
The Grantor intends that the Conservation Values of the Property be preserved and
maintained, and further, Grantor intends to convey to the Grantee the right to preserve and
protect the agricultural and other Conservation Values of the Property in perpetuity.
The conservation purposes of this Conservation Easement are recognized by, and the
grant of this Conservation Easement will serve, the following clearly delineated governmental
conservation policies:
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(1) Sections 1238 H and 1238 I of the Food Security Act of 1985, as amended, which
authorizes the Farm and Ranch Lands Protection Program, administered through the United
States Department of Agriculture, Natural Resources Conservation Service, which provides
funds for the acquisition of Conservation Easements or other interests in prime, unique, or other
productive soils for the purpose of limiting conversion to nonagricultural uses of the land;
(2) North Carolina General Statute 139 -2 et seq., which provides that "it is hereby
declared ...that the farm, forest and grazing lands of the State of North Carolina are among the
basic assets of the State and the preservation of these lands is necessary to protect and promote
the health, safety and general welfare of its people... it is hereby declared to be the policy of the
legislature to provide for the conservation of the soil and resources of this State;"
(3) North Carolina General Statute 106 -583 et seq., which states that "It is declared to be
the policy of the State of North Carolina to promote the efficient production and utilization of the
products of the soil as essential to the health and welfare of our people and to promote a sound
and prosperous agriculture and rural life as indispensable to the maintenance of maximum
prosperity;"
(4) The Uniform North Carolina Conservation and Historic Preservation Agreements Act,
North Carolina General Statute 121 -34 et seq., which provides that conservation agreements are
"interests in land which may be effective "perpetually;" which provides 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 use...;" and which provides for tax assessment of lands subject to such agreements "on
the basis of the true value of the land and improvement less any reduction in value caused by the
agreement;"
(5) The establishment of the North Carolina Agricultural Development and Farmland
Preservation Trust Fund established in 1986 (N.C.G.S. 106- 744(c) as amended) to preserve
important farmland in North Carolina;
(6) the Clean Water Management Trust Fund, authorized by NCGS § 113A -251 et seq..
which finances projects to acquire land and interests in land, including conservation easements
for the purposes of providing environmental protection for surface waters and urban drinking
water supplies;
(7) the Soil and Water Conservation Districts Act, authorized by NCGS § 139 -1, et seq.,
which provides for the preservation of farm, forest and grazing lands;
(8) the special use assessment of farm and forestland as set forth in NCGS § 105 -277.2 et
seq., which allows for lower property tax rates for land enrolled in active agricultural uses;
(9) the Land Use Element of the Orange County Comprehensive Plan (adopted November
18, 2008) with its goal of "Land uses that are appropriate to on -site environmental conditions and
features, and that protect natural resources, cultural resources, and community character.' ;
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(10) The Orange County Agricultural Development and Farmland Protection Plan,
adopted November 17, 2009, which recommends that the County acquire agricultural
conservation easements to help protect farmland as a valuable natural resources; and
(11) The zoning of the Property by Orange County as Agricultural Residential and
Little River Protected Watershed and City of Durham public water supply (Little River
Reservoir).
Grantor and Grantee have the common purpose of protecting the above- described
Conservation Values and current condition of the Property and preventing conversion of the
Property to nonagricultural uses. Grantor agrees to create and implement a conservation plan
(hereinafter the "Conservation Plan ") that is developed utilizing the standards and specification
of the NRCS field office technical guide and 7 CFR part 12, as well as other commonly -
recognized best management practices, and is approved by the Orange County Soil and Water
Conservation District;
Orange County is a body politic existing under Chapter 153A of the North Carolina
General Statutes, and is qualified to hold conservation easements under the applicable laws of the
State of North Carolina;
NOW, THEREFORE, for the reasons given and other good and valuable consideration,
and in consideration of the mutual covenants, terms, conditions and restrictions contained herein,
and as an absolute and unconditional gift, the Grantor hereby grants and convey unto Grantee, its
successors and assigns, forever and in perpetuity for the benefit of the people of North Carolina,
a Conservation Easement of the nature and character and to the extent hereinafter set forth, in
respect to the Property;
forth:
The terms, conditions and restrictions of the Conservation Easement are as hereinafter set
1. Grant of Conservation Easement; Extinguishment of Development Rights
Grantor hereby voluntarily grants and convey to the Grantee, and the Grantee hereby
voluntarily accept, a perpetual Conservation Easement on the Property, which easement is an
immediately vested interest in real property the nature and character described herein. Grantor
promises that they will not perform, nor knowingly allow others to perform, any act on or
affecting the Property that is inconsistent with the covenants herein. Grantor authorizes the
Grantee to enforce these covenants in the manner described below.
Grantor hereby voluntarily grants and convey to the Grantee all development rights for
the Property, except as otherwise reserved and provided by the terms of this Conservation
Easement, that are now or hereafter inherent in the Property. The parties agree that such
development rights are now terminated and extinguished, and may not be used on or transferred
to any other property adjacent or otherwise, nor used for the purpose of calculating permissible
lot yield of the Property or any other property by anyone or any entity, including the Grantee.
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2. Statement of Purpose
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The primary purposes of this Conservation Easement are to enable the Property to remain
in agricultural use by preserving and protecting its agricultural soils and agricultural viability and
productivity, and to protect the riparian areas and surface waters associated with South Fork
Little River from the risk of adverse impacts arising from use or development of the Property
contrary to the provisions of this Conservation Easement. Except as specifically permitted
herein, no activity that would impair the actual or potential agricultural use of the Property shall
be permitted. Likewise, any activity that would risk causing adverse impact to South Fork Little
River is prohibited. To the extent that the preservation and protection of the other natural,
historic, recreational, habitat, or scenic values referenced in this Conservation Easement are
consistent with the primary purposes stated above, it is within the purpose of this Conservation
Easement to also protect those values, and no activity that would significantly impair those
values shall be permitted.
As authorized in the Uniform Conservation and Historic Preservation Act, N.C. Gen.
Stat. § 121 -34 et seq., this Conservation Easement is perpetual; it restricts the Grantor's Property
in perpetuity; and it is enforceable by the Grantee against the Grantor, its representatives, heirs,
successors and assigns, lessees, agents, and licensees.
3. Rights and Responsibilities Retained by Grantor
Notwithstanding any provisions of this Conservation Easement to the contrary, the
Grantor reserves to and for themselves and their successors all customary rights and privileges of
ownership, including the rights to sell, lease, and devise the Property provided such transaction is
subject to the terms of this Conservation Easement and written notice is provided to the Grantee,
together with any rights not specifically prohibited by or limited by this Conservation Easement,
and consistent with this Conservation Easement. Unless otherwise specified below, nothing in
this Conservation Easement shall require the Grantor to take any action to restore the condition
of the Property after any natural disaster or other event over which she had no control. Grantor
understands that nothing in this Conservation Easement relieves them of any obligation or
restriction on the use of the Property imposed by law.
4. Right to Farm
Grantor retains the right to farm, or to permit others to farm the Property, consistent with
the Conservation Values of the Property and in accordance with applicable local, state and
federal laws and regulations.
Subject to the terms of this Conservation Easement, farming, grazing, horticultural and
animal husbandry operations are permitted only if conducted consistent with Best Management
Practices promulgated by the State of North Carolina and in conformity with a Conservation Plan
as required in Paragraph 9 of this Conservation Easement, which Conservation Plan is hereinafter
referred to as "the Conservation Plan."
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iIt,
Cattle and other livestock are allowed to exist and to graze on the Property, except within
a 100- foot -wide stream buffer, which is 50 feet wide on either side of the stream as measured
from the center of the stream and perpendicular to the stream, the location of which is identified
and marked on Exhibit A. Exhibit A is a copy of a GIS rendering of the Property, the original of
which will be maintained with the Baseline Documentation Report at the office of the Orange
County Department of Environment, Agriculture, Parks and Recreation.
The aforementioned stream buffer shall be maintained in its natural condition and
restricted from any development that would impair or interfere with the Conservation Values of
the Property.
S. Right to Privacy
Grantor retains the right to privacy and the right to exclude any member of the public
from trespassing on the Property. This Conservation Easement does not create any rights of the
public in, on or to the Property.
6 Right to Use the Property for Customary Rural Enterprises
Grantor retains the right to use the portion of the Property within the "Farmstead Area"
(which contains 3.7 acres) as identified on Exhibit A, and more particularly described in the
Baseline Documentation Report, for otherwise lawful and customary rural enterprises, such as,
but not limited to, farm machinery repair, sawmill, firewood distribution, bed and breakfast, farm
stand, or educational programs so long as such activities are a) consistent with Orange County
zoning regulations and permits required by and issued by Orange County under its laws and
ordinances as they exist now and as they may be amended from time to time, and b) are
conducted in buildings otherwise permitted under this Conservation Easement in a manner that is
consistent with the conservation purposes of this Conservation Easement, and c) are subordinate
to the agricultural and residential use of the Property. Conducting customary rural enterprises on
any other part of the Property is not permitted without the advance written permission of the
Grantee in each instance. Grantee shall not give such permission unless the Grantee determines
that the proposed use will not diminish or impair the Conservation Values of the Property. The
parties expressly agree that enterprises that market petroleum or chemical products are
prohibited, and that commercial feed lots for cattle or other meat animals are also prohibited.
7. Procedure to Construct Buildings and Other Improvements
The Grantor's rights to construct or reconstruct buildings and other improvements are
described in subparagraphs (a) through (f) below. Any construction or reconstruction not
permitted below is prohibited. Before undertaking any construction or reconstruction that
requires advance permission, the Grantor shall notify the Grantee and obtain written permission.
All construction or reconstruction is subject to Orange County zoning regulations and must be
consistent with permits required by and issued by Orange County under its laws and ordinances
as they exist now and as they may be amended from time to time for such construction activities.
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(a) Fences — Existing fences may be repaired and replaced, and new fences may be
built on the Property for purposes of reasonable and customary management of livestock and
wildlife or to fence off the perimeter of the Property or the perimeter of the stream buffer without
any further permission of the Grantee.
(b) Access Path — Grantor expressly reserves the right to maintain a mowed path no
more than eight (8) feet in width and a small tractor turnaround within the stream buffer to serve
as an access between pastures.
(c) Structures & Improvements — There are several structures existing on the Property
as of the date of this Agricultural Conservation Easement, as shown on Exhibit A. Existing
structures, including agricultural structures and existing improvements, may be repaired,
reasonably enlarged, and replaced at their current locations within the "Farmstead Area" as
shown Exhibit A, without further permission from the Grantee. New buildings, including barns,
sheds and other structures and improvements to be used primarily for agricultural purposes
(including the processing or sale of farm products predominantly grown or raised on the
Property) may be built on the Property without any further permission of the Grantee provided
they are located in the "Farmstead Area," as shown on Exhibit A.
Any new buildings, structures or improvements proposed for locations outside the
"Farmstead Area" shall be for agricultural purposes only and may be built only with the advance
written permission of the Grantee. The Grantee shall not give such permission unless they
determine that the proposed building, structure or improvement would not diminish or impair the
Conservation Values of the Property or otherwise be inconsistent with this Conservation
Easement.
(d) Single- Family Residential Dwellings — One residential dwelling exists on the
Property located within the "Farmstead Area," identified on Exhibit A. All appurtenant
structures and facilities such as garages, sheds, and septic systems for this existing residential
dwelling shall be contained within the "Farmstead Area." Additional residential structures are
prohibited on the Property. Nothing about Orange County's participation in or the sighing of this
Conservation Easement constitutes zoning or subdivision approval or the permitting of
residential dwelling and their appurtenant structures.
(e) Recreational Improvements — Grantor expressly reserves the right to engage in
low impact, non - developed recreational activities requiring no surface alteration of the land and
posing no threat to the Conservation Values set herein such as hunting, fishing, hiking and
camping, and to control access of all persons for these purposes, except the general public shall
not be allowed to participate in these activities; provided that these activities do not impact the
protection and conservation of any animal habitat or other Conservation Values of the Property.
However, under no circumstances shall golf courses, golf ranges, airstrips or helicopter pads be
constructed, placed or permitted to remain on the Property. Nothing about Orange County's
participation in or the signing of this Conservation Easement constitutes zoning or the permitting
of these recreational improvements and their appurtenant structures.
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(f) Utility Services and Septic Systems — Installation, maintenance, repair,
replacement, removal and relocation of electric, gas, and water facilities, septic systems, sewer
lines and /or other public or private utilities, including for solar energy generation and including
telephone or other communication services over or under the Property for the purpose of
providing electrical, gas, water, sewer, or other utilities to serve improvements on the Property
permitted herein, and the right to grant easements over and under the Property for such purposes,
is permitted. Grantor shall not permit or grant easements for utility transmission or distribution
facilities or systems without the written consent of the Grantee. Maintenance, repair or
improvement of a septic system(s) or other underground sanitary system that exists on the
Property at the time of this Conservation Easement, or the construction of a septic or other
underground sanitary system, for the benefit of any of the improvements permitted herein is
permitted within the area identified and marked as "Farmstead Area" on Exhibit A. If it is
determined that the existing septic system for the existing residence is located outside of the
Farmstead Area, such location will not be considered inconsistent with this Conservation
Easement. All other utilities are prohibited on the Property. Cellular communication towers or
structures are prohibited on the Property.
8. Subdivision
The Property may not be divided, subdivided or partitioned, nor conveyed except in its current
configuration as an entity.
9. Conservation Practices
All agricultural operations on the Property shall be conducted in a manner consistent with
the requirements of this Conservation Easement and a Conservation Plan prepared in
consultation with NRCS and approved by the Orange County Soil and Water Conservation
District. This Conservation Plan shall be developed using the standards and specifications of the
NRCS Field Office Technical Guide and 7 CFR Part 12 that are in effect on the date of execution
of this Conservation Easement, The Grantor may, however, develop and implement a
Conservation Plan that proposes a higher level of conservation and is consistent with the NRCS
Field Office Technical Guide standards and specifications. Copies of the Conservation Plan shall
be kept on file in the office of the Orange Soil and Water Conservation District and shall be
provided to the Grantor and Grantee. The Conservation Plan may be updated from time to time
by mutual agreement of the NRCS and the Grantor. NRCS and the Grantee shall have the right
to enter upon the Property, with advance notice to the Grantor, in order to monitor compliance
with the Conservation Plan.
In the event of noncompliance with the Conservation Plan, the Grantee shall work with
the Grantor to explore methods of compliance. Grantor shall be given a reasonable amount of
time, not to exceed twelve months, to take corrective action. If the Grantor does not comply with
the Conservation Plan, NRCS will inform the Grantee of the Grantor's non - compliance.
Following receipt of written notification from NRCS that (a) there is a substantial, ongoing event
or circumstance of non - compliance with the Conservation Plan, (b) NRCS has worked with the
Grantor to correct such noncompliance, and (c) Grantor has exhausted their appeal rights under
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applicable NRCS regulations, the Grantee shall take all reasonable steps (including efforts at
securing voluntary compliance and, if necessary, appropriate legal action) to secure compliance
with the Conservation Plan. Notwithstanding the foregoing, in the event that the Grantee
reasonably believe that there is a substantial, ongoing event or circumstance of non - compliance
with the Conservation Plan despite efforts to work with the Grantor to correct such non-
compliance, Grantee may proceed to take all reasonable steps to secure compliance.
10. Forest Management
Everywhere on the Property, trees may be removed, cut and otherwise managed to control
insects and disease, to prevent personal injury and property damage, to remove non - native
species, for pasture restoration, for firewood and other non - commercial uses, including
construction of permitted improvements and fences on the Property, so long as done in
accordance with the Conservation Plan referenced in Paragraph 9 (Conservation Practices) of this
Conservation Easement and in accordance with a Forest Management Plan that is prepared by a
professional licensed forester, and that is approved by Grantee, which approval shall not be
unreasonably withheld.
Any other cutting, removal or harvesting of trees, including any commercial harvesting of
trees, may be undertaken only if it occurs outside of the stream buffer described in Paragraph 4
(Right to Farm) of this Conservation Easement and it is in accordance with the Conservation
Plan and Forest Management Plan referred to in this Paragraph 10 (Forest Management).
Trees may be planted, harvested and removed within the areas identified and marked as
the "Farmstead Area" on Exhibit A, all without the advance written permission of the Grantee.
11. Mining
There shall be no filling, excavation, dredging, mining or drilling, 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 for the purpose of normal and customary farming operations
in accordance with the Conservation Plan or combating erosion or flooding in accordance with
the Conservation Plan and as reasonably necessary for any maintenance, construction or
reconstruction on the Property permitted herein. Disturbed areas for the purpose of removing
soil, gravel, rock, peat, minerals or other materials necessary for permitted customary agricultural
uses on the Property will be limited to one acre in total surface area and will be restored as soon
as practicable after the disturbance. Under no circumstances is the drilling for or exploration for
hydrocarbons permitted in, under, on or to the Property.
12. Road Construction
Construction and maintenance of farm roads that may be reasonably necessary and
incidental to carrying out the improvements and uses permitted on the Property by this
Conservation Easement are permitted. No roads constructed on the Property shall be paved or
otherwise covered with concrete, asphalt, or any other impervious material, without the advance
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written permission of the Grantee. For purposes of this Conservation Easement gravel roads
shall not be considered impervious. Grantee shall not give such permission unless the Grantee
determines that the proposed paving, or covering of the soil, or the location of any such road, will
not diminish or impair the Conservation Values of the Property.
13. Dumping and Trash
Dumping or storage of soil, trash, refuse, debris, ashes, garbage, waste, abandoned
vehicles or parts, appliances, machinery, or hazardous substances, or toxic or hazardous waste, or
any placement of underground or above ground storage tanks or other materials is prohibited.
Provided, however, that the storage of agricultural products, byproducts (including the
composting of biodegradable material for on -farm use) and agricultural equipment used on the
Property is allowable, so long as such storage is done outside the stream buffers as described in
Paragraph 4 and identified on Exhibit A, and in accordance with all applicable government laws
and regulations and in such a manner so as to not impair the Conservation Values of the
Property.
14. Water Rights
Grantor shall retain and reserve the right, consistent with federal, State and local laws and
regulations, to use any appurtenant water rights sufficient to maintain the agricultural
productivity of the Property. Grantor shall not transfer, encumber, lease, sell or otherwise
separate such water rights from title to the Property itself.
15. Natural Resource Restoration and Enhancement Activities
Notwithstanding any terms contained within this Conservation Easement, Grantor may
engage or contract others to engage in any activity designed to repair, restore, or otherwise
enhance the natural resources found or once present on the Property, that are consistent with the
Conservation Values of this Conservation Easement and subject to the written approval of the
Grantee and the Natural Resources Conservation Service.
16. Signs
No new signs shall be permitted on the Property except interpretive signs describing
activities and Conservation Values of the Property, signs identifying the owner of the Property
and the holder of the Conservation Easement, and signs giving directions or proscribing rules and
regulations for the use of the Property. All signs permitted on the Property shall conform to
applicable Orange County zoning, subdivision and building code regulations.
17. Ongoing Responsibilities of Grantor and Grantee
Other than as specified herein, this Conservation Easement is not intended to impose any
legal or other responsibility on the Grantee, or in any way to affect any existing obligation of the
Grantor as owner of the Property. Among other things, this shall apply to:
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(a) Taxes — The Grantor shall continue to be solely responsible for payment of all
taxes and assessments levied against the Property. If the Grantee is ever required to pay any
taxes or assessments on its interest in the Property, the Grantor will reimburse the Grantee for the
same.
(b) Upkeep and Maintenance — The Grantor retains all responsibilities and shall bear
all costs and liability of any kind related to the ownership, operation, and upkeep and
maintenance of the Property, including maintenance of all fencing and other structures and
facilities necessary to comply with the terms and conditions of this Conservation Easement and
the maintenance of adequate comprehensive general liability insurance coverage. Grantee shall
have no obligation for the upkeep or maintenance of the Property. Grantor will remain
responsible for upkeep, maintenance, and repairs to any impoundments located on the Property.
(c) Liability and Indemnification — Grantor agrees to indemnify and hold the Grantee
harmless from any and all costs, claims or liability, including but not limited to reasonable
attorneys' fees, arising from (i) any personal injury, accidents, negligence or damage relating to
the Property, or any claim thereof, (ii) any violation of any federal, state or local environmental
or land use law or regulation or the use of or presence of hazardous substances, waste or other
regulated materials in, on or under the Property; and (iii) Grantee exercise of its rights of entry
pursuant to this Conservation Easement; provided, however that if such costs, claims or liability
are due in whole or in part to the negligence of the Grantee or its agents, contractors or
employees, liability shall be apportioned accordingly.
In addition, Grantor agrees to maintain liability insurance covering the Protected
Property with minimum coverage as follows: (i) $300,000 per person for personal injury or
death, $300,000 per occurrence, and (ii) $300,000 per occurrence for property damage. These
policy limits may be amended from time to time by written agreement of the parties to which the
parties agree to be bound. Additionally, Grantor warrants that the Grantee is and will remain
named insured on Grantor's property insurance policies covering the Protected Property. Grantor
must add Grantee to the policies within sixty (60) days of closing and within 10 days of each
insurance renewal date.
Grantor shall indemnify and hold harmless the Grantee, its employees, agents, and
assigns for any and all liabilities, claims, demands, losses, expenses, damages, fines, fees
penalties, suits, proceedings, actions, and costs of actions, sanctions asserted by or on behalf of
any person or governmental authority, and other liabilities (whether legal or equitable in nature
and including, without limitation, court costs, and reasonable attorneys' fees and attorneys' fees
on appeal) to which the Grantee may be subject or incur relating to the Property, which may arise
from, but are not limited to, Grantor's negligent acts or omissions or Grantor's breach of any
representation, warranty, covenant, agreements contained in this Conservation Easement Deed,
or violations of any Federal, State, or local Laws, including all Environmental Laws.
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18. Enforcement
With reasonable advance notice to the Grantor or with the Grantor's prior verbal consent,
Grantee shall have the right to enter the Property for the purpose of inspecting for compliance
with the terms of this Conservation Easement. Grantee shall have the right to prevent violations
and remedy violations of the terms of this Conservation Easement through judicial action, which
shall include, without limitation, the right to bring proceedings in law or in equity against any
party or parties attempting to violate the terms of this Conservation Easement. Except when an
ongoing or imminent violation could irreversibly diminish or impair the Conservation Values of
the Property, Grantee shall give the Grantor written notice of the violation and thirty (30) days to
cure the violation, before commencing any legal proceedings. Grantee may obtain an injunction
to stop a violation or a threatened violation, temporarily or permanently. The parties agree that a
court may issue an injunction or order requiring Grantor to restore the Property to its condition
prior to the violation, as restoration of the property may be the only appropriate remedy. In any
case where a court finds that a violation has occurred, Grantor shall reimburse Grantee for all its
expenses incurred in stopping and correcting the violation, including but not limited to
reasonable attorneys' fees. 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 for that violation or any subsequent
violations. In any case where the court finds that there was a complete absence of a justiciable
issue of either law or fact raised by the losing party, the court may award a reasonable attorney's
fee to the prevailing party as provided by applicable law.
19. Transfer of Conservation Easement
The Grantee shall have the right to transfer, assign, convey, or otherwise to co-hold the
easement created by this Conservation Easement to any public agency or private nonprofit
organization that, at the time of transfer, is a qualified organization under Section 170(h) of the
U.S. Internal Revenue Code, as amended and under NCGS 121 -34 et seq., provided the agency
or organization expressly agrees to assume the responsibility imposed on the Grantee by this
Conservation Easement. If Grantee ever ceases to exist or no longer qualify under Section
170(h) of the U.S. Internal Revenue Code, or applicable state law, a court with jurisdiction shall
transfer this Conservation Easement to another qualified organization having similar purposes
that agrees to assume the responsibility imposed by this Conservation Easement.
20. Transfer of Property
The Grantor agrees to incorporate by reference the terms of this Conservation Easement
in any deed or other legal instrument by which they transfer or divest themselves of any interests,
including leasehold interests, in all or a portion of the Property. Grantor shall notify the Grantee
in writing at least thirty (30) days before conveying the Property, or any part thereof or interest
therein. Failure of Grantor to incorporate by reference the terms of this Conservation Easement
in an instrument of transfer or conveyance or to notify the Grantee of a transfer or conveyance
shall not impair the validity of this Conservation Easement or limit its enforceability in any way.
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21. Amendment of Conservation Easement
This Conservation Easement may be amended only with the written consent of the
Grantee and Grantor. Any such amendment shall be consistent with the Statement of Purposes of
this Conservation Easement and with the Grantee Conservation Easement amendment policies,
and shall comply with Section 170(h) of the Internal Revenue Code or any regulations
promulgated in accordance with that section. Any such amendment shall be duly recorded.
22. Procedure in the Event of Termination of Conservation Easement
If it determines that conditions on or surrounding the Property change so much that it
becomes impossible to fulfill the conservation purposes of this Conservation Easement, a court
with jurisdiction may, at the joint request of both the Grantor and Grantee, terminate or modify
the easement created by this Conservation Easement in accordance with applicable law. If the
Conservation Easement is terminated and the Property is sold, then as required by Section 1.1
70A- 14(g)(6) of the IRS regulations, the Grantee shall be entitled a percentage of 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 Grantor), equal to the ratio of the
appraised value of this Conservation Easement to the unrestricted fair market value of the
Property, as these values are determined on the date of this Conservation Easement), subject to
any applicable law which expressly provides for a different disposition of the proceeds.
All termination related expenses, including reasonable attorney fees, incurred by the
Grantor and the Grantee shall be paid out of any recovered proceeds prior to distribution of the
net proceeds as described herein.
23. Procedure in the Event of Condemnation or Eminent Domain
Grantor and Grantee recognize that the partial sale of this Conservation Easement gives
rise to a property right, immediately vested in the Grantee, with a fair market value equal to the
proportionate value that the Conservation Easement bears to the value of the Property prior to the
restrictions imposed by the Conservation Easement. Accordingly, if any condemnation or
eminent domain action shall be taken, on all or part of the Property, by any authorized public
authority, said authority shall be liable to the Grantee for the value of the property right vested in
the Grantee at the time of the signing of this Conservation Easement.
If condemnation or a taking by eminent domain of a part of the Property or the entire
Property by a public authority renders it impossible to fulfill any of the conservation purposes of
this Conservation Easement on all or part of the Property, this Conservation Easement may be
terminated or modified accordingly through condemnation proceedings. Grantor and Grantee
agree that the Conservation Easement is a currently vested real property right with a value equal
to the proportionate value the Conservation Easement to the unencumbered value of the fee, as of
the date of this grant. If the Conservation Easement is terminated or modified and any or all of
the Property is sold or taken for public use, then, as required by Section 1.170A- 14(g)(6) of the
IRS regulations, Grantee shall be entitled to the percentage of gross sale proceeds or
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condemnation award (minus any amount attributed to new improvements made after the date of
the conveyance, which amount shall be reserved to Grantor), equal to the ratio of the appraised
value of this Conservation Easement to the unrestricted fair market value of the Property, as
these values are determined on the date of this Conservation Easement, subject to any applicable
law which expressly requires for a different disposition of the proceeds.
If, however, after the condemnation or eminent domain proceedings, a court of
jurisdiction does not include in the just compensation awarded as a result of the taking, the
amount of the Conservation Easement value, then the Grantor shall not be responsible to share
any proceeds awarded.
All condemnation - related expenses, including reasonable attorney fees, incurred by the
Grantor and Grantee shall be paid out of any recovered proceeds prior to distribution of the net
proceeds as described herein.
24. Interpretation
This Conservation Easement shall be interpreted under the laws of the State of North
Carolina and the laws of the United States, resolving any ambiguities and questions of the
validity of specific provisions so as to give maximum effect to its conservation purposes. No
term or provision of this Conservation Easement is intended to, nor shall be interpreted to,
subject the Grantee or Property to any provision of law to which the Grantee or Property would
not otherwise be subject.
25. Perpetual Duration; Severability
The easement created by this Conservation Easement shall be a servitude running with
the land in perpetuity. Every provision of this Conservation Easement that applies to the Grantor
or Grantee shall also apply to their respective agents, heirs, executors, administrators, assigns,
and all other successors as their interests may appear. Invalidity of any of the covenants, terms or
conditions of this Conservation Easement, or any part thereof, by court order or judgment shall in
no way affect the validity of any of the other provisions hereof which shall remain in full force
and effect.
26. Merger
The Parties agree that the terms of this Conservation Easement shall survive any merger
of the fee and easement interests in the Property.
2?. Notices
Any notices required by this Conservation Easement shall be in writing and shall be
personally delivered or sent by first class mail to the Grantor and Grantee respectively at the
following addresses, unless a party has been notified in writing by the other of a change of
address:
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Wo
To the Grantor:
Marianne Wegner
6404 Walnut Grove Church Road
Hurdle Mills, NC 27541
28. Grantor's Title Warranty
To the Grantee:
Orange County Dept. of Environment,
Agriculture, Parks and Recreation
PO Box 8181
Hillsborough, NC 27278
The Grantor warrants that they hold fee simple title to the Property, free from all
encumbrances and exceptions to title, except for those exceptions deemed by the Grantee as
acceptable and set further in Exhibit B to this Conservation Easement, and hereby promises to
defend the same against all claims that may be made against it.
29. Subsequent Liens on the Property
No provisions of this Conservation Easement should be construed as impairing the ability
of Grantor to use the Property as collateral for subsequent borrowing. Any such liens shall be
and remain subordinate to this Conservation Easement.
30. Subsequent Easements /Restrictions on the Property
The grant of any easements or use restrictions that might diminish or impair the
agricultural viability or productivity of the Property or otherwise diminish or impair the
Conservation Values of the Property is prohibited. Any subsequent easements or use restrictions
that are not otherwise prohibited shall be subordinated to this Conservation Easement.
31. Grantor's Environmental Warranty
Grantor warrants that Grantor is in compliance with, and shall remain in compliance with,
all applicable Environmental Laws. Grantor warrants that there are no notices by any
governmental authority of any violation or alleged violation of, non - compliance or alleged non-
compliance with or any liability under any Environmental Law relating to the operations or
conditions of the Property. Grantor further warrants that Grantor has no actual knowledge of a
release or threatened release of any Hazardous Materials, as such substances and wastes are
defined by applicable federal and state law.
Moreover, Grantor hereby promises to hold harmless and indemnify the Grantee against
all litigation, claims, demands, penalties and damages, including reasonable attorney fees, arising
from or connected with the release or threatened release of any Hazardous Materials on, at,
beneath or from the Property, or arising from or connected with a violation of any Environmental
Laws by Grantor or any other prior owner of the Property. Grantor's indemnification obligation
shall not be affected by any authorizations provided by the Grantee to Grantor with respect to the
Property or any restoration activities carried out by the Grantee at the Property; provided,
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W,
however, that the Grantee shall be responsible for any Hazardous Materials contributed by the
Grantee to the Property after the date of this Conservation Easement.
"Environmental Law" or `Environmental Laws" means any and all Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes, guidelines, policies or
requirements of any governmental authority regulating or imposing standards of liability or
standards of conduct (including common law) concerning air, water, solid waste, hazardous
materials, worker and community right -to -know, hazard communication, noise, radioactive
material, resource protection, subdivision, inland wetlands and watercourses, health protection
and similar environmental health, safety, building and land use as may now or at any time
hereafter be in effect.
"Hazardous Materials" means any petroleum, petroleum products, fuel oil, waste oils,
explosives, reactive materials, ignitable materials, corrosive materials, hazardous chemicals,
hazardous wastes, hazardous substances, extremely hazardous substances, toxic substances, toxic
chemicals, radioactive materials, infectious materials and any other element, compound, mixture,
solution or substance which may pose a present or potential hazard to human health or the
environment.
32. Entire Agreennent
This instrument sets forth the entire agreement of the parties with respect to the
Conservation Easement and supersedes all prior discussions, negotiations, and understandings or
agreements relating to the said easement.
33. Recording Clause
Grantee shall record this instrument and any amendment hereto in timely fashion with the
Office of the Register of Deeds of Orange County, North Carolina, and may re- record it at any
time as may be required to preserve its rights under this Conservation Easement.
TO HAVE AND TO HOLD this Conservation Easement unto Grantee, its successors and
assigns, forever.
[The remainder of this page is intentionally left blank. Signature page follows.]
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IN WITNESS WHEREOF, the Grantor and Grantee, intending to legally bind
themselves, have set their hands on the date first written above.
GRANTOR:
Marianne Wegner
Accepted:
GRANTEE:
ORANGE COUNTY, NORTH CAROLINA
IN
ATTEST:
B E
Donna S. Baker, Clerk to the
Board of Commissioners
Acknowledgments
NORTH CAROLINA
COUNTY OF ORANGE
21
I, rya IA. f j , a Notary Public for said County and State do hereby certify
that V'i�,hv%f personally appeared before me and acknowledged the due execution
of the foregoing ins ent.
Witness my hand and official stamp or seal this the I day of t�Crr �° , 2018.
Notary Pu is
. ®�t®cNrrrurfrrc :.
My comm'ssion expires:
D S" s
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Wd
NORTH CAROLINA
COUNTY OF ORANGE
I, �j , s 4 �,A," Ia Notary Public of Orange County, North Carolina do hereby
certify that Donna S. Baker personally appeared 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 Orange County, North Carolina the foregoing instrument was signed
in its name by the Chair of the Orange County Board of Commissioners, and attested by her as
Clerk to said Board of Commissioners.
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Page 18 of 20
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Orange County, NC 20180815000156930 Bk: 6509 Pg: 114 19 / 20
Exhibit A
Tunnels En}Hefse Far m Buildings --- Streams � I
® Farmstead Area -4.4 acres; Parcels Streets DEAPR
Stream Buffer (50"; ______ Existing Bri e-waY 1 inch= 147 feet Date-7 /3,2018
Page 19 of 20
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Orange County, NC 20180815000156930 Bk: 6509 Pg: 115 20 / 20
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Exhibit B
1. Protective Covenants of Property of Robert D. Greer and wife, Shirley L. Greer, Cedar
Grove Township, Kindful Acres recorded in Book 529, Page 323; and Book 598, Page
553, Orange County Registry.
2. Declaration of Restrictions and Provisions for Private Road Maintenance recorded in
Book 484, Page 272; and Book 590, Page 181, Orange County Registry.
3. Matters as shown on Plat Book 27, Page 186; Plat Book 39, Pages 199 -200; Plat Book
45, Page 44; Plat Book 52, Page 184; and Plat Book 72, Page 113, all of the Orange
County Registry.
4. Easement to Piedmont Electric Membership Corporation recorded in Book 261, Page
1631; and Book 280, Page 1279, both of the Orange County Registry.
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