News

Conservancy, landowner heading to court over riding ring

Lauren McCarthy rides her horse Valentine at an unfinished horse ring at Hidden Valley Farm.

By Bill Moss, Published: July 13, 2014

FLAT ROCK — On the surface, a 100x200-foot riding ring on a horse farm hardly seems to be a big enough issue to warrant a year-long legal fight with high-powered law firms on either side.

But it is.
The pastoral beauty of Hidden Valley Farm here belies the pitched battle between the owner of the 60-acre farm and the Carolina Mountain Land Conservancy, which helped to draw up and is in charge of enforcing the terms of a perpetual conservation agreement.
The fight has pitted the CMLC, the Hendersonville-based land conservation agency that has protected 27,000 acres from development in Henderson and Transylvania counties, against landowner Hugh Cassar, a wealthy philanthropist and owner of a tobacco specialty products distribution business in southern California.
Cassar and his wife, Keets, live in a 28,000-square-foot mansion in Thousand Oaks on a farm that belonged to cowboy star Roy Rogers, also called, coincidentally, Hidden Valley Ranch. Although he spends most of his time in California, Cassar was involved in the decision to add a riding ring on what used to be a sloped piece of land above a farm pond.
The dispute is a year old.
In the course of an annual monitoring visit last July 1, CMLC stewardship director Sarah Fraser discovered the work on the riding ring. The owner had cut two new gravel roads, shaved off the bank to make flat ground and begun work on a horseback-riding ring.
Ridng students practice at a horse ring. To Fraser and her boss, CMLC Executive Director Kieran Roe, the work was a clear violation of the conservation easement the previous owner, Peter Hess, had voluntarily placed on the land.
"A conservation easement is a legal agreement between a landowner and qualified conservation organization that spells out future restrictions on the use of the property," Roe said. "From our side, we exist to conserve natural resources that benefit the public. That's our mission — to protect things like water quality, scenic views, natural habitat."
In exchange for voluntarily reducing the value of their land by forgoing development, landowners receive a tax deduction.
"There's IRS rules and regulations that we are required to follow," Roe said.
Of 1,700 land trusts in the U.S., the Carolina Mountain Land Conservancy is one of only 50 accredited by the Land Trust Alliance. In 2012, the conservancy reported assets of $9.8 million, according to IRS records.
"It's important (to preserve the agreements) because everybody in the community has contributed to keeping that property open and beautiful and usable through their tax dollars in paying for the deduction that the owners took when they agreed to the easement," said Lee Mulligan, a Hendersonville attorney who is the current president of the conservancy. "The benefit to everybody is that the CMLC has taken on the obligation of seeing this through forever so the public continues to benefit from the investment forever."

'Scenic vistas' protected
The conservation easement signed by the Hesses and the conservancy specifically protects "the scenic vistas" of the farm that motorists see as they drive on N.C. 225, a North Carolina Scenic Byway. It also protects plant and animal habitat and water quality.
Kathryn Gladwell, who operates a riding school on the farm, contends that a section of the 21-page agreement that reserves rights of the landowner allows the continuation of horse activities that the farm has always had.
"If you are a horse rider and you understand horse riding and you understand horse training, a riding ring is really for the sole purpose of riding and training a horse," she said.
She said Cassar spent $100,000 to dredge and clean the pond on the property, using the spoils as a surface for the riding ring.
"I think where the miscommunication is that Hugh felt like a ring is part of riding and training," she said. "It's not a permanent structure. We know you can't go build a foundation to stick up anything you want. But if you're a horse person, you would think a horse-riding ring is for riding and training.
"He didn't do anything with malice or bad intent. His intention was to clean the farm, get the farm cleaned up and bring it back to life, period. I think he would tell you now he might have taken a different step. If I said there was a misstep, he could have called them out here and said, 'Hey, this is what I really want to do.'"
Gladwell says part of her frustration stems from the fact that the two sides have been unable to work out a compromise. She blames the CMLC.
"Once he started doing this and they took note of it, they came out and they expressed their concern and he said, 'How can we work this out?' Just like the mission statement says. They're supposed to work with the landowner," she said. "Instead of sitting down with him, they served a stop order, and that's where he got upset.
"I feel like there's never been a time when they wanted to sit down and mediate and discuss it on the same level playing field. It's always been, 'You're going to be penalized, you're going to have to do land swapping. We're going to punish you.' It's never been like you and I would sit down and try to resolve something for the betterment of both parties."
Roe acknowledges the reserved rights in the easement, although he insists those rights are limited.
The owner has "reserved rights to manage the property as a horse farm but there were also restrictions in how they could use it as a horse farm," he said. The easement allows recreational uses including hiking, picnicking, bicycling, hunting and horseback riding.
"The type of excavation and road building (that occurred) was clearly not allowed," Roe said.
Gladwell disputes the conservancy's implication that the graded land was virgin soil. A previous landowner years ago planted a large garden on the plot and even buried irrigation pipes underground, which she points out.
"We'd like a 100-by-200 flat area with fencing, proper footing," she said. "We want fencing for the safety and welfare of the riders and the horses, and we want proper footing for the safety and welfare of the rider and the horses, and that was the most logical place to put it. We didn't have to remove one shrub or one tree."
Cassar's attorney, Craig Justus, filed a countersuit asking the court to throw out CMLC's enforcement action and further to nullify the conservation easement on the grounds that it's too vague. His motion and the conservancy's lawsuit demanding that the land be restored to a natural state are scheduled for trial on July 28. It's unusual for a conservation easement fight to go this far, a national official said.
"Generally, most of these disputes are resolved voluntarily, well into the 90 percent," said Leslie Ratley-Beach, conservation defense director for the Land Trust Alliance. "People are neighbors. When neighbors have a dispute, you try to work it out in a way that's voluntary and reasonable. Most of these do not end up in court; this one is. When they do end up in court, the track record is excellent. Land trusts very rarely lose these."
If land trusts do not follow through with vigilant enforcement of an easement's terms, they could lose their nonprofit status through the IRS and worse lose the public's trust, she said. Land trust officials point out that the easement allows Hidden Valley to operate as a horse farm, as it historically has.
"That's the whole point of having reserved rights," Ratley-Beach said.

Preserve and protect

The conservancy leaders say they don't relish the court battle. But when conserved land is changed, they say, they have to act to enforce the underlying agreement.
"We have two primary functions," said Mulligan, the CMLC president. "One is to acquire the easements, the other is to steward them. The public has in effect paid for those because they've given the original landowner a tax deduction. It's our job to make sure they stay in place. We can't allow violations. Otherwise, we're in danger of losing our 501(c)(3) status."
Gladwell remains convinced that a legal agreement allowing a horseback riding and training implicitly allows a riding ring.
"After reading the easement, after knowing everything I know, I would never in a million years thought we would get to this point," she said. "I personally believed they could be flexible, let us have the ring, and that was in their mission statement. They don't own the land."
Part of the issue is how the ring would affect water quality.
The owner of a horse farm in Crab Creek under a conservation agreement said the CMLC closely watches erosion and runoff.
"For us the conservancy has been wonderful," said Deni McIntyre, who owns Vista Hill farm. "Not only are they quite reasonable in considering with us modifications that don't affect what's being protected, they advised on invasive plants and how to get rid of things like pests that wouldn't be good for the horses. Like with erosion issues, it's like having our own little ag agent. They know their stuff."
The conservancy is least flexible, she said, about changes that could affect runoff and water quality — a factor that's relevant to the Hidden Valley dispute. The conservancy closely reviews "anything that affects water runoff, anything that changes grading and erosion and leaching down through soil," McIntyre said. "Protecting water quality is a big thing for them. I think that's what they're strictest about."
A hard-packed riding ring at Hidden Valley, the conservancy says, could adversely affect water quality.
"I'm an equestrian," Mulligan said. "I have a horse. I rode him yesterday. I can also tell you how you set up an arena like that and what it does to the subsurface of the land. You supercompact. You have to have lots of heavy compression once you take off the topsoil. Then you bring in this heavy compression material; otherwise you'll have gullies that collect water. When that's done, you put in your footing and that's usually several inches. It's not permeable soil at that point because you don't want it to be permeable soil."

Students praise Hidden Valley

Lauren McCarthy is a student at Hidden Valley Farm Riding School.On Monday afternoon, young teenage girls mucked stalls, bridled and saddled their horses and galloped around the unfinished ring learning to jump.
One of them was Lauren McCarthy, a 13-year-old who stood up before the Hendersonville City Council last Thursday and made an appeal for Hidden Valley Farm. She described the farm as her dream come true.
"A properly footed riding ring is essential to a working horse farm," she said. "Without one, how can you train for competitions?"
When it comes to a conservation easement that runs with the land forever, whether the farm needs a riding ring "is asking the wrong question," said CMLC attorney Sharon Alexander. One was never anticipated 11 years ago.
"Our problem is we have an obligation to protect the easements we are charged with preserving," Mulligan said. "I do think Ms. Gladwell had every opportunity in the world to find out what she could and couldn't do on this property. She knew about it. She knew there was an easement, she knew there were problems with it."