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Attorneys argue points on conservation easement

The Carolina Mountain Land Conservancy says a proposed horse ring at Hidden Valley Farm vilolates a conservation easement. The Carolina Mountain Land Conservancy says a proposed horse ring at Hidden Valley Farm vilolates a conservation easement.

Attorneys for either side pressed their points last week in a court hearing on a dispute over a partially completed horse ring on a farm protected by a conservation easement.

 

The Carolina Mountain Land Conservancy in 2003 negotiated the agreement to protect two-thirds of the 60-acre Hidden Valley Farm on Greenville Highway just south of the Flat Rock village limits. The property changed hands, and the new landowner, a wealthy California tobacco distributor, started construction of a riding ring for the horseback riding school that operates on the property now. The property owner, Hugh Cassar, also owns a horse farm in Southern California.
Arguing for the landowner, attorney Craig Justus said North Carolina law requires the court to tilt "in favor of free use of land." State law recognizes farming and agricultural uses as "things that are cherished in our state," Justus told Superior Court Judge Mark Powell. The easement itself, the attorney added, cites farmland preservation as a reason for conserving the land.
A crew bulldozed a hillside and used sediment dredged from a farm pond to create a flat space for a 100-by-200 riding ring. The owner also cut two driveways for access to the project without consulting the conservancy. After discovering the work in an annual monitoring visit in July 2013, the CMLC demanded that the owner stop work on the riding ring. The work, the conservancy said, violated the conservation easement's prohibition against excavation and adding a new structure and it potentially damaged habitat and water quality.
0730HVHorseFarm Horse ArenaA rendering shows a completed horse ring that Shadow Valley Farm wants to build for its riding academy. [CONTRIBUTED PHOTO]The easement says the purpose of the agreement was to preserve the scenic view of the farm from the highway, improve water quality in a stream that feeds King Creek and protect fish, wildlife and plant habitat. But Justus said a part of the easement recounting the state's interest in preserving farmland is as important as those objectives — indeed because of state law, more important.

Lawyers debate easement's terms

The attorneys found plenty of room for disagreement as they parsed the words of the easement itself.
The document reserves the property owner's right to manage livestock, repair and replace fencing and use horseback trails. That, Justus said, implies the right to add something as integral to horseback riding as a fenced ring. The "customary and reasonable management of livestock" expressly permitted by the easement clearly allows a riding ring, he added.
"One purpose of the agreement is to promote farming and agricultural use," Justus said. "If we were talking about building condos or a convenience store that did not fall under the umbrella of promoting farming, your honor, I would not have wasted your time."

'No new facility'

Sharon Alexander, the attorney for the land conservancy, told Judge Powell that the easement's terms clearly bar the kind of work Cassar has done. The easement allows recreational activities that "require no buildings, facilities, surface alteration or other development of the land."
She told Powell there was "a fatal flaw" in precedents Justus cited. "Those cases were restrictive covenants," she said — rules forced on a landowner by a third party. A conservation easement, on the other hand, is an agreement that carries with the land and is known and accepted by any subsequent owner.
"The easement clearly provides that no facility can be established, installed or constructed on this property," she said.
Even though someone may now perceive a horse ring as logical and necessary, she said, such a use was not contemplated when the easement was drafted and signed. "That debate occurred 11 years ago," she said. "It's over. It's no longer relevant."
The two sides each offered affidavits from environmental consultants — the conservancy's saying the riding ring would damage habitat and water quality, the landowner's saying it would not.
The hearing before Judge Powell was on the landowner's countersuit seeking a summary judgment that would throw out the land conservancy complaint and void the easement as vague and unenforceable. Powell said he would rule in about two weeks. If he does not grant the summary judgment for the landowner, the case could proceed to trial.
Hidden Valley Farm had 21 supporters, including riding school operator Kathryn Gladwell and her students and their parents. Eleven supporters of the land conservancy attended.