AGENDA #13

MEMORANDUM

TO:                  Mayor and Town Council

FROM:            W. Calvin Horton, Town Manager

                        Ralph Karpinos, Town Attorney

SUBJECT:      Proposed Morgan Creek Preserve Conservation Easements

DATE:            May 22, 2006

PURPOSE

The attached Resolution A would authorize the Town Manager to execute a conservation agreement with the Botanical Garden Foundation, Inc., for 92 acres of Town property along Morgan Creek.

The attached Resolution B would authorize the Manager to execute a separate agreement with the Botanical Garden Foundation, Inc. to monitor the easement area. The agreement to monitor the easement would be an annual agreement and would cost about $1,500 in the first year. The resolution would also authorize the Manager to spend Town funds to survey and install signs along the boundaries of the Morgan Creek Preserve.

The attached budget ordinance would transfer $8,500 in Council contingency funds to the Capital Improvements Program fund for the survey and signage portion of the project.

The Manager recommends that the Council adopt Resolutions A and B and enact the budget ordinance.

BACKGROUND

On February 9, 2004, the Council received a petition proposing that the Council place a conservation easement on 32 acres of land the Town had recently acquired along Morgan Creek, between Smith Level Road and U.S. 15-501 South.  The land adjoins other Town-owned open space in the Morgan Creek corridor and is across 15-501 from Merritt Pasture.

In response to the petition, the Council on May 10, 2004, indicated support for the concept of establishing conservation easements on Town-owned open space in this area.  A Council Committee was formed to work further on the issue.

The Committee met with representatives of the N.C. Botanical Garden Foundation and the Triangle Land Conservancy, reviewed sample conservation language, considered maps and aerial photographs of the area of interest, and walked the property, including the 32-acre tract acquired as well as other contiguous Town-owned parcels. The Committee recommended that the proposed easement area be expanded to included 92 acres of Town property along Morgan Creek.

On November 21, 2005, the Council adopted a resolution authorizing the Committee and Town Manager to continue the process to develop proposed conservation easements and cost estimates for Council consideration.

DISCUSSION

The proposed arrangement with the Botanical Garden Foundation, Inc. would consist of two documents: a permanent conservation easement and an annual agreement to monitor the property.

Permanent Conservation Easement

The proposed conservation easement would grant to the Botanical Garden Foundation, Inc. an interest in all of the Town property that is bounded by the Merritt Pasture on the east, the Carrboro Town line on the west, Culbreth Road to the south, and Fordham Boulevard to the north. Please see the attached map (Attachment 1).  These properties comprise about 92 acres.

We believe that the Foundation would be an effective holder of the easement and would be motivated to ensure that the purposes of the easement would be enforced.

The main goal of the Conservation Easement would be to ensure, to the greatest extent legally possible, that the property would be permanently retained as open space in its natural condition. The proposed easement is structured to protect native plants, animals, and plant communities on the land, while allowing uses that are compatible with and not destructive of the conservation values of the easement. The Town would no longer have the right to develop the property except for a specific list of allowed improvements such as trails, a neighborhood park, utilities, outdoor recreation and education.  The Town or another agency with the power of eminent domain would still be able to reacquire rights to develop the property if necessary for a public use.

The main terms and conditions of the proposed easement would be:

1. Length of the Easement: The easement would run with the land and would be in perpetuity. A provision in the easement would allow the easement to be transferred to another organization with the land preservation goals in the event that the N.C. Botanical Garden Foundation is dissolved.  If the Town were to sell the land, the easement would still be in force.
2. Voluntary Loss of Development Rights: The Town would abandon its rights in the property, with the exception of those rights specifically retained by the Town.
3. Allowed Uses to the Town: The following is a list of activities and uses which would be expressly allowed on the property:
   • Natural surface trails could be built and maintained throughout the property.
   • An improved greenway trail could be built if such a trail cannot be located on the north bank of the creek.
   • A neighborhood park could be constructed to serve the area around Culbreth Road.
   • The current Merritt Pasture Vegetation Management Plan could be maintained.
   • Native landscape plant materials could be installed adjacent to neighboring properties, within the neighborhood park, and along the trails.
   • Utility extensions would be allowed throughout the property and a communication facility could be sited within the neighborhood park.
4. Prohibited Uses to the Town: The following is a list of activities and uses which would be expressly prohibited:
   • The Town could not construct buildings or other improvements except those expressly allowed for the neighborhood park.
   • The Town could not harvest timber except to remove dangerous trees.
   • Excavation, dumping, and other land altering practices would be prohibited except for construction of the park and trails and to repair land damaged by previous practices. Examples include repair of the eroded power line easement and filling in of trenches created by placement of a sewer line.
   • Biocide use would be limited.
   • Commercial development would be prohibited.
5. Rights of the Botanical Garden Foundation:  The Foundation would have a number of specific rights pertaining to use of the property, including the right to:
   • Preserve and protect the conservation values of the property and enforce the terms of the Conservation Easement.
   • Enter the property for the purposes of inspection, monitoring and research.
   • Manage the property to control exotic and invasive species.
   • Prevent and correct violations of the terms of this Conservation Easement.
     (Attachment 2 is a copy of the proposed Conservation Easement.)

Annual Monitoring Agreement

Resolution B would authorize the Manager to execute an agreement with the N.C. Botanical Garden Foundation to monitor the property for potential violations of the easement including possible encroachments onto the property from neighboring landowners. The agreement would obligate the Foundation to:

• Communicate with adjoining property owners;
• Walk the property at least twice per year;
• Document and report any encroachments or other evidence of non-compliance with the conservation easements; and,
• Provide an action plan for addressing encroachments.

The agreement would have to be renewed on a yearly basis. The Town would pay the Foundation $1,500 in the first year. That amount will be included as part of the Parks & Recreation Department’s budget request for FY 2006-07.  This agreement would be subject to renewal each year based on approval of the necessary funding as part of the Town’s budget.

Prior to execution of the monitoring agreement the Town would have to survey and mark the property boundaries. We believe that work would involve a one-time cost of around $8,500 to purchase and install boundary signs. The attached budget ordinance would transfer $8,500 from the Council’s contingency to the Capital Improvement Program for this purpose.

NEXT STEPS

If the Council authorizes the staff to proceed we would then take the following steps:

1. Execute and record the conservation easement.

2. Purchase boundary signs.

3. Survey boundaries of the properties and install the signs.

4. Execute an annual management agreement with the Botanical Garden Foundation that would address management of the properties.

RECOMMENDATION

Manager’s Recommendation:  That the Council adopt the attached Resolution A, which would authorize the Manager to execute a conservation easement agreement with the Botanical Garden Foundation, Inc., that would preserve about 92 acres of Town property along Morgan Creek.

In addition, the Manager recommends that the Council adopt the attached Resolution B, which would authorize the Manager to execute a separate agreement with the Botanical Garden Foundation, Inc. to monitor the easement area. The resolution would also authorize the Manager to spend Town funds to survey and sign the boundaries of the Morgan Creek Preserve.

If the Council adopts the resolution, the Council should also enact the attached budget ordinance, which would transfer $8,500 in Council contingency funds to the Capital Improvements Program fund for the survey and signage portion of the project.

ATTACHMENTS

1. Map of Town-owned property along Morgan Creek (p. 8).
2. Draft Conservation Easement (p. 9).