timber ridge conservation easement deed.pdf

Mindaugas Zukauskas Petitioner V Township Of Evangeline Respondent · 26-000660-TT

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STE JOKBAN 

(#333 me0792 

10122 P20 

Gla oF 

CONSERVATION EASEMENT 

FEGRUIS BONEERPATION EASEMERT is made this 

ID 

day of Orme, 

1991, by the TIMBER KIDGE COMPANY. 

a Michigan Co Partnership, 

with Richard 

E. Lobenhers acting ac the mensging partner, having an address at 203 Bridge 

Street, Charlevoix, Michigan, 49720 (*Grentor®), 

in favor of the LITTLE 

TRAVERSE CONSERVANCY CONSERVATION TRUST, 

a Michigan nomprofit corporation, 

ing an address at 3264 Powell Road, Harbor Springs, Michigan, 49740 

(*Graatee”). 

. 

VITNESSETH: 

WHEREAS, Grantor is the sole owner in fee sizple of certain real 

property located in Evangeline Township, Charlevoix County, Michigan, more 

particularly described in Exhibits *A-1° end "A-2% attached hereto and 

incorporated by this reference (the ‘Property"); and 

VHEREAS, the property possesses 

natural, scenic, open-space and 

gedentific values (collectively, ‘conservation values®) of great importance to 

Grantor, 

the people of Charlevoix Couaty and Evangeline Township, and the 

People of the State of Michigan; and 

WEEREAS, the Property is located in an ares with a resort-based economy 

Prosently experiencing rapid development, snd 

saintsining the 

scenic and 

natural beauty of the ares is an important plamning gosl of local governments 

and area residents; 

sad 

WHEREAS, the Property is clearly visible from Boyne City Road and Lake 

Charlevoix, therefore preservation of the Property's natural valves vould 

contzibuce to the scenic enjoyneat of the general publics and 

. 

WHEREAS, the Property is located in close proximity to Lake Charlevaix 

and is a relatively intact ecosystem vith wetland 

ares, defined by the 

Department of Natural Resources as *land characterized by the presence of 

water at a frequency end duration sufficient to support and tht under normal 

circumstances Coes support vatlend vegetation or aquatic life and is commonly 

referred to as a bog, swamp, or 

marsh" 

(N.C.L.A. Sec. 281.701, st. sea.) and, 

as such, contributes considerably to 

saintaining the vater quality af Lake 

Charlevoix aad provides important habitat for 

a variety of plants and animals; 

and 

VHEREAS, preservation of the Property's conservation values, 

including 

its wetlands areas, by conveysace of this Conservation Easement is in 

furtherance of, and will serve 

the public purposes of clearly delineated 

federal, 

state 

and Local conservation policy including, without limitation, 

the Federal 7 

$89.7 the Goemsere-Anderson Wetland Protection Act of 1973, K.C.L.A. Sec, 

281.701. gt seq.; the Inland Lakes 

and Streans Act, H.C.L.A. Sec. 261.951, er 

the Great Lakes Submerged Lands Act, M.C.L.A. Section 322.701, et seq; 

the Michigan Farsland end Open Space Preservation Act of 1974, K.G.L.A. Sec. 

534.702, et seq. ond the Lake Charlevoix Management Plan of 1988; 

and 

WHEREAS, the specific conservation values of the Property are documented 

in an fnventory of relevant features of the Froparty, dated 

iy 

18___, on ile at the office of Grantee and incorporated by Chis reference 

1 

ot 

er Pollution Control Act of 1972, 33 U.S.C. Sec. 40, 466, gr

R333 ME0793 

{{paseline Documentation’), which consists of reports, maps, 

photographs, and 

gther docusentation thet the partiss agree provide, collertivaly, an sceucace 

Fopresentation of the Property at the time of this grant and which ts intended 

Lo serve as an objective information baseline for monitoring complisnce with 

the terms of thir grant; 

and 

WHEREAS, Grantor intends tha the conservation values of the Property be 

preserved and maintained by the conticustion of fund use patterns, including, 

without limitation, those existing at the time of this grant, that do mot 

significantly impair oc interfere 

with those values; 

ang 

WHEREAS, Grantor further intends, a3 ower of the Property; 

to convey to 

Grantee the right to prescrve and protect the cancervation valias of the 

Property in perpotusty; 

‘and 

B 

VHEREAS, Gcantes is 

a publicly supported, nonprofit organization, exempt 

fron federal taxation under Section S01(c)(3) of the Internal Revenue Code of 

1986 (the "Code’) and 

a ‘qualified conservation organization” under Section 

170(h) of the Code, whose primary purpose 

is the preservation, protection. or 

enhancanent of land in its aatural, scenic, forasced, and/or open space 

condition; and 

VAEREAS, Grantes 

agrees by accepting tis grant to preserve and protect 

in perpetuity the conservation values of the Property for the benefit nf tnie 

generation and the generations to com 

NOH, THEREFORE, 

in consideration of the above and the mutual covenants, 

gesas, conditions, and restrictions concained herein, and pursuant co Section 

170(1) 

of the Cous and to the lavs of Michigan and in particular the 

Conservation and Bistoric Preservation Zasement Act of 1980, N.C.L.A. Sec. 

399.251, 

et. 

seq., 

Grantor hereby voluntarily grants and comveys to Grantee 

a 

conservation easement in perpetuity over the Property of the mature and 

character and to the extent hereinafter set forth ('Ecasment’). 

1.0. 

PURPOSE. 

I: is the purpose of this Easement to assure that the 

Property will be retained forever in its predoninantly natural, scenic, and 

forested condition and to prevent any uss of the Proparty that will 

significantly impair 

or interfere vith the conservation values of the 

Property. 

Grantor intends that this Easement vill confine the ase of the 

Property to such activities, 

including without Limitation, those involving 

Grantor's 

recreational pursuits as are consistent 

vich the purpose of this 

Easement. 

2.0. 

RIGHTS OF GRANTEE. 

To accomplish the purpose of this Easement the 

following rights are conveyed to Grantee by this Easement: 

2.1: 

Right to Preserve. 

The right to preserve and protect the 

conservation values of the Property. 

2.2. 

Right to Enter. 

The right to enter upon the Property at 

reasonable times iu ozder to monitor Grantor's cosplisnce vith and otherwise 

enforce the tera of this Easement, and to conduct such seieatific 

investigations of the Property as are consistent vith the analysis and 

preservation of the nacural aspects of the Property; provided that sach entry 

shall be upon prior reasonable notice to Grantor, and Grantee shall mot

1BE333 AEO07 94 

unreasonably ntecfore with Grantor's use and quiet enjoyment of the Property. 

The Grantee shell not have the right to entec won the Property, or to permit 

others to enter upon it, for any other purpose, expressly including public 

recreation. 

2.3. 

Right to Require Rescoration. 

The right to prevent any activity 

©0 OF use of the Property that is inconsistent with the purpose of this 

Easement and to require 

the 

restoration of such areas or features of the 

Property that may be daaaged by inconsis 

cemedies provided for herein. 

2.4. 

Right 

to Ploce Signs. 

The Tight to place signs on the Property 

identifying the Foparty as being protected by this Easesent and identifying 

the Baseaent's boundaries; provided, however, the number and location of such 

signs shall be subject to Grantor's approval. 

nt activity of use, pursuant to the 

3.0. 

PRORIBITED USES. 

Any activity on or use of the Property 

inconsistent vith the purpose of this Easement is prohibited. 

Fithout 

Liviting the generality of the foregoing, the following activities and uses 

ave oxpressly prohibited: 

3.1. 

Cossercial Activities. 

Any commercial or industrial use of or 

activity on the Property is prohibited 

3.2. 

Cutcing Trees. 

Cutting or removal of trees on the Property is 

prohibited unless sich trees are fallen, dead, diseased, or dangerous 

however, 

selective harvesting is permitted if 

according 

© plan, 

provided 

that the plan 1s approved in advance by Grantee in writing and such 

Plan results in a net improvement to wildlife hebitac. 

3.3. 

Alterations 

of 

urface. 

Any altecation of the surface of the 

Land, includ 

hou Linltation, 

the excavation or removal of soll, loam, 

peat, send, gravel, sock, fuel and other minerzls is prohibited. 

3.4. 

Dumping. 

The dumping or uccumulation of trash, garbage, vaste and 

other unsightly or offensive matericls on the Proparty in prohibited. 

3.5. 

pltecarions of Vater Courses. 

fhe 

msnipulation or alteration of 

natural 

vater courses, 

lake shoces, vetlends or other water 

including 

activities conducted on the Property which vould be detrizental to water 

purity or waich could alter natural vater 

level and/or flow is prohibited. 

3.6. 

Off-road 

Vehicles. 

The operation of off-road vehicles, including 

but not Limited to smovecbiles, duscbuggies and sotorcycles, is prohibited, 

except these used in daily activities by Graator, 

or by Grantor's personal 

representatives, successors or assigns, oc access roads or trails, provided 

that such activities do not cause excessive noise, erosion or vegetation 

damage, negatively impact vildlife, or ispair the conservation values 

protected by this Easement. 

3.7. 

Signs and Billboards. 

The placement of any signs or billbosrds on 

the Property is prohibited; however, signs not exceeding six (5) square feet 

ere pareicted Lf their placement, number, size, snd design do not 

significantly diminish the scenic character of the Property. 

Such aigns may 

be displayed to state the came and address of the Property and the names of 

H

333 mE0795 

pecsons Living on the Property, to identify areas of the Property as being 

protected by this Easement, to advertize the Property for sale or rent, and to 

post the Propercy to control unauthorized entry or use. 

3.0 Construction. 

The placement or constriction of any buildings, 

structures, 

or other improveents of any kind other than the following 

permitted uses described in Paragraph "4" below. 

4.0. 

BESPRVED RIGHTS. 

Grantor reserve to itself, 

and to its personal 

representatives, 

heirs, successors, and assigns, all rights accruing Eroz its 

ownership of the Property, including the right fo engage in or permit or 

invite others to engage in all uses of the Property that are not prohibited 

and are not inconsistent vith the purpose of this Easement. 

Vithout limiting 

the generality of the foregoing, the folloving rights are expressly reserved 

and shall be deeved not inconsistent with the purposes of this Easecent: 

1. 

Right to Convey. 

fhe right to sell, give or otherwise convey the 

Property, provided such conveyance is subject to the teas of this easement. 

4.2. 

Richt to Build Foor Trails. 

The right to establish and maintain 

hiking tcails upon prior approval by Grantee. 

4.6. 

Right to Maintain View. 

The Hight to thin and prune 

trees 

to 

maintain a filtered view 

of Lake Charlevoix fron the permitted rasidences and 

tha right to promote 

grobch of natural vegetation based on reasonable forestry 

practices. 

Any thinning or pruning of tres vithin the viewsied eres shall be 

permiteod only under the following condition 

4.6K. AL] vork aust done at Grantor's expense and be 

professional forester approved by Grantes. 

4.6.5. The basal area of the existing trees vithin the vievshed srea 

shall noc be raduced below seventy (10) square feet per acre unless Gruates 

egress in writing. 

4.5.C. 

Only those 

troeo 

under 4" DAH (diaseter at breast height) cay be 

pruned utilizing the *topping’ method of pruning. 

4.6.0, Any tree which 35 to be pruned using & ‘lizbing' 

mathod of 

pruning oust have a crow cemaining intact cosprising at lemst tweaty (20%) 

percent of the tree's total heighe. 

.6.E. No treo over 4* DBE is to be pruned by rezoving sore than sixty 

(802) paccent of its crunk-sriginacing branches over 1 1/2" in diameter 

sensured at the point of origin om the tok. 

5.7. Tvo weeks prior to the commencesedt of any cutting vithin' the 

viewshed ares. notice of the ntti co tut or trim suet bn mailed to the 

Grantee by certified mail, return receipt requested. 

pervised by 

a 

4.7. 

Bildlife Habitat Teprovements. 

The right to make vildlife habitat 

isprovenencs. 

5.0. 

HOTICE OF INTENTION TO UNDERTAKE CERTAIN PENITTED ACTIONS. 

The 

pucpose of requiring Grantors to notify Grantee prior to undertaking certain 

permitted activities, 

is to afford Grantee an opportunity to ensure that the 

activities in question are designed and carried out in a manner consistent 

with the purpose of this Easement. 

Whenever notice is required, Grautors 

shall notify Grantee in writing not less than thirty (30) days prior to the 

date Grantors intend to undertake the activity in question. 

The notice shall 

describe the nature, scope, design, location, timetable, and any othe:

- 

Leh 333 per07 

96 

material aspect of the proposed activity in sufficient detail to permit 

Grantee to make an inforaed judgement as to its consistency vith the purpose 

Of this Easement. 

5.1. 

Grantee's Agproval. 

Where Grantee's approval is required, 

Grantee 

shall grant or withhold its approval in writing vithin thirty (10) 

days of receipt of Grantors’ written request therefor. 

Grantee's failure 

to 

respond within thirty (30) days shall be 

deemed epproval by Grantee. 

Grantee's approval may be vittheld only upon 

a reasonsble determination by 

Grantee that the action 

as proposed would be incompatible vith the purpose 

of 

6.1. 

Grantee's 

Discretion. 

Enforcement of the terms of this Easement 

shall be at the discrecion of the Grantee, and any forbearance or deley by 

Grantee to exercise its rights under this 

iver of any 

subsequent breach of the ters violated by Grantor; or (3) 

a vaives of 

However, this Subparagraph '6.1% shall 

mot. he construed to authorize Grantee ta neglect to enforce the Easesent.s 

Provisions once Grantee has knovledge of an 

Easement violation, 

8-2. 

Acts Beyond Grantor's Cancrol. 

Nothing concained in this Easement 

shall be constzued to entitle Grantee to bring eny action against Grantor for 

any injury to of change in the Property resulting from causes beyond Grantop:s 

control, including, without limitation, fire, flood, stors, earth sovament, op 

ony action by a trespasser, 

or from any prudent action taken by Grantor under 

gmergency canditions to prevent. abate, or mitigate significant injury to the 

Property resulting from such causes. 

6.3. 

Motice and Demand. 

If Grantee determines thar Grantor is in 

violation of the terms of this Easezent or that 

a violarion is threatened, 

Grantee shall give written notice to Grantor of such violation and demand 

cocrective action sufficient to cure the violation. 

If, however, Grantee, 

in 

its sole discretion, deteraines that circumstances 

require lmaedists 

ceion to 

prevent ox to mitigate significant dasage to the conservation values of the 

Property, Grantee my pursue ite remediss under this Paragraph "6° without 

prior notice to Grantor or without vaiting for the poriod provided for cure to 

expire. 

Qepoctunity to Cure, 

Grantee 

may bring en action at lav or dn 

[XS 

equity in a court of Cospecen: jurizdiction to eforce the terms of this 

Easement if: (1) Grantor fails to cure the violation vichin thirty (30) days 

after receipt of Grantee's notice: 

(2) Grantor 

falls to begin curing such 

violation vithia the 30-day period (vhere the violation cannot ressonably be 

cured completely vithin the 30-day period); or (3) Grantor falls to continue 

diligently to cure the violation until the violation is cured to Grantee's 

satisfaction. 

6:5. 

Injunctive Rellef. 

Grantee 

may bring sn action in equity to

BR333 0797 

gnjoin the violation or to require restoration of the property, 

ex parte 

as 

Decessary, 

by tesporary or permanent injunction. 

Grantee shall 

be entitled to 

the injunctive relief described in this Paragraph vithout the necessity of 

Proving either actual damages or che inadequicy of otherwise availeble legal 

resadies. 

6:6. 

Action at lav. 

Grantes ouy bring aa action at lav to recover any 

© violation of the terms of this 

values protected by this Easement, 

including camages for the loss of scenic, aesthetic, or environsental values. 

0.7. 

Sests of Enforcement. 

Any costs incurred by Grantee in enforcing 

che terms of this Easement against Grantor, including, without 1initerion. 

costs of suit and sccual attommeys' fees, and any costs or restoration 

necessitated by Grantor's violation of the terns of this 

Zaseaent shall be 

bome by Grantor. 

7,0. 

ACCESS. 

Mo right of access by the general public 

to any portion 

of the Propercy is comveyed by this Easement. 

8.0. 

OVNERSHIP COSTS AND LIABILITIES. 

Grantor or its assigns retain 

omership vith full rights ta control and mantge the Property and shall beer 

811 costs and Lisbilities related to property ownership, operation. and 

ine, 

+ including 

saincaining 

ad 

hensive goceral liability 

insurance, nasing Grantee as an additional insured. 

This pacagcaph is 

intended to ensuze that none of the Linbilities attendant on land ownership 

are inadvertently transferred to Grantee under this Conservation Easement bs 

Grantee will have no 

cesponsibilities and vill 

ise 

no direct 

control over any potential hazards oa the Property. 

Grantor's liabilities 

under this paragraph transfer to a nev owner upon transfer of 

Grantor's 

interest in the Property, 

except that Lisbility for acts or omissions 

occurring prior to transfer shall survive transfer. 

8.1. 

1 

Grantor shall pay before delinquency all taxes levied on 

or assessed against the Property by competent authority. 

If the Grantor 

becoces delinquent in payment of said taxes such that a lien against the land 

4s created, the Grantee, 

at its option, shall have the right to discharge said 

Len, or to take other actions as may be necessary to protect the Grantee 

incerese 

in che Property and to sssure the continued enforceability of this 

Conservation Easement. 

: 

9.0. 

ASSIGNMENT. 

Grantee may assign its rights and obligations under 

this Basement only to an organization that, at the time of the Assigument, is 

# "qualified conservation organization under Section 170(h) of the Code of 

1986, as 

amended. 

Grentee shall require, 

as a condition of assignment, that 

the purpose of this 

easement contiaes to be carcied out. 

10.0. EXECUTORY LIMITATION. 

If Grantee shall cease to exist or to be a 

"qualified conservation organization® under Section 170(h) of the Code, 

as 

acended, or is determined to be unauthorized to 

acquire and hold conservation 

easeaents by a court of competent jurisdiction, and 

a prior assignment is mgt 

ade 85 provided for herein, then Grantee's rights and obligations ander this 

Easenent shall becose immediately vested in the following mused entities, to 

the exten they evince an intent to accept. the sams, 

in the following orders 

(8) Hayes Township, 

(b) Charlevoix County, 

(c) any other entity having similar

UWE 333 MECTI8 

conservation purposes to which such rights may be avarded by a court of 

competent jurisdiction wader the doctrine of cy pres. 

provided that at the 

tive of such vesting ar avard such entity is one described In Section 

170() (3) of the Code and is qualified to accept and hold conservation 

asementa under applicable lavs of the State of 

Michigan. 

11.0. 

TERMINATION. 

~The restrictions Lwposed Dy this Easement may be 

extinguished only by sn unexpected change in conditions of by exercise of 

eminent dousin. 

11.1. - Unexpected Change 

in Condizions. 

If ‘a subsequent, unexpected 

change in the conditions of or surrounding the Property wake the continued 

of the Property for the conservation purposes of this Fasement iaposaible, the 

restrictions herohy imposed by this Ensesent may bo extinguished oaly by 

Judicial proceedings in a court of cospetent jurisqiciion. 

If the Easement is 

‘extinguished, 

in vhole or in pert, Grantee shall 

be entitled to compensation 

in accordance vith spplicable la and in peoportica to Graatee's interest in 

the Property. 

: 

11.2. 

Condesnation. 

If the Easezent is taken, in shole ov in part, by 

exercise of the pover of, sainent domain, Grantee shall be entitled to 

compensation in accoréance vith applicable lav and in proportion to Grantee's 

interest in the Property. 

B 

12.0. NOTICES. 

Any notice, demand, request, cousent, spproval, ar 

comunication that either party desires or is required to give to the other 

shall be in writing and either served personally or seat by first class mail, 

postage prepaid, addressed to the party ac the adiress set forth in the 

initial Paragraph of this Eacezent or to such other address as either party 

from time to tise shall designate by written notice to the other. 

13.0. RECORDATION. 

Grantee shall record this instrument in 

a timely 

£ashion in the official records of Charlevoix County, Michigan and my re- 

record this Easeaent or record an affidavit by Grantee relating to the 

existence of this Easement vhich stall be 

conclusively presumed by the Parties 

and their successors and assigns to give constructive notice of the existence 

of this Easement. 

Ay general rule of construction to the 

Easement shell be 

liberally construed in favor 

Conservation and Kistoric Preservation Easement A 

1a this instrument is found to be asbiguoss, an interpretation consistent with 

the purpose of this Easement that would render the provision valid shail be 

favored over any interpretation that woul render it iavelid. 

15.0. SEVERABILITY. 

If any provision of 

this Easeaeat, or the 

application thereof to any person or circusstacce, 

ic found to be invalid, the 

febainder of the provisions of this 

Zaseaent, 

or the application of such 

provision to persons or circusctances other than those as to hich it is found 

To be invalid, 

as the case may be, shall not be affected thereby. 

nd restrictions of 

the 

16.0. SUCCESSORS. 

The covenants, terms, conditions, 

this Easesent. 

sl 

binding upon, and acre to the ben:

Geantors 

and Gra 

Successors, snd 

7, except that lishiliry 

er shall survive transfer, 

TO HAVE AXD 10 HOLD unto Gruntee, 

Prior to transt, 

tes suc 

5075, and assigns forever. 

io

} 

L 

ISR 333 M0800 

IH WIINESS 

HEREOF Grantor and Grantee have 

sat their hand on the day 

and year first shove written. 

Witnessed by: (sign & priat name) 

Print 

Kase: 

i 

Print Waser 

ufa 

fecton 

COUNTY OF Chatlevoix 

) 

es. 

STATE OF MICHIGAN 

) 

Subsceibed and sworn to hefora we this 

1ath 

day of _ October 

|, 19.91 

By JOHN E. FOUGHT, who acknowledged that he is the ChAlr of the LITTLE 

TRAVERSE CONSERVANCY, 

a Michigan nonprofit 

corporation, 

and that the execution 

of this Conservation Zasement is with the authority of the Board of Directors 

Of said corporation. 

Notary PESIic Pauls Merrifh 

Ager 

My comeission expires: 

May 8, 1965 

County oF __ Charlevoix 

) 

ns. 

STATE oF 

Michigan 

) 

Subscribed and svom to before se this 

18th dey of 

October 

19 91, by RICEARD E. 

L 

. who acknowledged thet he 15 the anaging 

Pactner of the TIMBER RIDGE COMPANY, a ¥ichipen corporation, and that the 

execution of this Conservation Easement is vith the authority of the partners 

"of said corporation, 

fiatary PusTic Paula Merrigt Ros 

My commission expires:May 8, 

1995 

Insecusent prepared by und after recording cecurn cor STL 

rae 

Conservancy, 3264 Povell Road, larbor Speiags, Kichigan 

49740. 347-0851.

EO 

(BR 333 PEE0B 

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