Resolving Encroachments upon Conservation Lands

1. Resolving Encroachments upon Conservation Lands

2. Encroachment Resolution • Article 97 • Non Applicability of Adverse Possession • Factors Contributing to the Problem • Types of Encroachments • Resolution Strategies • The Encroachment Resolution Process • Case Studies • Available Resources • Questions and Answers

3. Article XCVII of the Amendments to theMassachusetts Constitution The people shall have the right to clean air and water, freedom from excessive and unnecessary noise, and the natural, scenic, historic, and esthetic qualities of their environment; and the protection of the people in their right to the conservation, development and utilization of the agricultural, mineral, forest, water, air and other natural resources is hereby declared to be a public purpose. Lands and easements taken or acquired for such purposes shall not be used for other purposes or otherwise disposed of except by laws enacted by a two thirds vote, taken by yeas and nays, of each branch of the general court.

4. Non Applicability of Adverse Possession • Chapter 92, Section 96 DCR-DUPR has explicit protection • Chapter 7, Section 40E All Commonwealth lands have similar explicit protection • More complicated with regard to municipalities 20 limit does not apply to lands held for conservation, open space or other public purposes

5. Some factors that contribute to encroachment upon conservation land • Extensiveness of holdings • Lengthy and irregular boundaries • Fragmented/dispersed location of holdings • Development pressure • Staff and landowner ignorance • Lack of constituent interest • Inadequate monumentation • Staff reductions

6. DCR-DUPR manages an estimated 500 miles of boundaries

7. Why do abutters encroach? • Ignorance of boundary location • The land holding agency is unable to provide adequate stewardship • Abutter perceives encroachment as an enhancement • They have permission from years ago • No one will notice . . . and even if they do they won’t have the resolve to kick me off

8. Types of encroachments • Water and Soil Impairment Dumping or storage of debris and hazardous materials Grazing of animals and manure storage • Forest and Land Destruction Cutting, removal, and damage to trees and plants Disturbing soil & ground cover, grading or filling land, and removal of gravel or loam Paving or covering of soil and ground cover • Construction Fences, sheds, cabins, walls, signs, docks, and buildings • Boundary Destruction

9. Resolution Strategies • Develop a plan • Be consistent throughout • Work with a spirit of informed cooperation • Put good maps in the hands of on-site managers • Properly mark property lines • Educate abutters and constituents • Actively manage boundaries • Create partnerships

10. The Encroachment Resolution Process • Develop a list of abutting owners • Notify all abutters and neighbors of the “reclamation program” • Gather public records, especially maps and plans • Locate property lines in the field • Photo-document likely encroachments • Provide written notice to likely encroachers • Hold a site visit to share information, mutually observe field conditions and explain resolution process • Execute agreement • Resolve encroachment • Follow-up with acknowledgement and thanks

11. A Success Story

12. Early 1990’s

13. Late 1990’s

14. The Charles River . . .from this

15. Documenting Field Conditions • Locate property lines in the field • Photo-document likely encroachments • Bring along a witness • Meet with possible encroacher to: • establish relationship • Share relevant facts • Seek to reach verbal agreement to quit

16. Follow-up in Writing • Review public records findings • Summarize results of site visit • Provide written agreements • Include copies of relevant public records • Send it Certified Mail with a Return Receipt

17. . . . to this

18. Boston Scientific

19. Bacon Industries

20. Boudreau residence

21. This will be enough . . . 90% of the time • The encroacher voluntarily: • executes documents • removes encroachment • restores adverse impacts • becomes a good neighbor and maybe acts as a “reference” for the next time you address an encroachment with another abutter

22. Follow-up with a “Thank You” • An example can be found in the supporting material I’ve brought along

23. When things don’t go as smoothly “What do you mean my shed isn’t on my land” This is what you should expect the other 10% of the time

24. MDC Engineers & Army Corps identify problem

26. Documenting Field Conditions • Locate property lines in the field • Photo-document likely encroachment • Bring along a witness • Meet with possible encroacher to: • establish relationship • Share relevant facts • Seek to reach verbal agreement to quit

27. Follow-up in Writing • Review public records findings • Summarize results of site visit • Provide written agreements • Include copies of relevant public records • Send it Certified Mail with a Return Receipt

28. What do you do when all else fails? • Can you call upon other resources? • GIS has a lot to offer • Does your organization have the resolve to follow through with all its legal means? • Document and preserve records of all your efforts . . . Be ready to hand them of to your legal team

29. 1-5000 ortho photo showing pre-encroachment site conditions

31. More recent ortho with boundary line

33. Before and After photos

34. This has been a case that really put our resolve to the test • After all this effort, the encroacher still refused to move the shed . . .so we constructed a fence on our property line, then • We offered to move the shed • We obtained court approval to move it • He wouldn’t accept any feasible location • We went back to court, obtaining approval to do whatever we needed to remove the shed • We will soon move it or demolish it at our convenience

35. Hindsight is 20 : 20 • Apply a common sense cost-benefit analysis . . . What is the tort exposure associated with ripping the shed down after fair notice? Would this approach have been less of a total cost than the time and expense of going through the encroachment process with an uncooperative abutter?

36. Resources: Charles River Guide • One stop shopping for most everything you’ll need • Provides details of a successful and comprehensive approach • Step-by-step information for encroachment resolution • Helpful historical and background information • Many well documented interviews • Specifications helpful to contract for survey services • Details on the expendable trust • Time tested prototypes of official correspondence to encroacher, from first contact to successful resolution

37. Realizing the Vision: Reclaiming Public Open Space in the Upper Charles River Reservation A guide for encroachment resolution and land reclamation

38. NORTHCOASTAL.NET

39. Quick list of Helpful Resources Assessor records Registry of Deeds records Municipal Engineering Office records Town Counsel MassGIS

40. Final thoughts • Establish clearly marked boundaries • Link-up with natural allies • Assessors • Conservation Agents • Neighbors • Be consistent and persistent • Build on successes • Don’t stop with the low hanging fruit • Innovate

41. Thanks go out to these folks • Dan Driscoll, DCR-DUPR Planner • Jennifer Yelin, MDC Planning Intern • Ken Collette, DCR AGC • Pete Church, DCR-DWSP • David McGowan, DCR-DSPR • Joel Lerner, DCS • Bernie McHugh, MLTC

42. Resolution Strategies • Develop a plan • Be consistent throughout • Work with a spirit of informed cooperation • Put good maps in the hands of on-site managers • Properly mark property lines • Educate abutters and constituents • Actively manage boundaries • Create partnerships