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Encroachment Resolution

VIEWS: 21 PAGES: 42

									     Resolving
Encroachments upon
Conservation Lands
      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
   Article XCVII of the Amendments to the
          Massachusetts 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.
     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
       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
DCR-DUPR manages an estimated 500 miles of boundaries
   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
      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
          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
    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
A Success Story
Early 1990’s
Late 1990’s
The Charles River . . .from this
    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
          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
. . . to this
Boston Scientific
Bacon Industries
Boudreau residence
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
  Follow-up with a “Thank You”
• An example can be found in the
  supporting material I’ve brought along
 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
MDC Engineers & Army Corps identify problem
    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
          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
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
1-5000 ortho photo showing pre-encroachment site conditions
More recent ortho with boundary line
Before and After photos
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
         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?
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
Realizing the Vision:
Reclaiming Public Open Space in the
Upper Charles River Reservation
A guide for encroachment resolution and land reclamation
NORTHCOASTAL.NET
 Quick list of Helpful Resources
Assessor records
Registry of Deeds records
Municipal Engineering Office records
Town Counsel
MassGIS
                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
    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
          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

								
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