AGENDA DATE: 11/2/2016
TITLE:
Title
Millwood Land Trust-ACE Conservation Easement Request
BODY
SUBJECT/PROPOSAL/REQUEST: Approval of cemetery use under ACE open-space easement
ITEM TYPE: Consent Action Item
STAFF CONTACT(S): Foley, Walker, Kamptner, Herrick, Clark, Goodall
PRESENTER (S): N/A
LEGAL REVIEW: Yes
REVIEWED BY: Thomas C. Foley
BACKGROUND: On August 26, 2003, the Millwood Land Trust entered into an ACE open-space easement on Tax Map Parcels 06500-00-00-084A0 and 06500-00-00-08600 (108.9 acres). The easement is co-held by the County and the Public Recreation Facilities Authority (the "PRFA").
The deed anticipated the future transfer of a portion of the property to the adjacent Zion Hill Baptist Church (the "Church") for expansion of the church's cemetery. Section 2(A)(1) of the deed provides (in part): "The Property shall not be otherwise further divided or subdivided except for the sole purpose of conveying a portion of the Property abutting Zion Hill Baptist Church to the church for cemetery purposes."
However, though the above section clearly permits subdivision of a cemetery lot, the deed does not expressly permit use of the land as a cemetery. Therefore, any cemetery use of land under this easement would need to be approved in writing by the co-holders under section 2(C)(7) of the deed, which exempts certain uses from the deed's general prohibition on commercial uses. It permits:
"7. Uses or activities not expressly excepted herein, but which are determined by each Grantee in writing not to be a commercial or industrial use, and to be consistent with this Easement. In making this determination, the Grantees may consider, among other things, whether the scope of a use or activity excepted herein has evolved over time as a result of changes in the law or customary practices."
Because the easement is co-held by the County and the PRFA, the Board and the PRFA need to approve this use before it may commence.
STRATEGIC PLAN: Rur...
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