NEW HANOVER COUNTY BOARD OF COMMISSIONERS

REQUEST FOR BOARD ACTION

MEETING DATE November 15 2010

REGULAR

ITEM
17

DEPARTMENT Airlie Gardens S Jim McDaniel Parks Gardens and Senior

PRESENTER
Resources Director

S Janine Powell Development Coordinator Parks Gardens and Senior Resources

CONTACT

SUBJECT

Consideration of Adopting a Preservation Easement Recognizing the Architectural Historic and

Cultural Values and Significance of Airlie Gardens with the Common Purpose of Conserving and
Preserving Airlie Gardens

BRIEF SUMMARY

A Preservation Easement is a legal agreement between a government agency New Hanover County and
nonprofit organization Airlie Gardens Foundation to which the property owner limits the activities that can
take place on the property Terms of an easement are usually tailored to suit the particular piece of property
and the interests of the owner The easement is recorded into the official record or assigned to the deed for
the property and is perpetual Thus it binds future buyers of the land as well as the owner who entered into
the agreement Preservation Easements are voluntary agreements Property owners retain title to their land
they can sell it when they wish to do so and they do not give up any rights that they wish to keep but must
be included in any document put forth

Preservation Easements may carry benefits for the property owners i e the taxpayers of New Hanover
County In an area highly prized for development the rights are given up to develop the property Reduction
of the value of the property as a development also reduces any potential buyers except those who wish to
operate as a public garden or space

The goals of the easement programs are to help preserve the historic nature of the property prevent
development and preserve the heritage of the area In doing a Preservation Easement it will only enhance the
management of the grounds and preserve its activities

RECOMMENDED MOTION AND REQUESTED ACTIONS

Approve the Preservation Easement Agreement between New Hanover County and the Airlie Gardens
Foundation Inc

e TT e ruMF1vTC

Draft Preservation Easement Agreement

COUNTY MANAGER
S COMMENTS AND RECOMMENDATIONS only Manager

Consider the agreement

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THIS PRESERVATION EASEMENT made this day of 20

by and between NEW HANOVER COUNTY Grantor and

Grantee a nonprofit corporation of North Carolina

WITNESSETH

WHEREAS Grantor is in fee simple of a historic landscaped garden located in the City
owner

of Wilmington NC known Airlie Gardens more particularly described in Exhibit A attached

as

hereto and incorporated herein hereinafter the Property

WHEREAS Grantor and Grantee recognize the architectural historic and cultural values
hereinafter preservation values and significance of the Property and have the common
purpose of conserving and preserving the aforesaid Property

WHEREAS the grant of apreservation easement by Grantor to Grantee on the Property will
assist in preserving and maintaining the Property and its architectural historic and cultural
features for the benefit of the people of New Hanover County

WHEREAS to that end Grantor desires to grant to Grantee and Grantee desires to accept a

preservation easement hereinafter the Easement on the Property

NOW THEREFORE in consideration of Ten Dollars 10

00 and other good and valuable
consideration receipt of which is hereby acknowledged Grantor does hereby voluntarily grant
and convey unto the Grantee a preservation easement over the Property described in Exhibit A

PURPOSE

1 Purpose It is the Purpose of the Easement to assure that the architectural historic and
cultural features of the Property will be retained and maintained substantially in their
current or better condition for preservation purposes and to prevent any use or change of
the Property that will significantly and materially impair or interfere with the use of the
property as a public garden and all other the related activities of a historic landscape
garden

S COVENANTS
GRANTOR

1 Grantor
2 s Covenants Covenant to Maintain

a Grantor agrees at all times to maintain the buildings existing on the subject property
in the same or better structural condition and state of repair as that existing on the
effective date of this Easement Grantor
s obligation shall require maintenance
replacement repair andor reconstruction by Grantor whenever appropriate to
preserve the buildings
b Grantor
s obligation to maintain shall also require that the Property s landscaping
be maintained in goodbetter appearance with plantings vegetation and natural
screening

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2 Grantor
s Covenants Prohibited Activities

1 The following acts or uses are expressly forbidden on over or under the Property
a The Property shall not be divided or subdivided and the Property shall not be devised
or conveyed except as a unit

b No building shall be demolished removed or razed as prescribed in the approved and

adopted master plan except as provided for herein
c No tree with a diameter greater than six 6 inches dbh or more than thirty 30 feet in
height may be cut down removed or destroyed on Airlie Gardens property except for
selective cutting and thinning required for woodlands management in connection with
a forest stewardship or woodlands management plan to be approved by the Grantee

or otherwise consistent with activities authorized by a County approved master plan

Notwithstanding the foregoing diseased or hazardous trees or tree limbs may be

removed to prevent personal injury or property damage New plantings may be
installed within Airlie Gardens property if needed to supplement existing vegetation
or to replace dead trees or other vegetation provided such plantings are characteristic
of native or historic growth and have been approved by the Grantee
d Understory plant materials including but not limited to brush shrubs saplings
seedlings undergrowth and vines shall not be cut down removed or destroyed within
Airlie Gardens property except as needed to control exotic or invasive species in
connection with a forest stewardship or woodlands management plan to be approved
by the Grantee or otherwise consistent with activities authorized by a County
approved master plan
e Construction excavation grading or the erection of retaining walls buildings or other
structures roads driveways or utilities unless part of the approved master plan Any
grading or other activities that would or might impair soil or slope stability or alter
drainage patterns on or off the site Excavation grading dredging or removal of
topsoil sand gravel loam rock or other minerals from Airlie Gardens property for
the purpose of sale
f Commercial timber cutting or harvesting of vegetative products from Airlie Gardens
property for commercial purposes
g Maintenance or grazing of livestock or foul to include hunting and trapping of game
and fur bearing animals
h Dumping of household waste sawdust ashes trash construction materials or other
debris of any kind on Airlie Gardens property
i The operation of any mechanical equipment of any kind including recreational
vehicles such as ATVs and motor bikes

S CONDITIONAL RIGHT SUBJECT TO APPROVAL

GRANTOR

1 Conditional Rights Requiring Approval by Grantee

3

The following acts are prohibited without the prior express written approval of the Grantee

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 a Grantor shall not change the use of the Property to another use including single
family or multifamily residential industrial and commercial activities not customary
and consistent with historical garden use Grantee must determine that any new
proposed use i does not impair the significant preservation values of the Property
and ii does not conflict with the purpose of the Easement

2 Review of Grantor
3 s Request for Approval

a Pursuant to paragraph 3 1 Grantor shall submit in writing to Grantee for Grantee

s
approval information including plans specifications and designs where appropriate
together with a specific request indentifying the purposed activity In addition
Grantor shall also submit to Grantee a timetable for the proposed activity which is
sufficient to permit Grantee to monitor such activity
b Grantee reserves the right to consult with governmental agencies nonprofit
preservation and conservation organizations andor other advisor deemed appropriate
by the Grantee concerning the appropriateness of any activity proposed under this
Easement
c Any approval rights of Grantee shall not be unreasonably withheld Grantee agrees to
respond to any request of Grantor not later than fortyfive 45 days following receipt
by Grantee of Grantor
s request Failure of Grantee to respond to Grantor within the
fortyfive 45 days period shall be deemed to constitute approval of Grantor s
request

S RESERVED RIGHTS
GRANTOR

4 Grantor
s Reserved Rights Not Requiring Further Approval by Grantee

Subj ect to the above provisions the following rights uses and activities of or by Grantor on
over or under the Property are permitted by this Easement and by Grantee without further
approval by Grantee
a The right to engage in all those acts and uses that i are permitted by governmental
statute or regulation ii do not materially and substantially impair the preservation
values of the property and iii are not inconsistent with the purpose of this
Easement
b The right to erect maintain and repair buildings The right to erect maintain and
repair as used in this paragraph shall include the right to make changes in appearance
material colors and workmanship without the prior written approval of Grantee
c The right to use and enjoy the Property
s building and garden including but not
limited to the erection maintenance repair and restoration of fences the right to
construct and maintain existing driveways roads and paths with the use of same or
similar surface materials the right to erect maintain utilities lines gardening and
building walkways steps piers and water structures and garden fences the right to
plant cut remove and clear grass or other vegetation and to perform routine
maintenance landscaping horticultural activities building construction and upkeep
consistent with the purpose of this Easement

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ADMINISTRATION AND ENFORCEMENT

5 Written Notice

Any notice which either Grantor or Grantee may desire or be required to give to the other party
shall be in writing and shall be delivered by one of the following methods by overnight courier
postage prepaid facsimile transmission registered or certified mail with return receipt requested
or hand delivery if to Grantor then at Address and if to Grantee then to address

Each party may change its address set forth herein by a notice to such effect to the other party

6 Evidence of Compliance
Upon request by Grantor Grantee shall promptly furnish Grantor with a certification that to the
best of Grantee
s knowledge Grantor is in compliance with the obligations of this Easement or
that otherwise describes the status of this Easement to the extent of Grantee
s knowledge

7 Inspection
With appropriate prior notice to Grantor Representative of Grantee shall by permitted at all
reasonable times to inspect the Property including the interior of the Residence andor
BuildingsAncillary Structures

8 Grantee
s Remedies
Grantee may following reasonable written notice to Grantor institute suit to enjoin any
s
violation of the terms of this easement by injunction including prohibitory andor mandatory
injunctive relief Grantee shall not be entitled to any monetary damages or attorney fee

Exercise by Grantee of the injunctive relief hereunder shall have the effect of waiving or limiting
any other remedy and the failure to exercise said remedy shall have the effect of waiving or
limiting the use of any other remedy or the use of such remedy at any other time

THIS EASEMENT reflects the entire agreement of Grantor and Grantee Any prior or

simultaneous correspondence understandings agreements and representations are null and void
upon execution of this agreement unless set out in this instrument

TO HAVE AND TO HOLD the said Preservation easement unto the said Grantee and its
successors and permitted assigns forever

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IN WITNESS WHEREOF Grantor and Grantee have set their hand under seal on the day and
year set forth below

GRANTOR New Hanover County

Bruce Shell County Manager

ATTEST

Sheila Schult Clerk to the Board

ATTEST GRANTEE

Secretary President

STATE OF NORTH CAROLINA

COUNTY OF NEW HANOVER

I Notary Public for said State and

a

County certify that Sheila Schult acknowledged that she is Clerk to the Board of Commissioners
of New Hanover County and that by authority duly given and as the act of the Board the

foregoing instrument was signed in its name by its Manager sealed with its corporate seal and
attested by herself as its Clerk

Witness my hand and official seal this day of 2010

My Commission Expires

Notary Public

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STATE OF NORTH CAROLINA
COUNTY OF NEW HANOVER

I a Notary Public of the State and County

aforesaid certify that personally appeared before me this day
and acknowledged that he is Secretary of a nonprofit

corporation of North Carolina organized under the laws of the State of North Carolina and that
by authority duly given and as the act of the nonprofit corporation the foregoing instrument was
signed in its name by its President and attested by
himself as its Secretary

Witness my hand and official seal this day of 2010

My commission expires

Notary Public

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