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 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.

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 ImpairmentDumping or storage of debris and hazardous materialsGrazing of animals and manure storage

• Forest and Land DestructionCutting, removal, and damage to trees and plantsDisturbing soil & ground cover, grading or filling land, and removal of gravel or loamPaving or covering of soil and ground cover

• ConstructionFences, 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 ReservationA 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