At issue: whether it would violate state constitution
By Liz Schevtchuk Armstrong
When the Nelsonville Village Board met on Tuesday (Feb. 19), a topic not on the agenda — protecting a wooded Secor Street parcel through a conservation easement — provoked heated debate.
At issue was whether an easement would violate the state constitution and limit the village’s options.
Under a draft agreement, the village would add the 4-acre Secor site, once seen as a possible home for a cell tower, to an easement established by the village and the Open Space Institute in 2000 to safeguard the 112-acre Nelsonville Woods.
With a conservation easement, property owners retain ownership of the land but accept restrictions on its development.
The board took up the Secor proposal after audience members brought it up, including one who urged the board to “proceed very, very carefully” and referred to charges that OSI “pulls the wool over people’s eyes” in pursuit of easements.
Mayor Bill O’Neill advocated caution, and he and Trustee Michael Bowman both recalled that Robert Lusardi, the village attorney, recently said that the proposal violates a provision in the state constitution that prevents municipalities from giving away land.
They then argued over the validity of Lusardi’s comment.
“When your attorney tells you you’re violating the Constitution of New York, you have to take notice,” O’Neill said.
Bowman, who collaborated with OSI to create the draft agreement, called Lusardi’s remark “a false statement.” He said Lusardi contended the state constitution bars municipalities from giving away land but that “we will not be giving away any property.”
Moreover, he asked, “if granting a conservation easement on a piece of property that’s municipally owned violates the state constitution, how do we own 112 acres that have a conservation easement?”
Bowman pointed out that the village also owns a park on Main Street that has a conservation easement and that Lusardi was the village’s lawyer when those arrangements were completed.
Lusardi did not respond to a request for comment.
Jeff LeJava, the associate general counsel for OSI, said on Thursday (Feb. 21) that a conservation easement does not violate the state constitution.
“If the village wants to grant a conservation easement, it has the authority to do so,” he said, adding that while the constitution includes a prohibition on municipal gifts, two appellate courts have ruled that a conservation easement is not a gift because the group holding the easement must care for the property.
The draft agreement allows the village to make non-commercial improvements to the land such as an education building, youth center, public washroom or playground.
“I just do not see how this is not a win for the community,” Bowman said at the Village Board meeting. In addition to the other benefits, an easement would ensure that a cellphone tower could not be built on the land. “The problem going forward is that cellphone towers aren’t going away,” as smaller 5G structures become more common, he said.
Bowman also rejected allegations “that OSI is an evil organization that pulls the wool over people’s eyes. I’d have to see the proof. The Open Space Institute has done more for this village than any other person or organization.”
O’Neill said that the Secor site represents less than 4 percent of the 112-acre woods and that adding it to the easement would have no “momentous impact.” Further, “to relinquish control of that property also forecloses potential uses.” He noted that in the past the site has been considered for low-income senior citizen housing and wells to end reliance on the Cold Spring water system.
The mayor argued that the board must take time to “fully review” the draft agreement and other potential proposals. “If we want to preserve the land, there are other ways” to do it, he said, such as creating a park. He acknowledged that even then, a future village board could turn a park into something else.
“Perhaps the idea of insulating it from future changes is good,” O’Neill conceded. “But it’s not a time-is-of-the-essence matter.” It should be debated, he said, “and then there should be consensus on what to do or not do.”