Back in the 1960s, after the 1965 drought in the Northeast, the City of Hudson purchased land in Greenport, south of Spook Rock Road, to provide the city with a backup water supply. The purchase was the initiative of then city engineer, John Flynn.
In 2002, the City entered into a lease agreement with A. Colarusso & Son for all but 14.5 acres of the 354-acre parcel that contained the City's secondary water supply--the 14.5 acres being the actual site of water source. For a payment of $200,000 a year (the amount needed by the City to pay off the loan for the new water treatment plant at the top of Rossman Avenue), Colarusso has the right to mine this land determined to be the City's "surplus property."
Recently, there's been some unexpected activity on this land: logging. The evidence and the questions it raises are explored by Timothy O'Connor on imby.com: "Who is logging City-owned trees on Becraft Mountain?"
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The lease clearly specifies the purposes and parameters of the lessee's uses.
ReplyDeleteOf course the company wasn't so stupid that it signed something without any wiggle room, but the wiggle room is covered by a single phrase in the lease which permits "related uses ancillary to mining."
If the missing wood was actually marketed by someone other than the City, then that's not something "ancillary to mining," it's logging!
We just want to know where the trees went, and how many. The number must be corroborated by an actual stump count, which is how it's done in forestry.
If you lease a building from the City, there's a big difference between fixing some of the plumbing yourself, and ripping out all of the copper pipes for private sale.
The real issue is whether the trees were removed as a precursor to starting mining. If not, it does not matter whether the trees were sold or not. The lease as characterized does not give the lessee the right to strip the trees for any other reason, e.g., because the lessee wants to "improve" the view shed. A simple phone call to Colarusso should clear this up.
ReplyDeleteBut if the answer comes back that the logging operation was preparatory to mining - a claim we can reasonably predict - then what's the reply to that?
DeleteThe highly selective method of the harvesting (as opposed to clearing), plus any evidence that the trees were sold, are the first and best arguments that the logging is not in the lease agreement.
It would also be the first step to recouping the proceeds, if any, on behalf of City residents.
This is kind of a fun legal issue. Obviously if Colarusso stated it was a precursor to mining, that should be documented. If it is, the interesting issue is whether the cut trees can be sold, with Colarusso keeping the proceeds. The tree cut is still part and parcel of the mining enterprise. Calorusso could claim that the proceeds are merely an offset to the cost of commencing mining. The answer to that would require a review of the case law. Isn't the common law system a splendid thing? What would we do without it? :)
DeleteI think you mean, what would lawyers do without case law? (Heh!)
DeleteAs for off-setting the cost of operations, the analogy I offered above is handy enough (though there must be better ones):
In order to afford an expensive water bill (read: overhead), just use the profits from selling your landlord's expensive copper pipes, and replace them with cheaper PVC pipes from the proceeds.
Yes, I'd like to see the case law on that ... (all thanks and praise to the common law system).
LOL. If the lease requires the removal of the copper pipes to be able to effect a use right for the property, that could not otherwise be effected, perhaps a "case" could be made. And in play is the issue of waste as well. Good stuff! :)
DeleteSeriously, I really don't know the answer to my question, and I am more of a real estate lawyer than anything else. Now I'm tempted to research it. I certainly will if the question actually becomes relevant. I'm so weird, that I actually find reading legal cases enjoyable. No doubt I need therapy.
I have the self-same sickness! Unlike me though, I thought you'd already taken the cure, which is law school.
DeleteYesterday I learned from a City official that Colarusso is claiming that the cutting is necessary for further mining.
In order to appreciate that the logging is highly selective, the City must take a field trip up to the City-owned property to assess the situation for itself, and certainly NOT under the supervision of any company handlers.
Next, we must learn where this expensive wood ended up.
Unfortunately, there is a serious conflict of interest involving any inquiries made by the Hudson Police Department.