Hold Your Horses

Did a land trust cave to millionaires building an illegal corral in Conshy?

by Holly Otterbein

Evan M. Lopez

[ ground rules ]

Maybe it's so deeply ingrained in the American psyche that your land is, well, your land that it simply never occurred to Brad and Andrea Heffler that on their land — a 10-acre swath of ancient forest in Whitemarsh Township — the right to bulldoze trees and build a horse corral wasn't theirs and theirs alone.

Legally, that thinking had a serious flaw: Their land was also subject to a "conservation easement," which said that, title or no, those trees had a right to stay there. The Hefflers bulldozed them anyway, sparking a private lawsuit and a public battle whose outcome, those waging it say, could impact how land is preserved statewide.

Conservation easements are a kind of check against infinity. Land trusts, organizations dedicated to protecting land from unwanted development, use them to conserve more than 37 million acres throughout the country, often with meager staffs and budgets. And they usually do so without relying on courts. Leslie Ratley-Beach, conservation defense director of the Land Trust Alliance, which represents 1,700 land trusts throughout the U.S., says that 98 percent of the time, land trusts defend their conservation easements "without even sending having to send anyone a nasty letter."

But the Heffler case could change that.

In 2002, the Hefflers, a pair of millionaire horse enthusiasts, moved to their 10-acre estate in Conshohocken, Pa., an area blanketed by dense, old forest, after being encouraged by another wealthy couple already living there, Gary and Nancy Veloric, who considered their home a tree-covered paradise.

Its bucolic state was no accident: The land surrounding the Velorics' house — and the four other lots in the immediate vicinity, including the Hefflers' — is protected by a June 2000 conservation easement held by the Montgomery County Lands Trust (MCLT), which bulwarks the land from any further development.

But in 2005, to the Velorics' dismay, the Hefflers began to clear-cut about 9,000 square feet of forest, land that was supposed to be protected — a condition to which the Hefflers were bound when they purchased their property. (The Hefflers did not respond for comment, but the MCLT confirms the amount of forest destroyed.) The Hefflers never asked for permission to break the easement — nor did they ask Whitemarsh Township for necessary permits.

According to the Velorics, the Hefflers eventually destroyed at least 140 trees — some of which, the Velorics say, were more than 100 years old. The Hefflers then installed a horse-riding ring, grazing areas and fences in their place.

In 2009, the Velorics sued them — and then, in December 2010, they also sued the MCLT, the nonprofit agency responsible for overseeing and, they argued, aggressively enforcing land trust agreements. They claim that the MCLT has repeatedly failed to enforce the easement covering the wooded land owned by them and the Hefflers. Furthermore, the suit claims, the problem is systemic: "[The MCLT has] greater interest in tax benefits and publicity, and an equal disinterest in the actual work associated with being a steward of the land."

The Velorics argue that this small case could have a big impact — if the Hefflers can build their horse ring, protected land across Pennsylvania is at risk. The MCLT alone is charged with protecting nearly 2,800 acres of land in Montgomery County.

When the MCLT and the Township first came across the violations, they dealt with them fiercely. Jake Lea, the MCLT's director of land preservation, sent a letter to the Hefflers, saying, "We are deeply concerned to have discovered that you have breached the conservation easement that protects the natural resources on your property," noting that the construction violated several portions of the easement. And Whitemarsh Township sent the Hefflers two cease-and-desist letters, threatening them with $1,000 fines. In 2010, the MCLT even filed a writ of summons against the Hefflers in the Montgomery County Court of Common Pleas.

According to state Rep. Kate Harper (R-Montgomery), the chair of the MCLT's board, this marked the first time a violation was so severe that the land trust had to go to court.

But then, the Velorics say, the MCLT and the Township became apathetic. The trust never served the Hefflers with the writ, nor went through with a lawsuit. The MCLT also allowed the Hefflers to keep their riding ring, despite the fact that its director had already said it violated the easement. And the Township eventually granted the Hefflers zoning permits, long after the work was complete.

"I don't know what precedent the Lands Trust or the Township is setting by allowing this to happen," says Nancy Veloric. When asked why the MCLT wouldn't act more aggressively, she says, "I'm at a loss. I have no idea."

To the Velorics, the MCLT's reaction signals that any person with enough money and bravado can violate a conservation easement, which is a rather dire proclamation for the future of green space. And so they aren't seeking any monetary damages in the lawsuit. Instead, they're asking for the land to be restored to its original state, and another land trust to replace the MCLT as the easement holder if they don't force the Hefflers to replace the forest.

But perhaps, like most things, the issue is not exactly black-and-white: For one thing, Harper argues that the Hefflers took down 20 trees, not 140. The MCLT came up with its estimate by surveying the site when the easement was first signed, as well as during a recent inspection. The Velorics, on the other hand, asked a certified arborist to determine their estimate after the damage was done.

As for the riding ring, Harper says the MCLT allowed it to stay for the sake of compromise: "We didn't feel there was a significant advantage to taking the riding ring out. It's 3,600 square feet, which is less than 10 percent of 1 acre. Plus, once you take the trees down, the best move is to focus on restoring those trees."

The MCLT maintains that the Hefflers have replanted 34 native trees. This is why, Harper explains, they never moved forward with the lawsuit. Plus, she says, "It's two properties, each with about 10 acres, when we have 2,800 acres total under easement."

Steve Kaufman, president of the Miquon Area Preservation Society, a conservation group that's played a key role in preserving huge swaths of land through Whitemarsh Township, agrees that the MCLT is doing the best with what they've got: "I've worked with them for a long time, so I trust them. It's expensive to sue people."

Land Trust officials say the Velorics simply have targeted the wrong guy. "The neighbors violated the easement, so aren't they suing the wrong entity?" asks Marc Jonas, MCLT's lawyer. Still, he admits that the case asks "whether the Velorics have the right to force the Trust to exercise discretion. How you should enforce or police a conservation easement is a bona fide legal question."

Perhaps, then, this is a case about how much a land trust should, or can, do with the resources it has. Whichever side you're on, this fight has already left the MCLT with less. According to Harper, the Hefflers have paid only $23,000 of the $37,000 in fees owed to MCLT for legal costs and the site's remediation. And that doesn't even factor in manpower lost to this fight.

"This has cost us hours and hours of staff time," she says. "We're constantly trying to put more land under easement, which is rather difficult to do these days since most of the government funding for it has dried up. Thanks to this, we've missed opportunities in a time when lots of developers are under water, and there's plenty of land they want to get rid of."

(holly.otterbein@citypaper.net)

UPDATE: Although the Hefflers attempted to reach City Paper before our story went to press, we unfortunately did not speak to the family until after our deadline. After subsequent conversation, the Hefflers provided the following response below.

"The notion that 140 trees were removed is a gross exaggeration by the Velorics in order to claim excessive monetary damages in a baseless lawsuit filed by the Velorics against us. Also, when the Velorics claimed they were not seeking monetary damages in this suit, they neglected to reveal they had already received over $90,000 from an insurance claim and are seeking hundreds of thousands more, primarily based upon this very same claim involving the trees.

A report by our ISA Board Certified Master Arborist stated that the number of trees removed was 28, which was verified by counting the number of stumps. Eight of those trees were dead or diseased and of the 20 remaining trees, many were being choked by invasive vines.

The Velorics’ claim that 9,000 square feet of forest was clear cut is completely false. Removing 28 trees, including diseased and non native plants and vines from 9,000 square feet of land is hardly “clear cutting." Removing dead, diseased and non-native plants, including noxious underbrush and hanging vines is specifically permitted by the conservation easement. After removing this material, we created a green pasture area which our two horses use for grazing, and we planted healthy, new trees and shrubs in compliance with the Lands Trust's requirements. We have done everything asked by both the Township and the Lands Trust to rectify any deficiencies.

While the Velorics attempt to portray themselves as protectors of the conservation easement, they failed to mention a violation letter they received from the Lands Trust for dumping trash and debris in the conservation area for which they now claim to be so concerned.

It is noteworthy that horses are permitted on our property by both the Whitemarsh Township zoning code and the conservation easement. This entire dispute is really just about the Velorics' intense dislike of two horses next door and using the removal of 20 trees (out of thousands on the property) as an excuse to create a massive amount of litigation to pressure us to remove the horses and get money."

UPDATE: According to the Lands Trust citation, the Velorics dumped yard waste, not "trash and debris," in the conservation easement.