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HomeMy WebLinkAboutEmail Estoppel Certificate -- CR at 200 Communication WayFrom: Karle, Darcy Sent: Tuesday, December 3, 2024 11:09 AM To: Cavanaugh, Kimberly Subject: FW: Estoppel Cerficate -- CR at 200 Communicaon Way Aachments: 2024.12.02 Exhibit S - ESTOPPEL.Conservaon Restricon.pdf Importance: High Hi Kim Please forward this to the Commissioners and copy the meeng materials. Thank you From: LaRosa, Thomas <Thomas.Larosa@town.barnstable.ma.us> Sent: Monday, December 2, 2024 4:47 PM To: Karle, Darcy <Darcy.Karle@town.barnstable.ma.us>; 'Tom Lee' <tlee@horsleywien.com> Subject: RE: Estoppel Cerficate -- CR at 200 Communicaon Way Hi Darcy and Tom, Aached please find a PDF of the final estoppel cerficate. I talked with Aorney Hawley. They don’t have anyone who can aend in person. I think that may be okay because they don’t have anyone that remains onboard with instuonal knowledge of the CR. I don’t think it would be helpful to have people present that cannot respond in a meaningful way. They do have one person, Ryan Sauls, who will be watching by Zoom. He unfortunately thought the Zoom link was for parcipang in the meeng. I advised that I believe the link is for watching only. Given that it doesn’t sound like there’s a violaon, and also that the Restoraon Plan is not a CR requirement and Eversource is not subject to the CR, it seems that this should not be a controversial maer. Again, an estoppel cerficate is a straighorward thing and is addressed in every EEA- approved CR. The new owner will be subject to the CR, and the objecve of the estoppel cerficate is to be able to rely on the ConComm not asserng violaons that occurred prior to the new owner taking tle to the property. Please feel free to share this email thread with the Commission. Thank you. Tom Thomas J. LaRosa First Assistant Town Attorney Town of Barnstable 367 Main Street Hyannis, MA 02601 Thomas.LaRosa@town.barnstable.ma.us 508-862-4620 (telephone) 508-862-4724 (fax) The infor mation contained in this electronic transmission ("e-mail"), including any attachment (the "Infor mation"), may be confidential or otherwise exempt from disclosure. It is for the addressee only. This Infor mation may be privileged and confidential attorney work-product or a privileged and confidential attorney-client communication. The Infor mation may also be deliberative and pre-decisional in nature. As such, it is for internal use only. The Infor mation may not be disclosed without the prior written consent of the Town Attorney's Office of the Town of Barnstable. If you have received this e-mail by mistake, please notify the sender and delete it from your system. Please do not copy or forward it. Thank you for your cooperation. From: LaRosa, Thomas Sent: Friday, November 29, 2024 4:15 PM To: Karle, Darcy <Darcy.Karle@town.barnstable.ma.us>; 'Tom Lee' <tlee@horsleywien.com> Subject: Estoppel Cerficate -- CR at 200 Communicaon Way Hi Darcy and Tom, I am following up on my conversaon of Wednesday with Darcy. An Estoppel Cerficate concerning the CR held by the Town, through the ConComm, on a poron of the property at 200 Communicaon Way is on the agenda for the Commission’s December 3rd meeng. The CR is recorded at the Registry of Deeds in Book 32580, Page 1. The requirement for the Estoppel Cerficate arises under Secon III(M) of the CR requires, which states: Upon request by Grantor [the property owner], Grantee [the Town] shall, upon thirty (30) days prior wrien noce, execute and deliver to Grantor any document, including an estoppel cerficate, which cerfies Grantor ’s compliance with any obligaon of Grantor contained in this Conservaon Restricon, and which otherwise evidences the status of this Conservaon Restricon as may be requested by Grantor. The Estoppel Cerficate was requested at the beginning of November such that the 30 days will expire shortly. The Estoppel Cerficate is being requested as part of the planned sale of the property from the current owner to the new owner. The Estoppel Cerficate, once executed and delivered, will allow the new owner to rely on the Commission’s representaon that the property owner is not in default or in violaon of the CR. The aached estoppel cerficate reflects my edits to the document. Some quesons have been raised about a Landscape Restoraon Plan referred to in the CR. Under Secon II(B)(7) of the CR, the Grantor has the reserved right: to conduct or permit the following uses and acvies on the Premises notwithstanding anything herein to the contrary, provided such uses and acvies do not materially impair the Purposes or Conservaon Values of this Conservaon Restricon: […] 7. Measures designed to restore nave bioc communies, or to maintain, enhance or restore wildlife, wildlife habitat, water quality improvement, or rare or endangered species including selecve planng of nave trees, shrubs and plant species, in accordance with the Restoraon Plan aached hereto as Exhibit C (the "Restoraon Plan") or otherwise with the prior approval of Grantee. This means the property owner has the right, but not the obligaon, to undertake the measures in the Restoraon Plan. If the property owner does not undertake the Restoraon Plan, that would not be a violaon of the CR. I believe the Restoraon Plan may be a requirement within an agreement between the Cape Cod Commission and the property owner. If the commitment to the Cape Cod Commission exists, the CR simply allows the property owner to fulfill that commitment without violang the CR. Also, it would be for the Cape Cod Commission (and not the Town) to enforce any such commitment. Due to the concerns raised regarding the Restoraon Plan, I have added a sentence at the end of numbered paragraph 3 of the Estoppel Cerficate to reflect the Town’s understanding of the status of the Restoraon Plan within the CR. Darcy and I discussed that the site is different from most land covered by a Town-held CR because most of the CR premises is located within Eversource’s electric transmission right of way (ROW). Eversource’s ROW is located there under a 1967 easement granted to its predecessor in tle, Cape and Vineyard Electric; and Eversource’s use of the ROW is not subject to the CR because its 1967 easement predates this 2019 CR. Accordingly, while Eversource ongoing electric transmission uses would not be permied under the CR if the easement did not exist, because the easement exists and predates the CR, no enforcement could be taken under the CR concerning Eversource’s easement acvies. With that, we discussed the unlikelihood of any lack of CR compliance. If the Commission believes the property owner is in compliance with the CR, I offer the following as a possible vote by the Commission; and the Commission may alter the dra vote to suit its needs: The Conservaon Commission approves of and authorizes the Conservaon Administrator to execute and deliver, on behalf of the Conservaon Commission, an Estoppel Cerficate, substanally in the form presented at the Conservaon Commission’s December 3, 2024 meeng, as requested of the Conservaon Commission under the “conservaon restricon and limited public access grant ” recorded in the Barnstable County Registry of Deeds in Book 32580, Page 1. If you want to discuss further early next week, please let me know. Thank you. Tom   Thomas J. LaRosa First Assistant Town Attorney Town of Barnstable 367 Main Street Hyannis, MA 02601 Thomas.LaRosa@town.barnstable.ma.us 508-862-4620 (telephone) 508-862-4724 (fax) The information contained in this electronic transmission ("e-mail"), including any attachment (the "Information"), may be confidential or otherwise exempt from disclosure. It is for the addressee only. This Information may be privileged and confidential attorney work-product or a privileged and confidential attorney-client communication. The Information may also be deliberative and pre-decisional in nature. As such, it is for internal use only. The Information may not be disclosed without the prior written consent of the Town Attorney's Office of the Town of Barnstable. If you have received this e-mail by mistake, please notify the sender and delete it from your system. Please do not copy or forward it. Thank you for your cooperation.