HomeMy WebLinkAboutHighground Draft CR KCC 2.11.2025 cleanGrantor: Barnstable Land Trust, Inc.
Grantee: Town of Barnstable
Address of Premises: 30 and 31 Crockers Neck Road, (Cotuit), Barnstable, MA
For Grantor’s title see:BarnstableCountyRegistry of Deeds at Book_____, Page_____.
For Grantor’s plan see:Barnstable CountyRegistry of Deeds at Plan Book ___, Page ___.
GRANT OF CONSERVATION RESTRICTION
STATEMENT OF GRANT
BARNSTABLE LAND TRUST, INC., a Massachusetts nonprofit corporation with an office at 1540 Main Street, Barnstable, Massachusetts 02668, being thesoleowner of the Premises as defined
herein, for its successors and assigns (“Grantor”), acting pursuant to Sections 31 and 32 of Chapter 184 of the Massachusetts General Laws, grant, with QUITCLAIM COVENANTS,to theINHABITANTS
OF THE TOWNOF BARNSTABLE, a Massachusetts municipal corporation with principal offices at Town Hall, 367 Main Street, Hyannis, Barnstable County, Massachusetts 02601-3907, acting by
and through its TOWN MANAGER,for its successors and assigns(“Grantee”), forconsideration paid of One Million Three Hundred and Fifty Thousand Dollars and 00/100 ($1,350,000.00),IN PERPETUITY
AND EXCLUSIVELY FOR CONSERVATION, OPEN SPACE, AND RECREATION PURPOSES, the following Conservation Restriction on landlocated inthe Town of Barnstable, Barnstable County, Commonwealth
of Massachusettscontainingtwo tracts of land with a total area of 10.3acres±(“Premises”), which Premises is more particularly described in Exhibit A and shown in the attached reduced
copy of a survey plan and sketch plansin Exhibit B, incorporated herein and attached hereto.
The Conservation Restriction was acquired utilizing One Million Three Hundred and Fifty Thousand Dollars and 00/100 ($1,350,000.00) in Community Preservation Act funds, funded first
from the Open/Space/Recreation Fund and the balance funded from the Undesignated Fund, pursuant to Chapter 44B of the Massachusetts General Laws, which funds were authorized for such
purposes bya vote of the Barnstable Town Councilat a duly called meeting held on , on Agenda Item 2025-.An attested copy of the Town Council Order is attached hereto as Exhibit C.
PURPOSES:
This Conservation Restriction is defined in and authorized by Sections 31, and 32, of Chapter 184 of the Massachusetts General Laws and otherwise by law. Thepurposesof this Conservation
Restriction (“Purposes”) are to assure that the Premises will be maintained in perpetuity in its natural, scenic, or open conditionand available for appropriate outdoor recreational
purposes and to prevent any use or change that would materially impair the Conservation Values (as defined below).
TheConservation Values protected by this Conservation Restriction include the following:
Open Space. The Premises contributes to the protection of the scenic and natural character of Cotuit Village and the Town of Barnstableand the protection of the Premises will enhance
the open-space value of these and nearby lands.
Public Access. Public access to the Premises will be allowed for golf,insofar as the golf course is a continuing operation, outdoor recreation, community garden use, education and nature
study.
Water Quality. The Premises lies within the watershed to Shoestring Bay and Popponessett Bay. The Massachusetts Estuaries Project (MEP) technical report indicates the Popponessett Bay
system exceeds its critical threshold for nitrogen, resulting in impaired water quality. Protection of vegetated landscapes from development can help maintain water quality in coastal
waters by removing the potential for additional stormwater and septic system pollutant sources.
Wetlands. The coniferous wooded swamp (i.e., Atlantic white cedar swamp)on the Premises provides valuable habitat for a diverse array of wildlife species as well as provide the many
other public benefits of wetlands protection recognized by the Commonwealth of Massachusetts (Section 40 of Chapter 131 of the Massachusetts General Laws).
Wildlife Habitat Protection.The Premises contains forested upland and wetland wildlife habitat that are part of a larger matrix of public and private open space that afford good wildlife
migration corridors.
Climate Change Resiliency.Conservation of the Premises will help mitigate the impacts of climate change including avoiding the impacts of development such as stormwater runoff, habitat
loss, and topsoil removal, and maintaining wildlife habitat.
Scenic Character. The Premises provides scenic and aesthetic value to the residents of Barnstable and the general public by providing an open pastoral view from public ways, particularly
Crockers Neck Road and Grove Street, including but not limited to features such as expansive vistas and rolling fields. Protection of the Premises will preserve the scenic character
and vista landscape.
Consistency with Clearly Delineated Barnstable County Conservation Policy. Protection of the Premises will assist in achieving Barnstable County conservation goals. In July 1991, the
Barnstable County Assembly of Delegates, pursuant to the Cape Cod Commission Act (Chapter 716 of the Acts of 1989), adopted a Regional Policy Plan (RPP), amended in 1996, 2002, 2009,
2012, and 2018, which provided, inter alia (references are to the 2018 RPP, amended in 2021 to accommodate climate change goals and objectives):
“To protect, preserve, or restore the quality and natural values and functions of inland and coastal wetlands and their buffers.” (Wetland Resources Goal, p. 55).
“To protect, preserve, or restore wildlife and plant habitat to maintain the region’s natural diversity” (Wildlife and Plant Habitat Goal, p. 55).
In reference to this Wildlife and Plant Habitat Goal, the RPP states, “For many years habitat loss due to development has been the primary threat to the region’s habitats” (p. 32); and
“To conserve, preserve, or enhance a network of open space that contributes to the region’s natural community resources and systems” (Open Space Goal, p. 55). In reference to this Open
Space Goal, the RPP states, “the open space of the Cape is critical to the health of the region’s natural systems, economy, and population. Open space provides habitat for the region’s
diverse species and protection of the region’s drinking water supply” (p. 30).
Granting this Conservation Restriction will advance each of these goals outlined in the RPP. The Wetlands Goal will be advancedby protecting the wooded swamp wetlands and their upland
buffer on the Premises. The Wildlife and Plant Habitat Goal will be advanced by protecting natural and vegetated areas from development. The Open Space Goal will be advanced by protecting
new open space areas from development, expanding the existing network of open space while protecting ground water quality flowing to nearby Popponesset Bay coastal waters.
Consistency with Clearly Delineated Town of Barnstable Conservation Policy. Protection of the Premises will further the Town of Barnstable’s documented goals regarding conservation
land. The Town outlined its conservation goals in its Open Space and Recreational Plan (1984, amended 1987, 1998, 2005, 2010, 2018), identifying goals, policies, and actions to guide
conservation efforts, among them the goal “To protect and maintain the maximum amount of open space to enhance environmental protection, recreational opportunities, and community character”.
Additional objectives include (references are to the 2018 Plan):
1) "Preservation of open space for protection of drinking water resources, and for protection of other natural, historic and scenic resources is a community-wide priority; and;
2) Protection of open space should continue to be an integral component of the Town's efforts." (p. 6)
To achieve this vision, the Plan sets several goals for the town including:
1) “Preserving “quality open spaces throughout the Town which protect and enhance its visual heritage.”and;
2) “Plan, coordinate and execute open space protection measures that complement community efforts to protect water supply, protect fresh and marine surface waters, [and] preserve historic,
scenic and cultural resources..." (pp. 10-11).
Additionally, the Barnstable Town Council’s Strategic Plan for fiscal year 2024-2025 identified a goal to conserve and protect areas in town that are most significant as natural and
historical resources for water supply, visual quality, outdoor recreation, public access, wildlife habitat and cultural history.
Moreover, in 1981, the Town of Barnstable adopted a Conservation Restriction Program consisting of policies and guidelines, in particular an Open Space Policy, approved by the Board
of Selectmen, Assessors, and Conservation Commission, which encourages the use of conservation restrictions in perpetuity to protect natural resources in accordance with the purposes
of the Open Space and Recreation Plan, and which further specified that purposes of a conservation restriction could include the following:
preserve scenic view;
prevent disturbance of wetlands;
prevent the cutting of trees or forests;
preserve open space;
preserve important natural habitats of fish, wildlife or plants; and,
limit or prevent construction on land of natural resource value.
Consistency with Clearly Delineated State Conservation Policy. Protection of the Premises will further the goals and objectives Massachusetts 2023 Statewide Comprehensive Outdoor Recreation
Plan, including Goal 3. To create and renovate neighborhood parks. Neighborhood parks are recognized in the planas the “key to getting more people out recreating given that lack of time,
along with the need for certain site amenities such as parking and restrooms, were listed as barriers for recreating more frequently” (pp. 50).
Consistency with Clearly Delineated Federal Conservation Policy. Protection of the Premises meets the definition of “conservation purposes” as defined in 26 CFR 1.170A-14(d)(1), because
its conservation would: reserve the land for education regarding the natural world; protect wildlife habitats; provide public access; and contribute to the preservation of open space.
PROHIBITED and PERMITTED ACTS AND USES
Prohibited Acts and Uses
The Grantor will not perform or allowothers to perform the following acts and uses which are prohibited on, above, and below the Premises:
Structures and Improvements.Constructing, placing, or allowing to remain any temporary or permanent structure including without limitation any building, tennis court, landing strip,
mobile home, swimming pool, asphalt or concrete pavement, graveled area, roads, sign, fence, gate, billboard or other advertising, antenna, utilities or other structures, utility pole,
tower, wind turbine, solar panel, solar array, conduit, line, septic or wastewater disposal system,storage tank, or dam;
Extractive Activities/Uses.Mining, excavating, dredging, withdrawing, or removing soil, loam, peat, gravel, sand, rock, surface water, ground water, or other mineral substanceor natural
deposit, or otherwise alteringthe topography of the Premises;
Disposal/Storage.Placing, filling, storing or dumping of soil, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, tree and other vegetation cuttings,liquid or solid waste
or other substance or material whatsoever;
Adverse Impacts to Vegetation.Cutting, removing, or destroying trees, shrubs, grasses or other vegetation;
Adverse Impactsto Water, Soil, and Other Features.Activities detrimental to drainage, flood control, water conservation, water quality, erosion control, soil conservation, natural habitat,
archaeological conservation, or ecosystem function;
Introduction of Invasive Species.Planting or introducing any species identified as invasive by the MassachusettsInvasive Plant Advisory Group or identified as invasive in such recognized
inventories as the Massachusetts Introduced Pests Outreach Project, the Northeast Aquatic Nuisance Species Panel, or other such inventories, and any successor list as mutually agreed
to by Grantor and Grantee;
Motor Vehicles.Using, parking, or storing motorized vehicles, including motorcycles, mopeds, all-terrain vehicles, off-highway vehicles, motorboats or other motorized watercraft, snowmobiles,
launching or landing aircraft, or any other motorized vehicles, acknowledging that vehicles necessary for public safety (i.e., fire, police, ambulance, other government officials)may
have a legal right to enter the Premises;
Subdivision.Subdividing or conveying a part or portion of the Premises (as compared to conveyance of the Premises in its entirety which shall be permitted), it being the Grantor’s and
Grantee’s intention to maintain the entire Premises under unified ownership;
Use of Premises for Developing Other Land.Using the Premises towards building or development requirements on this or any other parcel;
Adverse Impacts to Stone Walls, Boundary Markers.Disrupting, removing, or destroying stone walls, granite fence posts, or any other boundary markers;
Residential, or Industrial Uses.Using the Premises for residential, or industrial purposes;
Inconsistent Uses.Using the Premises for commercial purposes that are inconsistent with the Purposes or that would materially impair the Conservation Values, or for any other uses or
activities that are inconsistent with the Purposes or that would materially impair the Conservation Values.
Permitted Acts and Uses
Notwithstanding the Prohibited Acts and Uses described in Paragraph III.A, the Grantor may conduct or permit the following acts and uses on the Premises, provided they do not materially
impair the Purposes and/or Conservation Values. In conducting any Permitted Act and Use, Grantor shall minimize impacts to the Conservation Values to ensure any such impairment thereto
is not material.
Golf Course.The right to lease and sub-lease the Premises for the continued operation of the Golf Course on the Premises, which may include the following:
Maintenance, Repair, Replacement and Other Minor Work. Performing minor work necessary or convenient for the continued operation of the Golf Course, including but not limited to, mowing,
cutting, raking, hole cup relocation, nourishment of sand traps, seeding, repair or maintenance of damaged structures and features, aeration, and use of fertilizers, and other routine
work (as well as importation of sand, loam, sod or other non-hazardous materials required to perform such work) as necessary to maintain the Golf Course and using any equipment necessary
to accomplish said activities, within the existing tee boxes, fairways, greens, sand traps, rough, and greens, all as documented in the Baseline Report.
Golf Course Alteration and Other Major Work. With the prior written approval of the Grantees, altering the Golf Course as desired for the continued operation of the Golf Course. Such
alterations may include excavating, filling, constructing and/or relocating holes, fairways, tees, greens, sand traps, , and signage.
Rules and Regulations. Grantormay develop reasonable rules and regulations, subject to approval by the Grantee, governing use of the golf course by the public, including, but not limited
to, times during which the Premises will be available for such use by the public, standards for appropriate conduct on the Premises, fees for playing golf and the use of the golf course's
facilities, and restrictions on public access to certain areas of the Premises as appropriate.
Vegetation Management.Maintaining vegetation, including pruning, trimming, cutting, and mowing, and removing brush,all to prevent, control, and manage hazards, disease, insect or fire
damage, and/orin order to maintain the condition of the Premises as documented in the Baseline Report (see Paragraph XV). Removal of trees may be permitted with prior written approval
of the Grantee;
Non-native, Nuisance, or Invasivespecies. Removing non-native, nuisance, or invasive species, interplanting native species, and controlling species in a manner that minimizes damage
to surrounding, non-target species and preserves water quality;
Composting. Stockpiling, storage for removal, and composting or mulching, of soil, branches, grass clippings, tree and brush clippings and limbs, rocks, stumps, and similar biodegradable
materials originating on the Premises and removed in the normal course of maintenance of the Premises, as well as sand, loam, sod or other non-hazardous materials imported onto the Premises
for use on the Premises, provided that no composting or stockpiling shall occur within 100 feet of any wetlands and provided that stockpiled or composting material shall not exceed a
footprint of 2,000 square feet at grade;
Irrigation Wells. With prior written notice to the Grantee, the installation of irrigationwells and related water and utility lines, and other necessary infrastructure, so long as the
surface is restored to the extent practicable to its prior condition after such installation and maintenance and the work is performed so as to minimize the impact on the Conservation
Values;
Irrigation Systems. Maintenance of the existing irrigation system and related water and utility lines, the recycling of water for irrigation systems, and, with prior written notice to
the Grantee, the installation of a new irrigation system and related water and utility lines, and other necessary infrastructure, so long as the surface is restored to the extent practicable
to its prior condition after such installation and maintenance and the work is performed so as to minimize the impact on the Conservation Values;
Drainage System. Maintenance, repair, and replacement of the existing drainage systems and, with prior written approval of the Grantee, the relocation of the existing drainage systems
or the installation of new drainage systems and other necessary infrastructure, so long as the surface is restored to the extent practicable to its prior condition after such installation
and maintenance and the work is performed so as to minimize the impact on the Conservation Values;
Natural Habitat and Ecosystem Improvement. With prior written approval of the Grantee, conducting measures designed to remove obsolete golf course improvements, restore native biotic
communities, or to maintain, enhance or restore wildlife, wildlife habitat, ecosystem function, or rare or endangered species including planting native trees, shrubs, and other vegetation;
Trails and Cart Paths.
Maintenance and Use. Conducting routine maintenance of trails and cart paths for use by golf pull-carts, maintenance vehicles, equipment, and other trail users, including widening trail
corridors up to six (6) feet in width overall.
New Trails. With prior written approval of the Grantee, constructing new trails and cart paths and relocating existing trails and cart paths, provided that any construction or relocation
results in trails and cart paths that conform with the width limitations above, including the construction of public access trails.
Trail Features. With prior written approval of the Grantee, constructing bog bridging, boardwalks, benches, footbridges, railings, steps, culverts, benching, cribbing, contouring, or
other such features, together with the use of motorized equipment to construct such features.
Outdoor Recreation Facilities.
With prior written notice to the Grantee, the construction, use, maintenance, repair, and replacement of appurtenances and minor structures to support and accommodate public outdoor
recreational use of public trails, including but not limited to interpretive signs, kiosks, waste receptacles, drinking-water fountains, and benches, provided no such appurtenance or
structure exceeds a footprint of 500 square feet;
If the Premises should cease to be used as a golf course, with the prior written approval of the Grantee, the right to demolish, remove, repair, remodel or replace existing structures
and infrastructure for use in connection with public outdoor passive and active recreational activitiesand environmental educationactivities,including facilitiesor other uses consistent
with the purposes of this Conservation Restriction;
If the Premises should cease to be used as a golf course, and with the prior written approval of the Grantee, the right tocreate a nature based playscapedesigned to provide an environment
for children that facilitates nature-based play, provided thatsuch facility shall not exceed a total footprint of one acre.
Archaeological Investigations. Conducting archaeological activities, including without limitation archaeological research, surveys, excavation and artifact retrieval, but only in accordance
with an archaeological field investigation plan, which plan shall also address restoration following completion of the archaeological investigation,prepared by or on behalf of the Grantor
and approved in advance of such activity, in writing, by the Massachusetts Historical Commission State Archaeologist (or appropriate successor official)and by the Grantee. A copy of
the results of any suchinvestigation on the Premises is to be provided to the Grantee;
Signs. Constructing, installing, maintaining, and replacing signs and informational kiosks with respect to the Permitted Acts and Uses, the Purposes, the Conservation Values, trespass,
public access, identity and address of the Grantor, sale of the Premises, the Grantee's interest in the Premises, boundary and trail markings, any gift, grant, or other applicable source
of support for the conservation of the Premises;
Fences. Constructing, installing, maintaining, and replacingsight-pervious fences and gates in order to prevent unauthorized vehicle entry and dumping, vandalism or other acts destructive
on the Premises. Any fences shall not detract from the public’s view across the Premises.
Motorized Vehicles.Usingmotorized mobility devices by persons with mobility impairments, and the use of motorized vehicles and equipment as necessary or convenient for the carrying out
of the Permitted Acts and Uses set forth in this Paragraph III.
Parking Area.Using, repairing, maintaining, replacing,improving and expanding the parking area at 30 Crockers Neck Road,as shown in the Baseline Report (see Paragraph XV),to provide
public access to the Premises for the Purposes described herein.Said parking area shall conform with the follow requirements:
The parking surface shall be unpaved or surfaced with pervious materials only, except for the provision of access by persons with mobility impairments as required under the American
with Disabilities Act (ADA).
The footprint at grade of the parking area shall not exceed 20,000 square feet, excluding stormwater improvements.
With approval in writing by the Grantee, stormwater infrastructure and improvements shall be allowedto extend into currently vegetated areas, provided that these areas shall be revegetated
following construction.
Storage Shed.Using, repairing, maintaining, replacing, improving but not expanding the storage shed located on the Premises, as documented in the Baseline Report (see Paragraph XV)to
be used only to support the Permitted acts and Uses and Purposes described in this Conservation Restriction. The footprint at grade of the storage shed shall not exceed 600 square feet.
Outdoor Recreational and Educational Activities. Golfing, insofar as the golf course is a continuing operation, sledding,hiking, cross-country skiing,snowshoeing, nature observation,
nature and educational walks and outings, outdoor educational activities, and other non-motorized outdoor recreational and educational activitiesnon golf activities may occur only during
those times when the golf course is closed to golf play. Grantor may host unrelated educational activities such as painting or yoga classes, and the like, provided that such events shall
be incidental and subordinate to the primary use of the Premises for Horticulture Activities.
Community Gardens.With the written approval of the Grantee, the right to establish an at-grade or raised bed community garden, in a location approved by the Grantee, for small-scale
“Horticulture Activities”, defined as raising fruits, vegetables, berries, nuts, and other foods for human consumption, flowers, and ornamental plants and shrubs,and farm-based education
addressing the subjects of sustainable agriculture, food production and nutrition, and/or environmental conservation and ecology, provided that:
The Community Garden area does not exceed a total footprint of 7,000 SF.
The use ofthe garden is consistent with the Purposes and Conservation Values of this Conservation Restriction and the permitted uses herein,
Members of the public shall have the opportunity to lease sections of the Community Garden for small-scale planting and harvesting of crops,
The storage and use of slow-release organic fertilizers, and other natural controls are permitted, provided such uses are in compliance with all applicable local, state and federal statutes
and regulations, and only to the extent that any such use does not have a demonstrable detrimental effect on the Conservation Values of the Premises. Grantor shall use Best Management
practices .
The Grantor shall establish reasonable guidelines for use of the Community Garden. The Grantor shall have sole responsibility for maintaining and managing use of the community garden,
subject to review and approval of management and maintenance guidelines by the Grantee. The Grantee may require the Grantor to post rules against any use by the public that results in
material impairment of the Conservation Values.
Other. Such other non-prohibited activities or uses of the Premises may be permitted with the prior approval of the Grantee provided that the Grantee has made a finding, such finding
to be documented in writing and kept on file at the office of the Grantee, that such activities are consistent with the Permitted Acts and Uses, do not impair the conservation values
and purposes of this Conservation Restriction, and, where feasible, result in a net gain in Conservation Values of the Premises.
Site Restoration
Upon completion of any Permitted Acts and Uses, any disturbed areas shall be restored substantially to the conditions that existed prior to said activities, including with respect tosoil
material, grade, and vegetated ground cover.
Compliance with Permits, Regulations, Laws
The exercise of any Permitted Acts and Uses under Paragraph III.B shall be in compliance with all applicable federal, state and local laws, rules, regulations, zoning, and permits, and
with the Constitution of the Commonwealth of Massachusetts. The inclusion of any Reserved Right requiring a permit, license or other approval from a public agency does not imply that
the Grantee or the Commonwealth takes any position whether such permit, license, or other approvalshould be issued.
Notice and Approval
Notifying Grantee.Whenever notice to or approval by Grantee is required, Grantor shall notify or request approval from Grantee, by a method requiring proof of receipt, in writing not
less than sixty (60) days prior to the date Grantor intends to undertake the activity in question, unless a different time period is specified herein. The notice shall:
Describe the nature, scope, design, location, timetable and any other material aspect of the proposed activity;
Describe how the proposed activity complies with the terms and conditions of this Conservation Restriction, and will not materially impair the Purposes and/or Conservation Values;
Identify all permits, licenses, or approvals required for the proposed activity, and the status of any such permits, licenses, or approvals.
Describe any other material aspect of the proposed activity in sufficient detail to permit the Grantee to make an informed judgment as to its consistency with the Purposes and Conservation
Values.
Grantee Review.Where Grantee’s approval is required, Grantee shall grant or withhold approval in writing within sixty (60) days of receipt of Grantor’s request. Grantee’s approval shall
only be granted upon a showing that the proposed activity will minimize impacts to the Conservation Values and will not materially impair the Purposes and/or Conservation Values.Grantee
may require Grantor to secure expert review and evaluation of a proposed activity by a mutually agreed upon party.
Resubmittal.Grantee’s failure to respond within sixty (60) days of receipt shall not constitute approval of the request. Grantor may subsequently submit the same or a similar request
for approval.
INSPECTION AND ENFORCEMENT
Entry onto the Premises
The Grantor hereby grants to the Grantee, andits duly authorized agents or representatives, the right to enter the Premises upon reasonable notice and at reasonable times, for the purpose
of inspecting the Premises to determine compliance with or to enforce this Conservation Restriction.
Legal and Injunctive Relief
Enforcement.The rights hereby granted shall include the right to enforce this Conservation Restriction by appropriate legal proceedings and to obtain compensatory relief,including without
limitation, compensation for interim losses (i.e., ecological and public use service losses that occur from the date of the violation until the date of restoration)and equitable relief
against any violations, including, without limitation, injunctive reliefand relief requiring restoration of the Premises to its condition prior to the time of the injury (it being agreed
that the Grantee will have no adequate remedy at lawin case of an injunction). The rights hereby granted shall be in addition to, and not in limitation of, any other rights and remedies
available to the Grantee for the enforcement of this Conservation Restriction.
Notice and Cure.In the event the Grantee determines that a violation of this Conservation Restriction has occurred and intends to exercise any of the rights described herein, the Grantee
shall, before exercising any such rights, notify the Grantor in writing of the violation. The Grantor shall have thirty (30) days from receipt of the written notice to halt the violation
and remedy any damage caused by it, after which time Grantee may take further action, includinginstituting legal proceedings and entering the Premises to takereasonable measures to remedy,
abate or correct suchviolation, without further notice.Provided, however, that thisrequirement of deferment of action for thirty (30) days appliesonly if Grantor immediately ceases the
violation and Grantee determines that there is no ongoing violation. In instances where a violation may also constitute a violation of local, state, or federal law, the Grantee may notify
the proper authorities of such violation.
Reimbursement of Costs and Expenses of Enforcement.Grantor covenants and agrees to reimburse to Grantee all reasonable costs and expenses (including counsel fees) incurred by the Grantee
in enforcing this Conservation Restriction or in taking reasonable measures to remedy, abate or correct any violation thereof. In the event of a dispute over the boundaries of the Conservation
Restriction, Grantor shall pay for a survey by a Massachusetts licensed professional land surveyor and to have the boundaries permanently marked.
Non-Waiver
Enforcement of the terms of this Conservation Restriction shall be at the sole discretion of Grantee. Any election by the Grantee as to the manner and timing of its right to enforce
this Conservation Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a waiver of such rights.
Disclaimer of Liability
By acceptance of this Conservation Restriction, the Grantee does not undertake any liability or obligation relating to the condition of the Premises pertaining to compliance with and
including, but not limited to, hazardous materials, zoning, environmental laws and regulations, or acts not caused by the Grantee or its agents.
Acts Beyond the Grantor’s Control
Nothing contained in this Conservation Restriction shall be construed to entitle the Grantee to bring any actions against the Grantor for any injury to or change in the Premises resulting
from natural causes beyond the Grantor’s control, including but not limited to fire, flood, weather, climate-related impacts, and earth movement, or from any prudent action taken by
the Grantor under emergency conditions to prevent, abate, or mitigate significant injury to the Premises resulting from such causes. In the event of any such occurrence, the Grantor
and Grantee will cooperate in the restoration of the Premises, if desirable and feasible.
PUBLIC ACCESS
Subject to the provisions of this Conservation Restriction, theGrantor hereby grants access to the Premises to the general public, but only for daytime use and only as described in Paragraph
III.B.17, provided that such agreement by Grantor is subject to the Grantor’s reserved right to establish reasonable rules, regulations, and restrictions on such permitted recreational
use by the general public for the protection of the Purposes and Conservation Values. During the operation of the Premises as a commercial golf course, the public shall have limited
rights of entry for passive recreation other than as paying visitorsfor golf use. These entry rights by the public are limited to walking, snowshoeing, sledding, and cross-country skiing,
but not any motorized vehicle, snowmobile, bicycle or equestrian use, and may occur only during those times when the golf course is closed to golf play. The Grantor or its lessee and
the Grantee reserve the right to post portions of the golf course as off-limits to public use at all times, such as greens and tee boxes, or if there is evidence that damage to the course
results from this non-golf related use. In the event that golf operations permanently cease, the Premises shall be open to general public recreational use subject to rules and regulations
of the Grantor.Grantor has the right to control, limit, or prohibit by posting and other reasonable means activities or uses of the Premises not authorized in ParagraphIII.B.17. The
Grantee may require the Grantor to post the Premises against any use by the public that results in material impairment of the Conservation Values. This grant of public access to the
Premises is solely for the purposes described in Section 17C of Chapter 21 of the Massachusetts General Laws and the Grantor and Grantee hereto express their intent to benefit from exculpation
from liability to the extent provided in such section.
TERMINATION/RELEASE/EXTINGUISHMENT
Procedure
If circumstances arise in the future that render the Purposes impossible to accomplish, this Conservation Restriction can only be terminated, released, or extinguished, whether in whole
or in part, by a court of competent jurisdiction under applicable law after review and approval by the Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts,
or successor official (“Secretary”), and any other approvals as may be required by Section 32 of Chapter 184 of the Massachusetts General Laws.
Grantor’s and Grantee’s Right to Recover Proceeds
If any change in conditions ever gives rise to termination, release, or extinguishment of thisConservation Restriction under applicable law, then Grantee, on a subsequent sale, exchange,
or involuntary conversion of the Premises, shall be entitled to a portion of the proceeds in accordance with ParagraphVI.C, subject, however, to any applicable law which expressly provides
for a different disposition of the proceeds,and after complying with the terms of any gift, grant, or funding requirements.The Grantee shall use its share of any proceeds in a manner
consistent with the Purposes or the protection of the Conservation Values.
Grantee’s Receipt of Property Right
Grantor and Grantee agree that the conveyance of this Conservation Restriction gives rise to a real property right, immediately vested in the Grantee, with a fair market value that is
at least equal to the proportionate value that this Conservation Restriction, determined at the time of the conveyance, bears to the value of the unrestricted Premises. The proportionate
value of the Grantee’s property right as of the Effective Date (See Paragraph XII.) was determined to be 75%. Such proportionate value of the Grantee’s property right shall remain constant.
Cooperation Regarding Public Action
Whenever all or any part of the Premises or any interest therein is taken by public authority under power of eminent domain or other act of public authority, then the Grantor and the
Grantee shall cooperate in recovering the full value of all direct and consequential damages resulting from such action. All related expenses incurred by the Grantor and the Grantee
shall first be paid out of any recovered proceeds, and the remaining proceeds shall be distributed between the Grantor and Grantee in accordance with Paragraph VI.B and Paragraph VI.C.If
a less than fee interest is taken, the proceeds shall be equitably allocated according to the nature of the interest taken. The Grantee shall use its share of any proceeds in a manner
consistent with the Purposes or the protection of the Conservation Values.
DURATION andASSIGNABILITY
Running of the Burden
The burdens of this Conservation Restriction shall run with the Premises in perpetuity and shall be enforceable against the Grantor and the successors and assigns of the Grantor holding
any interest in the Premises.
Execution of Instruments
The Grantee is authorized to record or file any notices or instruments appropriate to assuring the perpetual enforceability of this Conservation Restriction. The Grantor, on behalf of
itself and its successors and assigns, appoints the Grantee its attorney-in-fact to execute, acknowledge and deliver any such instruments on its behalf. Without limiting the foregoing,
the Grantor and its successors and assigns agree themselves to execute any such instruments upon request.
Running of the Benefit
The benefits of this Conservation Restriction shall run to the Grantee, shall be in gross and shall not be assignable by the Grantee, except when all of the following conditions are
met:
the Grantee requires that the Purposes continue to be carried out;
the assignee is not an owner of the fee in the Premises;
the assignee, at the time of the assignment, qualifies under and 26.U.S.C. 170(h), and applicable regulations thereunder, if applicable, and is eligible to receive this Conservation
Restriction under Section 32 of Chapter 184 of the Massachusetts General Laws; and
theassignment complies with Article 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
SUBSEQUENT TRANSFERS
Procedure for Transfer
The Grantor agrees to incorporate by reference the terms of this Conservation Restriction in any deed or other legal instrument which grants any interest in all or a portion of the Premises,
including a leasehold interest and to notify the Grantee not less thantwenty (20) days prior to the effective date of such transfer. Failure to do any of the above shall not impair the
validity or enforceability of this Conservation Restriction. If the Grantor fails to reference the terms of this Conservation Restriction in any deed or other legal instrument which
grants any interest in all or a portion of the Premises, then the Grantee may record it in the Barnstable County Registry of Deeds, and at the Grantor’s expense, a notice of this Conservation
Restriction. Any transfer will comply with Article 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
Grantor’s Liability
The Grantor shall not be liable for violations occurring after their ownership. Liability for any acts or omissions occurring prior to any transfer and liability for any transfer if
in violation of this Conservation Restriction shall survive the transfer. Any new owner shall cooperate in the restoration of the Premises or removal of violations caused by prior owner(s)
and may be held responsible for any continuing violations.
ESTOPPEL CERTIFICATES
Upon request by the Grantor, the Grantee shall, within sixty (60) days execute and deliver to the Grantor any document, including an estoppel certificate, which certifies the Grantor’s
compliance or non-compliance with any obligation of the Grantor contained in this Conservation Restriction.NON MERGER
The parties intend that any future acquisition of the Premises shall not result in a merger of the Conservation Restriction into the fee. The Grantor agrees that it will not grant, and
the Grantee agrees that it will not take title, to any part of the Premises without having first assigned this Conservation Restriction following the terms set forth in Paragraph VII.Cto
ensure that merger does not occur and that this Conservation Restriction continues to be enforceable by a non-fee owner.
AMENDMENT
Limitations on Amendment
Grantor and Grantee may amend this Conservation Restrictiononly tocorrect an error or oversight, clarify an ambiguity,maintain or enhance the overall protection of the Conservation Values,
or add real property to the Premises, provided that no amendment shall:
affect this Conservation Restriction’s perpetual duration;
be inconsistent with or materially impair the Purposes;
affect the qualification of this Conservation Restriction as a “qualified conservation contribution” or “interest in land”under any applicable laws, including 26 U.S.C. Section 170(h),
and related regulations;
affect the status of Grantee as a “qualified organization” or “eligible donee”under any applicable laws, including 26 U.S.C. Section170(h) and related regulations, and Sections 31, 32,
and 33 of Chapter 184 of the Massachusetts General Laws; or
create an impermissible private benefit or private inurement in violation of federal tax law, as determined by an appraisal, conducted by an appraiser selected by the Grantee, of the
economic impact of the proposed amendment; or
alter or remove the provisions described in Paragraph VI(Termination/Release/Extinguishment); or
cause the provisions of this Paragraph XI to be less restrictive; or
cause the provisions described in Paragraph VII.C (Running of the Benefit) to be less restrictive
Amendment Approvals and Recording
No amendment shall be effective unless documented in a notarized writing executed by Grantee and Grantor, approved by the Town of Barnstable and by the Secretary in the public interest
pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws, and recorded in the Barnstable County Registry of Deeds.EFFECTIVE DATE
This Conservation Restriction shall be effective when the Grantor and the Grantee have executed it, the administrative approvals required by Section 32 of Chapter 184 of the Massachusetts
General Laws have been obtained, and it has been recordedin theBarnstable County Registry of Deeds.
NOTICES
Any notice, demand, request, consent, approval or communication that either party desires or is required to give to the other shall be in writing and either served personally or sent
by first class mail, postage pre-paid, addressed as follows:To Grantor:Barnstable Land Trust, Inc. 1540 Main StreetWest Barnstable, MA 02668To Grantee:Town of Barnstable, Town Manager367
Main Street, Hyannis, MA 02601
or to such other address as any of the above parties shall designate from time to time by written notice to the other or, if notice is returned to sender, to an address that is reasonably
ascertainable by the parties.
GENERAL PROVISIONS
Controlling Law
The interpretation and performance of this Conservation Restriction shall be governed by the laws of the Commonwealth of Massachusetts.
Liberal Construction
Any general rule of construction to the contrary notwithstanding, this Conservation Restriction shall be liberally construed in order to effect the Purposes and the policy and purposes
of Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws. If any provision in this instrument is found to be ambiguous, any interpretation consistent with the Purposes
that would render the provision valid shall be favored over any interpretation that would render it invalid.
Severability
If any provision of this Conservation Restriction or the application thereof to any person or circumstance is found to be invalid, the remainder of the provisions of this Conservation
Restriction shall not be affected thereby.
Entire Agreement
This instrument sets forth the entire agreement of the Grantor and Grantee with respect to this Conservation Restriction and supersedes all prior discussions, negotiations, understandings,
or agreements relating to the Conservation Restriction, all of which are merged herein.
BASELINE DOCUMENTATION REPORT
The Conservation Values, as well as the natural features, current uses of, and existing improvements on the Premises, such as, but not limited to, trails, woods roads, structures, meadows
or other cleared areas, agricultural areas, and scenic views, as applicable, are described in a Baseline Documentation Report (“Baseline Report”) titled“Cotuit Highground Conservation
Restriction Baseline Report”, and dated prepared by Grantor with the cooperation of the Grantee, consisting of maps, photographs, and other documents and on file with the Grantee and
included by reference herein. The Baseline Report (i) is acknowledged by Grantor and Grantee to be a complete and accurate representation of the condition and values of the Premises
as of the date of this Conservation Restriction, (ii) is intended to fully comply with applicable Treasury Regulations, (iii) is intended to serve as an objective information baseline
for subsequent monitoring of compliance with the terms of this Conservation Restriction as described herein, and (iv) may be supplemented as conditions on the Premise change as allowed
over time. Notwithstanding the foregoing, the parties may utilize any evidence of the condition of the Premises at the time of this grant in addition to the Baseline Report.
MISCELLANEOUS
Pre-existing Public Rights
Approval of this Conservation Restriction pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws by any municipal officials and by the Secretary, is not to be construed
as representing the existence or non-existence of any pre-existing rights of the public, if any, in and to the Premises, and any such pre-existing rights of the public, if any, are not
affected by the granting of this Conservation Restriction.SubordinationThe Grantor shall record at the Barnstable County Registry of Deedssimultaneously with this Conservation Restrictionall
documents necessary to subordinate any mortgage, promissory note, loan, lien, equity credit line, refinance assignment of mortgage, lease, financing statement or any other agreement
which gives rise to a surety interest affecting the Premises.
Executory Limitation
If Grantee shall cease to exist or to be qualified to hold conservation restrictions pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws, or to be qualified organization
under 26U.S.C. 170(h), and applicable regulations thereunder, if applicable, and a prior assignment is not made pursuant to Paragraph VII, then Grantee’s rights and obligations under
this Conservation Restriction shall vest in such organization as a court of competent jurisdiction shall direct pursuant to the applicable Massachusetts law and with due regard to the
requirements for an assignment pursuant to Paragraph VII.
Prior Encumbrances
This Conservation Restriction shall be in addition to and not in substitution of any other restrictions or easements of record affecting the Premises.
The following signature pages are included in this Grant:
Grantor - Barnstable Land Trust, Inc.
Grantee Acceptance - Town of Barnstable Town Manager
Approval – Town of Barnstable Town Council
Approval of the Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts.
The following exhibits are attached and incorporated herein:
Exhibit A: Legal Description of Premises
Exhibit B-1: SketchPlan of Premises
Exhibit B-2: Reduced copy of Survey Plan – 30 Crockers Neck Road
Exhibit B-3: Sketch Plan of Premises - 31 Crockers Neck Road
Exhibit C: Town Council Order
WITNESS my hand and seal this ____ day of ____________, 2025.
Barnstable Land Trust, Inc.
___________________________
Leigh Townes, President,
Barnstable Land Trust, Inc.
______________________________
Robert Carey, Treasurer
Barnstable Land Trust, Inc. COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss.________________ 2025
Then personally appeared the above-named Leigh Townes, President, Barnstable Land Trust, Inc. and Robert Carey, Treasurer, Barnstable Land Trust, Inc., the corporation named in the foregoing
instrument, and proved to me through satisfactory evidence of identification, which was personal knowledge of identity, to be the persons whose names are signed on the document, and
each acknowledged she is duly authorized to act on behalf of said corporation, and each further acknowledged the foregoing instrument to be the free act and deed of said corporation,
before me.Notary Public My commission expires:
ACCEPTANCE AND APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, hereby approve in the public interestpursuant to Section 32 of Chapter 184 of the MassachusettsGeneralLaws
and accept the foregoing Conservation Restrictionfrom Barnstable Land Trust, Inc.to the Town of Barnstable.
TOWN OF BARNSTABLE
TOWN MANAGER:
______________________Mark S. Ells
Barnstable,ss
Onthe dayof ,2025, before me, the undersigned notary public, personally appeared Mark S. Ells, the person whose name is signed on the document and proved to me through satisfactory evidence
of identification, which was, and who being by me duly sworn did say that he is the Town Manager of the Town of Barnstable; that he is duly authorized to act on behalf the Town of Barnstable
and he acknowledged the foregoing instrument to be his free act and deed.
______________________
NotaryPublic
MyCommissionExpires
APPROVAL OF THE TOWN OF BARNSTABLE
TOWN COUNCIL
At a public meeting duly held on ,the Town Council of the Town of Barnstable, Massachusetts, voted to approve the foregoing Conservation Restriction from Barnstable Land Trust, Inc.to
the Town of Barnstable in the public interest pursuanttoSection 32 of Chapter 184 of the MassachusettsGeneralLawsand hereby certifies approvalof the foregoing Conservation Restriction.
.
TOWN COUNCIL PRESIDENT:_
_____________________
Craig A. Tamash
COMMONWEALTH OF MASSACHUSETTS
Barnstable,ss
Onthe dayof ,2025, before me, the undersigned notary public, personally appearedCraig A. Tamash, the person whose name is signed on the document and proved to me through satisfactory
evidence of identification, which was, and who being by me duly sworn did say that he is the President of the Town Council of the Town of Barnstable; that he is duly authorized to act
on behalf the Town Council; and he acknowledged the foregoing instrument to be the free act and deed of Town of Barnstable Town Council.
NotaryPublic
MyCommissionExpires:
APPROVAL OF SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS OF THE COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts, hereby approves the foregoing Conservation Restriction from Barnstable Land Trust,
Inc.to the Town of Barnstable in the public interest pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws.
Dated: ________________, 2025Rebecca L Tepper
Secretary of Energy and Environmental Affairs
THE COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss:
On this day of , 2025, before me, the undersigned notary public, personally appeared Rebecca L Tepper, and proved to me through satisfactory evidence of identification which was ______________________________
to be the person whose name is signed on the proceeding or attached document, and acknowledged to me that she signed it voluntarily for its stated purpose. ______________________________Notary
PublicMy Commission Expires:
EXHIBIT A
Description of the Premises
The Premises subject to this Conservation Restriction is two tracts of land with a total of 10.3 acres, more or less, locatedin the village of Cotuit in the Town of Barnstable, Barnstable
County, Commonwealth of Massachusetts,more particularly bounded and described as follows:
30 Crockers Neck Road:
Lot 1 on a plan titled Plan of Land in “Cotuit” Barnstable, Massachusetts, dated January 23, 1984, by William M. Warwick, R.L.S, W.M. Warwick & Associates, Inc., Box 801, North Falmouth,
MA, recorded at the Barnstable County Registry of Deeds in Plan Book 380, Page 7.
Containing 1.01 acres, more or less,
and,
31 Crockers Neck Road:
A portion ofon a plan titled, dated , by recorded at the Barnstable County Registry of Deeds in Plan Book , Page , the portion of the lot held under this Conservation Restriction being
more particularly bounded and described as follows:
METES AND BOUNDS DESCRIPTION TO BE ADDED BASED ON NEW SURVEY PLAN PENDING
Containing 9.3 acres, more or less.
EXHIBIT B-1
Sketch of Premises
EXHIBIT B-2
Reduced Copy of SurveyPlan - 30 Crockers Neck Road (Lot 1)
For official full size plan see Barnstable Registry of Deeds Plan Book 380Page 7
EXHIBIT B-3
SketchPlan - 31 Crockers Neck Road
For official full size plan see Barnstable Registry of Deeds Plan Book Page
EXHIBIT C
Town Council Order
Following