HomeMy WebLinkAboutHighground Draft CR KCC 2.11.2025 cleanCotuit Highground Conservation Restriction
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GRANTOR: 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: Barnstable County Registry of Deeds at Book _____, Page _____.
FOR GRANTOR’S PLAN SEE: Barnstable County Registry of Deeds at Plan Book ___, Page ___.
GRANT OF CONSERVATION RESTRICTION
I. STATEMENT OF GRANT
BARNSTABLE LAND TRUST, INC., a Massachusetts nonprofit corporation with an office at
1540 Main Street, Barnstable, Massachusetts 02668, being the sole owner 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
the INHABITANTS OF THE TOWN OF 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”), for consideration 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 land located in the Town of Barnstable, Barnstable County,
Commonwealth of Massachusetts containing two tracts of land with a total area of 10.3 acres±
(“Premises”), which Premises is more particularly described in Exhibit A and shown in the
attached reduced copy of a survey plan and sketch plans in 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 by a vote of the Barnstable Town Council at a duly called meeting held on
, on Agenda Item 2025- . An attested copy of the Town Council Order is attached
hereto as Exhibit C.
Commented [KG1]: Pending
Commented [KG2]: This number will be updated based on
the survey plan in progress. This is an estimated area.
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II. 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. The purposes of this Conservation
Restriction (“Purposes”) are to assure that the Premises will be maintained in perpetuity in its
natural, scenic, or open condition and available for appropriate outdoor recreational purposes and
to prevent any use or change that would materially impair the Conservation Values (as defined
below).
The Conservation 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 Barnstable and 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.
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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):
o “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).
o “To protect, preserve, or restore wildlife and plant habitat to maintain the region’s
natural diversity” (Wildlife and Plant Habitat Goal, p. 55).
o 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
o “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 advanced by 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:
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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:
o preserve scenic view;
o prevent disturbance of wetlands;
o prevent the cutting of trees or forests;
o preserve open space;
o preserve important natural habitats of fish, wildlife or plants; and,
o 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 plan as 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.
III. PROHIBITED and PERMITTED ACTS AND USES
A. Prohibited Acts and Uses
The Grantor will not perform or allow others to perform the following acts and uses which are
prohibited on, above, and below the Premises:
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1. 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;
2. Extractive Activities/Uses. Mining, excavating, dredging, withdrawing, or removing
soil, loam, peat, gravel, sand, rock, surface water, ground water, or other mineral
substance or natural deposit, or otherwise altering the topography of the Premises;
3. 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;
4. Adverse Impacts to Vegetation. Cutting, removing, or destroying trees, shrubs, grasses
or other vegetation;
5. Adverse Impacts to 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;
6. Introduction of Invasive Species. Planting or introducing any species identified as
invasive by the Massachusetts Invasive 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;
7. 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;
8. 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;
9. Use of Premises for Developing Other Land. Using the Premises towards building or
development requirements on this or any other parcel;
10. Adverse Impacts to Stone Walls, Boundary Markers. Disrupting, removing, or
destroying stone walls, granite fence posts, or any other boundary markers;
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11. Residential, or Industrial Uses. Using the Premises for residential, or industrial
purposes;
12. 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.
B. 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.
1. 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:
a. 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.
b. 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.
c. Rules and Regulations. Grantor may 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.
2. 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/or in 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;
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3. Non-native, Nuisance, or Invasive species. 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;
4. 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;
5. Irrigation Wells. With prior written notice to the Grantee, the installation of irrigation
wells 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;
6. 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;
7. 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;
8. 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;
9. Trails and Cart Paths.
a. 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.
b. 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
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construction or relocation results in trails and cart paths that conform with the
width limitations above, including the construction of public access trails.
c. 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.
10. Outdoor Recreation Facilities.
a. 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;
b. 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 activities and environmental education
activities, including facilities or other uses consistent with the purposes of this
Conservation Restriction;
c. If the Premises should cease to be used as a golf course, and with the prior
written approval of the Grantee, the right to create a nature based playscape
designed to provide an environment for children that facilitates nature-based
play, provided that such facility shall not exceed a total footprint of one acre.
11. 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 such investigation
on the Premises is to be provided to the Grantee;
12. 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;
13. Fences. Constructing, installing, maintaining, and replacing sight-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.
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14. Motorized Vehicles. Using motorized 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.
15. 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:
a. 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).
b. The footprint at grade of the parking area shall not exceed 20,000 square feet,
excluding stormwater improvements.
c. With approval in writing by the Grantee, stormwater infrastructure and
improvements shall be allowed to extend into currently vegetated areas,
provided that these areas shall be revegetated following construction.
16. 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.
17. 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 activities non 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.
18. 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:
a. The Community Garden area does not exceed a total footprint of 7,000 SF.
b. The use of the garden is consistent with the Purposes and Conservation Values
of this Conservation Restriction and the permitted uses herein,
c. Members of the public shall have the opportunity to lease sections of the
Community Garden for small-scale planting and harvesting of crops,
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d. 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 .
e. 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.
19. 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.
C. 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 to soil
material, grade, and vegetated ground cover.
D. 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 approval should
be issued.
E. Notice and Approval
1. 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:
a. Describe the nature, scope, design, location, timetable and any other material
aspect of the proposed activity;
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b. 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;
c. Identify all permits, licenses, or approvals required for the proposed activity,
and the status of any such permits, licenses, or approvals.
d. 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.
2. 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.
3. 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.
IV. INSPECTION AND ENFORCEMENT
A. Entry onto the Premises
The Grantor hereby grants to the Grantee, and its 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.
B. Legal and Injunctive Relief
1. 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 relief and 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
law in 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.
2. 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
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which time Grantee may take further action, including instituting legal proceedings and
entering the Premises to take reasonable measures to remedy, abate or correct such
violation, without further notice. Provided, however, that this requirement of deferment
of action for thirty (30) days applies only 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.
3. 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.
C. 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.
D. 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.
E. 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.
V. PUBLIC ACCESS
Subject to the provisions of this Conservation Restriction, the Grantor 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
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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 visitors for 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
Paragraph III.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.
VI. TERMINATION/RELEASE/EXTINGUISHMENT
A. 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.
B. Grantor’s and Grantee’s Right to Recover Proceeds
If any change in conditions ever gives rise to termination, release, or extinguishment of this
Conservation 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 Paragraph VI.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.
C. 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
Cotuit Highground Conservation Restriction
14
Grantee’s property right as of the Effective Date (See Paragraph XII.) was determined to be 75%1.
Such proportionate value of the Grantee’s property right shall remain constant.
D. 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.
VII. DURATION and ASSIGNABILITY
A. 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.
B. 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.
C. 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:
1. the Grantee requires that the Purposes continue to be carried out;
2. the assignee is not an owner of the fee in the Premises;
3. 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
4. the assignment complies with Article 97 of the Amendments to the Constitution of the
Commonwealth of Massachusetts, if applicable.
1 $1,350,000 CPA funding ÷ $1,800,000 appraised value of Premises = 75%
Cotuit Highground Conservation Restriction
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VIII. SUBSEQUENT TRANSFERS
A. 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 than twenty (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.
B. 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.
IX. 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.
X. 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.C to ensure that merger
does not occur and that this Conservation Restriction continues to be enforceable by a non-fee
owner.
XI. AMENDMENT
A. Limitations on Amendment
Grantor and Grantee may amend this Conservation Restriction only to correct 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:
Cotuit Highground Conservation Restriction
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1. affect this Conservation Restriction’s perpetual duration;
2. be inconsistent with or materially impair the Purposes;
3. 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;
4. affect the status of Grantee as a “qualified organization” or “eligible donee” under any
applicable laws, including 26 U.S.C. Section 170(h) and related regulations, and
Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws; or
5. 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
6. alter or remove the provisions described in Paragraph VI (Termination
/Release/Extinguishment); or
7. cause the provisions of this Paragraph XI to be less restrictive; or
8. cause the provisions described in Paragraph VII.C (Running of the Benefit) to be less
restrictive
B. 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.
XII. 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 recorded in the Barnstable County Registry of
Deeds.
XIII. 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 Street
West Barnstable, MA 02668
To Grantee: Town of Barnstable, Town Manager
367 Main Street,
Hyannis, MA 02601
Cotuit Highground Conservation Restriction
17
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.
XIV. GENERAL PROVISIONS
A. Controlling Law
The interpretation and performance of this Conservation Restriction shall be governed by the laws
of the Commonwealth of Massachusetts.
B. 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.
C. 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.
D. 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.
XV. 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.
Cotuit Highground Conservation Restriction
18
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.
XVI. MISCELLANEOUS
A. 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.
B. Subordination
The Grantor shall record at the Barnstable County Registry of Deeds simultaneously with this
Conservation Restriction all 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.
C. 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 26
U.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.
D. 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.
E. 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.
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F. The following exhibits are attached and incorporated herein:
Exhibit A: Legal Description of Premises
Exhibit B-1: Sketch Plan 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
Cotuit Highground Conservation Restriction
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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:
Cotuit Highground Conservation Restriction
21
ACCEPTANCE AND APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, hereby approve in
the public interest pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws and
accept the foregoing Conservation Restriction from Barnstable Land Trust, Inc. to the Town of
Barnstable.
TOWN OF BARNSTABLE
TOWN MANAGER:
______________________
Mark S. Ells
Barnstable, ss
On the day of , 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.
______________________
Notary Public
My Commission Expires
Cotuit Highground Conservation Restriction
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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 pursuant to
Section 32 of Chapter 184 of the Massachusetts General Laws and hereby certifies approval of the
foregoing Conservation Restriction.
.
TOWN COUNCIL PRESIDENT:_
_____________________
Craig A. Tamash
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On the day of , 2025, before me, the undersigned notary
public, personally appeared Craig 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.
Notary Public
My Commission Expires:
Cotuit Highground Conservation Restriction
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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: ________________, 2025
Rebecca 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 Public
My Commission Expires:
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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, located in 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 of on 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.
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EXHIBIT B-1
Sketch of Premises
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EXHIBIT B-2
Reduced Copy of Survey Plan - 30 Crockers Neck Road (Lot 1)
For official full size plan see Barnstable Registry of Deeds Plan Book 380 Page 7
Cotuit Highground Conservation Restriction
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EXHIBIT B-3
Sketch Plan - 31 Crockers Neck Road
For official full size plan see Barnstable Registry of Deeds Plan Book Page
Non-CR
Area
CR
Premises
9.3 acres
Commented [KG3]: Placeholder -Sketch plan pending
survey
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EXHIBIT C
Town Council Order
Following