HomeMy WebLinkAbout6. Mill Pond Preserve CR 9.2.2025 - clean copyMill Pond Preserve Conservation Restriction
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GRANTOR: Barnstable Land Trust, Inc.
GRANTEE: Town of Barnstable
ADDRESS OF PREMISES: 3640 Falmouth Road (Route 28), Barnstable, Massachusetts
FOR GRANTOR’S TITLE SEE: Barnstable County Registry of Deeds at Book _____, Page _____.
FOR GRANTOR’S PLAN SEE: Barnstable County Registry of Deeds at Book 601, Page 53.
GRANT OF PERPETUAL EASEMENT AND 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 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, pursuant to Item 2026-XXX of the Barnstable Town
Council, passed [insert date], for its permitted successors and assigns (“Grantee”), for Six Hundred
Thousand Dollars and 00/100 ($600,000.00), IN PERPETUITY AND EXCLUSIVELY FOR
CONSERVATION PURPOSES, the following Perpetual Easement and Conservation
Restriction (hereinafter, “Conservation Restriction”) on land located in the Town of Barnstable,
Barnstable County, Commonwealth of Massachusetts containing a parcel of land with a total area
of 13 acres± (“Premises”), which Premises is more particularly described in Exhibit A and shown
in the attached sketch plan in Exhibit B, both of which are incorporated herein and attached hereto.
The Conservation Restriction was acquired utilizing, Six Hundred Thousand Dollars and 00/100
($600,000.00) in Community Preservation Act funds pursuant to Chapter 44B of the
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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 (the
“CPA Vote”).
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 ensure that the Premises will be maintained in perpetuity in its
natural, scenic, or open condition, and available for passive outdoor recreational use, and to prevent
any use or change that would materially impair the Conservation Values (as defined below).
The fee interest in the Premises was acquired utilizing, in part, assistance from the Conservation
Partnership program, pursuant to Section 2A of Chapter 286 of the Acts of 2014, which requires
the conveyance of this Conservation Restriction.
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 the village of Marstons Mills and the Town of Barnstable and the protection of the
Premises will enhance the open-space value of these and nearby lands. The Premises abuts
land already conserved, including 400 acres± of land owned by the Town of Barnstable
and protected in perpetuity for water supply protection and conservation purposes, and the
2.4-acre± Barnstable Land Trust Mill Pond Overlook property across Mill Pond.
Soils and Soil Health. The Premises includes 10 acres± of Farmland of Statewide
Importance and 9 acres± of Forest of Statewide Importance as identified by the USDA
Natural Resources Conservation Service. The protection of the Premises will promote
healthy soils and healthy soils practices as such terms are defined in Section 7A of Chapter
128 of the Massachusetts General Laws.
Wildlife Habitat. The Premises includes 1 acre± of area designated by the MA Division of
Fisheries and Wildlife acting by and through its Natural Heritage and Endangered Species
Program (NHESP) as “Priority Habitats of Rare and Endangered Species”, the protection
of which aligns with NHESP’s wildlife and habitat protection objectives.
Public Access. Public access to the Premises will be allowed for passive outdoor
recreation, education, nature study. The Premises will permanently conserve hiking trails
that connect to an extensive trail network within the abutting town-owned open space
properties and provide close-to-home multi-use recreational opportunities to local
residents.
Biodiversity. The entire Premises is designated as BioMap Aquatic Core Habitat and
Aquatic Core Buffer, 4-acres± of the Premises is designated as BioMap Rare Species Core
Habitat, and 12 acres± of the Premises is designated as BioMap Local Landscape, as
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defined by the Massachusetts NHESP. BioMap, last updated in 2022, was designed to
guide strategic biodiversity conservation in Massachusetts by focusing land protection and
stewardship on the areas that are most critical for ensuring the long-term persistence of rare
and other native species and their habitats, exemplary natural communities, and a diversity
of ecosystems. BioMap is also designed to include the habitats and species of conservation
concern identified in the State Wildlife Action Plan.
Water Quality. Protection of the forested landscape can help maintain water quality for
public drinking water. Protection of the pond shoreline and vegetated buffer zone can help
maintain water quality critical to the active herring run for fish migrating up the Marstons
Mills River to spawn in Middle Pond.
Wetlands. The pond shoreline wetlands on the Premises provide 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).
Climate Change Resiliency. The Premises is identified as an area of Slightly Above
Average Terrestrial Resilience according to The Nature Conservancy’s (TNC) Resilient
Land Mapping Tool, including Above Average Landscape Diversity and Average Local
Connectedness. TNC’s Resilient Land Mapping Tool was developed in order to map
‘climate-resilient’ sites that are ‘more likely to sustain native plants, animals, and natural
processes into the future.’ The protection of these climate resilient sites is an important step
in both reducing human and ecosystem vulnerability to climate change and adapting to
changing conditions.
Water Supply. The Premises includes 6 acres± of area within the Zone II Wellhead
Protection Area as identified by the MA Department of Environmental Protection, the
protection of which is critical to maintaining the public drinking water supply.
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, as amended), 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
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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).
This Conservation Restriction will advance each of these goals outlined in the RPP. The
Wetlands Goal will be advanced by protecting Mill Pond and its shoreline buffer. The
Wildlife and Plant Habitat Goal will be advanced by protecting important rare species’
habitat. The Open Space Goal will be advanced by protecting new open space areas from
development, expanding the existing network of open space while protecting water quality
on Mill Pond and the Marstons Mills River.
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
Recreation Plan (1984, amended 1987, 1998, 2005, 2010, 2018), identifying goals,
policies, and actions to guide conservation efforts, among them the goal of preserving
“quality open spaces throughout the Town which protect and enhance its visual heritage.”
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) "To protect and maintain the maximum amount of open space to enhance
environmental protection, recreational opportunities, and community character,
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 the 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:
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o preserve scenic view;
o prevent disturbance of wetlands;
o preserve a shoreline;
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, specifically Goal 2: To support trail projects. By acquiring this
land, the project will facilitate connections to existing trail networks and create new
opportunities for trails and walking paths, enhancing recreational access.
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 water quality and wildlife habitats; and it would contribute to the
preservation of open space because it is proximate to several other parcels already
conserved.
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:
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, stormwater infrastructure, 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;
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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;
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.
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1. 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.);
2. 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;
3. Composting. Stockpiling and composting stumps, trees, brush, limbs, and similar
biodegradable materials originating on the Premises, provided that no stockpiling and
composting shall occur within 100 feet of any wetland resource areas.;
4. Natural Habitat and Ecosystem Improvement. With prior written approval of the
Grantee, conducting measures designed to restore native biotic communities, or to
maintain, enhance or restore wildlife, wildlife habitat, ecosystem function, or rare or
endangered species. Without prior approval, planting native trees, shrubs, and other
vegetation and erecting and installing birdhouses, osprey poles and other similar
structures attractive to wildlife;
5. Green Stormwater Infrastructure. With prior written approval of the Grantee, the
installation and maintenance of green stormwater infrastructure, defined as methods of
managing stormwater runoff that mimic natural systems by using plants, soil, and other
natural elements to filter, absorb, and manage water flow;
6. 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;
7. Trails. Maintaining and constructing trails as follows:
a. Trail Maintenance. Conducting routine maintenance of trails, which may
include widening all-person accessible trail corridors, as defined herein, up to
ten (10) feet in width overall, with a treadway up to six (6) feet in width, and
other trail corridors up to six (6) feet in width overall, with a treadway up to
four (4) feet in width.
b. New Trails. With prior written approval of the Grantee, constructing new trails
or relocating existing trails, provided that any construction or relocation results
in trails that conform with the width limitations above.
c. Trail Features. With prior written approval of the Grantee, constructing bog
bridging, boardwalks, footbridges, railings, steps, culverts, benching, cribbing,
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contouring, or other such features, together with the use of motorized equipment
to construct such features.
d. All-person accessible trails are defined as trails designed and constructed to the
United States Forest Service Trails Accessibility Guidelines (FSTAG), or other
equivalent standards as they may be adopted;
8. 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;
9. Fences and Gates. Installing and maintaining sight pervious, non-enclosing, wildlife
friendly fences and gates, such as wooden split rail or other open-faced fences and
gates, in connection with the creation and maintenance of trails, for boundary
delineation purposes and to prevent unauthorized entry;
10. Benches. Installing and maintaining up to five (5) sitting benches, provided they do not
materially impair the Purposes and/or Conservation Values;
11. Motorized Vehicles. Using motorized mobility devices by persons with mobility
impairments, including Other-Power Driven Mobility Devices (OPDMD) as defined in
federal law, and using motorized vehicles as otherwise permitted herein, including for
uses accessory and customarily related to those permitted herein;
12. Driveway. Use, maintenance, improvement and repair of the existing driveway, as
documented in the Baseline Report (see Paragraph XV.), provided that the driveway
shall remain pervious;
13. Parking. With prior written approval of the Grantee, installing and maintaining a
parking area for access to the Premises to be located in the western area of the Premises
within or adjacent to the existing layout for “Shore Road” as said road is shown on the
plan referred to in Exhibit “A”, provided that the parking area shall be of pervious
material and the area at grade of such parking area shall be no greater than reasonably
necessary to allow for five (5) vehicles;
14. Outdoor Passive Recreational and Educational Activities. Fishing, canoeing and other
non-motorized boating, swimming, hiking, horseback riding, cross-country skiing,
snowshoeing, ice-skating, nature observation, nature and educational walks and
outings, outdoor educational activities, and other non-motorized outdoor recreational
and educational activities, except that use of an OPDMD by a person with a mobility
impairment shall be permitted;
15. Indigenous Cultural Practices.
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a. With prior written notice of the Grantor, allowing indigenous peoples to
conduct cultural land ceremonial uses, provided they do not materially impair
the Purposes and/or Conservation Values of the Premises. Cultural land
ceremonial uses are defined for the purposes of this Conservation Restriction
as including traditional spiritual ceremonies, seasonal celebrations, offerings,
and cultural, educational, and interpretive programming.
b. With prior written approval of the Grantor, allowing indigenous peoples to
harvest plant-life for traditional cultural practices, using methods which, in the
sole judgment of the Grantor, ensure sustainable populations of the harvested
species within the Premises, including regrowth and replanting, and provided
they do not materially impair the Purposes and/or Conservation Values of the
Premises.
16. Mill Pond Restoration. The right, but not the obligation, of the Grantee, or its assignee,
to use the Premises in support of the periodic restoration of the adjacent Mill Pond,
including by way of example and not by way of limitation:
a. To periodically excavate, dig, dredge, alter, contour and otherwise remove land,
soil, water and other material from the portion of the Premises in, on and under
Mill Pond;
b. The removal of trees and other vegetation and to create and maintain unpaved
ways on the Premises with dredging and other construction equipment;
c. To de-water and deposit, store and otherwise keep for de-watering purposes,
consistent with conservation values and exercise of said rights, any and all land,
soil, water and other material obtained by exercise of the rights set forth in
Paragraph III.B.16.a. to be removed within a reasonable time and the disturbed
Premises restored to a condition consistent with conservation values within a
reasonable time following completion of the exercise thereof;
d. To install any and all temporary structures, pipes, mains, poles, utilities, roads,
paths, trails, and other means of access on the Premises consistent with
conservation values and exercise the rights in Paragraph III.B.16.a. and b., to
be removed and the disturbed Premises restored to a condition consistent with
conservation purposes within a reasonable time following completion of the
exercise thereof; and
e. To survey, test and sample the Premises and restore the Premises disturbed to a
condition consistent with conservation purposes within a reasonable time
following completion.
f. All activities permitted under Paragraph III.B.16 shall be in accordance with a
plan approved by the Grantor, which approval shall not be unreasonably
withheld and shall be subject to amendment based upon any requirements in
any governmental approvals, including under the Wetlands Protection Act and
Barnstable Wetlands Ordinance.
17. Other Activities. 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
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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 value 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 Permitted Act or Use,
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;
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; and
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. 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
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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
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
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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. GRANTEE AND PUBLIC ACCESS
Subject to the provisions of this Conservation Restriction, the Grantor hereby grants to the Grantee,
the right and easement upon the Premises for Grantee in its discretion, including its employees,
agents, consultants and contractors, to perform acts and uses necessary or convenient for
restoration projects associated with the Mill Pond, including dredging and sediment removal,
subject at all times to Paragraph III.B.16, and the right and easement to allow access to the
Premises by the general public, and agrees to take no action to prohibit or discourage access to and
use of the Premises by the general public, but only for daytime use and only as described in
Paragraph III.B.14, provided that such right andeasement 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. 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.14. 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.
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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 and the terms of this Conservation Restriction, 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
Grantee’s property right as of the Effective Date (See Paragraph XII.) was determined to be 40%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
1 $600,000 CPA funds ÷ $1,486,000 appraised value= 40%
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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.
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. Any transfers shall receive prior approval by Grantee to assure that
the Premises is transferred to a qualified conservation organization. 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
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The Grantor shall not be liable for violations occurring after its 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:
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;
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;
6. Alter or remove the provisions described in Paragraph VI
(Termination/Release/Extinguishment);
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
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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
Attn: Town Manager
367 Main Street
Hyannis, MA 02601
with a copy to:
Town of Barnstable
Attn: Town Attorney
367 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.
XIV. GENERAL PROVISIONS
A. Controlling Law
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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 and 32, 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 “Baseline Report for Mill Pond
Preserve Conservation Restriction, and dated prepared by Grantee with the
cooperation of the Grantor, 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.
XVI. MISCELLANEOUS
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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. Release of Homestead
The Grantor attests that there is no residence on or abutting the Premises (including areas excluded
from the Premises) that is occupied or intended to be occupied as a principal residence by a spouse,
former spouse, or children of the grantor, or a spouse, former spouse, or children of a beneficiary
of the trust, if Premises is owned by a trust.
C. No Surety Interest
The Grantor attests that there is no 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.
D. 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.
E. 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.
F. The following signature pages are included in this Grant:
Grantor – Barnstable Land Trust, Inc.
Grantee Acceptance – Town of Barnstable Town Manager
Approval of the Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts.
G. The following exhibits are attached and incorporated herein:
Exhibit A: Legal Description of Premises
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Exhibit B: Sketch Plan of Premises
Exhibit C: Town Council Order
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WITNESS my hand and seal this ____ day of ____________, 2026.
Barnstable Land Trust, Inc.
___________________________
Leigh Townes, President,
Barnstable Land Trust, Inc.
______________________________
Jill McCleary, Treasurer
Barnstable Land Trust, Inc.
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. ________________ 2026
Then personally appeared the above-named Leigh Townes, President, Barnstable Land Trust, Inc.
and Jill McCleary, 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:
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ACCEPTANCE BY TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, hereby 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 , 2026, before me, the undersigned notary public,
personally appeared Mark S. Ells, Town Manager of the Town of Barnstable, who proved to me
through satisfactory evidence of identification, which was personal knowledge, to be the person
whose name is signed on the preceding or attached document, and acknowledged to me that he
signed it voluntarily for its state purpose as the Town Manager on behalf of the Town of
Barnstable.
______________________
Notary Public
My Commission Expires
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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: ________________, 2026
Rebecca L Tepper
Secretary of Energy and Environmental Affairs
THE COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss:
On this day of , 2026, 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
The land in the Town of Barnstable, Barnstable County, Massachusetts shown as “Lot 1” and
“Lot 2” on a plan entitled “Plan of Land of in (Marstons Mills), Barnstable, MA, Prepared for
(owner) Charles H. Eldridge”, dated November 24, 2004, prepared by Arne H. Ojala, P.L.S.,
Down Cape Engineering, Inc, civil engineers and land surveyors, 939 Main Street (Rte. 6A),
Yarmouthport, MA 02675 and recorded at the Barnstable County Registry of Deeds at Plan Book
601, Page 53.
Containing 13 acres, more or less, per survey plan.
For Grantor's Title see the deed recorded in the Barnstable County Registry of Deeds at
Book , Page .
Town of Barnstable Assessor Map 058, Lot 012.
Street Address: 3640 Falmouth Road, Barnstable, MA 02648
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EXHIBIT B
Sketch Plan of Premises
For official full-size plan see Barnstable County Registry of Deeds Plan Book 601 Page 53
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EXHIBIT C
Town Council Order
Following Page