HomeMy WebLinkAboutConCom Request for CR Letter of Support
September 30, 2025
Fat Piu (Tom) Lee, Chair
Town of Barnstable, Conservation Commission
203 South Street,
Hyannis, MA 02601
RE: REQUEST FOR LETTER OF SUPPORT
MALO CONSERVATION RESTRICTION
755 LUMBERT MILL RD, MARSTONS MILLS (MAP/LOT: 123/011)
Dear Commission Chair Lee,
On behalf of the Barnstable Land Trust. Inc. (BLT), we respectfully ask that the Conservation
Commission review the attached conservation restriction (CR) and consider providing a letter of
support to the Town Council for approval of the CR.
Landowner Marie Malo wishes to protect the natural resources of her property at 755 Lumbert
Mill Road in Marstons Mills. The 6.68-acre property includes a single-family dwelling on the front
acre, a small disused and overgrown agricultural area (sheds and farmyard), and approximately
4 acres of undisturbed woodland. The property backs onto an ancient way running along the back
property boundary, and backs onto Barnstable United School. Weathervane Way Conservation
Area is located across Lumbert Mill Rd. The property lies within a Zone II Wellhead Protection
Area and includes Prime Farmland Soils. The CR will be granted to Barnstable Land Trust on
5.88 acres of the property, excluding the front 0.8 acres where the house is located. Barnstable
Land Trust will be responsible for monitoring the property for compliance with the CR.
We appreciate your consideration of providing a letter of support to the Town Council for approval
of the CR, subject to review by the Town Attorney and approval by the Massachusetts Secretary
of Energy and Environmental Affairs, who may make minor revisions thereto. If you require any
additional information in advance of your meeting, I can be reached at kgrant@blt.org or 508-771-
2585 x 105.
Sincerely
Kelly Grant
Director of Land Conservation
cc.
Thomas LaRosa, Assistant Town Attorney
Ed Hoopes, Conservation Administrator
Marie Malo Conservation Restriction
755 Lumbert Mill Road, Marstons Mills
USGS Topographic Map
Project
Locus
Marie Malo Conservation Restriction
755 Lumbert Mill Road, Marstons Mills
Zone I and II Wellhead Protection Areas
Project
Locus
Marie Malo Conservation Restriction
755 Lumbert Mill Road, Marstons Mills
Site Photos—Pitch Pine—Oak Forest
Marie Malo Conservation Restriction
755 Lumbert Mill Road, Marstons Mills
Protected Open Space
PROJECT LOCUS
Popular walking
trail on Ancient
Way, behind the
school
Marie Malo Conservation Restriction
755 Lumbert Mill Road, Marstons Mills
Aerial Photograph
PROJECT LOCUS
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GRANTOR: Marie Malo
GRANTEE: Barnstable Land Trust, Inc.
ADDRESS OF PREMISES: 755 Lumbert Mill Road, (Marstons Mills), Barnstable, MA
FOR GRANTOR’S TITLE SEE: Barnstable County Registry of Deeds at Book 1695, Page 292.
FOR GRANTOR’S PLAN SEE: Barnstable County Registry of Deeds at Book 297, Page 18.
GRANT OF CONSERVATION RESTRICTION
I. STATEMENT OF GRANT
I, MARIE MALO, an individual with an address of 755 Lumbert Mill Road, Marstons Mills,
Barnstable, MA 02648 being the sole owner of the Premises as defined herein, for my successors
and assigns (“Grantor”), acting pursuant to Sections 31 and 32 of Chapter 184 of the Massachusetts
General Laws, grant, with QUITCLAIM COVENANTS, to BARNSTABLE LAND TRUST,
INC., a Massachusetts nonprofit corporation with an office at 1540 Main Street, West Barnstable,
MA 02668, its permitted successors and assigns (“Grantee”), for nominal consideration as this
conveyance is to be considered and characterized as a gift in accordance with 26.U.S.C. Section
170(h), IN PERPETUITY AND EXCLUSIVELY FOR CONSERVATION PURPOSES, the
following Conservation Restriction on land located in the Town of Barnstable, Barnstable County,
Massachusetts containing a 5.88-acre portion of a 6.68-acre property (“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.
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 to prevent any use or change that would materially impair
the Conservation Values (as defined below).
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The Conservation Restriction was acquired utilizing, in part, the Conservation Land Tax Credit
Program (CLTC #0716) pursuant to Section 6(p) of Chapter 62 and Section 38AA of Chapter 63
of the Massachusetts General Laws.
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 in 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, which includes the town-owned 20-acre± Weathervane Way
Conservation Area across Lumbert Mill Road to the east, and its protection provides a
forested buffer to the Barnstable United and West Villages Elementary Schools bordering
the Premises to the west.
Soils and Soil Health. The entire Premises is mapped as Forest of Statewide and Local
Importance and 4 acres± of the Premises is mapped Farmland 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 Chapter 358 of the Acts of 2020, which added definitions of these terms to Section 7A
of Chapter 128 of the Massachusetts General Laws.
Wildlife Habitat. The majority of the Premises includes a pitch pine-oak woodland
community serving as habitat for a number of mammal, bird and insect species, protection
of which aligns with the Massachusetts 2015 State Wildlife Action Plan.
Water Quality. The Premises is located within the Skunknet and Centerville River
watersheds and within the watershed to Scudder Bay and the Centerville River embayment.
Protection of undisturbed wooded landscapes can help protect groundwater quality and
help maintain water quality critical to coastal ecosystems.
Water Supply. The entire Premises is within a designated 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), 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 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
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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).
o “To maintain a sustainable supply of high quality untreated drinking water and
protect, preserve, or restore the ecological integrity of Cape Cod’s fresh and marine
surface water resources.” (Water Resources Goal, p. 61).
Granting this Conservation Restriction will advance each of these goals outlined in the
RPP. The Wildlife and Plant Habitat Goal will be served because the Premises contains a
host of important plant and wildlife species. The Open Space Goal will be advanced
because the Premises abuts existing conservation land and will protect and preserve
natural, and cultural resources. The Water Resources Goal will be served by protecting
groundwater quality.
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 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 the 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”.
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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 views;
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 advance the goals of the Massachusetts Clean Energy and Climate Plan for 2050,
published in 2022. The Commonwealth aims to permanently conserve at least 40% of
Massachusetts lands and waters by 2050. The protection of the Premises will preserve 5.88
acres of natural woodlands that will assist the state in meeting this goal.
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; and it would contribute to the preservation of open
space because it is proximate to 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;
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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. Pesticides and Herbicides. Using or storing herbicides, pesticides, or other hazardous
materials;
8. 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;
9. 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;
10. Use of Premises for Developing Other Land. Using the Premises towards building or
development requirements on this or any other parcel;
11. Adverse Impacts to Stone Walls, Boundary Markers. Disrupting, removing, or
destroying stone walls, granite fence posts, or any other boundary markers;
12. Residential or Industrial Uses. Using the Premises for residential or industrial purposes;
13. 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
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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. 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;
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 including removal of existing fences, and other man-made debris,
and planting native trees, shrubs, and other vegetation;
5. 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;
6. Trails. Maintaining and constructing trails as follows:
a. Trail Maintenance. Conducting routine maintenance of trails, which may
include widening trail corridors up to five (5) feet in width overall, with a
treadway up to three (3) 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,
contouring, or other such features, together with the use of motorized equipment
to construct such features;
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7. 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;
8. 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 necessary for conducting the Permitted
Acts and Uses;
9. Existing Shed. Using, repairing, or removing, but not replacing or expanding the
existing shed as documented in the Baseline Report (see Paragraph XV), the intention
being to remove the existing shed when it reaches the end of its usable life.
10. Outdoor Passive Recreational and Educational Activities. Hiking, horseback riding,
snowshoeing, 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;
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
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; 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. 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
This Conservation Restriction does not grant any right of access to the general public and the
Grantor retains its rights to prohibit access to the Premises by the general public.
VI. TERMINATION/RELEASE/EXTINGUISHMENT
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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
29%%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
1 $235,000 CR appraised value ÷ $815,000 total appraised property value = 29%
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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 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. 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
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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 thirty (30) 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, and 32 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
B. Amendment Approvals and Recording
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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: Marie Malo
755 Lumbert Mill Road
Marstons Mills, MA, 02648
To Grantee: Barnstable Land Trust, Inc.
1540 Main Street
West Barnstable, MA 02668
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, 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.
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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 Malo
Conservation Restriction”, and dated June 30, 2026 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
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 hereby agrees to waive, subordinate, and release any and all Homestead rights
pursuant to Chapter 188 of the Massachusetts General Laws it may have in favor of this
Conservation Restriction with respect to any portion of the Premises affected by this Conservation
Restriction, and hereby agrees to execute, deliver and/or record any and all instruments necessary
15
Malo Conservation Restriction
to effectuate such waiver, subordination and release. In all other respects, the Grantor reserves and
retains any and all Homestead rights, subject to this Conservation Restriction, pursuant to Section
10(e) of Chapter 188 of the Massachusetts General Laws.
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 – Marie Malo
Grantee Acceptance – Barnstable Land Trust, Inc.Approval of Town of Barnstable Town Manager
Approval of Town of Barnstable Town Council
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
Exhibit B: Sketch Plan of Premises
Exhibit C: Town Council Order
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WITNESS my hand and seal this ____day of ___________________, 2025,
, individually
Marie Malo
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2025, before me, the undersigned notary
public, personally appeared Marie Malo, 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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ACCEPTANCE OF GRANT
The foregoing Conservation Restriction from MARIE MALO was accepted by BARNSTABLE
LAND TRUST, INC this __________ day of ________________, 2025.
Barnstable Land Trust, Inc.
___________________________ ______________________________
Leigh Townes, President, Jill McCleary, Treasurer
Barnstable Land Trust, Inc. Barnstable Land Trust, Inc.
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable County, ss.
On this day of , 2025, before me, the undersigned notary
public, personally appeared Leigh Townes, 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:
Barnstable County, ss.
On this day of , 2025, before me, the undersigned notary
public, personally appeared Jill McLeary 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 he signed it
voluntarily for its stated purpose.
Notary Public
My commission expires:
Malo Conservation Restriction
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APPROVAL OF THE TOWN OF BARNSTABLE
TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, hereby approve the
foregoing Conservation Restriction from MARIE MALO to the BARNSTABLE LAND
TRUST, INC., in the public interest pursuant to Section 32 of Chapter 184 of the Massachusetts
General Laws.
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, 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 stated purpose as the Town Manager on behalf of the Town of
Barnstable.
______________________
Notary Public
My Commission Expires
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APPROVAL OF THE TOWN OF BARNSTABLE
TOWN COUNCIL
The undersigned, President of the Town Council of the Town of Barnstable, Massachusetts,
hereby certifies that at a meeting duly held on , 2025 the Town
Council voted to approve the foregoing Conservation Restriction from MARIE MALO to
BARNSTABLE LAND TRUST, INC., in the public interest pursuant to Section 32 of Chapter
184 of the Massachusetts General Laws.
_____________________
Craig A. Tamash,
Town Council President, duly authorized
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable County, ss:
On this day of , 2025, before me, the undersigned notary public, personally
appeared Craig A. Tamash, proved to me through satisfactory evidence of identification which
was personal knowledge to be the persons whose names are signed on the preceding or attached
document, and acknowledged to me that she signed it voluntarily for its stated purpose as a Town
Counselor.
______________________________
Notary Public
My Commission Expires:
Malo 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 MARIE MALO to
BARNSTABLE LAND TRUST, INC., 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
Legal Description of Premises
The Premises subject to this Conservation Restriction is a 5.88-acre, +/- portion of a 6.68-acre,
+/- parcel of land located in the Town of Barnstable, Barnstable County, Commonwealth of
Massachusetts, more particularly bounded and described as follows:
Beginning at the northwestern corner of the Premises located on the eastern sideline of
East Osterville Road (an Ancient Way), thence running,
N 58˚ 49’ 06” E, a distance of thirty-six (36) feet, more or less, to a concrete bound,
thence continuing,
N 58˚ 49’ 06” E, a distance of four hundred and thirty-three and 97/100 (433.97) feet, to a
corner, thence turning and running,
S 31˚ 10’ 54” E, a distance of one hundred and twenty-five and 00/100 (125.00) feet,
thence continuing the same bearing,
S 31˚ 10’ 54” E, a distance of two hundred and twenty-five (225) feet, more or less,
thence turning and running,
S 58˚ 49’ 06” W [the reverse direction of N 58˚ 49’ 06” E as printed on Plan], a distance
of eighty (80) feet, more or less, to a corner, thence turning and running,
S 31° 10’ 54” E [the reverse direction of N 31˚ 10’ 54” W as printed on Plan], a distance
of fifteen and 00/100 (15.00) feet, to a corner, thence turning and running,
S 58˚ 49’ 06” W, a distance of one hundred and fifty-five and 61/100 (155.61) feet, to a
corner, thence turning and running,
S 31° 10’ 54” E [the reverse direction of N 31˚ 10’ 54” W as printed on Plan], a distance
of one hundred and forty and 00/100 (140.00) feet, to a corner, thence turning and
running,
S 58˚ 49’ 06” W, a distance of four hundred and 65/100 (400.65) feet, to a concrete
bound, thence continuing,
S 58˚ 49’ 06” W, a distance of forty-three (43) feet, more or less, to a corner on the
eastern sideline of East Osterville Road (an Ancient Way), thence turning and running,
Along the eastern sideline of East Osterville Road (an Ancient Way), a distance of five
hundred and forty-five (545) feet, more or less, to the point of beginning.
Being a 5.88-acre, ±, portion of the land shown as ‘3B 6.68 ± Acres’ on a plan of land titled
“Plan of Land in Barnstable, Marstons Mills, Mass. for Linton C. Richardson JR. et ux. and
Marie Malo”, dated July 28, 1975, by Richard A. Baxter, Baxter & Nye Inc., Registered Land
Surveyors, Osterville, Mass., recorded at Barnstable County Registry of Deeds in Plan Book 297,
Page 18, a sketch plan derived from which is included herein and attached hereto as Exhibit B.
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EXHIBIT B
Sketch Plan showing Conservation Restriction Premises and Excluded Area
For an official full-size plan see Barnstable County Registry of Deeds Plan Book 297 Page 18
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EXHIBIT C
Town Council Order
(following)