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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 Malo Conservation Restriction 1 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). Malo Conservation Restriction 2 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 Malo Conservation Restriction 3 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”. Malo Conservation Restriction 4 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; Malo Conservation Restriction 5 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 Malo Conservation Restriction 6 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; Malo Conservation Restriction 7 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; Malo Conservation Restriction 8 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 Malo Conservation Restriction 9 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 Malo Conservation Restriction 10 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% Malo Conservation Restriction 11 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 Malo Conservation Restriction 12 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 Malo Conservation Restriction 13 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. Malo Conservation Restriction 14 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 Malo Conservation Restriction 16 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: Malo Conservation Restriction 17 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 18 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 Malo Conservation Restriction 19 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 20 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: Malo Conservation Restriction 21 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. Malo Conservation Restriction 22 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 Malo Conservation Restriction 23 EXHIBIT C Town Council Order (following)