HomeMy WebLinkAboutCR 17198 - Barnstable Lot 13 Bowles Field Clean Copy 2.21.20231
BOWLES FIELD – Lot 13 CONSERVATION RESTRICTION, BARNSTABLE MA
GRANTOR: Barnstable Land Trust, Inc.
GRANTEE: Town of Barnstable
ADDRESS OF PREMISES: Commerce Road, (Lot 13), Barnstable, Massachusetts
FOR GRANTOR’S TITLE SEE: Barnstable County Registry of Deeds at Land Court Certificate of
Title # (pending)
Grantor’s Plan: Land Court Plan 4686-G
GRANT OF CONSERVATION RESTRICTION
I. STATEMENT OF GRANT
BARNSTABLE LAND TRUST, INC. (Federal ID #22-2483963), a Massachusetts charitable
corporation with an office at 1540 Main Street, Barnstable, Barnstable County, Massachusetts 02668,
being the sole owner of the Premises as defined herein, its successors and assigns (“Grantor”), acting
pursuant to Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws, grant, with
QUITCLAIM COVENANTS, to the INHABITANTS OF THE TOWN OF BARNSTABLE, a
Massachusetts municipal corporation with principal offices at Town Hall, 367 Main Street, Hyannis,
Barnstable County, Massachusetts 02601-3907, their permitted successors and assigns (“Grantee”),
for consideration paid of One Hundred and Fifty Thousand and 00/100 ($150,000.00), IN
PERPETUITY AND EXCLUSIVELY FOR CONSERVATION PURPOSES, the following
Conservation Restriction on land located in Town of Barnstable, County of Barnstable,
Commonwealth of Massachusetts containing the entirety of a 2.3-acre parcel of land (“Premises”),
which Premises is more particularly described in Exhibit A and shown in the attached reduced copy
of a survey plan in Exhibit B, both of which are incorporated herein and attached hereto.
The Conservation Restriction was acquired utilizing, in part, Community Preservation Act funds
pursuant to Chapter 44B § 1 et seq. as applied pursuant to Chapter 149, §298 of the Acts of 204, as
amended by Chapter 352, §129-133 of the Acts of 2004 (the so called “Barnstable County
Community Preservation Act” or “CPA”), which funds were authorized for such purposes by a vote
of the Barnstable Town Council at a duly called meeting held on November 17, 2022, on Agenda
Item 2023-049. A copy of the Town Council Ordinance is attached hereto as Exhibit C.
PROPERTY ADDRESS: Lot 13, Commerce Road, Barnstable, MA
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BOWLES FIELD – Lot 13 CONSERVATION RESTRICTION, BARNSTABLE MA
II. PURPOSES:
This Conservation Restriction is defined in and authorized by Sections 31, 32, and 33 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).
The fee interest in the Premises was acquired utilizing, in part, assistance from the Conservation
Partnership program which requires, pursuant to Section 2A of Chapter 286 of the Acts of 2014, the
conveyance of this Conservation Restriction.
The fee interest in the Premises was acquired utilizing, in part, the Conversation Land Tax Credit
Program authorized under the Chapter 509 Acts of 2008 Sections 1-4 as amended by Chapter 409
Acts of 2010 Sections 4-13 of the Massachusetts General Court.
The Conservation Values protected by this Conservation Restriction include the following:
• ACEC. The Commonwealth of Massachusetts, through the authority of the Secretary of
Energy and Environmental Affairs under General Law c. 21A, s. 2(7), designated the
Barnstable Harbor/Sandy Neck ecosystem as an Area of Critical Environmental Concern
(ACEC) in 1978. The Premises is proximate to ACEC in the north, east and south.
• Open Space. The Premises contributes to the protection of the scenic and natural character
of The Town of Barnstable and the protection of the Premises will enhance the open-space
value of these and nearby lands. The Premises abuts land already conserved, including 26
acres of conservation restricted land owned or monitored by the Barnstable Land Trust, and
8.65 acres owned by Massachusetts Audubon Society.
• Soils and Soil Health. The Premises includes a majority of 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.
• Biodiversity. The Premises is proximal to areas designated Core Habitat and Critical Natural
Landscape as defined by the Massachusetts Natural Heritage and Endangered Species
Program. BioMap2, published in 2010, was designed to guide strategic biodiversity
conservation in Massachusetts over the next decade by focusing land protection and
stewardship on the areas that are most critical for ensuring the long-term persistence of rare
and other native species and their habitats, exemplary natural communities, and a diversity of
ecosystems. BioMap2 is also designed to include the habitats and species of conservation
concern identified in the State Wildlife Action Plan. The Premises’ northern boundary is
proximal to Critical Natural Landscape, Coastal Adaptation, and Tern Foraging areas. The
Critical Natural Landscape, and specifically the Coastal Adaptation and Tern Foraging areas,
support a diversity of wildlife, including migratory shorebirds and waterfowl including
Snowy Egrets, Black Ducks, and Least Terns. Protection of the Premises, therefore, aligns
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with the NHESP’s wildlife and habitat protection objectives and would ensure perpetual
protection for each of these state-recognized habitats.
The Premises is wholly within a statewide important and critically imperiled sandplain
grassland, and includes a stand of native little bluestem grass. The Premises was formerly
used for agriculture, and now is maintained as an open grassland habitat. The Premises is
surrounded by and proximal to approximately 26 acres of conservation restricted land owned
or monitored by the Barnstable Land Trust. Conservation of the Premises will therefore
enhance a protected open-space assemblage.
• Historic and Archaeological Resources. Conservation and appropriate management of the
Premises has an important public benefit by preserving historic and archeological resources
within the Premises. The Premises is identified by the Massachusetts Historical
Commission as being within the Old King’s Highway District listed in the State Register of
Historic Places, a local historic district, and adjacent to the Dillingham House. Ancient
Native American and historical period archeological sites are recorded elsewhere in
proximity along Maraspin Creek in similar environments to the Premises. The site is
favorable for ancient and historical period land use and occupation. Evidence of ancient and
historical period Native American activities, colonial period agricultural, industrial and
residential activities may be present within undisturbed portions of the property.
• Climate Change Resiliency. The Premises is identified as an area of slightly above average
Terrestrial Resilience according to The Nature Conservancy’s (TNC) Resilient Land Mapping
Tool, including slightly above average Landscape Diversity and slightly above average Local
Connectedness. TNC’s Resilient Land Mapping Tool was developed in order to map ‘climate-
resilient’ sites that are ‘more likely to sustain native plants, animals, and natural processes into
the future.’ The protection of these climate resilient sites is an important step in both reducing
human and ecosystem vulnerability to climate change and adapting to changing conditions.
• Protection of the Premises will assist in achieving Barnstable County conservation goals. In
July 1991, the Barnstable County Assembly of Delegates, pursuant to the Cape Cod
Commission Act (Chapter 716 of the Acts of 1989), adopted a Regional Policy Plan (RPP),
amended in 1996, 2002, 2009, 2012, and 2018, which provided, inter alia (references are to
the 2018 RPP, amended in 2021 to accommodate climate change goals and objectives):
o “To protect, preserve, or restore the quality and natural values and functions of inland
and coastal wetlands and their buffers.” (Wetland Resources Goal, p. 55).
o “To protect, preserve, or restore wildlife and plant habitat to maintain the region’s
natural diversity” (Wildlife and Plant Habitat Goal, p. 55).
o In reference to this Wildlife and Plant Habitat Goal, the RPP states, “For many years
habitat loss due to development has been the primary threat to the region’s habitats”
(p. 32); and
o “To conserve, preserve, or enhance a network of open space that contributes to the
region’s natural community resources and systems” (Open Space Goal, p. 55). In
reference to this Open Space Goal, the RPP states, “[t]he 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).
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Granting this Conservation Restriction will advance each of these goals outlined in the RPP.
The Wetlands Goal will be addressed in protecting areas that will be affected by inland
migration of marine wetlands with sea level rise and other climate change impacts. Wildlife
and Plant Habitat Goal will be served because the Premises contains a host of important plant
and wildlife species, and falls within an NHESP BioMap2 Critical Natural Landscape area.
The Open Space Goal will be advanced because the Premises is proximal to several
conservation restricted parcels.
Conservation of the Premises also supports Barnstable Town Council's Strategic Plan FY2015
which seeks to promote the preservation and protection of significant natural resources for visual
quality, outdoor recreation, public access, and wildlife habitat.
• 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 2015 identified the
goal to preserve and protect significant natural and historic resources for visual quality,
outdoor recreation, wildlife habitat, and cultural history.
Moreover, in 1981, the Town of Barnstable adopted a Conservation Restriction Program
consisting of policies and guidelines, in particular an Open Space Policy, approved by the
Board of Selectmen, Assessors, and Conservation Commission, which encourages the use of
conservation restrictions in perpetuity to protect natural resources in accordance with the
purposes of the Open Space and Recreation Plan, and which further specified that purposes
of a conservation restriction could include the following:
o preserve scenic view;
o 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.
The Town of Barnstable promotes the Cape Cod Pathways program, intended to create a series
of looped and through-routes in the town and beyond for public walking and scenic enjoyment.
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The Premises is located on Commerce Road part of the harbor walking loop identified in the
Cape Cod Pathways plan for the Town of Barnstable (date).
• 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 several other parcels already conserved.
• Consistency with Clearly Delineated State Conservation Policy. The Premises possesses
significant open space, natural, aesthetic, ecological, plant and wildlife habitat, solid and water
resource quality, watershed, and scenic values (collectively “conservation values”) of great
importance to the Grantee and the people of Barnstable and the Commonwealth of
Massachusetts, including the protection of a State ACEC and Regional Historic District
• Therefore, preservation of the Premises will advance the open space, water and other natural
resource management and passive recreational goals and objectives of the Town of
Barnstable, Barnstable County, and the Commonwealth of Massachusetts.
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, mobile
home, swimming pool, shed, asphalt or concrete pavement, graveled area, roads, trails,
billboard or other advertising, antenna, utilities or other structures, utility pole, tower, solar
panel, solar array, conduit, line, septic or wastewater disposal system, storage tank, or
dam;
2. Extractive Activities/Uses. Mining, excavating, dredging, withdrawing, or removing soil,
loam, peat, gravel, sand, rock, surface water, ground water, or other mineral substance or
natural deposit, or otherwise altering the topography of the Premises;
3. Disposal/Storage. Placing, filling, storing or dumping of soil, refuse, trash, vehicle bodies
or parts, rubbish, debris, junk, tree and other vegetation cuttings, liquid or solid waste or
other substance or material whatsoever;
4. Adverse Impacts to Vegetation. Cutting, removing, or destroying trees, shrubs, grasses or
other vegetation;
5. Adverse Impacts to Water, Soil, and Other Features. Activities detrimental to drainage,
flood control, water conservation, water quality, erosion control, soil conservation, natural
habitat, archaeological conservation, or ecosystem function;
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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. Non-Native Species. Introduction of species of animals or plants that are not native to
Barnstable County, as defined by current published lists of native species, including The
Vascular Plants of Massachusetts: A County Checklist, by Bruce A. Sorrie and Paul
Somers, published by the Massachusetts Division of Fisheries and Wildlife Natural
Heritage & Endangered Species Program (1999) or as amended or contained in a similar
professionally acceptable publication available in the future.
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. Camping; hunting, or trapping, unless for a proven nuisance to wildlife.
10. 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;
11. Use of Premises for Developing Other Land. Using the Premises towards building, septic
system, or development requirements on this or any other parcel;
12. Adverse Impacts to Boundary Markers Disrupting, removing, or destroying granite fence
posts, or any other boundary markers;
13. Excavation. The excavation of landscape features on the Premises with the intent of
collecting or otherwise removing archaeological artifacts (prehistoric and/or historic)
except by formal approval of the Massachusetts Historic Commission (MHC) through
submission, with the concurrence of the Grantee, of a project notification form (PNF) in
accordance with Section 27C of Chapter 9 of the Massachusetts General Laws, and
associated regulations, as amended.
14. Residential, Agricultural, or Industrial Uses. Using the Premises for residential,
agricultural, or industrial purposes;
15. 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.
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B. Permitted Acts and Uses
Notwithstanding the Prohibited Acts and Uses described in Paragraph III.A., the Grantor may conduct
or permit the following acts and uses on the Premises, provided they do not materially impair the
Purposes and/or Conservation Values. In conducting any Permitted Act and Use, Grantor shall
minimize impacts to the Conservation Values to ensure any such impairment thereto is not material.
1. 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), particularly related to the public
scenic view and sandplain grassland habitat maintenance. Mowing, stockpiling, burning or
otherwise clearing of vegetation, but only in the months between November and April, in
order to maintain the sandplain grassland habitat and the public scenic view.
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. Native Plants. The non-commercial propagation of herbaceous native plants referenced
hereinabove in Section III A.7.
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 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. Fencing. Measures, such as the installation of sight-permeable fencing taken in order to
prevent unauthorized vehicle entry and dumping, vandalism or other acts destructive to the
Premises. Also the erection of fencing or other barriers consistent with endangered species
protection. Any fences shall not detract from the public’s view across the Premises from
the adjoining town road;
7. Signs. Constructing, installing, maintaining, and replacing signs 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, Also the erection of signs, consistent with
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endangered species protection. Any signs shall not detract from the public’s view across
the Premises from the adjoining town road.
8. Landform protection. With the prior approval of the Grantee, measures taken in order to
protect landform stability (i.e., to maintain a naturally occurring feature on the land’s
surface, e.g., bank, dune, hill, from erosion).
9. Motorized Vehicles. The use of motorized vehicles (1) by the Grantor as reasonably
necessary to carry out activities permitted under this Restriction, (2) for access by Grantee
for purposes set forth in Article IV, below, and (3) for access by police, fire, emergency,
public works, or other governmental personnel carrying out their official duties.
Notwithstanding the foregoing, the use of motorized vehicles for recreational purposes,
such as dirt bikes, all-terrain vehicles, off-highway vehicles, and the like, is not permitted.
10. Other. Such other non-prohibited activities or uses of the Premises may be permitted with
the prior approval of the Grantee provided that the Grantee has made a finding, such
finding to be documented in writing and kept on file at the office of the Grantee, that such
activities are consistent with the Reserved Rights, do not impair the conservation values
and purposes of this Conservation Restriction, and, where feasible, result in a net gain in
conservation value of the Premises.
C. Site Restoration
Upon completion of any Permitted Acts and Uses, any disturbed areas shall be restored substantially
to the conditions that existed prior to said activities, including with respect to soil material, grade, and
vegetated ground cover.
D. Compliance with Permits, Regulations, Laws
The exercise of any Permitted Acts and Uses under Paragraph III.B. shall be in compliance with all
applicable federal, state and local laws, rules, regulations, zoning, and permits, and with the
Constitution of the Commonwealth of Massachusetts. The inclusion of any Reserved Right requiring
a permit, license or other approval from a public agency does not imply that the Grantee or the
Commonwealth takes any position whether such permit, license, or other approval should be issued.
E. Notice and Approval
1. Notifying Grantee. Whenever notice to or approval by Grantee is required, Grantor shall
notify or request approval from Grantee, by a method requiring proof of receipt, in writing
not less than sixty (60) days prior to the date Grantor intends to undertake the activity in
question, unless a different time period is specified herein. The notice shall:
a. Describe the nature, scope, design, location, timetable and any other material
aspect of the proposed activity;
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;
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c. Identify all permits, licenses, or approvals required for the proposed activity, and
the status of any such permits, licenses, or approvals.
d. Describe any other material aspect of the proposed activity in sufficient detail to
permit the Grantee to make an informed judgment as to its consistency with the
Purposes and Conservation Values.
2. Grantee Review. Where Grantee’s approval is required, Grantee shall grant or withhold
approval in writing within sixty (60) days of receipt of Grantor’s request. Grantee’s
approval shall only be granted upon a showing that the proposed activity will minimize
impacts to the Conservation Values and will not materially impair the Purposes and/or
Conservation Values. Grantee may require Grantor to secure expert review and
evaluation of a proposed activity by a mutually agreed upon party.
3. Resubmittal. Grantee’s failure to respond within sixty (60) days of receipt shall not
constitute approval of the request. Grantor may subsequently submit the same or a similar
request for approval.
4. Emergencies. In the event the activity proposed is necessary to address an emergency
situation, either to avert environmental degradation, ecological damage, or risk to public
health and safety, Grantee shall respond forthwith.
IV. INSPECTION AND ENFORCEMENT
A. Entry onto the Premises
The Grantor hereby grants to the Grantee, and its duly authorized agents or representatives, with or
without the presence of an employee or employees of the Grantor 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, and equitable relief against any violations, including, without limitation, injunctive
relief and relief requiring restoration of the Premises to its condition prior to the time of
the injury (it being agreed that the Grantee will have no adequate remedy at law in case of
an injunction). The rights hereby granted shall be in addition to, and not in limitation of,
any other rights and remedies available to the Grantee for the enforcement of this
Conservation Restriction.
2. Notice and Cure. In the event the Grantee determines that a violation of this Conservation
Restriction has occurred and intends to exercise any of the rights described herein, the
Grantee shall, before exercising any such rights, notify the Grantor in writing of the
violation. The Grantor shall have thirty (30) days from receipt of the written notice to halt
the violation and remedy any damage caused by it, after which time Grantee may take
further action, including instituting legal proceedings and entering the Premises to take
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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.
F. Costs and Taxes
Grantor agrees to pay and discharge when and if due any and all real property taxes and other
assessments levied by competent authority on the Premises.
V. PUBLIC ACCESS
This Conservation Restriction does not grant any right of physical access to the public, owing to the
sensitivity of the rare sandplain grassland habitat and the fact that the public can enjoy the open view
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across the Premises to adjoining open fields and the fact that a public walking trail is provided on the
western adjacent lot.
VI. TERMINATION/RELEASE/EXTINGUISHMENT
A. Procedure
If circumstances arise in the future that render the Purposes impossible to accomplish, this
Conservation Restriction can only be terminated, released, or extinguished, whether in whole or in
part, by a court of competent jurisdiction under applicable law after review and approval by the
Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts, or successor
official (“Secretary”), and any other approvals as may be required by Section 32 of Chapter 184 of
the Massachusetts General Laws.
B. Grantor’s and Grantee’s Right to Recover Proceeds
If any change in conditions ever gives rise to termination, release, or extinguishment of this
Conservation Restriction under applicable law, then Grantee, on a subsequent sale, exchange, or
involuntary conversion of the Premises, shall be entitled to a portion of the proceeds in accordance
with Paragraph VI.C, subject, however, to any applicable law which expressly provides for a different
disposition of the proceeds, and after complying with the terms of any gift, grant, or funding
requirements. The Grantee shall use its share of any proceeds in a manner consistent with the Purposes
or the protection of the Conservation Values.
C. Grantee’s Receipt of Property Right
Grantor and Grantee agree that the conveyance of this Conservation Restriction gives rise to a real
property right, immediately vested in the Grantee, with a fair market value that is at least equal to the
proportionate value that this Conservation Restriction, determined at the time of the conveyance,
bears to the value of the unrestricted Premises. The proportionate value of the Grantee’s property
right as of the date of termination, release, or extinguishment (See Paragraph XII) shall be thirty
percent (30%)1, based on Grantee’s contribution towards the purchase price on the Effective Date.
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.
1 Purchase price of property $500,000. CPA contribution to project $150,000 = 30%
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VII. DURATION and ASSIGNABILITY
A. Running of the Burden
The burdens of this Conservation Restriction shall run with the Premises in perpetuity, and shall be
enforceable against the Grantor and the successors and assigns of the Grantor holding any interest in
the Premises.
B. Execution of Instruments
The Grantee is authorized to record or file any notices or instruments appropriate to assuring the
perpetual enforceability of this Conservation Restriction. The Grantor, on behalf of itself and its
successors and assigns, appoints the Grantee its attorney-in-fact to execute, acknowledge and deliver
any such instruments on its behalf. Without limiting the foregoing, the Grantor and its successors and
assigns agree themselves to execute any such instruments upon request.
C. Running of the Benefit
The benefits of this Conservation Restriction shall run to the Grantee, shall be in gross and shall not
be assignable by the Grantee, except when all of the following conditions are met:
1. the Grantee requires that the Purposes continue to be carried out;
2. the assignee is not an owner of the fee in the Premises;
3. the assignee, at the time of the assignment, qualifies under and 26.U.S.C. 170(h), and
applicable regulations thereunder, if applicable, and is eligible to receive this Conservation
Restriction under Section 32 of Chapter 184 of the Massachusetts General Laws; and
4. the assignment complies with Article 97 of the Amendments to the Constitution of the
Commonwealth of Massachusetts, if applicable.
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 thirty (30) days prior to the effective date of
such transfer. Any transfers shall receive prior approval by Grantee to assure that the Premises is
transferred to a qualified conservation organization. Failure to do any of the above shall not impair
the validity or enforceability of this Conservation Restriction. If the Grantor fails to reference the
terms of this Conservation Restriction in any deed or other legal instrument which grants any interest
in all or a portion of the Premises, then the Grantee may record, in the Barnstable Registry District of
the Land Court, 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.
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BOWLES FIELD – Lot 13 CONSERVATION RESTRICTION, BARNSTABLE MA
B. Grantor’s Liability
The Grantor shall not be liable for violations occurring after their ownership. Liability for any acts or
omissions occurring prior to any transfer and liability for any transfer if in violation of this
Conservation Restriction shall survive the transfer. Any new owner shall cooperate in the restoration
of the Premises or removal of violations caused by prior owner(s) and may be held responsible for
any continuing violations.
IX. ESTOPPEL CERTIFICATES
Upon request by the Grantor, the Grantee shall, within 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, 32, and 33 of Chapter 184 of the Massachusetts General Laws; or
5. create an impermissible private benefit or private inurement in violation of federal tax law,
as determined by an appraisal, conducted by an appraiser selected by the Grantee, of the
economic impact of the proposed amendment; or
6. alter or remove the provisions described in Paragraph VI
(Termination/Release/Extinguishment); or
7. cause the provisions of this Paragraph XI to be less restrictive; or
8. cause the provisions described in Paragraph VII.C (Running of the Benefit) to be less
restrictive
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BOWLES FIELD – Lot 13 CONSERVATION RESTRICTION, BARNSTABLE MA
B. Amendment Approvals and Recording
No amendment shall be effective unless documented in a notarized writing executed by Grantee and
Grantor, approved by the Town of Barnstable and by the Secretary in the public interest pursuant to
Section 32 of Chapter 184 of the Massachusetts General Laws, and recorded in the Barnstable
Registry District of the Land Court.
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 Registry District of the Land
Court.
XIII. NOTICES
Any notice, demand, request, consent, approval or communication that either party desires or is
required to give to the other shall be in writing and either served personally or sent by first class mail,
postage pre-paid, addressed as follows:
To Grantor: Barnstable Land Trust
1540 Main Street
West Barnstable MA 02668
To Grantee: Town of Barnstable, c/o Town Manager
367 Main Street
Hyannis MA 02601-3907
or to such other address as any of the above parties shall designate from time to time by written notice
to the other or, if notice is returned to sender, to an address that is reasonably ascertainable by the
parties.
XIV. GENERAL PROVISIONS
A. Controlling Law
The interpretation and performance of this Conservation Restriction shall be governed by the laws of
the Commonwealth of Massachusetts.
B. Liberal Construction
Any general rule of construction to the contrary notwithstanding, this Conservation Restriction shall
be liberally construed in order to effect the Purposes and the policy and purposes of Sections 31, 32,
and 33 of Chapter 184 of the Massachusetts General Laws. If any provision in this instrument is found
to be ambiguous, any interpretation consistent with the Purposes that would render the provision valid
shall be favored over any interpretation that would render it invalid.
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BOWLES FIELD – Lot 13 CONSERVATION RESTRICTION, BARNSTABLE MA
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”) 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 attests that there is no residence on or abutting the Premises (including areas excluded
from the Premises) that is occupied or intended to be occupied as a principal residence by a spouse,
former spouse, or children of the grantor, or a spouse, former spouse, or children of a beneficiary of
the trust, if Premises is owned by a trust.
C. Subordination
The Grantor shall record at the Barnstable Registry District of the Land Courtsimultaneously with
this Conservation Restriction all documents necessary to subordinate any mortgage, promissory note,
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BOWLES FIELD – Lot 13 CONSERVATION RESTRICTION, BARNSTABLE MA
loan, lien, equity credit line, refinance assignment of mortgage, lease, financing statement or any
other agreement which gives rise to a surety interest affecting the Premises.
D. Executory Limitation
If Grantee shall cease to exist or to be qualified to hold conservation restrictions pursuant to Section
32 of Chapter 184 of the Massachusetts General Laws, or to be qualified organization under 26 U.S.C.
170(h), and applicable regulations thereunder, if applicable, and a prior assignment is not made
pursuant to Paragraph VII, then Grantee’s rights and obligations under this Conservation Restriction
shall vest in such organization as a court of competent jurisdiction shall direct pursuant to the
applicable Massachusetts law and with due regard to the requirements for an assignment pursuant to
Paragraph VII.
E. Prior Encumbrances
This Conservation Restriction shall be in addition to and not in substitution of any other restrictions
or easements of record affecting the Premises.
F. The following signature pages are included in this Grant:
Grantor – Barnstable Land Trust, Inc.
Grantee Acceptance – Town of Barnstable Town Manager
Approval - 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: Reduced Copy of Recorded Plan of Premises
Exhibit C: Town Council Ordinance
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BOWLES FIELD – Lot 13 CONSERVATION RESTRICTION, BARNSTABLE MA
At a meeting duly held on __________________, 2023, Barnstable Land Trust, Inc. voted to grant
the foregoing Conservation Restriction to the Town of Barnstable.
Grantor:
Barnstable Land Trust, Inc.
___________________________
Leigh Townes, President,
Barnstable Land Trust, Inc.
______________________________
Deborah Reuman, Treasurer
Barnstable Land Trust, Inc.
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. ________________ 2023
Then personally appeared the above-named Leigh Townes, President, Barnstable Land Trust, Inc.
and Deborah Reuman, Treasurer, Barnstable Land Trust, Inc., the corporation named in the
foregoing instrument, and proved to me through satisfactory evidence of identification, which was
personal knowledge of identity, to be the persons whose names are signed on the document, and
each acknowledged she is duly authorized to act on behalf of said corporation, and each further
acknowledged the foregoing instrument to be the free act and deed of said corporation, before me.
Mark H. Robinson, Notary Public
My commission expires: 8 July 2027
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BOWLES FIELD – Lot 13 CONSERVATION RESTRICTION, BARNSTABLE MA
APPROVAL OF THE TOWN OF BARNSTABLE
TOWN COUNCIL
At a public meeting duly held on ___________2023, the Town Council of the Town of Barnstable,
Massachusetts, voted to accept the foregoing Conservation Restriction from the Barnstable Land
Trust, Inc., to the Town of Barnstable in the public interest pursuant to Section 32 of Chapter 184
of the Massachusetts General Laws.
TOWN COUNCIL
PRESIDENT:______________________
Matthew Levesque
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On the day of , 2023, before me, the undersigned notary public, personally appeared
Matthew Levesque, the person whose name is signed on the document and proved to me through
satisfactory evidence of identification, which was , and who being by me
duly sworn did say that he is the President of the Town Council of the Town of Barnstable; that he is
duly authorized to act on behalf the Town Council; and he acknowledged the foregoing instrument to
be the free act and deed of Town of Barnstable Town Council.
Notary Public
My Commission Expires:
BOWLES FIELD LOT 13 CONSERVATION RESTRICTION, BARNSTABLE, MA
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APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, hereby approve
the foregoing Conservation Restriction from the Barnstable Land Trust, Inc. to the Town of
Barnstable 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 , 2023, before me, the undersigned notary public, personally appeared
Mark S. Ells, the person whose name is signed on the document and proved to me through
satisfactory evidence of identification, which was personal knowledge of identity, and who being
by me duly sworn did say that he is the Town Manager of the Town of Barnstable; that he is duly
authorized to act on behalf the Town of Barnstable and he acknowledged the foregoing instrument
to be his free act and deed.
______________________
Notary Public
My Commission Expires
BOWLES FIELD LOT 13 CONSERVATION RESTRICTION, BARNSTABLE, MA
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APPROVAL OF SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS OF
THE COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts, hereby approves the foregoing Conservation Restriction from Barnstable Land
Trust, Inc. to the Town of Barnstable in the public interest pursuant to Section 32 of Chapter 184
of the Massachusetts General Laws.
Dated: ________________, 2023
Rebecca Tepper
Secretary of Energy and Environmental Affairs
THE COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss:
On this day of , 2023, before me, the undersigned notary
public, personally appeared Rebecca 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:
BOWLES FIELD LOT 13 CONSERVATION RESTRICTION, BARNSTABLE, MA
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EXHIBIT A
Legal Description of Premises
The Premises subject to this Conservation Restriction is all of a vacant tract of land located
in the Village of Barnstable, in the Town of Barnstable, Barnstable County,
Commonwealth of Massachusetts, more particularly bounded and described as follows:
The land in Barnstable in Barnstable County, Massachusetts shown as Lot 13 on a plan
entitled Plan of Land of Commerce Road Barnstable, MA, Prepared For Dillingham
Properties LLC, dated 5/18/2022 (Revised), by Daniel A. Ojala, PLS, Down Cape
Engineering, Inc, 939 Main Street (Route 6A), YarmouthPort, MA 02675 and filed in the
Land Registration Office in Boston as Land Court Plan 4686G.
Containing 2.3 acres, more or less, per survey.
For Grantor's Title: pending, Thomas Brazelton to Barnstable Land Trust, Inc.
Town of Barnstable Assessor Map 318, Parcel 025, Lot 002 (portion)
Street Address: Lot 13, Commerce Road, Barnstable, Massachusetts 02630
BOWLES FIELD LOT 13 CONSERVATION RESTRICTION, BARNSTABLE, MA
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EXHIBIT B
Sketch Plan of Premises
For official full size plan see Land Court Plan: 4686-G
BOWLES FIELD LOT 13 CONSERVATION RESTRICTION, BARNSTABLE, MA
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EXHIBIT C
Town Council Ordinance