HomeMy WebLinkAboutCR 17213- Barnstable - Bowles Field Lot 15 Clean Copy 2.21.2023BOWLES FIELD HISTORIC LANDSCAPE – Lot 15 CONSERVATION RESTRICTION
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GRANTOR: Thomas B. Brazelton, III
GRANTEE: Barnstable Land Trust, Inc.
ADDRESS OF PREMISES: Commerce Road (Lot 15), Barnstable, Massachusetts
FOR GRANTOR’S TITLE SEE: Barnstable Registry District of the Land Court, Document #
1465529, noted on Certificate of Title #230,821
FOR GRANTOR’S PLAN SEE: Barnstable Registry District of the Land Court Plan No. 4686-G
GRANT OF CONSERVATION RESTRICTION
I. STATEMENT OF GRANT
THOMAS B. BRAZELTON, III, with a mailing address at 9410 Hill Creek Drive, Verona, WI
53593, being the sole owner of the Premises as defined herein, for my 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 BARNSTABLE LAND TRUST, INC. (Federal
ID #22-2483963), a Massachusetts non-profit corporation with its principal place of business at 1540
Main Street, West Barnstable, MA 02668, their permitted successors and assigns (“Grantee”), for
nominal consideration, IN PERPETUITY AND EXCLUSIVELY FOR CONSERVATION
PURPOSES, the following Conservation Restriction on land located in the Town of Barnstable,
Barnstable County, Commonwealth of Massachusetts containing the entirety of a 1.4-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.
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, Property Address: Lot 15, 0 Commerce Road, Barnstable, MA 02630
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scenic, or open condition, and to prevent any use or change that would materially impair the
Conservation Values (as defined below).
The Conservation Restriction was acquired utilizing, in part, the Conversation Land Tax Credit
Program (CLTC#: 0580) 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:
• Area of Critical Environmental Concern (ACEC): The Premises consist of approximately 1.4
acres proximate to the Barnstable Harbor Area of Critical Environmental Concern (ACEC) a
state-designated area due to its significance as a marine estuary.
• Open Space. The Premises contributes to the protection of the scenic and natural character of
Cobbs Village, an historic area near Barnstable Harbor within 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 land under conservation
restrictions held by Barnstable Land Trust, and 8.65 acres owned by Massachusetts Audubon
Society.
• Biodiversity. The Premises’ northern boundary is proximal to areas designated as Critical
Natural Landscape, Coastal Adaptation, and Tern Foraging areas, by the Massachusetts
Division of Fisheries and Wildlife acting by and through its Natural Heritage and Endangered
Species Program (“NHESP”). BioMap2, published by NHESP 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 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 with the NHESP’s
wildlife and habitat protection objectives and would ensure perpetual protection for each of
these state-recognized habitats.
The Premises is 100% within a sandplain grassland, a critically imperiled natural community
(State Rank of S1 in MassWildlife’s ‘Classification of the Natural Communities of
Massachusetts’ by Swain, P.C., 2020) of statewide, regionwide, and global importance, 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.
• Water Quality. The Premises falls 100% within the Cape Cod High Yield Aquifer, as
identified by the Massachusetts Department of Environmental Protection.
• Climate Change Resiliency. The Premises is identified as an area of above average Terrestrial
Resilience according to The Nature Conservancy’s (TNC) Resilient Land Mapping Tool,
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including slightly above average Landscape Diversity and 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.
• 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, public access, wildlife habitat, and cultural history.
Moreover, in 1981, the Town of Barnstable adopted a Conservation Restriction Program
consisting of policies and guidelines, in particular an Open Space Policy, approved by the
Board of Selectmen, Assessors, and Conservation Commission, which encourages the use of
conservation restrictions in perpetuity to protect natural resources in accordance with the
purposes of the Open Space and Recreation Plan, and which further specified that purposes
of a conservation restriction could include the following:
• preserve scenic view;
• protect groundwater quality for drinking purposes;
• preserve open space;
• to protect a trail;
• preserve important natural habitats of fish, wildlife or plants; and,
• limit or prevent construction on land of natural resource value.
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.
• 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
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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).
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. The
Wildlife and Plant Habitat Goal will be served because the Premises contains a host of
important plant and wildlife species and falls within a NHESP BioMap2 Critical Natural
Landscape area. The Open Space Goal will be advanced because the Premises is proximal to
several permanently protected parcels.
• 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. Protection of the Premises allows for storm protection by maintaining upland
buffer areas as open space and protection of Barnstable Harbor water quality and habitat for
saltwater finfish, shellfish and other marine species dependent on this coastal environment.
• 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
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activities, colonial period agricultural, industrial and residential activities may be present
within undisturbed portions of the property.
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, shed, asphalt or concrete pavement, graveled area,
road, sign, fence, gate, 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;
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. Introduction of 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, excepting the reserved right
to the introduction of native plants to the premises as allowed under (Section III. B. 3);
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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 Boundary Markers. Disrupting, removing, or destroying granite fence
posts, or any other boundary markers;
12. Camping. Camping of any form.
13. Hunting, or trapping. Unless for a proven nuisance to wildlife.;,
14. Residential or Industrial Uses. Using the Premises for residentialor industrial purposes;
15. Inconsistent Uses. Using the Premises for non-agricultural business purposes or
commercial purposes that are inconsistent with the Purposes or that would materially
impair the Conservation Values, or for any other uses or activities that are inconsistent
with the Purposes or that would materially impair the Conservation Values.
B. Permitted Acts and Uses
Notwithstanding the Prohibited Acts and Uses described in Paragraph III.A., the Grantor may
conduct or permit the following acts and uses on the Premises, provided they do not materially
impair the Purposes and/or Conservation Values. In conducting any Permitted Act and Use,
Grantor shall minimize impacts to the Conservation Values to ensure any such impairment
thereto is not material.
1. Vegetation Management. Maintaining vegetation, including but not limited to, pruning,
trimming, cutting, burning, animal grazing, 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.
Vegetation management activities shall be carried out according to the documented
Maintenance and Stewardship Agreement approved and amended by the Grantor and
Grantee as the need arises; ;
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;
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3. Native Plants. The non-commercial propagation of herbaceous native plants 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; ;
4. Composting. Stockpiling and composting stumps, trees, brush, limbs, and similar
biodegradable materials originating on the Premises;
5. 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;
6. Archaeological Investigations. Conducting archaeological activities, including without
limitation archaeological research, surveys, excavation and artifact retrieval, but only in
accordance with an archaeological field investigation plan prepared by or on behalf of the
Grantor, and following submission of a project notification form (PNF) in accordance with
Section 27C of Chapter 9 of the Massachusetts General Laws and associated regulations,
as amended. The plan shall also address restoration following completion of the
archaeological investigation, , and shall be approved in advance of such activity, in
writing, by the Massachusetts Historical Commission’s (MHC) State Archaeologist (or
appropriate successor official) and by the Grantee. A copy of the results of any such
investigation on the Premises is to be provided to the Grantee;
7. Trails. Maintaining and constructing trails as follows:
a. Trail Maintenance. Conducting routine maintenance of trails, which may include
widening trail corridors up to eight (8) feet in width overall.
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, said approval not to be
unreasonably withheld, constructing bog bridging, boardwalks, footbridges,
railings, steps, culverts, benches, cribbing, contouring, or other such features,
together with the use of motorized equipment to construct such features;
8. Signs. Constructing, installing, maintaining, and replacing site pervious 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
endangered species protection. Any signs shall not detract from the public’s view across
the Premises from the adjoining town road;
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9. Outdoor Passive Recreational Activities. Hiking, snowshoeing, nature observation, and
other non-motorized outdoor recreational activities;
10. 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);
11. Fencing. Measures, such as the installation of sight-permeable fencing no more than four
(4) feet in height, including wooden split rail fence or similar, 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;
12. Motorized Vehicles. The use of motorized vehicles (1) by the Grantor as reasonably
necessary to carry out activities permitted in this Paragraph III.B and (2) for access by
Grantee for purposes set forth in Paragraph IV, and (3) for access by police, fire,
emergency, public works, or other governmental personnel carrying out their official duties.
The use of motorized vehicles for the purposes described herein shall be limited to the
existing trails;
13. Agricultural Activities.
a. Permitted Activities. “Agricultural Activities” are collectively defined as “Animal
Husbandry” and “Horticulture,” defined below:
i. Animal Husbandry. Raising animals, including but not limited to dairy
cattle, beef cattle, poultry, sheep, swine, horses, ponies, mules, goats, and
bees, for the purpose of using, consuming, or selling such animals or a
product derived from such animals in the regular course of business; or
when primarily and directly used in a related manner which is incidental
thereto and represents a customary and necessary use in raising such
animals and preparing them or the products derived therefrom for use,
consumption, or market.
ii. Horticulture. Raising fruits, vegetables, berries, nuts, and other foods for
human consumption, feed for animals, flowers, nursery products, and
ornamental plants and shrubs, all for the purpose of selling such products
in the regular course of business; or when primarily and directly used in a
related manner which is incidental to those uses and represents a customary
and necessary use in raising such products and preparing them for use,
consumption, or market.
b. Requirement to Follow Best Agricultural Practices. Agricultural Activities shall
be conducted using organic farming methods in a manner consistent with generally
accepted best management practices for sustainable farming as those practices may
be identified from time to time by appropriate governmental or educational
institutions such as the USDA Natural Resources Conservation Service (NRCS),
UMass Extension, Northeast Organic Farming Association (NOFA),
Massachusetts Department of Agricultural Resources, and the like, (collectively,
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“Best Agricultural Practices”) and in a manner that promotes healthy soils and
healthy soil 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 (“Healthy Soils and Practices”), and in a manner that
does not hinder the ability of future generations to engage in Agricultural Activities
on the Premises;
c. Requirement for a Farm Conservation Plan. Agricultural Activities shall require a
farm conservation plan, such as an NRCS Conservation Plan (“Farm Conservation
Plan”), prepared for the Premises, and approved in writing by the Grantee. The
Farm Conservation Plan shall be developed in accordance with generally-accepted
Best Agricultural Practices, and shall, at a minimum, address the following:
i. establish wetland buffers and/or filter strips to prevent adverse impacts to
the water quality of existing wetlands and waterways;
ii. in the event animal husbandry activities are proposed, establish and govern
the type and number of each type of animal unit permitted on the Premises,
and analyze the pasturage potential of the Premises and establish and
govern the cycling of pasturage, and any other measures necessary to
ensure the carrying capacity of the Premises is not exceeded in order to
protect water quality, prevent soil erosion, and otherwise protect the
Conservation Values; and
iii. describe how Agricultural Activities will maximize soil and water
conservation, and promote Healthy Soils and Practices.
d. Agricultural Improvements. Constructing and maintaining improvements to
conduct Agricultural Activities, provided:
i. Grantor must obtain prior written approval from the Grantee for the
following improvements:
1. Wells, including but not limited to artesian wells, and any irrigation
structures that require subsurface installation;
2. The right to erect and maintain open-faced fences for boundaries or
livestock grazing with a maximum height of four (4) feet, so long
as free wildlife passage is not severely impeded across the
Premises, and provided that it is sight-permeable and does not
detract from the public’s view across the Premises from the
adjoining town road;
3. The right to fence any garden using open faced animal exclosure
fencing with a maximum height of four (4) feet, provided that it is
sight-permeable and does not detract from the public’s view across
the Premises from the adjoining town road;
14. 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.
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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;
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.
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IV. INSPECTION AND ENFORCEMENT
A. Entry onto the Premises
The Grantor hereby grants to the Grantee, and its duly authorized agents or representatives, the right
to enter the Premises upon reasonable notice and at reasonable times, for the purpose of inspecting
the Premises to determine compliance with or to enforce this Conservation Restriction.
B. Legal and Injunctive Relief
1. Enforcement. The rights hereby granted shall include the right to enforce this
Conservation Restriction by appropriate legal proceedings and to obtain compensatory
relief, including without limitation, compensation for interim losses (i.e., ecological and
public use service losses that occur from the date of the violation until the date of
restoration) and equitable relief against any violations, including, without limitation,
injunctive relief and relief requiring restoration of the Premises to its condition prior to the
time of the injury (it being agreed that the Grantee will have no adequate remedy at law
in case of an injunction). The rights hereby granted shall be in addition to, and not in
limitation of, any other rights and remedies available to the Grantee for the enforcement
of this Conservation Restriction.
2. Notice and Cure. In the event the Grantee determines that a violation of this Conservation
Restriction has occurred and intends to exercise any of the rights described herein, the
Grantee shall, before exercising any such rights, notify the Grantor in writing of the
violation. The Grantor shall have thirty (30) days from receipt of the written notice to halt
the violation and remedy any damage caused by it, after which time Grantee may take
further action, including instituting legal proceedings and entering the Premises to take
reasonable measures to remedy, abate or correct such violation, without further notice.
Provided, however, that this requirement of deferment of action for thirty (30) days applies
only if Grantor immediately ceases the violation and Grantee determines that there is no
ongoing violation. In instances where a violation may also constitute a violation of local,
state, or federal law, the Grantee may notify the proper authorities of such violation.
3. Reimbursement of Costs and Expenses of Enforcement. Grantor covenants and agrees to
reimburse to Grantee all reasonable costs and expenses (including counsel fees) incurred
by the Grantee in enforcing this Conservation Restriction or in taking reasonable measures
to remedy, abate or correct any violation thereof. In the event of a dispute over the
boundaries of the Conservation Restriction, Grantor shall pay for a survey by a
Massachusetts licensed professional land surveyor and to have the boundaries
permanently marked.
C. Non-Waiver
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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.
Subject to the provisions of this Conservation Restriction, the Grantor hereby grants access to the
Premises to the Grantee as reasonably necessary, after at least three (3) days verbal or written notice,
to carry out activities permitted under this Restriction including activities required and allowed under
the Maintenance and Stewardship Agreement referred to in Paragraph III. B.1.
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
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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 XX%. Such proportionate
value of the Grantee’s property right shall remain constant.
D. Cooperation Regarding Public Action
Whenever all or any part of the Premises or any interest therein is taken by public authority under
power of eminent domain or other act of public authority, then the Grantor and the Grantee shall
cooperate in recovering the full value of all direct and consequential damages resulting from such
action. All related expenses incurred by the Grantor and the Grantee shall first be paid out of any
recovered proceeds, and the remaining proceeds shall be distributed between the Grantor and Grantee
in accordance with Paragraph VI.B and Paragraph VI.C. If a less than fee interest is taken, the
proceeds shall be equitably allocated according to the nature of the interest taken. The Grantee shall
use its share of any proceeds in a manner consistent with the Purposes or the protection of the
Conservation Values.
VII. DURATION and ASSIGNABILITY
A. Running of the Burden
The burdens of this Conservation Restriction shall run with the Premises in perpetuity, and shall be
enforceable against the Grantor and the successors and assigns of the Grantor holding any interest in
the Premises.
B. Execution of Instruments
The Grantee is authorized to record or file any notices or instruments appropriate to assuring the
perpetual enforceability of this Conservation Restriction. The Grantor, on behalf of itself and its
successors and assigns, appoints the Grantee its attorney-in-fact to execute, acknowledge and deliver
any such instruments on its behalf. Without limiting the foregoing, the Grantor and its successors and
assigns agree themselves to execute any such instruments upon request.
C. Running of the Benefit
The benefits of this Conservation Restriction shall run to the Grantee, shall be in gross and shall not
be assignable by the Grantee, except when all of the following conditions are met:
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1. the Grantee requires that the Purposes continue to be carried out;
2. the assignee is not an owner of the fee in the Premises;
3. the assignee, at the time of the assignment, qualifies under and 26.U.S.C. 170(h), and
applicable regulations thereunder, if applicable, and is eligible to receive this Conservation
Restriction under Section 32 of Chapter 184 of the Massachusetts General Laws; and
4. the assignment complies with Article 97 of the Amendments to the Constitution of the
Commonwealth of Massachusetts, if applicable.
VIII. SUBSEQUENT TRANSFERS
A. Procedure for Transfer
The Grantor agrees to incorporate by reference the terms of this Conservation Restriction in any deed
or other legal instrument which grants any interest in all or a portion of the Premises, including a
leasehold interest and to notify the Grantee not less than twenty (20) days prior to the effective date
of such transfer. 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.
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.
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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
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 registered 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, or by email with return receipt, addressed as follows:
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To Grantor: Thomas B. Brazelton, III
9410 Hill Creek Dr.
Verona, WI 53593
tbrazelton3@gmail.com and pbraz235@gmail.com
To Grantee: Barnstable Land Trust, Inc.
1540 Main Street
West Barnstable MA 02668
info@blt.org
or to such other address as any of the above parties shall designate from time to time by written notice
to the other or, if notice is returned to sender, to an address that is reasonably ascertainable by the
parties.
XIV. GENERAL PROVISIONS
A. Controlling Law
The interpretation and performance of this Conservation Restriction shall be governed by the laws of
the Commonwealth of Massachusetts.
B. Liberal Construction
Any general rule of construction to the contrary notwithstanding, this Conservation Restriction shall
be liberally construed in order to effect the Purposes and the policy and purposes of Sections 31, 32,
and 33 of Chapter 184 of the Massachusetts General Laws. If any provision in this instrument is found
to be ambiguous, any interpretation consistent with the Purposes that would render the provision valid
shall be favored over any interpretation that would render it invalid.
C. Severability
If any provision of this Conservation Restriction or the application thereof to any person or
circumstance is found to be invalid, the remainder of the provisions of this Conservation Restriction
shall not be affected thereby.
D. Entire Agreement
This instrument sets forth the entire agreement of the Grantor and Grantee with respect to this
Conservation Restriction and supersedes all prior discussions, negotiations, understandings, or
agreements relating to the Conservation Restriction, all of which are merged herein.
XV. BASELINE DOCUMENTATION REPORT
The Conservation Values, as well as the natural features, current uses of, and existing improvements
on the Premises, such as, but not limited to, trails, woods roads, structures, meadows or other cleared
areas, agricultural areas, and scenic views, as applicable, are described in a Baseline Documentation
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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 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 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. Subordination
The Grantor shall record at the Barnstable Registry District of the Land Court simultaneously with
this Conservation Restriction all documents necessary to subordinate any mortgage, promissory note,
loan, lien, equity credit line, refinance assignment of mortgage, lease, financing statement or any
other agreement which gives rise to a surety interest affecting the Premises.
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.
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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 - Thomas B. Brazelton, III
Grantee Acceptance - Barnstable Land Trust, Inc.
Approval of 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: Reduced Copy of Recorded Plan of Premises
Exhibit C: Town Council Order
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WITNESS my hand and seal this ____day of ___________________, 2023,
,
Thomas B. Brazelton III
STATE OF WISCONSIN
County:
On this day of , 2023, before me, the undersigned notary
public, personally appeared Thomas B. Brazelton III, 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 s/he signed it voluntarily for
its stated purpose.
______________________________
Notary Public:
My Commission Expires:
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ACCEPTANCE OF GRANT
The foregoing Conservation Restriction from Thomas B. Brazelton III was accepted by Barnstable
Land Trust, Inc. this __________ day of ________________, 2023.
By: _________________________________
Leigh Townes
Its: President, duly authorized
By: _________________________________
Deborah Reuman
Its: Treasurer, duly authorized
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 they are 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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APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, hereby approve
the foregoing Conservation Restriction Restriction from Thomas B. Brazelton III, to the
Barnstable Land Trust, Inc. pursuant to Section 32 of Chapter 184 of the Massachusetts General
Laws.
TOWN OF BARNSTABLE
TOWN MANAGER:
_____________________
Mark S. Ells
THE COMMONWEALTH OF MASSACHUSETTS
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
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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 approve the foregoing Conservation Restriction from Thomas
B. Brazelton III, to the Barnstable Land Trust, Inc. 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:
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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 Thomas B.
Brazelton III to Barnstable Land Trust, Inc. in the public interest pursuant to Section 32 of Chapter
184 of the Massachusetts General Laws.
Dated: ________________, 2023
Rebecca L. Tepper
Secretary of Energy and Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss:
On this day of , 2023, before me, the undersigned notary
public, personally appeared Rebecca L. Tepper, and proved to me through satisfactory evidence
of identification which was ______________________________ to be the person whose name is
signed on the proceeding or attached document, and acknowledged to me that she signed it
voluntarily for its stated purpose.
______________________________
Notary Public
My Commission Expires:
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EXHIBIT A
Description of Premises
The Premises subject to this Conservation Restriction is a vacant tract of land located in
Cobbs Village 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 15 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 4686-G.
Containing 1.4 acres, more or less.
For Grantor's Title see Barnstable Registry District of the Land Court, Document #
1465529 noted on Certificate of Title # 230,821.
Town of Barnstable Assessor Map 318, Portion of Parcel 025-001 & 025-002
Street Address: LOT 15, 0 Commerce Road, Barnstable, MA 02630
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EXHIBIT B
Reduced Copy of Plan of Premises
For official full size plan see Barnstable Registry District of the Land Court, Plan # 4686-G.
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EXHIBIT C
Town Council Order
Pending