HomeMy WebLinkAboutCR 17276 - Barnstable Approved for Local Signature 8.8.23Marstons Mills River Headwaters – I Conservation Restriction Barnstable, MA
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GRANTOR: Three Bays Preservation, Inc. (dba Barnstable Clean Water Coalition)
GRANTEE: Barnstable Land Trust, Inc.
ADDRESS OF PREMISES: 0, 946 & 948 River Road, (Village of Marstons Mills),
Barnstable, MA
GRANTOR’S TITLE: Barnstable County Registry of Deeds, Book 35866, Page 176
CONSERVATION RESTRICTION
THREE BAYS PRESERVATION, INC., (dba Barnstable Clean Water Coalition), a
Massachusetts nonprofit corporation with an office address at 864 Main Street, Osterville,
Massachusetts 02655, constituting all of the owners of the Premises as defined herein, for its
successors and assigns (“Grantor”), for charitable consideration, as this conveyance is to be
considered and characterized as a gift, acting pursuant to Sections 31, 32, and 33 of Chapter 184
of the Massachusetts General Laws, grants to BARNSTABLE LAND TRUST, INC. (Federal
ID # 22-2483963), a Massachusetts nonprofit corporation with an office at 1540 Main Street,
West Barnstable, Massachusetts 02668, its permitted successors and assigns (“Grantee”), with
quitclaim covenants, IN PERPETUITY and exclusively for conservation purposes, the following
described CONSERVATION RESTRICTION (hereinafter referred to as “Restriction”), three (3)
parcels of land with buildings together totaling 17.17 acres, more or less, located in the Village
of Marstons Mills, Town of Barnstable, County of Barnstable, Commonwealth of Massachusetts
(“Premises”), which Premises is more particularly described in Exhibit A and shown on the
recorded plan in Exhibit B, both of which are attached hereto and made a part hereof, The Grantor,
its successors and assigns, and the Grantee, its permitted successors and assigns, are bound by and
subject to the terms and conditions of this Restriction.
I. PURPOSES:
This Restriction is defined in and authorized by Sections 31-33 of Chapter 184 of the
Massachusetts General Laws, and otherwise by law. The purpose of this Restriction is to assure
that the Premises, will be retained in perpetuity in its natural, scenic and open condition; to protect
and promote the Conservation Values,; to ensure permanent protection of the public water supplies, native
vegetation, soils, and natural watercourses; to restore the functions of the natural freshwater
wetland habitat and the wildlife thereon; to protect and enhance the value of the abutting
conservation areas; to ensure permanent protection of aquatic resources and upland buffers on the
Premises, and to allow and maintain public access for passive outdoor recreation and education Location: 0, 946 & 948 River Road, Barnstable
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of open space resources. The conservation and permanent protection of the Premises will yield a
significant public benefit for the following reasons (hereinafter, the “Conservation Values”):
Public Funding. The Premises was acquired utilizing, in part, assistance from the Massachusetts
Cranberry Bog Acquisition for Restoration Program, as authorized by chapter 209 of the Acts of
2018 (BID# BD-23-1042-ENV-ENV01-87312), which requires the conveyance of this
Restriction. The ecological restoration of the bogs on the Premises will enhance aquatic resource
and values by restoring “natural-functioning wetland habitat and provision of broader ecosystem
services.”
The conservation values include the following:
Consistency with the Town of Barnstable Comprehensive Wastewater Management Plan.
Protection of the Premises will advance a specific objective of the “Proposed Solutions” to reduce
nutrient loading to the Three Bays estuary as part of the 2019 Town of Barnstable Comprehensive
Wastewater Management Plan, which proposes that the Town “continue to support partners . . . “in
pursuit of projects to convert the cranberry bogs in the upper end of the Marstons Mills River system
to nutrient removal practices.” (Section 5.2.4.2)
Open Space Protection. The Premises contributes to the protection of the scenic and natural
character of Marstons Mills, and the protection of the Premises will enhance the open-space value
of these and nearby lands. The Premises is part of an 80+ acre eco-restoration project, wherein the
Grantor and Grantee are working in partnership with Town, State and Federal agencies to acquire,
protect and restore the natural wetlands at the headwaters of the Marstons Mills River, the Town
of Barnstable’s most prolific herring run.
Public Water Supply Protection. The Premises is entirely within a Department of Environmental
Protection (DEP) Zone II of Contribution to a the Public Water Supply operated by the Centerville-
Osterville-Marstons Mills Water Department. Preserving the Premises from development will
enhance the quality of drinking water from these wells. The eco-restoration of the bogs into a
natural freshwater wetland will also enable nitrogen attenuation from upgradient effluent sources
before nutrients and other compounds can infiltrate to the aquifer.
Protection and Restoration of Wildlife Habitat. The Premises consists of freshwater wetlands that
had been cut over and drained between 100-150 years ago in the creation of a major complex of
cultivated cranberry bogs. While the commercial bogs provided some surface water for waterfowl
and amphibians, the disturbance of natural habitat and monoculture created resulted in net habitat
loss over the years. The restoration of the bog by exposing original wetland soils, resprouting the
native freshwater seed bank, and enhancing the Premises with deliberate native plantings will
provide a renewal of the freshwater wet meadow and shrub swamp that originally existed here
and benefit many more aquatic and terrestrial species.
Biodiversity. The Marstons Mills River, downstream of the Premises, is identified as a BioMap
Core Habitat, the top-rated classification of rare species habitats in Massachusetts. Restoring the
freshwater habitat and improving the water quality in the headwater stream will enhance the value
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of the River’s Core Habitat and anadromous fish run. The presence of functioning wetlands also
strengthens the climate resilience of the Premises.
Historical and Cultural Values. Permanent protection of the Premises with this Conservation
Restriction will preserve the historical and cultural attributes of this land in perpetuity. The
Grantor recognizes the impacts of human presence on this and neighboring lands, and seeks to
preserve, and conserve in perpetuity the ecological, historic and cultural Conservation Values that
this land possesses. The Marstons Mills River is an important cultural landmark for the Mashpee
Wampanoag Tribe, owing to the importance of herring runs as a traditional food source. Protection
of the Premises is also consistent with the purposes of the Native Land Conservancy, Inc. to protect
traditional cultural landscapes, which include the flora and fauna that have a unique historical
meaning and value to the Native American community.
Scenic Value. The Premises fronts on River Road, designated in 1983 as a Scenic Road, listed in
the Town of Barnstable Code, Chapter 180. This Restriction will preserve the scenic beauty of
this rural area the Town of Barnstable.
Consistency with Clearly Delineated Barnstable County Conservation Policy. Protection of the
Premises will assist in achieving Barnstable County conservation goals. In July 1991, the
Barnstable County Assembly of Delegates, pursuant to the Cape Cod Commission Act (Chapter
716 of the Acts of 1989), adopted a Regional Policy Plan (“RPP”), amended in 1996, 2002, 2009,
2012, and 2018, which provided, inter alia (references are to the 2018 RRP, amended in 2021 to
accommodate climate change goals and objectives):
• “To protect, preserve, or restore the quality and natural values and functions of inland and
coastal wetlands and their buffers” (Wetland Resources Goal, p. 61);
“Protect wetlands and their buffers from vegetation and grade changes”
“Protect wetlands from changes in hydrology”
“Protect wetlands from stormwater discharges”
• "To protect, preserve, or restore wildlife and plant habitat to maintain the region's natural
diversity" (Wildlife and Plant Habitat Goal, p. 61); and
"Maintain existing plant and wildlife populations and species diversity."
• "To conserve, preserve, or enhance a network of open space that contributes to the region's
natural and community resources and systems" (Open Space Goal, p. 61);
"Protect and preserve natural, cultural, and recreational resources;"
"Maintain or increase the connectivity of open space;"
"Protect or provide open space appropriate to context."
• “To prevent or minimize human suffering and loss of life and property or environmental
damage resulting from storms, flooding, erosion, and relative sea level rise, including but
not limited to that associated with climate change” (Coastal Resiliency Goal, p.62); and
“Minimize development in the floodplain”
“Plan for sea level rise, erosion, and floods”
“Reduce vulnerability of built environment to coastal hazards”
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Conservation of the Premises also supports the 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):
• "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
• 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:
• "To protect and maintain the maximum amount of open space to enhance environmental
protection, recreational opportunities and community character, and
• “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, Board of Assessors, and the 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;
• preserve open space;
• preserve important natural habitats of fish, wildlife or plants; and,
• limit or prevent construction on land of natural resource value.
For reasons previously stated above, implementation of this Restriction will advance each of these
goals articulated by the Town of Barnstable, ensuring that the Premises will stay as open space
and reduce the negative impacts of development on surrounding water resources (e.g., Marstons
Mills River).
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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: protect the land for outdoor recreation by the general public; reserve the
land for education regarding the natural world; protect wildlife and wetland habitats; and it would
contribute to the preservation of open space because it will constitute a significant expanse of
undisturbed open space and is proximate to several other parcels already conserved.
Consistency with Clearly Delineated State Conservation Policy. Protection of the Premises is
consistent with the mission of the Massachusetts Division of Ecological Restoration (“DER”) is
to restore and protect the health and integrity of the Commonwealth's rivers, wetlands and
watersheds for the benefit of people, fish and wildlife. DER is an active partner with the Grantor
and Grantee in restoring more than 80 acres of cranberry bogs in the Marstons Mills River
watershed to natural stream flow and freshwater wetland habitat.
These and other Conservation Values of the Premises, as well as its current uses, conditions, and
state of improvement, 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 stored at the office of the Grantor and Grantee. 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 Restriction, and (ii) is intended to serve
as an objective information baseline for subsequent monitoring of compliance with the terms of
this Restriction as described herein. Notwithstanding the foregoing, the parties may utilize any
evidence of the condition of the Premises at the time of this grant other than the Baseline Report,
should the Baseline Report be unavailable or if it does not adequately address the issues presented.
Therefore, preservation of the Premises will advance the open space, resource management and
passive recreational goals and objectives of the Town of Barnstable and the Commonwealth of
Massachusetts.
II. PROHIBITED ACTIVITIES:
In order to carry out the purposes set forth in Paragraph I above, the Grantor covenants for itself
and its legal representatives, successors and assigns that the Premises will at all times be held, used
and conveyed subject to and not in violation of this Restriction. The Grantor shall refrain from and
will not permit any activity which shall be inconsistent with the Purposes of this Restriction or
which materially impairs water quality, soil conservation, wildlife conservation, scenic landscape
protection or which is otherwise wasteful of the natural resources of the Premises.
Subject to the exceptions set forth in Paragraph III below, prohibited activities on, above and
below the Premises shall include, but shall not be limited to, the following activities, which the
Grantor shall not perform or allow others to perform:
A. Construction or placing of any building, residential dwelling, mobile home, tennis court, ball
fields, benches, swimming pool, artificial water impoundment, billboard, or other advertising
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display, landing strip or pad, roadway, asphalt or concrete pavement, road, trails, wind turbine,
antenna, utility pole, tower, solar array, aboveground or underground storage tank, or any other
temporary or permanent structure or facility on, under or above the Premises.
B. Placing, storing or dumping of equipment, mobile home, trailer, automotive vehicles or parts,
soil, rock, sand, stumps, slash, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, waste,
radioactive waste, or hazardous waste or other substance or material whatsoever.
C. Mining, excavation, dredging or removal of any loam, peat, gravel, soil, sand, rock, surface
water, ground water, or other mineral substance or natural deposit from the Premises, or
otherwise making topographical changes to the Premises.
D. Pollution, alteration, depletion, diversion, channelization, damming, draining, or extraction of
surface water, natural water courses, marshes, potential or certified vernal pools, subsurface water, or any other water bodies.
E. Removal, destruction or cutting of trees, grasses, shrubs or other natural vegetation, including
cutting for firewood or commercial harvesting and lumbering activities.
F. 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.
G. Use, parking or storage of motorized or power-driven vehicles of any kind, including without
limitation snowmobiles, motorbikes or off-highway vehicles, or watercraft, acknowledging that
vehicles necessary for public safety (i.e., fire, police, ambulance, other government officials)
may have a legal right to enter the Premises.
H. Camping, hunting or trapping unless for a proven nuisance to wildlife. The discharge of
fireworks, firearms, arrows or any other projectiles is prohibited.
I. 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.
J. Activities detrimental to drainage, flood control, water conservation, water quality, erosion
control, soil conservation, or ecosystem function.
K. The excavation of landscape features on the Premises or collecting, disturbing or otherwise
removing archaeological artifacts (prehistoric and/or historic).
L. Using the Premises towards building or development requirements on this or any other parcel, including using any portion of the Premises towards any building, septic system or other
development requirements on any other parcel outside the Premises.
M. Any commercial, residential, industrial uses, including commercial agriculture.
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N. Any other use of the Premises or activity which is inconsistent with the purpose of this
Restriction, or which would materially impair its conservation values, or which is prohibited by
federal, state or local law or regulation.
III. PERMITTED ACTIVITIES AND RESERVED RIGHTS:
The Grantor reserves the right to conduct or permit the following activities on the Premises, but
only if such uses and activities do not materially impair the Conservation Values and are not
inconsistent with the Purposes of this Restriction:
A. The selective removal of brush, pruning, and cutting to prevent, control or remove hazards,
disease, insect or fire damage, or to preserve the present condition of the Premises, including
vistas as documented in the Baseline Report, wood roads, fence lines, trails and meadows.
B. Measures, such as the installation of sight pervious fencing and signage, taken in order to prevent
trespass, unauthorized vehicle entry and dumping, vandalism or other acts destructive to the
Premises. Fencing must not impede the passage of wildlife.
C. With the prior approval of the Grantee, measures taken in order to protect the stability of a
naturally occurring feature on the land’s surface (e.g., bank or hill from erosion).
D. The use of the Premises for passive recreational activities such as hiking, snowshoeing, cross-country skiing, nature study or research, and other like activities, including access by motorized
wheelchairs or other mobility assistance devices.
E. The erection and maintenance of signs identifying ownership of the Premises, the property
boundaries, the Premises’ status as a conservation restriction, the restrictions on the use of the
Premises, the identity or location of trails, areas of interest, natural features or other
characteristics of the Premises, or for providing other like information.
F. Minimal cutting or removal of trees, shrubs and other vegetation and planting of native trees,
shrubs and other vegetation to maintain or improve the conservation values protected by this
Restriction; and collection of storm damaged trees to prevent threat of injury or damage to
persons or property; to prevent or mitigate pest infestation, blight or disease; to control, manage
or eradicate non-native or invasive species not native to the wetland or forest; or to improve or
protect wildlife habitat all in a manner to avoid or minimize harm to native species.
G. The use of motorized vehicles (1) by the Grantor as reasonably necessary to carry out activities
permitted under this Restriction, including mowing and maintenance, (2) by persons with mobility
impairments as otherwise allowed by the Restriction, and (3) for access by police, fire, emergency,
public works, or other governmental personnel carrying out their official duties. With the
exception of mobility assistance devices by persons with mobility impairments, the use of
motorized vehicles for the purposes described herein shall be limited to the roads, driveway and
cartpaths now in existence or that may be approved and installed, as shown on the baseline report.
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, except for the
use of mobility assistance devices by persons with mobility impairments. The maintenance, use and,
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with prior written approval of the Grantee, improvement of the existing driveway serving the Premises from River Road and the existing bog perimeter cartpaths for safe vehicular passage, proper drainage, and
fire control.
H. With prior approval by Grantee, measures, such as the installation of fencing and signage, taken
in order to prevent unauthorized vehicle entry and dumping, vandalism or other acts
destructive to the Premises.
I. The maintenance and improvement, including utilities but not any septic system (except portable
restrooms), of the existing cranberry shed on the north side of the bogs in its current dimensions
as described in the Baseline Report; the use of said shed for storage, research and educational
displays.
J. With the prior written approval of Grantee and in compliance with a plan approved in advance
by DER, such plan to be kept on file by Grantor, conducting or permitting others to conduct
ecological restoration of the existing cranberry bogs as shown in the Baseline Report for the
purposes of enhancing, restoring, or recreating the natural functions and values that the Premises
provided before it was farmed. This includes but is not limited to removal of sand dikes and
berms, regrading, alteration of vegetation, and installation of temporary fencing and signage as
public safety and erosion control measures during active construction. The use and storage of
construction equipment, vehicles, trailers, and portable restrooms on the Premises solely for the
purpose of ecological restoration. With prior written approval of the Grantee, adaptive management, including but not limited to modifications of drainage channels and additional
plantings of native species, to further enhance the initial restoration of the bogs may be conducted
as needed.
K. With the prior written approval of Grantee, the installation of equipment, structures and measures
intended to reduce or remove nutrients and other potential contaminants from the wetland
recharge and watershed area of the Premises.
L. The installation of a tent or open-air pavilion, no more than twice per year, for educational
purposes and gatherings related to the mission of the Grantor, for periods not to exceed three (3)
weeks at a time in the area north of the bogs, so long as all participant parking is confined to
areas south of the bogs.
M. Informal parking in the areas south of the bogs and in the Building Envelope defined below,
including fencing or other demarcations to prevent disturbance of the wetlands by the parking
use.
N. Archaeological investigations, including without limitation archaeological research, surveys,
excavation and artifact retrieval, subject to and 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 and Grantee.
Notwithstanding the foregoing permitted activities, any proposed modifications to the landscape,
including but not limited to the creation of trails, management of vegetation and wetland
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resources, and installation of signage and educational kiosks, shall not be undertaken if they
disturb, remove, damage or destroy archaeological resources or artifacts on the Premises.
O. The right for the Grantor and Grantee to allow access to the Premises to local indigenous groups
for cultural land ceremonial uses that are consistent with the Conservation Values. Cultural
practices are defined, for the purposes of this Restriction, as including traditional spiritual
ceremonies, seasonal celebrations, offerings, and cultural/education/interpretation programs.
With prior written approval of the Grantor persons designated by the Grantor may harvest plant-life using sustainable methods, including regrowth and replanting, for traditional cultural
practices and non-commercial purposes. Harvesting may be conducted using only hand tools and
only in traditionally customary quantities. Harvesting shall not be conducted in areas that have
undergone ecological restoration until more than five (5) years after restoration is completed.
Site Restoration. Upon completion of any Permitted Acts and Uses, all 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.
Compliance with Permits, Regulations, Laws. The exercise of any Permitted Acts and Uses
under Paragraph III 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.
IV. SPECIAL USE AREA.
The Grantor reserves the right to conduct or permit the following activities and uses only within
the area described in Exhibit A as the “Building Envelope” and as shown on the sketch plan
included herein and attached hereto in Exhibit C.1 and Exhibit C.2, in addition to the Permitted
Acts and Uses described in Paragraph III.B, and otherwise subject to this Restriction:
A. Subject to the regulations of the Town of Barnstable and all other applicable laws or regulations, and with prior written approval of the Grantee, the Grantor may use, rebuild, reconstruct, repair,
maintain, replace and expand the one (1) existing dwelling and install and maintain utilities
relevant thereto, including wells and subsurface sewage disposal systems, so long as the
dwelling, whether newly constructed, expanded, or replaced, meet the following dimensional
limitations and other conditions in this Paragraph IV:
a. The footprint of said dwelling, as expanded or relocated, including all attached stairs,
patios, decks, garage aprons, and accessory items shall be located wholly within the
defined Building Envelope.
b. Said dwelling shall not exceed, at any point in time, a cumulative gross floor area, as
defined hereinbelow, of Fifteen Hundred and 00/100 (1500.00) square feet. 1
1 In 2023 the existing dwelling on its poured concrete slab was measured at 32.5 feet by 25 feet square feet, or 812.5
square feet in gross floor area.
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c. Said dwelling may be used as (1) a residence for a caretaker, researcher or other staff
of the Grantor, or allied non-profit conservation organizations, (2) educational and
exhibit space relating to the eco-restoration project of the bogs or other mission-related
work of the Grantor, or (3) as a research space including laboratory work, but in no
event shall the dwelling be leased out commercially.
B. “Gross floor area”, for the purposes of this Restriction, shall be defined as the sum of the gross
horizontal area located on one (1) ground floor only of all buildings on the Premises as measured
from the exterior face of exterior walls, without deduction for hallways, stairs, closets, thickness
of walls, columns or other features, which are capable of being used for human occupancy,
including living, sleeping, cooking, eating, or heated storage purposes. Finished portions of attic,
garage, or other outbuilding space (but not basements) that meet these definitions shall be included in the calculation of total gross floor area.
C. The Grantor agrees to and shall submit to the Grantee in its notice required by Paragraph V.A
sufficient stamped engineered plans and other materials necessary for the Grantee to make an
informed judgment as to compliance of the work with the dimensional limitations and other
applicable limitations of this Restriction.
D. Grantor agrees to remove any former dwelling and its debris from the Premises within six (6)
months of the issuance of the occupancy permit for any new dwelling, so that the effect will be
to maintain no more than one (1) dwelling in the Building Envelope on the Premises.
E. Subject to local permitting authority and other applicable laws and regulations, there is no limit
on the number or size or use of other structures within the Building Envelope, provided, however,
that such structures (other than the one dwelling) shall contain no habitable space, and must
support the scientific or educational mission of the Grantor, or allow for passive enjoyment of
the Premises.
F. Installation of solar panels and associated lines and equipment on any allowed structure in the
Building Envelope, but panels may not be mounted on or elevated above the ground.
G. Grantor may use, maintain and repair any permitted structure within the Building Envelope
without notice to or approval by Grantee, so long as there is no expansion or relocation of
said structure.
H. The use, storage, and parking of vehicles, trailers and boats limited to those of the Grantor
and its agents is permitted within the Building Envelope.
I. The Building Envelope shall not be used for the purpose of calculating the amount of
Grantor’s land or any other person’s land for subdivision, permissible lot or residential units
yield beyond the units described hereinabove, nor shall the Building Envelope be used as off-site open space or nitrogen mitigation credit for development projects.
V. NOTICE AND APPROVAL:
A. Notifying Grantee. Whenever notice to or approval by Grantee is required, Grantor shall notify
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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.
B. 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.
C. 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.
VI. LEGAL REMEDIES OF THE GRANTEE; WAIVER:
A. The rights hereby granted shall include the right to enforce this Restriction by appropriate
legal proceedings including obtaining compensatory, injunctive and other equitable relief
against any violations, including, without limitation, relief requiring restoration of the
Premises to its condition prior to the time of the injury complained of, it being agreed that the
Grantee will have no adequate remedy at law, and shall be in addition to and not in limitation
of any other rights and remedies available to the Grantee for the enforcement of this
Restriction.
B. Notwithstanding the foregoing, the Grantee agrees to provide written notice to Grantor of any
violation of this Restriction and to cooperate for a reasonable period of time, not to exceed sixty
(60) days, to allow Grantor to remedy the violation, prior to resorting to legal or equitable
means in resolving issues concerning alleged violations provided Grantor has ceased objected-
to actions and is making a good faith effort to remedy the violation and Grantee reasonably
determines there is no ongoing diminution of the Conservation Values of the Restriction.
C. The Grantor and its successors and assigns shall each be liable under this section for any such
violations of this Restriction as may exist during their respective periods of ownership of the
Premises. Any new owner may be held responsible for any continuing violations existing
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during his or her period of ownership.
D. By acceptance of this 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. If Grantee prevails in any action to enforce the terms of this Restriction, the Grantor or
Grantor’s heirs, successors and assigns, as the case may be, shall reimburse the Grantee for
reasonable costs and expenses, including reasonable attorney’s fees, incurred in enforcing this
Restriction or in taking reasonable measures to remedy or abate any violation thereof.
F. Enforcement of the terms of this Restriction shall be at the discretion of the Grantee. Any
election or forbearance by the Grantee as to manner and timing of its right to enforce this
Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a
waiver of such rights. 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.
ACCESS;
A. The Restriction hereby grants to the Grantee, and its duly authorized agents or representatives the right
to enter upon the Premises at reasonable times and in a reasonable manner for the following
purposes:
1. to perform a survey of boundary lines;
2. To inspect the Premises to determine compliance within provisions of this Restriction; or
3. for the purpose of taking any and all actions with respect to the Premises, at Grantor's cost,
as may be necessary or appropriate to remedy or abate or enforce any violation hereof
provided that Grantee adheres to Paragraph VI.B. first gives Grantor notice of the
violation, and upon failure of the Grantor to cure the violation within sixty (60) days of
receiving said notice, Grantee then gives Grantor further written notice of its intention to
enter the Premises to take such actions at least fifteen (15) days following the date of such
further written notice. The requirements for providing notice to the Grantor prior to
entering the Premises shall not apply in emergency situations where delayed action may
result in ongoing harm to the Premises.
B. The Restriction hereby conveyed includes the grant of the right to the general public to enter
upon the Premises, and to use the Premises thereon for the purposes set forth in Paragraph III.
D above for daytime use, provided that such agreement by Grantor is subject to the Grantor’s
reserved right to establish reasonable rules, regulations, and restrictions on such permitted
recreational use by the general public for the protection of the Purposes and Conservation
Values. Grantor has the right to control, limit, or prohibit by posting and other reasonable
means activities or uses of the Premises not authorized in Paragraph III.D. The Grantee may
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require the Grantor to post the Premises against any use by the public that results in material
impairment of the Conservation Values. This grant of public access to the Premises is solely
for the purposes described in Section 17C of Chapter 21 of the Massachusetts General Laws
and the Grantor and Grantee hereto express their intent to benefit from exculpation from
liability to the extent provided in such section.
VII. ACTS BEYOND GRANTOR'S CONTROL:
Nothing contained in this Restriction shall be construed to entitle the Grantee to bring any action
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, storm, natural erosion or
from any prudent action taken by the Grantor under emergency conditions to abate, prevent, or
mitigate significant injury to or alteration of the Premises resulting from such natural causes. The
parties to this Restriction agree that in the event of damage to the Premises from acts beyond the
Grantor's control, that if it is desirable that the Premises be restored, the parties will cooperate in
attempting to restore the Premises, if feasible.
VIII. 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.
IX. DURATION, BINDING EFFECT, RELEASE AND RECORDATION:
The burdens of this Restriction shall run with the Premises IN PERPETUITY and shall be
enforceable against the Grantor and the Grantor's successors and assigns holding any interest in
the Premises. The Grantee is authorized to record or file any notices or instruments appropriate
to assuring the perpetual enforceability of this Restriction; the Grantor, on behalf of itself and its
successors and assigns, appoints the Grantee their 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 instrument upon reasonable request.
X. RUNNING of THE BENEFIT ASSIGNMENT:
The benefits of this Restriction shall run to the Grantee, shall be in gross and shall not be
assignable by the Grantee, their successors and assigns, except when all of the following
conditions are met:
A. The assignee, at the time of assignment is a "qualified organization" as defined in Section
170(h)(3) of the Internal Revenue Code of 1986, as amended, including, without limitation, a
government entity, and is eligible to receive this Conservation Restriction under Section 32 of
Chapter 184 of the Massachusetts General Laws;
B. The Grantee requires that the assignee shall hold this Restriction and enforce its terms such
that the Purposes continue to be carried out;
C. The assignee is not an owner of the fee in the Premises;
D. The assignment complies with the provisions required by Article 97 of the amendments to the
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14
Constitution of the Commonwealth of Massachusetts, if applicable;
E. The Grantee shall notify the Grantor in writing at least thirty (30) days before assigning this
Restriction and the Grantor shall have thirty (30) days from the date of such notice to approve
the assignment in writing, which approval shall not be unreasonably withheld. Failure of the
Grantor to respond to the notice of assignment within thirty (30) days shall be deemed
approval thereof.
XI. ESTOPPEL CERTIFICATES:
Upon request by the Grantor, the Grantee shall, within twenty (20) days, execute and deliver to
the Grantor any document, including an estoppel certificate, which certifies the Grantor's
compliance with any obligation of the Grantor contained in this Restriction, and which otherwise
evidences the status of this Restriction as may be requested by the Grantor.
XII. SUBSEQUENT TRANSFERS:
The Grantor agrees to incorporate this Restriction, in full or by reference, in any deed or other
legal instrument by which Grantor conveys or transfers any interest in all or a portion of the
Premises, including, without limitation, a leasehold interest. The Grantor further agrees to notify
the Grantee in writing at least thirty (30) days before conveying or transferring the Premises, or
any part thereof or interest therein, including a leasehold interest. Any transfer shall comply with
Article 97 of the amendments to the Constitution of the Commonwealth of Massachusetts, if
applicable. 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 applicable registry of deeds, or registered in the
applicable land court registry district, and at the Grantor’s expense, a notice of this Conservation
Restriction.
XIII. TERMINATION OF RIGHTS AND OBLIGATIONS:
Notwithstanding anything to the contrary contained herein, the rights and obligations under this
Restriction of any party holding an interest in the Premises, terminate upon transfer of that party's
interest, except that liability for acts or omissions occurring prior to the transfer, and liability for
the transfer itself if the transfer is a violation of this 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.
XIV. AMENDMENT:
If circumstances arise under which an amendment to or modification of this Restriction would be
appropriate, the Grantor and the Grantee may by mutual consent amend this Restriction provided
that no amendment shall be allowed that will affect the qualification of this Conservation
Restriction or the status of Grantee under any applicable laws, including Section 170(h) of the
Internal Revenue Code of 1986, as amended, or Sections 31-33 of Chapter 184 of the General
laws of Massachusetts. Any amendments to this Restriction shall occur only in exceptional
circumstances. The Grantee will consider amendments only to correct an error or oversight, to
clarify an ambiguity, or where there is a net gain in conservation values. All expenses of all parties
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in considering and/or implementing an amendment shall be borne by the persons or entity seeking
the amendment. Any amendment shall be consistent with the purposes of this Restriction, shall
not affect its perpetual duration, shall be approved by the Town of Barnstable and, the Secretary
of Energy and Environmental Affairs and if applicable, shall comply with the provisions of
Article 97 of the Amendments to the Massachusetts Constitution, and any gifts, grants or funding
requirements. Any amendment shall be recorded in the Barnstable County Registry of Deeds.
XV. EXTINGUISHMENT:
A. If circumstances arise in the future such as render the purpose of this Conservation Restriction
impossible to accomplish, this restriction can only be terminated, or released or extinguished,
whether in whole or in part, by a court of competent jurisdiction under applicable law after
review and approval by the Massachusetts Secretary of Energy and Environmental Affairs. If
any change in conditions ever gives rise to termination, release, or extinguishment of the
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 XV.B, 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. Grantee shall use its share of the proceeds in a manner
consistent with the Purpose and protection of the Conservation Values set forth herein.
B. Proceeds. 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 equal to five percent (5%) of the fair market value of the unrestricted Premises. Such
proportionate value of the Grantee’s property right shall remain constant. Any proceeds
resulting from an extinguishment or other release of this Restriction will be distributed only
after complying with the terms of any gift, grant, or other funding requirements.
C. Grantor/Grantee Cooperation Regarding Public Action. Whenever all or 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 Grantee shall cooperate in recovering full value
or all direct and consequential damages resulting from such action.
All related expenses incurred by the Grantor and Grantee under this section shall first be paid
out of any recovered proceeds, and the remaining proceeds shall be distributed between the
Grantor and Grantee in accordance with Article XV.B., after complying with the terms of any
law, gift, grant, or funding requirements. 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 the proceeds like a continuing trust in a manner consistent with the Purposes or the
protection of Conservation Values .
XVI. NONMERGER:
Grantee agrees that it will not take title to any part of the Premises without having first assigned
this Restriction, pursuant to Article X, to a non-fee holder to ensure that merger does not occur
and that this Restriction continues to be enforceable by a non-fee owner.
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XVII. SEVERABILITY:
If any court of competent jurisdiction shall hold that any section or provision of this Restriction
is unenforceable, the remainder of this Restriction shall not be affected.
XVIII. MISCELLANEOUS PROVISIONS:
A. Controlling Law: The interpretation and performance of this 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
Restriction shall be liberally construed in favor of the grant to affect the purposes of this
Restriction and the policies and purposes of Sections 31- 33 of Chapter 184 of the
Massachusetts General Laws. If any provision in this instrument is found to be ambiguous, an
interpretation consistent with the purposes of this Restriction that would render the provision
valid shall be favored over any interpretation that would render it invalid.
C. Entire Agreement: This instrument sets forth the entire agreement of the parties with respect
to the Restriction and supersedes all prior discussions, negotiations, understandings, or
agreements related to the Restriction, all of which are merged herein.
D. Pre-existing Public Rights. Approval of this Restriction pursuant to Section 32 of Chapter 184
of the Massachusetts General Laws by any municipal officials and by the Secretary of Energy
and Environmental Affairs 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.
E. 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: Three Bays Preservation Inc.
dba Barnstable Clean Water Coalition
P.O. Box 215
Osterville MA 02655
To Grantee: Barnstable Land Trust, Inc.
1540 Main Street
West Barnstable, MA 02668
or to such other address as any of the above parties shall designate from time to time by written
notice to the other or, if notice is returned to sender, to an address that is reasonably ascertainable
by the parties.
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XIX. EFFECTIVE DATE:
This Restriction shall be recorded in a timely manner. Grantor and Grantee intend that the
restrictions arising hereunder take effect on the day and year this Restriction is signed by the Grantor
and Grantee and recorded in the official records of the Barnstable County Registry of Deeds, after
all signatures required by Massachusetts General Law, Chapter 184, Section 32 have been affixed
hereto.
XX. SUBORDINATION:
The Grantor shall record at the applicable registry of deeds or shall register in the applicable land
court registry district 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.
The captions in this instrument have been inserted solely for convenience of reference and are not a
part of this instrument and shall have no effect upon construction of interpretation.
[the remainder of this page left intentionally blank]
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Included herein are the following: Signature pages:
Grantor – Three Bays Preservation, Inc.
Grantee Acceptance – Barnstable Land Trust, Inc.
Approval by Barnstable Town Council
Approval by Barnstable Town Manager
Approval of the Secretary of Energy and Environmental Affairs.
Attached hereto and incorporated are the following:
Exhibits:
Exhibit A: Legal Description of Premises
Exhibit B: Recorded Plans of Premises
Exhibit C.1, C.2: Sketch of Building Envelope
Exhibit D: Town Council Vote
[the remainder of this page left intentionally blank]
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WITNESS our hands and seals this day of , 2023,
THREE BAYS PRESERVTION, INC.
BY:
________________________________
Michael Egan, President Laureen Pfizenmaier, Treasurer
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2023, before me, the undersigned notary
public, personally appeared, Michael Egan, President and Laureen Pfizenmaier, Treasurer, and
proved to me through satisfactory evidence of identification which was
___________________________ to be the persons whose names are signed on the proceeding or
attached document, and acknowledged to me that they signed it voluntarily for its stated purpose,
on behalf of the corporation.
Notary Public
My Commission Expires:
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ACCEPTANCE OF GRANT
This Conservation Restriction from Three Bays Preservation Inc. was accepted by the Barnstable
Land Trust, Inc. this day of , 2023.
By: _
Leigh Townes
Its: President, duly authorized
By: _
Jill McCleary
Its: Treasurer, duly authorized
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2023, before me, the undersigned notary
public, personally appeared, Leigh Townes, President, and Jill McCleary, Treasurer, of the
Barnstable Land Trust, Inc., and proved to me through satisfactory evidence of identification which
was personal knowledge to be the persons whose names are signed on the proceeding or attached
document, and acknowledged to me that they signed it voluntarily for its stated purpose on behalf
of the corporation.
Mark H. Robinson, Notary Public
My Commission Expires: 8 July 2027
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APPROVAL OF TOWN COUNCIL
The undersigned, President of the Town Council of the Town of Barnstable, hereby
certifies that at a public meeting duly held on , 2023, the Council
voted to approve the foregoing Conservation Restriction from Three Bays Preservation, Inc. to the
Barnstable Land Trust, Inc. in the public interest pursuant to Section 32 of Chapter 184 of the
General Laws of Massachusetts.
TOWN COUNCIL:
Matthew P. Levesque, President
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2023, before me, the undersigned notary
public, personally appeared Matthew P. Levesque, President, Barnstable Town Council, and proved
to me through satisfactory evidence of identification which was _______________________
to be the person whose name is signed on the proceeding or attached document, and acknowledged
to me that he signed it voluntarily for its stated purpose.
Notary Public
My Commission Expires:
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APPROVAL OF TOWN MANAGER
I, the undersigned, Town Manager of the Town of Barnstable, hereby certify that I approve
the foregoing Conservation Restriction from Three Bays Preservation, Inc. to the Barnstable Land
Trust, Inc. in the public interest pursuant to Section 32 of Chapter 184 of the General Laws of
Massachusetts.
TOWN MANAGER:
Mark S. Ells
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2023, before me, the undersigned notary public, personally appeared Mark S. Ells, Barnstable Town Manager, and proved to me through satisfactory evidence of identification which was ___________ to be the person whose name is signed on the proceeding or attached document, and acknowledged to me that he signed it voluntarily for its stated purpose.
Notary Public
My Commission Expires:
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APPROVAL BY SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Executive Office of Energy and Environmental Affairs of
the Commonwealth of Massachusetts, hereby certifies that the foregoing Conservation Restriction
from Three Bays Preservation, Inc. to the Barnstable Land Trust, Inc. has been approved in the
public interest pursuant to Massachusetts General Laws, Chapter 184, Section 32.
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
Legal Description of Premises
The Premises subject to this Conservation Restriction is the entirety of three (3) parcels of land
and buildings located in the Town of Barnstable in the County of Barnstable, Commonwealth of
Massachusetts, containing a total of 17.17+ acres, more or less. See also sketches of boundaries,
collectively attached herein as Exhibit B.
The Premises is more particularly bounded and described as follows:
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Within said Premises described hereinabove, there is a Special Use Area, (so-called, “Building
Envelope”), reserved for residential and other uses as described in Paragraph IV hereinabove and
depicted on the sketch plan attached hereto as Exhibit C.1 and C.2. The Building Envelope is
included in and not excluded from the Premises.
The Building Envelope is more particularly bounded and described as follows:
BEGINNING at a concrete bound marked “H” in the northwest corner of Lot 1 as shown on
a plan of land entitled, “Plan of Land, Bog Road – Barnstable, Mass., Owned and Prepared for
Helen Petrovits, 15 Bog Road, Marstons Mills, MA Scale: 1” = 40’, Date: July 14, 1989, The BSC
Group- Norwell, Inc., 293 Washington Street, P.O. Box 185, Norwell MA 02061,” and recorded
with the Barnstable County Registry of Deeds in Plan Book 461 Page 99; thence running,
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WESTERLY along a line bearing S 82° 28’ 06” E a distance of Eighty and 00/100 (80.00’)
feet to a point; thence turning and running
NORTHERLY along a line perpendicular to the aforesaid line bearing S 82° 28’ 06” E, a
distance of Sixty-three and 00/100 (63.00’) feet, to a point; thence turning and running
EASTERLY along a line perpendicular to the line referenced immediately above, a
distance of Two Hundred Forty-two and 02/100 (242.02’) feet to a point; thence turning and
running
SOUTHERLY along a line perpendicular to the line referenced immediately above, a distance
of Sixty-three and 00/100 (63.00’) feet to a concrete bound; thence turning and running
WESTERLY along a line bearing S 82° 28’ 06” E a distance of One Hundred Sixty-two and
02/100 (162.02’) feet, more or less, to the point of beginning.
Said Building Envelope being shown on a sketch entitled, “SKETCH OF EXCERPT OF PLAN
BOOK 461 PAGE 99 showing Building Envelope within Conservation Restriction Premises at
#948 River Road, (Marstons Mills) Barnstable MA, prepared for Three Bays Preservation, Inc.,
dba Barnstable Clean Water Coalition, by M. H. Robinson, 23 April 2023; scale as noted,”
attached hereto as Exhibit C.
For title see deed dated June 29, 2023 in Deeds Book 35866, Page 176 recorded in the Barnstable
County Registry of Deeds.
Street addresses: 0, 946 & 948 River Road (Marstons Mills), Barnstable MA
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EXHIBIT B.1
Locus Sketch of Premises (Barnstable Assessors’ GIS Map, 2023)
Existing
dwelling
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EXHIBIT B.2
Reduced Copy of Plan of Premises
Plan Book 242 Page 145
Existing
dwelling
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EXHIBIT B.3
Reduced Copy of Plan of Premises
Plan Book 433 Page 59
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EXHIBIT C.1
Sketch of Building Envelope within Premises
SKETCH OF EXCERPT OF PLAN BOOK 461 PAGE 99 showing Building Envelope within
Conservation Restriction Premises at #948 River Road, (Marstons Mills) Barnstable MA,
prepared for Three Bays Preservation, Inc., dba Barnstable Clean Water Coalition, by
M. H. Robinson, 23 April 2023; scale as noted; see detail in Exhibit C.2
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Marstons Mills River Headwaters – I Conservation Restriction Barnstable, MA
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EXHIBIT C.2
Sketch of Building Envelope Detail within Premises
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EXHIBIT D.
Town Council Vote
(to be added)