HomeMy WebLinkAboutCR 17302 - Barnstable Approved for Local Signatures 8.8.23Marstons Mills River Headwaters –II (ex-E. Hamblin) 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: 110 Bog Road, (Village of Marstons Mills), Barnstable,
MA
GRANTOR’S TITLE: Barnstable County Registry of Deeds, Book 35867, Page 72
Barnstable County Registry of Deeds, Plan Book 700, Page 81-85
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”),
on a parcel of land containing 46.92 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 in the sketch 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 maintained in perpetuity in its natural, scenic and open condition; to protect and promote the
conservation 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 Conservation Values or Purposes of the abutting conservation areas; to ensure
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permanent protection of the aquatic resources and upland buffers on the Premises, and to allow and
maintain public access for passive outdoor recreation and education 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 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 ([Barnstable Clean
Water Coalition and others) 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) Designated Zone II, which is associated with 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
were 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. 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
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freshwater habitat and improving the water quality in the headwater stream will enhance the value
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 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 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.
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”
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.
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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 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, such as 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).
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
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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”) 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 or allowing to remain any building, residential dwelling, mobile home,
tennis court, ball fields, swimming pool, artificial water impoundment, billboard, or other
advertising display, landing strip or pad, 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 vehicle or parts, soil,
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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, 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 proven nuisance 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., protect a 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 by means of motorized wheelchairs or other mobility assistance devices;
E. With prior approval of the Grantee, construction and maintenance of trails, bridges, boardwalks,
blinds, kiosks, observation decks and other related structures needed to facilitate the approved
public uses;
F. 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;
G. 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;
H. 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
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of mobility assistance devices by persons with mobility impairments, the use of motorized vehicles
shall be limited to the roads, driveway and cartpaths on the Premises, now or in the future.
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 motorized mobility assistance devices by persons with mobility impairments;
I. The maintenance, use and improvement for safe vehicular passage, proper drainage, and fire
control of: (i) the existing driveway serving the Premises from Bog Road; and (ii) the existing bog perimeter cartpaths as shown in the Baseline Report
J. With prior approval by Grantee, active measures to prevent unauthorized vehicle entry and
dumping;
K. 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;
L. The use and storage of construction equipment, including vehicles, trailers, and portable restrooms,
on the Premises solely for the purpose of ecological restoration.
M. 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;
N. 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;
O. Informal parking related to allowed public uses and Grantor’s mission within 150 feet of Bog Road
alongside the Premises, including fencing or other demarcations to prevent disturbance of the
wetlands by parking use;
P. With the prior written approval of Grantee, the installation of equipment, structures and measures intended to recreate an anadromous fish run from the Marstons Mills River to Middle Pond;
Q. 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 resources,
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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; and
R. The right for the Grantor 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 the written approval
ofGrantor, persons designated by 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
deemed sustainable in the sole judgment of the Grantor. Harvesting shall not be conducted in areas
that have undergone ecological restoration until more than five (5) years after restoration is
completed.
S. 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.
T. Compliance with Permits, Regulations, Laws. The exercise of any Permitted Acts and Uses
or Reserved Rights shall be in compliance with all applicable federal, state and local laws, rules,
regulations, and permits, including zoning, 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. NOTICE AND APPROVAL:
A. 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
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
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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.
V. 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 this 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 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 Restriction, Grantor shall pay for a
survey by a Massachusetts licensed professional land surveyor and to have the boundaries
permanently marked.
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VI. 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 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 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
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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 the 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
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
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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
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, 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
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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 the 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.
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
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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
864 Main Street
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.
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 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.
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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: Reduced size copy of Recorded Plan of the Premises
Exhibit C. 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
That certain parcel of land located east of Bog Road in Barnstable (Marstons Mills), Barnstable
County, Massachusetts, more particularly bounded and described as follows:
That certain parcel of land, containing 46.92 acres, more or less, being all of the land shown as
“Lot B” on a plan of land entitled, “Hamblin Bogs, 110 Bog Road, Barnstable (Marstons Mills),
Massachuetts, Map 45 Lot 17-1” (sheets 1-5) , prepared for Barnstable Clean Water Coalition,
864 Main Street, Osterville MA, Scale: 1” = 120’, Date: June 12, 2023 and recorded in the
Barnstable County Registry of Deeds in Plan Book 700 Page 81 - 85.
A reduced copy of said plan is attached hereto as Exhibit B.
For title see deed dated ____________ 2023 in Deeds Book 35867, Page 72.
Street address: 110 Bog Road (Marstons Mills), Barnstable MA
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EXHIBIT B. Reduced Copy of Recorded Plan of Premises
PLAN BOOK 700 PAGES 81 - 85
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EXHIBIT C.
Town Council Vote
(to be added)