HomeMy WebLinkAboutWheeler Holly Preserve Draft Conservation Restriction Lot 1 KCC Edits 10.03.20231
Wheeler Holly Preserve Conservation Restriction Lot 1, Barnstable MA
GRANTOR: Barnstable Land Trust, Inc.
GRANTEE: The Compact of Cape Cod Conservation Trusts, Inc.
ADDRESS OF PREMISES: 178 Wheeler Road, Barnstable, Massachusetts
FOR GRANTOR’S TITLE SEE: Barnstable County Registry of Deeds at Book _____, Page _____.
FOR GRANTOR’S PLAN SEE: Barnstable County Registry of Deeds at Plan Book _____, Page
_____.
GRANT OF CONSERVATION RESTRICTION
I. STATEMENT OF GRANT
BARNSTABLE LAND TRUST, INC. (Federal ID #22-2483963), a Massachusetts charitable
corporation with an office at 1540 Main Street, Barnstable, Barnstable County, Massachusetts 02668,
being the sole owner of the Premises as defined herein, for its successors and assigns (“Grantor”),
acting pursuant to Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws, grant,
with QUITCLAIM COVENANTS, to THE COMPACT OF CAPE COD CONSERVATION
TRUSTS, INC., a Massachusetts charitable corporation with an office address at 36 Red Top Road,
Brewster, MA 02631 and a mailing address of P.O. Box 443, Barnstable, MA 02630, its permitted
successors and assigns (“Grantee”), for nominal consideration, IN PERPETUITY AND
EXCLUSIVELY FOR CONSERVATION PURPOSES, the following Conservation Restriction on
land located in the Town of Barnstable, Barnstable County, Commonwealth of Massachusetts
containing the entirety of a 2.3-acre parcel of land (“Premises”), which Premises is more particularly
described in Exhibit A and shown in the attached reduced copy of a survey plan in Exhibit B, both of
which are incorporated herein and attached hereto.
II. PURPOSES:
This Conservation Restriction is defined in and authorized by Sections 31, 32, and 33 of Chapter 184
of the Massachusetts General Laws and otherwise by law. The purposes of this Conservation
Restriction (“Purposes”) are to ensure that the Premises will be maintained in perpetuity in its natural,
scenic, or open condition and available for passive outdoor recreational use, and to prevent any use
or change that would materially impair the Conservation Values (as defined below).
Property Address: 178 Wheeler Road, Barnstable, MA 02648
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Wheeler Holly Preserve Conservation Restriction Lot 1, Barnstable MA
Conservation Partnership. The fee interest in the Premises was acquired utilizing, in part, assistance
from the Conservation Partnership program which requires, pursuant to Section 2A of Chapter 286
of the Acts of 2014, the conveyance of this Conservation Restriction.
The Conservation Values protected by this Conservation Restriction include the following :
Open Space. The Premises contributes to the protection of the scenic and natural character of
The Town of Barnstable and the protection of the Premises will enhance the open-space value
of these and nearby lands. The Premises is part of a larger 9.5-acre project to conserve the
“Wheeler Holly Preserve” in perpetuity. An additional 5.5 acres of the Wheeler Holly
Preserve is held in fee ownership by BLT with a conservation restriction held by the Town of
Barnstable. The Wheeler Holly Preserve abuts the 22+-acre Fuller Farm Conservation Area
also owned by BLT, and is in close proximity to the 23-acre William and Hilma Danforth
Recreation Area owned by the Town of Barnstable .
Soils and Soil Health. The Premises includes 1 acre± of Farmland Soils of Statewide
Importance, and the entire Premises is designated Prime Forest Land as identified by the
USDA Natural Resources Conservation Service at MassGIS MassMapper. The protection of
the Premises will promote healthy soils and healthy soils practices as such terms are defined
in Chapter 358 of the Acts of 2020, which added definitions of these terms to Section 7A of
Chapter 128 of the Massachusetts General Laws.
Wildlife Habitat. The Premises includes 0.7± acres designated by the MA Division of
Fisheries and Wildlife acting by and through its Natural Heritage and Endangered Species
Program (NHESP) as “Priority Habitats of Rare and Endangered Species”, including two
mussel species of special concern and one vascular plant species of special concern, the
protection of which aligns with NHESP’s wildlife and habitat protection objectives.
Public Access. Public access to the Premises will be allowed for passive outdoor recreation,
education, and nature study. Protection of the Premises will create and permanently conserve
a public walking trail that will connect to the existing 1-mile trail loop at Fuller Farm.
Biodiversity. The Premises includes areas designated as Core Habitat and Critical Natural
Landscape, as defined by the Massachusetts Natural Heritage and Endangered Species
Program, including 2± acres designated as Aquatic Core Habitat, 0.7± acres designated as
Rare Species Core Habitat, and 0.2± acres designated as Aquatic Core Buffer. BioMap,
published in 2010, and updated in 2022 was designed to guide strategic biodiversity
conservation in Massachusetts over the next decade by focusing land protection and
stewardship on the areas that are most critical for ensuring the long-term persistence of rare
and other native species and their habitats, exemplary natural communities, and a diversity of
ecosystems. BioMap is also designed to include the habitats and species of conservation
concern identified in the State Wildlife Action Plan.
Water Quality. Groundwater beneath the Premises and all of the surface water on the slopes
of the Premises flow south to Middle Pond and impact the water quality of the pond. Middle
Pond is a Great Pond with a Town beach at its southern end and is a spawning area for rare
mussels and anadromous fish, so its quality is important for habitat and public health. This
area of Barnstable will likely remain on septic systems for the rest of this century, owing to
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relatively less population density, so protecting the Premises from additional septic system
inputs is important for the water quality of the pond.
Wetlands. The pond shoreline and shrub swamp wetlands on the Premises provide valuable
habitat for a diverse array of wildlife species as well as provide the many other public benefits
of wetlands protection recognized by the Commonwealth of Massachusetts (Section 40 of
Chapter 131 of the Massachusetts General Laws).
Climate Change Resiliency. The Premises is identified as an area of average Terrestrial
Resilience according to The Nature Conservancy’s (TNC) Resilient Land Mapping Tool,
including average Landscape Diversity. TNC’s Resilient Land Mapping Tool was developed
in order to map ‘climate-resilient’ sites that are ‘more likely to sustain native plants, animals,
and natural processes into the future.’ The protection of these climate resilient sites is an
important step in both reducing human and ecosystem vulnerability to climate change and
adapting to changing conditions.
Consistency with Clearly Delineated Barnstable County Conservation Policy. Protection of
the Premises will assist in achieving Barnstable County conservation goals. In July 1991, the
Barnstable County Assembly of Delegates, pursuant to the Cape Cod Commission Act
(Chapter 716 of the Acts of 1989), adopted a Regional Policy Plan (RPP), amended in 1996,
2002, 2009, 2012, and 2018, which provided, inter alia (references are to the 2018 RPP,
amended in 2021 to accommodate climate change goals and objectives):
o “To protect, preserve, or restore the quality and natural values and functions of inland
and coastal wetlands and their buffers.” (Wetland Resources Goal, p. 55).
o “To protect, preserve, or restore wildlife and plant habitat to maintain the region’s
natural diversity” (Wildlife and Plant Habitat Goal, p. 55).
o In reference to this Wildlife and Plant Habitat Goal, the RPP states, “For many years
habitat loss due to development has been the primary threat to the region’s habitats”
(p. 32); and
o “To conserve, preserve, or enhance a network of open space that contributes to the
region’s natural community resources and systems” (Open Space Goal, p. 55). In
reference to this Open Space Goal, the RPP states, “[t]he open space of the Cape is
critical to the health of the region’s natural systems, economy, and population. Open
space provides habitat for the region’s diverse species and protection of the region’s
drinking water supply” (p. 30).
Granting this Conservation Restriction will advance each of these goals outlined in the RPP.
The Wetlands Goal will be addressed in protecting the quality of Middle Pond pondshore
wetland resources and their upland buffer zone. The Wildlife and Plant Habitat Goal will be
served because the Premises contains a host of important plant and wildlife species and falls
within an NHESP BioMap Core Habitat and Critical Natural Landscape area. The Open Space
Goal will be advanced because the Premises abuts several acres of existing conservation land.
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
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throughout the Town which protect and enhance its visual heritage.” Additional objectives
include (references are to the 2018 Plan):
1) "Preservation of open space for protection of drinking water resources, and for
protection of other natural, historic and scenic resources is a community-wide priority;
and;
2) Protection of open space should continue to be an integral component of the Town's
efforts." (p. 6)
To achieve this vision, the Plan sets several goals for the town including:
1) "To protect and maintain the maximum amount of open space to enhance
environmental protection, recreational opportunities, and community character, and;
2) “Plan, coordinate and execute open space protection measures that complement
community efforts to protect water supply, protect fresh and marine surface waters,
[and] preserve historic, scenic and cultural resources..." (pp. 10-11).
Additionally, the Barnstable Town Council’s Strategic Plan for fiscal year 2015 identified the
goal to preserve and protect significant natural and historic resources for visual quality,
outdoor recreation, wildlife habitat, and cultural history.
Moreover, in 1981, the Town of Barnstable adopted a Conservation Restriction Program
consisting of policies and guidelines, in particular an Open Space Policy, approved by the
Board of Selectmen, Assessors, and Conservation Commission, which encourages the use of
conservation restrictions in perpetuity to protect natural resources in accordance with the
purposes of the Open Space and Recreation Plan, and which further specified that purposes
of a conservation restriction could include the following:
o preserve scenic view;
o preserve open space;
o preserve important natural habitats of fish, wildlife or plants; and,
o limit or prevent construction on land of natural resource value.
The Town of Barnstable promotes the Cape Cod Pathways program intended to create a series
of looped and through-routes in the town and beyond for public walking and scenic enjoyment.
The Premises connects to existing public walking trails at the abutting Fuller Farm
conservation land.
Consistency with Clearly Delineated State Conservation Policy. The Premises possesses
significant open space, natural, aesthetic, ecological, plant and wildlife habitat, solid and water
resource quality, watershed, and scenic values (collectively “conservation values”) of great
importance to the Grantees and the people of Barnstable and the Commonwealth of
Massachusetts, including the advancement of the following goals of the State’s 2017
Statewide Comprehensive Outdoor Recreation Plan (SCORP):
o 2.1) Support the acquisition of land and development of new open spaces that can
provide a trail network;
o 2.2) Fill in the gaps in existing trail networks;
o
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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: reserve the land for education regarding the natural world;
protect wildlife habitats; and it would contribute to the preservation of open space because it
is proximate to several other parcels already conserved.
III. PROHIBITED and PERMITTED ACTS AND USES
A. Prohibited Acts and Uses
The Grantor will not perform or allow others to perform the following acts and uses which are
prohibited on, above, and below the Premises:
1. Structures and Improvements. Constructing, placing, or allowing to remain any temporary
or permanent structure including without limitation any building, tennis court, landing
strip, mobile home, swimming pool, asphalt or concrete pavement, graveled area, roads,
sign, fence, gate, billboard or other advertising, antenna, utilities or other structures, utility
pole, tower, wind turbine, solar panel, solar array, conduit, line, septic or wastewater
disposal system, storage tank, or dam;
2. Extractive Activities/Uses. Mining, excavating, dredging, withdrawing, or removing soil,
loam, peat, gravel, sand, rock, surface water, ground water, or other mineral substance or
natural deposit, or otherwise altering the topography of the Premises;
3. Disposal/Storage. Placing, filling, storing or dumping of soil, refuse, trash, vehicle bodies
or parts, rubbish, debris, junk, tree and other vegetation cuttings, liquid or solid waste or
other substance or material whatsoever;
4. Adverse Impacts to Vegetation. Cutting, removing, or destroying trees, shrubs, grasses or
other vegetation;
5. Adverse Impacts to Water, Soil, and Other Features. Activities detrimental to drainage,
flood control, water conservation, water quality, erosion control, soil conservation, natural
habitat, archaeological conservation, or ecosystem function;
6. Introduction of Invasive Species. Planting or introducing any species identified as invasive
by the Massachusetts Invasive Plant Advisory Group or identified as invasive in such
recognized inventories as the Massachusetts Introduced Pests Outreach Project, the
Northeast Aquatic Nuisance Species Panel, or other such inventories, and any successor
list as mutually agreed to by Grantor and Grantee;
7. Non-Native Species. Introduction of species of animals or plants that are not native to
Barnstable County, as defined by current published lists of native species, including The
Vascular Plants of Massachusetts: A County Checklist, by Bruce A. Sorrie and Paul
Somers, published by the Massachusetts Division of Fisheries and Wildlife Natural
Heritage & Endangered Species Program (1999) or as amended or contained in a similar
professionally acceptable publication available in the future;
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8. Hunting. Using the Premises for hunting;
9. Motor Vehicles. Using, parking, or storing motorized vehicles, including motorcycles,
mopeds, all-terrain vehicles, off-highway vehicles, motorboats or other motorized
watercraft, snowmobiles, launching or landing aircraft, or any other motorized vehicles,
acknowledging that vehicles necessary for public safety (i.e., fire, police, ambulance, other
government officials) may have a legal right to enter the Premises;
10. Subdivision. Subdividing or conveying a part or portion of the Premises (as compared to
conveyance of the Premises in its entirety which shall be permitted), it being the Grantor’s
and Grantee’s intention to maintain the entire Premises under unified ownership;
11. Use of Premises for Developing Other Land. Using the Premises towards building or
development requirements on this or any other parcel;
12. Adverse Impacts to Stone Walls, Boundary Markers. Disrupting, removing, or destroying
stone walls, granite fence posts, or any other boundary markers;
13. Residential or Industrial Uses. Using the Premises for residential or industrial purposes;
14. Inconsistent Uses. Using the Premises for commercial purposes that are inconsistent with
the Purposes or that would materially impair the Conservation Values, or for any other
uses or activities that are inconsistent with the Purposes or that would materially impair
the Conservation Values.
B. Permitted Acts and Uses
Notwithstanding the Prohibited Acts and Uses described in Paragraph III.A., the Grantor may
conduct or permit the following acts and uses on the Premises, provided they do not materially
impair the Purposes and/or Conservation Values. In conducting any Permitted Act and Use,
Grantor shall minimize impacts to the Conservation Values to ensure any such impairment
thereto is not material.
1. Vegetation Management. Maintaining vegetation, including pruning, trimming, cutting,
and mowing, and removing brush, all to prevent, control, and manage hazards, disease,
insect or fire damage, and/or in order to maintain the condition of the Premises as
documented in the Baseline Report (see Paragraph XV.);
2. Non-native, Nuisance, or Invasive species. Removing non-native, nuisance, or invasive
species, interplanting native species, and controlling species in a manner that minimizes
damage to surrounding, non-target species and preserves water quality;
3. Composting. Stockpiling and composting stumps, trees, brush, limbs, and similar
biodegradable materials originating on the Premises, provided that no stockpiling occur
within 100 feet of Middle Pond and any wetlands;
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4. Natural Habitat and Ecosystem Improvement. With prior written approval of the Grantees,
conducting measures designed to restore native biotic communities, or to maintain,
enhance or restore wildlife, wildlife habitat, ecosystem function, or rare or endangered
species including planting native trees, shrubs, and other vegetation;
5. Archaeological Investigations. Conducting archaeological activities, including without
limitation archaeological research, surveys, excavation and artifact retrieval, but only in
accordance with an archaeological field investigation plan, which plan shall also address
restoration following completion of the archaeological investigation, prepared by or on
behalf of the Grantor and approved in advance of such activity, in writing, by the
Massachusetts Historical Commission State Archaeologist (or appropriate successor
official) and by the Grantee. A copy of the results of any such investigation on the
Premises is to be provided to the Grantee;
6. Trails. Maintaining and constructing trails as follows:
a. Trail Maintenance. Conducting routine maintenance of trails, which may include
widening trail corridors up to eight (8) feet in width overall, with a treadway up to
five (5) feet in width.
b. New Trails. With prior written approval of the Grantees, constructing new trails or
relocating existing trails, provided that any construction or relocation results in
trails that conform with the width limitations above.
c. Trail Features. With prior written approval of the Grantees, constructing bog
bridging, boardwalks, footbridges, railings, steps, culverts, benching, cribbing,
contouring, or other such features, together with the use of motorized equipment
to construct such features;
7. Signs. Constructing, installing, maintaining, and replacing signs and informational kiosks
with respect to the Permitted Acts and Uses, the Purposes, the Conservation Values,
trespass, public access, identity and address of the Grantor, sale of the Premises, the
Grantee's interest in the Premises, boundary and trail markings, any gift, grant, or other
applicable source of support for the conservation of the Premises;
8. Motorized Vehicles. Using motorized vehicles by persons with mobility impairments, for
land stewardship, and as otherwise permitted herein.
9. Outdoor Passive Recreational and Educational Activities. Hiking, horseback riding, cross-
country skiing, snowshoeing, nature observation, nature and educational walks and
outings, outdoor educational activities, and other non-motorized outdoor recreational and
educational activities;
10. Other. Such other non-prohibited activities or uses of the Premises may be permitted with
the prior approval of the Grantee provided that the Grantee has made a finding, such
finding to be documented in writing and kept on file at the offices of the Grantee, that
such activities are consistent with the Permitted Acts and Uses, do not impair the
conservation values and purposes of this Conservation Restriction, and, where feasible,
result in a net gain in conservation value of the Premises.
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C. Site Restoration
Upon completion of any Permitted Acts and Uses, any disturbed areas shall be restored substantially
to the conditions that existed prior to said activities, including with respect to soil material, grade, and
vegetated ground cover.
D. Compliance with Permits, Regulations, Laws
The exercise of any Permitted Acts and Uses under Paragraph III.B. shall be in compliance with all
applicable federal, state and local laws, rules, regulations, zoning, and permits, and with the
Constitution of the Commonwealth of Massachusetts. The inclusion of any Reserved Right requiring
a permit, license or other approval from a public agency does not imply that the Grantee or the
Commonwealth takes any position whether such permit, license, or other approval should be issued.
E. Notice and Approval
1. Notifying Grantee. Whenever notice to or approval by Grantee is required, Grantor shall
notify or request approval from Grantee, by a method requiring proof of receipt, in writing
not less than sixty (60) days prior to the date Grantor intends to undertake the activity in
question, unless a different time period is specified herein. The notice shall:
a. Describe the nature, scope, design, location, timetable and any other material
aspect of the proposed activity;
b. Describe how the proposed activity complies with the terms and conditions of this
Conservation Restriction, and will not materially impair the Purposes and/or
Conservation Values;
c. Identify all permits, licenses, or approvals required for the proposed activity, and
the status of any such permits, licenses, or approvals.
d. Describe any other material aspect of the proposed activity in sufficient detail to
permit the Grantee to make an informed judgment as to its consistency with the
Purposes and Conservation Values.
2. Grantee Review. Where Grantee’s approval is required, Grantee shall grant or withhold
approval in writing within sixty (60) days of receipt of Grantor’s request. Grantee’s
approval shall only be granted upon a showing that the proposed activity will minimize
impacts to the Conservation Values and will not materially impair the Purposes and/or
Conservation Values. Grantee may require Grantor to secure expert review and evaluation
of a proposed activity by a mutually agreed upon party.
3. Resubmittal. Grantee’s failure to respond within sixty (60) days of receipt shall not
constitute approval of the request. Grantor may subsequently submit the same or a similar
request for approval.
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IV. INSPECTION AND ENFORCEMENT
A. Entry onto the Premises
The Grantor hereby grants to the Grantee, and its duly authorized agents or representatives, the right
to enter the Premises upon reasonable notice and at reasonable times, for the purpose of inspecting
the Premises to determine compliance with or to enforce this Conservation Restriction.
B. Legal and Injunctive Relief
1. Enforcement. The rights hereby granted shall include the right to enforce this
Conservation Restriction by appropriate legal proceedings and to obtain compensatory
relief, including without limitation, compensation for interim losses (i.e., ecological and
public use service losses that occur from the date of the violation until the date of
restoration) and equitable relief against any violations, including, without limitation,
injunctive relief and relief requiring restoration of the Premises to its condition prior to the
time of the injury (it being agreed that the Grantee will have no adequate remedy at law
in case of an injunction). The rights hereby granted shall be in addition to, and not in
limitation of, any other rights and remedies available to the Grantee for the enforcement
of this Conservation Restriction.
2. Notice and Cure. In the event the Grantee determines that a violation of this Conservation
Restriction has occurred and intends to exercise any of the rights described herein, the
Grantee shall, before exercising any such rights, notify the Grantor in writing of the
violation. The Grantor shall have thirty (30) days from receipt of the written notice to halt
the violation and remedy any damage caused by it, after which time Grantee may take
further action, including instituting legal proceedings and entering the Premises to take
reasonable measures to remedy, abate or correct such violation, without further notice.
Provided, however, that this requirement of deferment of action for thirty (30) days applies
only if Grantor immediately ceases the violation and Grantee determines that there is no
ongoing violation. In instances where a violation may also constitute a violation of local,
state, or federal law, the Grantee may notify the proper authorities of such violation.
3. Reimbursement of Costs and Expenses of Enforcement. Grantor covenants and agrees to
reimburse to Grantee all reasonable costs and expenses (including counsel fees) incurred
by the Grantee in enforcing this Conservation Restriction or in taking reasonable measures
to remedy, abate or correct any violation thereof. In the event of a dispute over the
boundaries of the Conservation Restriction, Grantor shall pay for a survey by a
Massachusetts licensed professional land surveyor and to have the boundaries
permanently marked.
C. Non-Waiver
Enforcement of the terms of this Conservation Restriction shall be at the sole discretion of Grantee.
Any election by the Grantee as to the manner and timing of its right to enforce this Conservation
Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a waiver
of such rights.
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D. Disclaimer of Liability
By acceptance of this Conservation Restriction, the Grantee does not undertake any liability or
obligation relating to the condition of the Premises pertaining to compliance with and including, but
not limited to, hazardous materials, zoning, environmental laws and regulations, or acts not caused
by the Grantee or its agents.
E. Acts Beyond the Grantor’s Control
Nothing contained in this Conservation Restriction shall be construed to entitle the Grantee to bring
any actions against the Grantor for any injury to or change in the Premises resulting from natural
causes beyond the Grantor’s control, including but not limited to fire, flood, weather, climate-related
impacts, and earth movement, or from any prudent action taken by the Grantor under emergency
conditions to prevent, abate, or mitigate significant injury to the Premises resulting from such causes.
In the event of any such occurrence, the Grantor and Grantee will cooperate in the restoration of the
Premises, if desirable and feasible.
V. PUBLIC ACCESS
Subject to the provisions of this Conservation Restriction, the Grantor hereby grants access to the
Premises to the general public and agrees to take no action to prohibit or discourage access to and use
of the Premises by the general public, but only for daytime use and only as described in Paragraph
III.B.9 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.B.9. 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.
VI. TERMINATION/RELEASE/EXTINGUISHMENT
A. Procedure
If circumstances arise in the future that render the Purposes impossible to accomplish, this
Conservation Restriction can only be terminated, released, or extinguished, whether in whole or in
part, by a court of competent jurisdiction under applicable law after review and approval by the
Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts, or successor
official (“Secretary”), and any other approvals as may be required by Section 32 of Chapter 184 of
the Massachusetts General Laws.
B. Grantor’s and Grantee’s Right to Recover Proceeds
If any change in conditions ever gives rise to termination, release, or extinguishment of this
Conservation Restriction under applicable law, then Grantee, on a subsequent sale, exchange, or
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involuntary conversion of the Premises, shall be entitled to a portion of the proceeds in accordance
with Paragraph VI.C., subject, however, to any applicable law which expressly provides for a different
disposition of the proceeds, and after complying with the terms of any gift, grant, or funding
requirements. The Grantee shall use its share of any proceeds in a manner consistent with the Purposes
or the protection of the Conservation Values.
C. Grantee’s Receipt of Property Right
Grantor and Grantee agree that the conveyance of this Conservation Restriction gives rise to a real
property right, immediately vested in the Grantee, for the purpose of enforcing this Conservation
Restriction, but does not entitle Grantee, upon extinguishment, release, or termination, to any
proceeds received by the Grantor from the subsequent sale, exchange or involuntary conversion of
the Premises. Any proceeds that result from any such extinguishment, release, or termination will be
distributed only after complying with the terms of any gift, grant, or other funding requirements
D. Cooperation Regarding Public Action
Whenever all or any part of the Premises or any interest therein is taken by public authority under
power of eminent domain or other act of public authority, then the Grantor and the Grantee shall
cooperate in recovering the full value of all direct and consequential damages resulting from such
action. All related expenses incurred by the Grantor and the Grantee shall first be paid out of any
recovered proceeds, and the remaining proceeds shall be distributed between the Grantor and Grantee
in accordance with Paragraph VI.B. and Paragraph VI.C. If a less than fee interest is taken, the
proceeds shall be equitably allocated according to the nature of the interest taken. The Grantee shall
use its share of any proceeds in a manner consistent with the Purposes or the protection of the
Conservation Values.
VII. DURATION and ASSIGNABILITY
A. Running of the Burden
The burdens of this Conservation Restriction shall run with the Premises in perpetuity, and shall be
enforceable against the Grantor and the successors and assigns of the Grantor holding any interest in
the Premises.
B. Execution of Instruments
The Grantee is authorized to record or file any notices or instruments appropriate to assuring the
perpetual enforceability of this Conservation Restriction. The Grantor, on behalf of itself and its
successors and assigns, appoints the Grantee its attorney-in-fact to execute, acknowledge and deliver
any such instruments on its behalf. Without limiting the foregoing, the Grantor and its successors and
assigns agree themselves to execute any such instruments upon request.
C. Running of the Benefit
The benefits of this Conservation Restriction shall run to the Grantee, shall be in gross and shall not
be assignable by the Grantee, except when all of the following conditions are met:
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1. the Grantee requires that the Purposes continue to be carried out;
2. the assignee is not an owner of the fee in the Premises;
3. the assignee, at the time of the assignment, qualifies under and 26.U.S.C. 170(h), and
applicable regulations thereunder, if applicable, and is eligible to receive this Conservation
Restriction under Section 32 of Chapter 184 of the Massachusetts General Laws; and
4. the assignment complies with Article 97 of the Amendments to the Constitution of the
Commonwealth of Massachusetts, if applicable.
VIII. SUBSEQUENT TRANSFERS
A. Procedure for Transfer
The Grantor agrees to incorporate by reference the terms of this Conservation Restriction in any deed
or other legal instrument which grants any interest in all or a portion of the Premises, including a
leasehold interest and to notify the Grantee not less than twenty (20) days prior to the effective date
of such transfer. Any transfers shall receive prior approval by Grantee to assure that the Premises is
transferred to a qualified conservation organization. Failure to do any of the above shall not impair
the validity or enforceability of this Conservation Restriction. If the Grantor fails to reference the
terms of this Conservation Restriction in any deed or other legal instrument which grants any interest
in all or a portion of the Premises, then the Grantee may record, in the 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. Any transfer will comply with Article 97 of the Amendments to the
Constitution of the Commonwealth of Massachusetts, if applicable.
B. Grantor’s Liability
The Grantor shall not be liable for violations occurring after their ownership. Liability for any acts or
omissions occurring prior to any transfer and liability for any transfer if in violation of this
Conservation Restriction shall survive the transfer. Any new owner shall cooperate in the restoration
of the Premises or removal of violations caused by prior owner(s) and may be held responsible for
any continuing violations.
IX. ESTOPPEL CERTIFICATES
Upon request by the Grantor, the Grantee shall, within thirty (30) days execute and deliver to the
Grantor any document, including an estoppel certificate, which certifies the Grantor’s compliance or
non-compliance with any obligation of the Grantor contained in this Conservation Restriction.
X. NON MERGER
The parties intend that any future acquisition of the Premises shall not result in a merger of the
Conservation Restriction into the fee. The Grantor agrees that it will not grant, and the Grantee agrees
that it will not take title, to any part of the Premises without having first assigned this Conservation
Restriction following the terms set forth in Paragraph VII.C to ensure that merger does not occur and
that this Conservation Restriction continues to be enforceable by a non-fee owner.
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Wheeler Holly Preserve Conservation Restriction Lot 1, Barnstable MA
XI. AMENDMENT
A. Limitations on Amendment
Grantor and Grantee may amend this Conservation Restriction only to correct an error or oversight,
clarify an ambiguity, maintain or enhance the overall protection of the Conservation Values, or add
real property to the Premises, provided that no amendment shall:
1. affect this Conservation Restriction’s perpetual duration;
2. be inconsistent with or materially impair the Purposes;
3. affect the qualification of this Conservation Restriction as a “qualified conservation
contribution” or “interest in land” under any applicable laws, including 26 U.S.C. Section
170(h), and related regulations;
4. affect the status of Grantee as a “qualified organization” or “eligible donee” under any
applicable laws, including 26 U.S.C. Section 170(h) and related regulations, and Sections
31, 32, and 33 of Chapter 184 of the Massachusetts General Laws; or
5. create an impermissible private benefit or private inurement in violation of federal tax law,
as determined by an appraisal, conducted by an appraiser selected by the Grantee, of the
economic impact of the proposed amendment; or
6. alter or remove the provisions described in Paragraph VI
(Termination/Release/Extinguishment); or
7. cause the provisions of this Paragraph XI to be less restrictive; or
8. cause the provisions described in Paragraph VII.C (Running of the Benefit) to be less
restrictive
B. Amendment Approvals and Recording
No amendment shall be effective unless documented in a notarized writing executed by Grantee and
Grantor, approved by the Town of Barnstable and by the Secretary in the public interest pursuant to
Section 32 of Chapter 184 of the Massachusetts General Laws, and recorded in the applicable registry
of deeds or registered in the applicable land court registry district.
XII. EFFECTIVE DATE
This Conservation Restriction shall be effective when the Grantor and the Grantee have executed it,
the administrative approvals required by Section 32 of Chapter 184 of the Massachusetts General
Laws have been obtained, and it has been recorded in the applicable registry of deeds or registered in
the applicable land court registry district.
XIII. NOTICES
Any notice, demand, request, consent, approval or communication that either party desires or is
required to give to the other shall be in writing and either served personally or sent by first class mail,
postage pre-paid, addressed as follows:
To Grantor: Barnstable Land Trust
1540 Main Street
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Wheeler Holly Preserve Conservation Restriction Lot 1, Barnstable MA
West Barnstable, MA 02668
To Grantee: The Compact of Cape Cod Conservation Trusts, Inc.
P.O. Box 443
Barnstable, MA 02630
or to such other address as any of the above parties shall designate from time to time by written notice
to the other or, if notice is returned to sender, to an address that is reasonably ascertainable by the
parties.
XIV. GENERAL PROVISIONS
A. Controlling Law
The interpretation and performance of this Conservation Restriction shall be governed by the laws of
the Commonwealth of Massachusetts.
B. Liberal Construction
Any general rule of construction to the contrary notwithstanding, this Conservation Restriction shall
be liberally construed in order to effect the Purposes and the policy and purposes of Sections 31, 32,
and 33 of Chapter 184 of the Massachusetts General Laws. If any provision in this instrument is found
to be ambiguous, any interpretation consistent with the Purposes that would render the provision valid
shall be favored over any interpretation that would render it invalid.
C. Severability
If any provision of this Conservation Restriction or the application thereof to any person or
circumstance is found to be invalid, the remainder of the provisions of this Conservation Restriction
shall not be affected thereby.
D. Entire Agreement
This instrument sets forth the entire agreement of the Grantor and Grantee with respect to this
Conservation Restriction and supersedes all prior discussions, negotiations, understandings, or
agreements relating to the Conservation Restriction, all of which are merged herein.
XV. BASELINE DOCUMENTATION REPORT
The Conservation Values, as well as the natural features, current uses of, and existing improvements
on the Premises, such as, but not limited to, trails, woods roads, structures, meadows or other cleared
areas, agricultural areas, and scenic views, as applicable, are described in a Baseline Documentation
Report (“Baseline Report”) titled “Baseline Report for Wheeler Holly Preserve Conservation
Restriction”, dated , prepared by Grantee with the cooperation of the
Grantor, consisting of maps, photographs, and other documents and on file with the Grantee and
included by reference herein. The Baseline Report (i) is acknowledged by Grantor and Grantee to be
a complete and accurate representation of the condition and values of the Premises as of the date of
this Conservation Restriction, (ii) is intended to fully comply with applicable Treasury Regulations,
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Wheeler Holly Preserve Conservation Restriction Lot 1, Barnstable MA
(iii) is intended to serve as an objective information baseline for subsequent monitoring of compliance
with the terms of this Conservation Restriction as described herein, and (iv) may be supplemented as
conditions on the Premise change as allowed over time. Notwithstanding the foregoing, the parties
may utilize any evidence of the condition of the Premises at the time of this grant in addition to the
Baseline Report.
XVI. MISCELLANEOUS
A. Pre-existing Public Rights
Approval of this Conservation Restriction pursuant to Section 32 of Chapter 184 of the Massachusetts
General Laws by any municipal officials and by the Secretary, is not to be construed as representing
the existence or non-existence of any pre-existing rights of the public, if any, in and to the Premises,
and any such pre-existing rights of the public, if any, are not affected by the granting of this
Conservation Restriction.
B. No Surety Interest
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.
C. Executory Limitation
If Grantee shall cease to exist or to be qualified to hold conservation restrictions pursuant to Section
32 of Chapter 184 of the Massachusetts General Laws, or to be qualified organization under 26 U.S.C.
170(h), and applicable regulations thereunder, if applicable, and a prior assignment is not made
pursuant to Paragraph VII, then Grantee’s rights and obligations under this Conservation Restriction
shall vest in such organization as a court of competent jurisdiction shall direct pursuant to the
applicable Massachusetts law and with due regard to the requirements for an assignment pursuant to
Paragraph VII.
D. Prior Encumbrances
This Conservation Restriction shall be in addition to and not in substitution of any other restrictions
or easements of record affecting the Premises.
E. The following signature pages are included in this Grant:
Grantor – Barnstable Land Trust, Inc.
Grantee Acceptance – The Compact of Cape Cod Conservation Trusts, Inc.
Approval - Town of Barnstable Town Manager
Approval – Town of Barnstable Town Council
Approval of the Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts.
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Wheeler Holly Preserve Conservation Restriction Lot 1, Barnstable MA
F. The following exhibits are attached and incorporated herein:
Exhibit A: Legal Description of Premises
Exhibit B: Reduced Copy of Recorded Plan of Premises
Exhibit C: Town Council Order
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Wheeler Holly Preserve Conservation Restriction Lot 1, Barnstable MA
WITNESS my hand and seal this ____ day of ____________, 2024 as authorized by vote of the
Barnstable Land Trust, Inc., at a meeting duly held on __________________, 2024, authorizing
grant of the foregoing Conservation Restriction to the Town of Barnstable and The Compact of
Cape Cod Conservation Trusts, Inc.
Barnstable Land Trust, Inc.
___________________________
Leigh Townes, President,
Barnstable Land Trust, Inc.
______________________________
Jill McCleary, Treasurer
Barnstable Land Trust, Inc.
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. ________________ 2024
Then personally appeared the above-named Leigh Townes, President, Barnstable Land Trust, Inc.
and Jill McCleary, Treasurer, Barnstable Land Trust, Inc., the corporation named in the foregoing
instrument, and proved to me through satisfactory evidence of identification, which was personal
knowledge of identity, to be the persons whose names are signed on the document, and each
acknowledged she is duly authorized to act on behalf of said corporation, and each further
acknowledged the foregoing instrument to be the free act and deed of said corporation, before me.
, Notary Public
My commission expires:
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Wheeler Holly Preserve Conservation Restriction Lot 1, Barnstable MA
ACCEPTANCE OF GRANT
The foregoing Conservation Restriction from Barnstable Land Trust, Inc. was accepted by The
Compact of Cape Cod Conservation Trusts, Inc., this ____ day of ________________, 2024.
By: _____________________________
Leonard W. Johnson
Its: President, duly authorized
By: ___________________________
Henry Lind
Its: Treasurer, duly authorized
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2024, before me, the undersigned notary
public, personally appeared Leonard W. Johnson, President of The Compact of Cape Cod
Conservation Trusts, Inc., and Henry Lind, Treasurer of The Compact of Cape Cod Conservation
Trusts, Inc., and proved to me through satisfactory evidence of identification which was personal
knowledge to be the person whose names are signed on the proceeding or attached document, and
acknowledged to me that they signed it voluntarily for its stated purpose.
______________________________
Mark H. Robinson Notary Public
My Commission Expires: 8 July 2027
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Wheeler Holly Preserve Conservation Restriction Lot 1, Barnstable MA
APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, authorized by a vote
of the Barnstable Town Council at a duly called meeting held on on
Agenda Item , a copy of the Town Council Order being attached hereto as Exhibit
C, hereby approve the foregoing Conservation Restriction from the Barnstable Land Trust, Inc. to
The Caompact of Cape Cod Conservation Trusts, Inc. pursuant to Section 32 of Chapter 184 of the
Massachusetts General Laws.
TOWN OF BARNSTABLE
TOWN MANAGER: ______________________
Mark S. Ells
Barnstable, ss
On the day of , 2024, before me, the undersigned notary public, personally appeared
Mark S. Ells, the person whose name is signed on the document and proved to me through satisfactory
evidence of identification, which was , and who being
by me duly sworn did say that he is the Town Manager of the Town of Barnstable; that he is duly
authorized to act on behalf the Town of Barnstable and he acknowledged the foregoing instrument to
be his free act and deed.
______________________
Notary Public
My Commission Expires
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Wheeler Holly Preserve Conservation Restriction Lot 1, Barnstable MA
APPROVAL OF THE TOWN OF BARNSTABLE
TOWN COUNCIL
At a public meeting duly held on ___________2024, the Town Council of the Town of Barnstable,
Massachusetts, voted to approve the foregoing Conservation Restriction from the Barnstable Land
Trust, Inc., to The Compact of Cape Cod Conservation Trusts, Inc.in the public interest pursuant to
Section 32 of Chapter 184 of the Massachusetts General Laws.
TOWN COUNCIL
PRESIDENT:______________________
Matthew Levesque
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On the day of , 2024, before me, the undersigned notary public, personally appeared
Matthew Levesque, the person whose name is signed on the document and proved to me through
satisfactory evidence of identification, which was ,
and who being by me duly sworn did say that he is the President of the Town Council of the Town of
Barnstable; that he is duly authorized to act on behalf the Town Council; and he acknowledged the
foregoing instrument to be the free act and deed of Town of Barnstable Town Council.
Notary Public
My Commission Expires:
Wheeler Holly Preserve Conservation Restriction, Barnstable, MA
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APPROVAL OF SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS OF
THE COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts, hereby approves the foregoing Conservation Restriction from Barnstable Land
Trust, Inc. to Compact of Cape Cod Conservation Trusts, Inc. in the public interest pursuant to
Section 32 of Chapter 184 of the Massachusetts General Laws.
Dated: ________________, 2024
Rebecca L Tepper
Secretary of Energy and Environmental Affairs
THE COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss:
On this day of , 2024, 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:
Wheeler Holly Preserve Conservation Restriction, Barnstable, MA
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EXHIBIT A
Description of Premises
The land in the Town of Barnstable, Barnstable County, Massachusetts shown as
on a plan entitled ,
dated , by
and recorded at the Barnstable County Registry of Deeds at Plan Book
, Page .
Containing 2.3 acres, more or less, per survey.
For Grantor's Title see Barnstable County Registry of Deeds at Book , Page
.
Town of Barnstable Assessor Map 8, Lot 011 and Map 103, Block 109, Lot 002
Street Address: 178 Wheeler Road, Barnstable, MA 02648
Wheeler Holly Preserve Conservation Restriction, Barnstable, MA
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EXHIBIT B
Reduced Copy of Plan of Premises
For official full size plan see Barnstable Registry of Deeds Plan Book _____ Page _____
Wheeler Holly Preserve Conservation Restriction, Barnstable, MA
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EXHIBIT C
Town Council Order