HomeMy WebLinkAboutAmaral, Harju. Prince Ave OS Committee CR Packet1540 Main St., West Barnstable, MA 02668, blt.org, (508) 771-2585
February 26, 2024
Ann Canedy, Chair
Town of Barnstable, Open Space Committee
367 Main Street,
Hyannis, MA 02601
RE: Review of Conservation Restrictions on Town-Owned Land
Old Colony Road, Harju Road, and Prince Ave
Dear Committee Chair Canedy,
Please find attached three Conservation Restrictions (CRs) being granted to Barnstable Land Trust,
Inc by the Town of Barnstable. We request that these CRs be reviewed at your March 11, 2024
meeting. We hope that the Open Space Committee will recommend approval of these CRs by the
Town Council.
Barnstable Land Trust, Inc. is working with the Town to complete the CRs on these Town-owned
parcels acquired with the assistance of Community Preservation Act (CPA) funds in 2014-
2016. The conveyance of these CRs to Barnstable Land Trust is pursuant to the Community
Preservation Act (CPA) Section 12(a) which requires conservation restrictions on all acquisitions
made with CPA funds. The CRs were held up for several years locally and at the state level due to
lack of capacity for review. We are pleased to be able to complete this important step now.
The following CRs are attached:
•71 Harju Road, Centerville – 1.05 acres of pitch pine woodland located in the village of
Centerville, acquired in 2014. This property is a part of the 35-acre Lumbert Pond
Conservation Area and will help maintain the scenic and natural character of the Village
of Centerville. The entire property is designated as BioMap Rare Species Core Habitat,
containing suitable habitat for the eastern box turtle, a state listed species of special
concern. Maintaining the property as open space will contribute to long-term water quality
protection for Lumbert Mill Pond and the Skunknett River, as well as protecting public
water supplies within a Zone II Wellhead Protection Area.
•111 Prince Ave, Marstons Mills – 2.57 acres of pine-oak upland forest in the village of
Marstons Mills, acquired in 2015. The property is proximate to and will enhance the value
of large parcels of protected open space owned by the Town of Barnstable and the
Barnstable Land Trust, Inc., within the Marstons Mills River Corridor across the street.
There are approximately 13 acres to the north, and 20+ acres to the south along the river
that comprise the Marstons Mills River Conservation Area.
1540 Main St., West Barnstable, MA 02668, blt.org, (508) 771-2585
• 230 Old Colony Road, Hyannis – 2.11 acres of wetland and upland habitat in Hyannis,
acquired in 2016. The property abuts an existing 6.4-acre town conservation area and
allows for public access to Snow’s Creek for passive recreational purposes including the
launching of kayaks, canoes and other non-motorized watercraft. About half of the property
consists of freshwater marsh habitat frequented by state-identified species of greatest
concern, as well as being designated as BioMap Critical Natural Landscape Tern Foraging
Habitat.
Each of the attached CRs outlines the ecological values (e.g., wildlife habitat, water resource
protection, biodiversity, trail connectivity, climate resiliency), prohibited and permitted acts and
uses, public access, and legal descriptions of the premises. Each CR has been reviewed by EEA
Division of Conservation Services and has received approval for local signatures.
We look forward to answering any questions you may have. If you require any additional
information in advance of your March 11 meeting, please contact me at janet@blt.org or 508-771-
2585 x 101. We appreciate your consideration of recommending Town Council approval of each
CR.
Sincerely,
Janet Milkman
Executive Director
Attachments: CR, Locus Map, Draft Letter of Support
CC: Kathleen Connolly, Town Attorney
Lindsey Counsell, Chair, Community Preservation Committee
Elizabeth Jenkins, Director, Planning and Development
Old Colony Road CR Locus Map
Openspace by Ownership Solid
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
1
Grantor: Town of Barnstable
Grantee: Barnstable Land Trust, Inc.
Property Address: 230 Old Colony Road, Hyannis, MA 02601
Grantor’s Title: Barnstable County Registry of Deeds in Book 29381, Page 262
CONSERVATION RESTRICTION
THE INHABITANTS OF THE TOWN OF BARNSTABLE, a Massachusetts municipal
corporation with principal offices at Town Hall, 367 Main Street, Hyannis, Barnstable County,
Massachusetts, 02601-3907, acting by and through its TOWN MANAGER, for its successors and
assigns (“Grantor”), being the sole owner of the Premises as defined herein, acting pursuant to
Sections 31, 32 and 33 of Chapter 184 of the Massachusetts General Laws, for nominal
consideration, grants to BARNSTABLE LAND TRUST, INC., (Federal I.D. # 22-2483963), a
Massachusetts charitable corporation with an address of 1540 Main Street, West Barnstable,
Massachusetts 02668, its successors and permitted assigns, ("Grantee”), with quitclaim covenants,
IN PERPETUITY and exclusively for conservation purposes, the following described
CONSERVATION RESTRICTION (hereinafter referred to as “Restriction”) on the entirety of a
parcel of vacant land totaling approximately 2.11 acres, located in the Village of Hyannis, Town
of Barnstable, County of Barnstable, Commonwealth of Massachusetts (“Premises”), said
Premises being more particularly described in Exhibit A and shown on the sketch map in Exhibit
B1 and the sketch plan Exhibit B2, all of which are attached hereto and made a part hereof. The
Grantor and Grantee, their successors and assigns, are bound by and subject to the terms and
conditions of this Restriction.
The conveyance of this Restriction is made pursuant to the vote of the Barnstable Town Council,
at a duly called meeting held on December 3, 2015, on Agenda Item No. 2016-051, to authorize
the Town to grant this Restriction on the Premises in compliance with the provisions set forth
herein, and as defined in the Community Preservation Act, G.L. c. 44B § 1 et. seq. as applied
pursuant to Chapter 149, §298 of the Acts of 2004, as amended by Chapter 352, §§129-133 of the
Acts of 2004 (the so-called “Barnstable County Community Preservation Act” or “CPA”). A copy
of the Town Council Order is attached hereto as Exhibit C.
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 purposes of this Restriction are to
assure that the Premises, while permitting the acts and uses described in Article III herein, will be
retained in perpetuity predominately in its natural, scenic and open condition; to protect and
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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promote the conservation of native vegetation, wetlands, soils, natural watercourses, habitat and
wildlife thereon; to protect and enhance the value of the abutting conservation areas; to allow and
maintain appropriate public access for enjoyment of the wildlife and open space resources and for
passive recreation. The conservation and permanent protection of the Premises will yield a
significant public benefit for the following reasons (the “conservation values”):
A. The Premises consist of 2.11 acres of open space which will yield a significant public
benefit by allowing public access to Snow’s Creek for passive recreational purposes
including the launching of kayaks, canoes and other non-motorized watercraft. The
Premises is adjacent to a 6.4-acre Town of Barnstable conservation area, and in the vicinity
of the Hidden Harbors conservation restriction held by the Town on 8.6 acres.
B. Approximately 50% of the Premises is within freshwater marsh habitat frequented by
state-identified species of greatest concern buffering upland to Snow’s Creek. Fox,
songbirds, osprey, terns, and freshwater amphibians inhabit and forage within this
environment. Protection of the Premises will ensure that part of the Town’s Snow’s Creek
Wetland Corridor, which feeds fresh water to the Lewis Bay estuary and supports the
health of this shared resource of Barnstable and Yarmouth, remains intact and undisturbed
from potential development in a densely developed portion of Hyannis.
C. Portions of the Premises are within the Massachusetts River Protection Act-designated
Riverfront Area of Snow’s Creek;
D. Approximately 50% of the Premises is within an area designated as a BioMap Critical
Natural Landscape - tern foraging component. BioMap identifies areas in the state that
are most important to conserve for supporting the long-term success of rare and native
species. BioMap includes habitats and species of special conservation concern that are
highlighted in the State Wildlife Action Plan.
E. In 1991, the Barnstable Assembly of Delegates, pursuant to the Cape Cod Commission
Act, Chapter 716 of the 1988 Massachusetts Acts, adopted a Regional Policy Plan (as
amended in 1996, 2002, 2009 and 2015), and identified Marine Water Recharge Areas
that are nitrogen-sensitive, including Hyannis Harbor. The Premises are within this
Recharge Area.
F. Consistency with Clearly Delineated Town of Barnstable Conservation Policy.
Protection of the Premises will further the Town of Barnstable’s documented goals
regarding conservation land. The Town outlined its conservation goals in its Open Space
and Recreational Plan (1984, amended 1987, 1998, 2005, 2010, 2018), identifying
goals, policies, and actions to guide conservation efforts, among them the goal of
preserving “quality open spaces throughout the Town which protect and enhance its
visual heritage.” Additional objectives include (references are to the 2018 Plan):
1) "Preservation of open space…for protection of other natural…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
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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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 …protect fresh and marine
surface waters, [and] preserve…scenic and cultural resources..." (pp. 10-11).
Additionally, the Barnstable Town Council’s Strategic Plan for fiscal year 2021-2022
identified under the Environment and Natural Resources priority area the goal to
“(c)onserve and protect areas in the town that are most significant as natural and historical
resources for water supply, visual quality, outdoor recreation, public access, wildlife habitat
and cultural history” (p. 6).
Moreover, in 1981, the Town of Barnstable adopted a Conservation Restriction Program
consisting of policies and guidelines, in particular an Open Space Policy, approved by the
Board of Selectmen, Assessors, and Conservation Commission, which encourages the use
of conservation restrictions in perpetuity to protect natural resources in accordance with
the purposes of the Open Space and Recreation Plan, and which further specified that
purposes of a conservation restriction could include the following:
• preserve scenic view;
• preserve open space;
• preserve important natural habitats of fish, wildlife or plants; and,
• limit or prevent construction on land of natural resource value.
Conservation of the Premises will advance each of these goals articulated by the Town of
Barnstable by creating open space available for passive outdoor recreation, and recreation
and preserving wetland and upland wildlife habitat.
G. 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 habitats; and it would contribute to the preservation of open space because it is
proximate to several other parcels already conserved.
H. Consistency with Clearly Delineated State Conservation Policy. Protection of the
Premises will further the goals of the Statewide Comprehensive Outdoor Recreation Plan
(SCORP).
• Goal 1: Access for Underserved Populations. “Support the acquisition of land and
development of new open spaces in area that lack existing useable open spaces, such
as Environmental Justice neighborhoods”. Protection of the Premises will preserve
new open space available for passive recreation within an Environmental Justice
neighborhood.
• Goal 3 Increase the Availability of Water-Based Recreation. “Support the acquisition
of land that will provide for water-based recreation”. Protection of the Premises will
allow public access to Snow’s Creek for passive recreational purposes including the
launching of kayaks, canoes and other non-motorized watercraft.
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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I. 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. 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, and (ii) is intended to serve as an objective information
baseline for subsequent monitoring of compliance with the terms of this Conservation
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.
J. 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.
The terms of this Restriction are as follows:
II. PROHIBITED ACTIVITIES: In order to carry out the purposes set forth in Article I
above, the Grantor covenants for itself and its legal representatives, mortgagees, 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 or conservation values 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 Article III below, prohibited activities shall include, but
shall not be limited to, the following:
A. Construction or placing of any building, residential dwelling, mobile home, tennis court, ball
fields, benches, swimming pool, artificial water impoundment, billboard, or other
advertising display, landing strip or pad, roadway, asphalt or concrete pavement, antenna,
utility pole, tower, wind turbine, 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, 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 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.
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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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 Vas cular 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 of motorized or power-driven vehicles of any kind, including without limitation
snowmobiles, motorbikes or all-terrain vehicles.
H. Camping, hunting, or trapping unless for a proven nuisance to wildlife.
I. Conveyance of a part or portion of the Premises alone or division or subdivision of the
Premises or use or assignment of the dimensions, area or acreage of the Premises for
purposes of subdivision or development of unrestricted land whether or not such land is
owned by the Grantor, its successors and assigns. (Conveyance of the Premises in its entirety
shall be permitted.)
J. Activities detrimental to drainage, flood control, water conservation, erosion control, soil
conservation, or wildlife habitat.
K. The excavation of landscape features on the Premises with the intent of collecting or
otherwise removing archaeological artifacts (prehistoric and/or historic) except by
formal approval of the Massachusetts Historic Commission (MHC) through
submission, with the concurrence of the Grantee, of a Project Notification Form (PNF)
in accordance with Section 27C of Chapter 9 of the Massachusetts General Laws, and
associated regulations, as amended.
L. Subdivision or conveyance of a part or portion of the Premises, it being intended to keep
the Premises in single ownership.
M. No portion of the Premises may be used towards any building, septic system or other
development requirements on any other parcel outside the Premises.
N. Any commercial, residential, or industrial uses.
O. 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
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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this Restriction:
A. Measures, such as the installation of fencing and signage, taken in order to prevent
unauthorized vehicle entry and dumping, vandalism or other acts destructive to the
Premises.
B. With the prior approval of the Grantee, measures taken in order to protect landform
stability (i.e., to maintain a naturally occurring feature on the land’s surface, e.g., bank or hill
from erosion.)
C. The use of the Premises for passive recreational activities such as hiking, snowshoeing,
cross-country skiing, nature study or research, and other like activities, including access by
motorized wheelchairs or other disabled assistance devices, and launching of kayaks, canoes,
and other comparable small, non-motorized craft utilizing only the designated eight (8) foot
wide trail access and launch area shown on Exhibit B2.
D. The maintenance and use of the existing unpaved way, and trails on the Premises
substantially in their present condition, and with the prior written approval of the Grantee,
the relocation or construction of new trails, provided that all applicable federal, state, regional
and local approvals are obtained in advance, and that any relocated trails or new trails are no
wider than eight (8) feet.
E. With prior written notice to the Grantee, and provided that all applicable federal, state,
regional and local approvals are obtained in advance, the installation of a gravel-surfaced
parking area on the upland portion of the Premises and along Old Colony Road of a size
suitable for no more than three (3) cars, and an eight (8) foot wide access trail for launching
of kayaks, canoes, or other small, non-motorized craft. Following initial installation, the
Grantor may use, maintain, and repair said parking area and access trail without prior
written notice to the Grantee. Said parking area and access trail shall be located within the
area shown as “Parking Area” and “Access Trail to Launch Area” on Exhibit B2 and may
be used to access the Premises and surrounding conservation land.
F. The erection and maintenance of signs identifying ownership of the Premises, the property
boundaries, the Premises’ status as a conservation reservation, 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. The erection of
signs, fencing or other barriers consistent with endangered species protection.
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; 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.
H. The use of motorized vehicles (1) by the Grantor as reasonably necessary to carry out
activities permitted under this Restriction, (2) for access by Grantee for purposes set forth in
Article VI, below, and (3) for access by police, fire, emergency, public works, or other
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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governmental personnel carrying out their official duties. The use of motorized vehicles for
the purposes described herein shall be limited to the existing trails or those trails that may
be approved and installed pursuant to Article III.D. 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.
I. Archaeological investigations consisting of site inspections and subsurface excavations
subject to and in accordance with an Archaeological Field Investigation Permit issued
by the State Archaeologist under G.L. c. 9, §26A, and associated regulations, and
Grantee’s written approval in accordance with Article IV, below.
J. Such other non-prohibited activities or uses of the Premises may be permitted with the prior
approval of the Grantee provided that the Grantee has made a finding, such finding to be
documented in writing and kept on file at the office of the Grantee, that such activities are
consistent with the Reserved Rights, do not impair the conservation values and purposes of
this Conservation Restriction, and, where feasible, result in a net gain in conservation value of
the Premises.
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, 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.
The exercise of any right or obligation reserved by the Grantor under this Article III shall be in
compliance with all applicable federal, state and local law. The inclusion of any reserved right
in this Article III requiring a permit from a public agency does not imply that the Grantee or the
Commonwealth takes any position on whether such permit 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
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.
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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B. Grantee Review. Where Grantee’s approval is required, Grantee shall grant or withhold
approval in writing within sixty (60) days of receipt of Grantor’s request. Grantee’s
approval shall only be granted upon a showing that the proposed activity will minimize
impacts to the Conservation Values and will not materially impair the Purposes and/or
Conservation Values. Grantee may require Grantor to secure expert review and evaluation
of a proposed activity by a mutually agreed upon party.
C. Resubmittal. Grantee’s failure to respond within sixty (60) days of receipt shall not
constitute approval of the request. Grantor may subsequently submit the same or a similar
request for approval.
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 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
may 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, 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 objectionable actions and is making a good faith effort to remedy the
violation and Grantee reasonably determines there is no ongoing diminution of the
conservation values of the Restriction.
C. The Grantor and its successors and assigns shall each be liable under this section for any
such violations of this Restriction as may exist during their respective periods of
ownership of the Premises. Any new owner may be held responsible for any continuing
violations existing 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 all 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. If Grantor prevails in any action brought by Grantee to enforce the
terms of this Restriction, the Grantee or its heirs, successors and assigns, as the case may
be, shall, to the extent allowed by law, reimburse the Grantor for all reasonable costs and
expenses, including attorney’s fees, incurred in defending such action to enforce this
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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Restriction, provided the Grantee’s action is deemed by the court or by other competent
authority to be unreasonable or arbitrary and capricious.
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.
VI. GRANTEE'S RIGHT OF ACCESS; INSPECTION:
The Restriction hereby conveyed does not grant to the Grantee any right to enter upon the
Premises except at reasonable times and in a reasonable manner for the following purposes:
A. To perform a survey of boundary lines;
B. To inspect the Premises to determine compliance within provisions of this Restriction;
C. To enter the Premises with or without the presence of an employee or employees of the
Grantor 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 give 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 irreparable harm to the Premises.
D. The Restriction hereby conveyed includes the grant of the right to the general public to
enter upon the Premises, and to use the Premises and the trails thereon for the purposes
set forth in Article III.C above.
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 or
change in the Premises resulting from 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 desirable that
the Premises be restored, the parties will cooperate in attempting to restore the Premises, if
feasible.
VIII. COSTS AND TAXES: Grantor agrees to pay and discharge when and if due any and
all real property taxes and other assessments levied by competent authority on the Premises.
IX. DURATION, BINDING EFFECT, RELEASE AND RECORDATION: The burdens of
this Restriction shall run with the Premises IN PERPETUITY and shall be enforceable against
the Grantor and the Grantor's successors and assigns holding any interest in the Premises. The
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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Grantee is authorized to record or file any notices or instruments appropriate to assuring the
perpetual enforceability of this Restriction. Without limiting the foregoing, the Grantor and its
successors and assigns agree themselves to execute any such instrument upon reasonable
request.
X. 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 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;
B. The assignee is required to hold this Restriction and enforce its terms for conservation
purposes;
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.
F. No such assignment of the right to enforce the Restriction shall diminish the rights or
benefits held by the Grantee or its successors pursuant to this Restriction, and the Grantee
shall retain the equivalent right to enforce this Restriction.
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 the terms of this
Restriction, in full or by reference, in any deed or other legal instrument by which Grantor
conveys or transfers any interest in all or a portion of the Premises, including, without
limitation, a leasehold interest. The Grantor further agrees to notify the Grantee in writing at
least thirty (30) days before conveying or transferring the Premises, or any part thereof or
interest therein, including a leasehold interest. Any transfer shall comply with Article 97 of
the amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
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
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
11
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.
XIV. A MENDMENT: 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 Secretary of Energy and Environmental Affairs and if applicable, shall
comply with the provisions of Article 97 of the Amendments to the Massachusetts Constitution,
and any gifts, grants or funding requirements. Any amendment shall be recorded in the
Barnstable County Registry of Deeds.
XV. EXTINGUISHMENT:
A. If circumstances arise in the future such as render the purpose of this Conservation
Restriction impossible to accomplish, this restriction can only be terminated or 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 extinguishment or other release 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 Article XV.B, subject, however, to any applicable law which
expressly provides for a different disposition of the proceeds and after complying with the
terms of any gift, grant, or funding requirements. Grantee shall use its share of the proceeds
in a manner consistent with the conservation purpose 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, including
any requirements of the CPA.
C. Grantor/Grantee Cooperation Regarding Public Action. Whenever all or part of the Premises
or any interest therein is taken by public authority other than Grantor under power of eminent
domain or other act of other 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
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
12
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, including any requirements of the CPA. 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 conservation purposes of this grant.
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 related to the Restriction, all of which are merged
herein.
D. Joint Obligation: The obligations imposed by this Restriction upon the parties that
together comprise the "Grantor" and "Grantee" shall be joint and several.
E. 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.
F. 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:
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
13
To Grantor: Town of Barnstable, c/o Town Manager
367 Main Street, Hyannis MA 02601-3907
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
G. Subordination: The Grantor shall record at the Barnstable Registry of Deeds
simultaneously with this Restriction all documents necessary to subordinate any
mortgage, promissory note, loan, lien, equity credit line, reference assignment of
mortgage, lease, financing statement or any other agreement which gives rise to a
surety interest affecting the Premises.
H. 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.
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 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.
Attached hereto and incorporated herein are the following:
Signatures:
Grantor– Town of Barnstable by and through its Town Manager
Grantee Acceptance – Barnstable Land Trust, Inc.
Approval: Town of Barnstable Town Council
Approval: Secretary of Energy and Environmental Affairs
Exhibits:
A. Description of the Premises
B1. Sketch Map of the Premises
B2. Sketch Plan of the Premises Showing Parking Area
C. Town Council Order – Appropriation of CPA Funds
D. Town Council Order – CR Approval
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
14
GRANT AND APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, hereby grant
and approve the foregoing Conservation Restriction to Barnstable Land Trust, Inc. pursuant
to Section 32 of Chapter 184 of the Massachusetts General Laws.
TOWN OF BARNSTABLE
TOWN MANAGER:
______________________
Mark S. Ells
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On the day of , 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 personal knowledge of identity, and who being
by me duly sworn did say that he is the Tow n Manager of the Tow n of Barnstable; that he is duly
authorized to act on behalf the Tow n of Barnstable and she acknowledged the foregoing instrument
to be his free act and deed.
______________________
Notary Public
My Commission Expires
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
15
ACCEPTANCE OF GRANT
This Conservation Restriction from Town of Barnstable was accepted by the Barnstable Land
Trust, Inc. this __________ day of __________________, 2024.
By: _____________________________
Leigh Townes
Its: President, duly authorized
By: _____________________________
Jill McCleary
Its: Treasurer, duly authorized
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this __ day of , 2024, before me, the undersigned notary
public, personally appeared Leigh Townes and Jill McCleary, 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.
______________________________
Notary Public
My Commission Expires:
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
16
APPROVAL OF THE GRANT
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
Town of Barnstable to the Barnstable Land Trust, Inc., pursuant to Section 32 of Chapter 184 of
the Massachusetts General Laws and hereby certifies approval of the foregoing Conservation
Restriction. An attested copy of the vote of the Town Council is attached hereto and included herein
as Exhibit D.
TOWN COUNCIL PRESIDENT:
____________________________
_
Felicia R. Penn
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On the day of , 2024, before me, the undersigned notary public, personally appeared
Felicia R. Penn the person whose name is signed on the document and proved to me through
satisfactory evidence of identification, which was personal knowledge of identity, and who being
by me duly sworn did say that she is the President of the Town Council of the To wn of Barnstable;
that she is duly authorized to act on behalf the Tow n Council; and she acknowledged the foregoing
instrument to be the free act and deed of Town of Barnstable Tow n Council.
Notary Public
My Commission Expires:
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
17
SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts, hereby certifies that the foregoing Conservation Restriction from the Town of
Barnstable to the Barnstable Land Trust, Inc., has been approved 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:
CONSERVATION RESTRICTION
ON LAND OWNED BY
TOWN OF BARNSTA BLE
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
18
IN
BARNSTABLE, MASSACHUSETTS
EXHIBIT A
Description of the Premises
All of the land described in a deed to The Inhabitants of the Town of Barnstable recorded at the
Barnstable County Registry of Deeds at Book 29381, Page 262.
Street Address: 230 Old Colony Road, Hyannis
Barnstable Assessor’s Map 325 Parcel 33.
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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EXHIBIT B1
Sketch Map of the Premises
Conservation Restriction
Bearse
Cook
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
20
EXHIBIT B2
Sketch Plan of Premises
Proposed Parking - Town of Barnstable, Department of Public Works
Conservation Restriction
Parking Area
8’ wide trail access to Launch Area
Launch Area
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
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EXHIBIT C
Town Council Order – Appropriation of CPA Funds
OLD COLONY ROAD CONSERVATION RESTRICTION Hyannis, MA
22
EXHIBIT D
Town Council Order – CR Approval
Harju Rd CR Locus Map
Openspace by Ownership Solid
Property Tax Parcels
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
1 Property location: 71 Harju Road, Centerville Village), Barnstable, MA
Grantor: Town of Barnstable
Grantee: Barnstable Land Trust, Inc.
Property Address: 71 Harju Road, (Centerville Village), Barnstable, MA
Grantor’s Title: Barnstable County Registry of Deeds, Book 28077, Page 269
CONSERVATION RESTRICTION
THE INHABITANTS OF THE TOWN OF BARNSTABLE, a Massachusetts municipal
corporation with principal offices at Town Hall, 367 Main Street, Hyannis, Barnstable County,
Massachusetts, 02601-3907, acting by and through its Town Manager, for its successors and assigns
(“Grantor”), being the sole owner of the Premises as defined herein, for nominal consideration,
acting pursuant to Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws,
grants to BARNSTABLE LAND TRUST, INC., (Federal I.D. # 22-2483963), a Massachusetts
charitable corporation with an address of 1540 Main Street, West Barnstable, Massachusetts
02668, its successors and permitted assigns ("Grantee”), with quitclaim covenants, IN
PERPETUITY and exclusively for conservation purposes, the following described
CONSERVATION RESTRICTION, (hereinafter referred to as “Restriction”), on the entirety of a
parcel of vacant land totaling approximately 1.05 acres, located in the Village of Centerville, Town
of Barnstable, County of Barnstable, Commonwealth of Massachusetts (“Premises”), said
Premises being more particularly described in Exhibit A and shown on the sketch plan in Exhibit
B, both of which are attached hereto, and made a part hereof. The Grantor and Grantee, their
successors and assigns, are bound by and subject to the terms and conditions of this Restriction.
The conveyance of this Restriction is made pursuant to the vote of the Barnstable Town Council,
at a duly called meeting held on February 27, 2014, on Agenda Item No. 2014-060, to authorize
the Town to grant this Restriction on the Premises in compliance with the provisions set forth
herein, and as defined in the Community Preservation Act, G.L.c.44B § 1 et. seq. as applied
pursuant to Chapter 149, § 298 of the Acts of 2004, as amended by Chapter 352, §§ 129-133 of
the Acts of 2004 (the so-called “Barnstable County Community Preservation Act” or “CPA”). A
copy of the Town Council Order is attached hereto as Exhibit C.
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
2
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 purposes
of this Conservation Restriction are to assure that the Premises, while permitting the
acts and uses described in Article III herein, will be retained in perpetuity
predominately in its natural, scenic and open condition; to protect and promote the
conservation of water supplies, native vegetation, wetlands, soils, natural watercourses,
habitat and wildlife thereon; to protect and enhance the value of the abutting areas; to
allow and maintain appropriate public access for enjoyment of the wildlife and open
space resources and for passive recreation. The conservation and permanent protection
of the Premises will yield a significant public benefit for the following reasons
(hereafter, the “conservation values”):
A. The Premises contains 1.05 acres of pitch pine woodland, approximately. Adjacent to the
Premises to the southwest and to the east across Harju Road, are approximately 35 acres
of town-owned, publicly-accessible conservation land, the Lumbert Pond Conservation
Area. Conservation of the Premises will help maintain the scenic and natural character of
the Village of Centerville, and preserve open space clearly described in Federal, State, and
local government policies. A trail crossing the Premises is part of a larger half-mile trail
system, frequented by neighbors and visitors who enjoy the pine woods, birdwatching,
pond views and nature walks in this area.
B. The entire Premises is designated as Rare Species Core Habitat, as defined by the
Massachusetts Department of Fisheries and Wildlife, acting by and through its Natural
Heritage and Endangered Species Program (NHESP). The Premises contains suitable
habitat for the eastern box turtle, a state listed species of special concern.
C. The Premises was designated by NHESP as Core Habitat in BioMap. BioMap, published
in 2010, and updated in 2022, was designed to guide strategic biodiversity conservation in
Massachusetts 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.
D. The Premises falls within the Massachusetts River Protection Act-designated Riverfront
Area of Lumbert Mill Pond on the Skunknett River. The protection of the Premises will
assist in the health of the Skunknett River watershed that feeds into the Bumps River and
East Bay as a part of the Town’s Skunknett River Wetland Corridor, a 319-acre greenbelt
of protected land of the Town of Barnstable, Barnstable Land Trust, Massachusetts
Audubon and the Centerville Osterville Marston Mills (COMM) Fire District.
E. Maintaining the Premises as open space will contribute to long-term water quality
protection for not only Lumbert Mill Pond and the Skunknett River but also associated
public water supplies. The Premises is 100% within Zone II Areas of Contribution to Public
Water Supplies, specifically, Lumbert Mill Wells #5 and #9, and is entirely within the Town
of Barnstable Wellhead Protection District.
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
3
F. By conserving the Premises and preventing additional housing development, and related
septic inputs within the Town of Barnstable’s Resource Protection District and Saltwater
Estuary Protection District, this Conservation Restriction will protect a Centerville
watershed identified by the Town of Barnstable as an area requiring a decrease in overall
nitrogen discharges to meet state-mandated total maximum daily loads.
G. 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, and 2018), identifying goals,
policies, and actions to guide conservation efforts, among them the goal of preserving
“quality open spaces throughout the Town which protect and enhance its visual heritage.”
Additional objectives include (references are to the 2018 Plan):
1) "Preservation of open space for protection of drinking water resources, and for
protection of other natural, historic and scenic resources is a community-wide priority;
and 2) Protection of open space should continue to be an integral component of the Town's
efforts." (p. 6)
To achieve this vision, the Plan sets several goals for the town including: 1) "To protect
and maintain the maximum amount of open space to enhance environmental protection,
recreational opportunities and community character, and 2) “Plan, coordinate and execute
open space protection measures that complement community efforts to protect water
supply, protect fresh and marine surface waters, [and] preserve historic, scenic and
cultural resources..." (pp. 10-11).
Additionally, the Barnstable Town Council’s Strategic Plan for fiscal year 2021-2022
identified under the Environment and Natural Resources priority area the goal to
“(c)onserve and protect areas in the town that are most significant as natural and historical
resources for water supply, visual quality, outdoor recreation, public access, wildlife habitat
and cultural history” (p. 6).
Moreover, in 1981, the Town of Barnstable adopted a Conservation Restriction Program
consisting of policies and guidelines, in particular an Open Space Policy, approved by the
Board of Selectmen, Assessors, and Conservation Commission, which encourages the use
of conservation restrictions in perpetuity to protect natural resources in accordance with
the purposes of the Open Space and Recreation Plan, and which further specified that
purposes of a conservation restriction could include the following:
• preserve scenic view;
• protect groundwater quality for drinking purposes;
• preserve open space;
• to protect a trail;
• preserve important natural habitats of fish, wildlife or plants; and,
• limit or prevent construction on land of natural resource value.
Conservation of the Premises will advance each of these goals articulated by the Town of
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
4
Barnstable by creating open space available for passive outdoor recreation, protecting land
within a wellhead protection area and preserving wetland and upland wildlife habitat.
H. 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
habitats; and it would contribute to the preservation of open space because it is proximate
to several other parcels already conserved.
I. Consistency with Clearly Delineated State Conservation Policy. Protection of the Premises
will further goals of Massachusetts Division of Fisheries 2015 Massachusetts State
Wildlife Action Plan by protecting species and habitat in greatest need of conservation.
Section 6B. of the State Wildlife Action Plan, “Proactive Habitat Protection” states “For
almost every species and habitat in greatest need of conservation in Massachusetts, this
Plan recommends that appropriate areas be protected from development and managed for
the long-term conservation of these species and habitats”. Protection of the Premises will
meet this goal by protecting an area of NHESP BioMap Core Habitat, containing habitat
suitable for eastern box turtle, a state listed species of special concern, from development.
J. 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. 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, and (ii) is intended to serve as an objective information baseline
for subsequent monitoring of compliance with the terms of this Conservation 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.
K. 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.
The terms of this Restriction are as follows:
II. PROHIBITED ACTIVITIES: In order to carry out the purposes set forth in Article I
above, the Grantor covenants for itself and its legal representatives, mortgagees, 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
its conservation values, water quality, soil conservation, wildlife conservation, scenic
landscape protection or which is otherwise wasteful of the natural resources of the Premises.
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
5
Subject to the exceptions set forth in Article III below, prohibited activities shall include, but
shall not be limited to, the following:
A. Construction or placing of any building, residential dwelling, mobile home, tennis court, ball
fields, benches, swimming pool, artificial water impoundment, billboard, or other
advertising display, landing strip or pad, roadway, asphalt or concrete pavement, antenna,
utility pole, tower, wind turbine, 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, 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 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 Vas cular 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 of motorized or power-driven vehicles of any kind, including without limitation
snowmobiles, motorbikes or all-terrain vehicles.
H. Camping, hunting, or trapping unless for a proven nuisance to wildlife.
I. Conveyance of a part or portion of the Premises alone or division or subdivision of the
Premises or use or assignment of the dimensions, area or acreage of the Premises for purposes
of subdivision or development of unrestricted land whether or not such land is owned by the
Grantor, its successors and assigns. (Conveyance of the Premises in its entirety shall be
permitted.)
J. Activities detrimental to drainage, flood control, water conservation, erosion control, soil
conservation, or wildlife habitat.
K. The excavation of landscape features on the Premises with the intent of collecting or
otherwise removing archaeological artifacts (prehistoric and/or historic) except by
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
6
formal approval of the Massachusetts Historic Commission (MHC) through submission,
with the concurrence of the Grantee, of a Project Notification Form (PNF) in accordance
with Section 27C of Chapter 9 of the Massachusetts General Laws, and associated
regulations, as amended.
L. Subdivision or conveyance of a part or portion of the Premises, it being intended to keep
the Premises in single ownership.
M. No portion of the Premises may be used towards any building, septic system or other
development requirements on any other parcel outside the Premises.
N. Any commercial, residential, or industrial uses.
O. 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. Measures, such as the installation of fencing and signage, taken in order to prevent
unauthorized vehicle entry and dumping, vandalism or other acts destructive to the
Premises.
B. With the prior approval of the Grantee, measures taken in order to protect landform
stability (i.e., to maintain a naturally occurring feature on the land’s surface, e.g., bank or hill
from erosion.)
C. The use of the Premises for passive recreational activities such as hiking, snowshoeing,
cross-country skiing, nature study or research, and other like activities, including access by
motorized wheelchairs or other disabled assistance devices.
D. The maintenance and use of the existing unpaved way and trails on the Premises substantially
in their present condition; and with the prior written approval of the Grantee, the relocation
or construction of new trails, provided that all applicable federal, state, regional and local
approvals are obtained in advance, and that any relocated trails or new trails are no wider than
eight (8) feet.
E. The erection and maintenance of signs identifying ownership of the Premises, the property
boundaries, the Premises’ status as a conservation reservation, 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. The erection of
signs, fencing or other barriers consistent with endangered species protection.
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
7
F. Minimal cutting or removal of trees, shrubs and other vegetation and planting of native
trees, shrubs and other vegetation to maintain or improve the conservation values protected
by this Restriction; 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.
G. The use of motorized vehicles (1) by the Grantor as reasonably necessary to carry out
activities permitted under this Restriction, (2) for access by Grantee for purposes set forth in
Article VI, below, and (3) for access by police, fire, emergency, public works, or other
governmental personnel carrying out their official duties. The use of motorized vehicles for
the purposes described herein shall be limited to the existing trails or those trails that may
be approved and installed pursuant to Article III.D. 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.
H. Archaeological investigations consisting of site inspections and subsurface excavations
subject to and in accordance with an Archaeological Field Investigation Permit issued
by the State Archaeologist under G.L. c. 9, §26A, and associated regulations, and
Grantee’s written approval in accordance with Article IV, below.
I. Such other non-prohibited activities or uses of the Premises may be permitted with the prior
approval of the Grantee provided that the Grantee has made a finding, such finding to be
documented in writing and kept on file at the office of the Grantee, that such activities are
consistent with the Reserved Rights, do not impair the conservation values and purposes of
this Conservation Restriction, and, where feasible, result in a net gain in conservation value of
the Premises.
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, 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.
The exercise of any right or obligation reserved by the Grantor under this Article III shall be in
compliance with all applicable federal, state and local law. The inclusion of any reserved right
in this Article III requiring a permit from a public agency does not imply that the Grantee or the
Commonwealth takes any position on whether such permit 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;
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
8
b. Describe how the proposed activity complies with the terms and conditions of this
Conservation Restriction, and will not materially impair the Purposes and/or
Conservation Values;
c. Identify all permits, licenses, or approvals required for the proposed activity, and the
status of any such permits, licenses, or approvals.
d. Describe any other material aspect of the proposed activity in sufficient detail to
permit the Grantee to make an informed judgment as to its consistency with the
Purposes and Conservation Values.
B. Grantee Review. Where Grantee’s approval is required, Grantee shall grant or withhold
approval in writing within sixty (60) days of receipt of Grantor’s request. Grantee’s
approval shall only be granted upon a showing that the proposed activity will minimize
impacts to the Conservation Values and will not materially impair the Purposes and/or
Conservation Values. Grantee may require Grantor to secure expert review and evaluation
of a proposed activity by a mutually agreed upon party.
C. Resubmittal. Grantee’s failure to respond within sixty (60) days of receipt shall not
constitute approval of the request. Grantor may subsequently submit the same or a similar
request for approval.
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 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
may 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, 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 objectionable actions and is making a good faith effort to remedy the
violation and Grantee reasonably determines there is no ongoing diminution of the
conservation values of the Restriction.
C. The Grantor and its successors and assigns shall each be liable under this section for any
such violations of this Restriction as may exist during their respective periods of
ownership of the Premises. Any new owner may be held responsible for any continuing
violations existing 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.
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
9
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 all 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. If Grantor prevails in any action brought by Grantee to enforce the
terms of this Restriction, the Grantee or its heirs, successors and assigns, as the case may
be, shall, to the extent allowed by law, reimburse the Grantor for all reasonable costs and
expenses, including attorney’s fees, incurred in defending such action to enforce this
Restriction, provided the Grantee’s action is deemed by the court or by other competent
authority to be unreasonable or arbitrary and capricious.
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.
VI. GRANTEE'S RIGHT OF ACCESS; INSPECTION:
The Restriction hereby conveyed does not grant to the Grantee any right to enter upon the
Premises except at reasonable times and in a reasonable manner for the following purposes:
A. To perform a survey of boundary lines;
B. To inspect the Premises to determine compliance within provisions of this Restriction;
C. To enter the Premises with or without the presence of an employee or employees of the
Grantor 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 give 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 irreparable harm to the
Premises.
D. The Restriction hereby conveyed includes the grant of the right to the general public to
enter upon the Premises, and to use the Premises and the trails thereon for the purposes
set forth in Article III.C above.
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 or
change in the Premises resulting from 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
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
10
event of damage to the Premises from acts beyond the Grantor's control, that if it desirable that
the Premises be restored, the parties will cooperate in attempting to restore the Premises, if
feasible.
VIII. COSTS AND TAXES: Grantor agrees to pay and discharge when and if due any and
all real property taxes and other assessments levied by competent authority on the Premises.
IX. DURATION, BINDING EFFECT, RELEASE AND RECORDATION: The burdens of
this Restriction shall run with the Premises IN PERPETUITY and shall be enforceable against
the Grantor and the Grantor's successors and assigns holding any interest in the Premises. The
Grantee is authorized to record or file any notices or instruments appropriate to assuring the
perpetual enforceability of this Restriction. Without limiting the foregoing, the Grantor and its
successors and assigns agree themselves to execute any such instrument upon reasonable
request.
X. 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 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;
B. The assignee is required to hold this Restriction and enforce its terms for conservation
purposes;
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.
F. No such assignment of the right to enforce the Restriction shall diminish the rights or
benefits held by the Grantee or its successors pursuant to this Restriction, and the Grantee
shall retain the equivalent right to enforce this Restriction.
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 the terms of this
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
11
Restriction, in full or by reference, in any deed or other legal instrument by which Grantor
conveys or transfers any interest in all or a portion of the Premises, including, without
limitation, a leasehold interest. The Grantor further agrees to notify the Grantee in writing at
least thirty (30) days before conveying or transferring the Premises, or any part thereof or
interest therein, including a leasehold interest. Any transfer shall comply with Article 97 of
the amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
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.
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 Secretary of Energy and Environmental Affairs and if applicable, shall
comply with the provisions of Article 97 of the Amendments to the Massachusetts Constitution,
and any gifts, grants or funding requirements. Any amendment shall be recorded in the
Barnstable County Registry of Deeds.
XV. EXTINGUISHMENT:
A. If circumstances arise in the future such as render the purpose of this Conservation
Restriction impossible to accomplish, this restriction can only be terminated or
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 extinguishment or
other release 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 Article XV.B, subject, however, to any
applicable law which expressly provides for a different disposition of the proceeds and
after complying with the terms of any gift, grant, or funding requirements. Grantee shall
use its share of the proceeds in a manner consistent with the conservation purpose 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.
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
12
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, including any requirements of the CPA.
C. Grantor/Grantee Cooperation Regarding Public Action. Whenever all or part of the
Premises or any interest therein is taken by public authority other than Grantor under power
of eminent domain or other act of other 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, including any requirements of the CPA. 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 conservation purposes of this grant.
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 related to the Restriction, all of which are merged herein.
D. Joint Obligation: The obligations imposed by this Restriction upon the parties that together
comprise the "Grantor" and "Grantee" shall be joint and several.
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
13
E. 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.
F. 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: Town of Barnstable, c/o Town Manager
367 Main Street
Hyannis MA 02601-3907
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
G. Subordination: The Grantor shall record at the Barnstable Registry of Deeds simultaneously
with this Restriction all documents necessary to subordinate any mortgage, promissory note,
loan, lien, equity credit line, reference assignment of mortgage, lease, financing statement
or any other agreement which gives rise to a surety interest affecting the Premises.
H. 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.
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 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.
Attached hereto and incorporated herein are the following:
Signatures:
Grantor – Town of Barnstable by and through its Town Manager
Grantee Acceptance – Barnstable Land Trust, Inc.
Approval –Town of Barnstable Town Council
Approval: Secretary of Energy and Environmental Affairs
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
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Exhibits:
A. Description of the Premises
B. Reduced Copy of Recorded Plan of the Premises
C. Town Council Order – CPA Funding
D. Town Council Order – CR Approval
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
15
GRANT AND APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, hereby grant
and approve the foregoing Conservation Restriction to Barnstable Land Trust, Inc. pursuant
to Section 32 of Chapter 184 of the Massachusetts General Laws.
TOWN OF BARNSTABLE
TOWN MANAGER:
______________________
Mark S. Ells
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On the day of , 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 personal knowledge of identity, and who being
by me duly sworn did say that he is the Tow n Manager of the Tow n of Barnstable; that he is duly
authorized to act on behalf the Tow n of Barnstable and she acknowledged the foregoing instrument
to be his free act and deed.
______________________
Notary Public
My Commission Expires
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
16
ACCEPTANCE OF GRANT
This Conservation Restriction from Town of Barnstable was accepted by the Barnstable Land
Trust, Inc. this __________ day of __________________, 2024.
By: _____________________________
Leigh Townes
Its: President, duly authorized
By: _____________________________
Jill McCleary
Its: Treasurer, duly authorized
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this __ day of , 2024, before me, the undersigned notary public, personally
appeared Leigh Townes and Jill McCleary, 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.
______________________________ Notary Public
My Commission Expires:
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
17
APPROVAL OF THE GRANT
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
Town of Barnstable to the Barnstable Land Trust, Inc., pursuant to Section 32 of Chapter 184 of
the Massachusetts General Laws and hereby certifies approval of the foregoing Conservation
Restriction. An attested copy of the vote of the Town Council is attached hereto and included herein
as Exhibit D.
TOWN COUNCIL PRESIDENT:
_____________________________
Felicia R. Penn
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On the day of , 2024, before me, the undersigned notary public, personally appeared
Felicia R. Penn, the person whose name is signed on the document and proved to me through
satisfactory evidence of identification, which was personal knowledge of identity, and who being
by me duly sworn did say that he is the President of the Town Council of the To wn of Barnstable;
that he is duly authorized to act on behalf the Tow n Council; and he acknowledged the foregoing
instrument to be the free act and deed of Town of Barnstable Tow n Council.
Notary Public
My Commission Expires:
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
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SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts, hereby certifies that the foregoing Conservation Restriction from the Town of
Barnstable to the Barnstable Land Trust, Inc., has been approved 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:
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
19
CONSERVATION RESTRICTION
ON LAND OWNED BY
TOWN OF BARNSTABLE
IN BARNSTABLE, MASSACHUSETTS
in Barnstable (Centerville), Massachusetts
EXHIBIT A
Description of the Premises
A parcel of land in the Village of Centerville, Town of Barnstable, County of Barnstable,
Commonwealth of Massachusetts, containing approximately 1.05 acres, more or less, bounded
and described as follows:
All of the land shown as Parcel 3 on a plan of land entitled “Plan of Subdivision of a
Portion of Land of Lillian E. Marchant, Ruth H. Murray, Allen A. Harju & Andrew T.
Harju in Barnstable” dated Aug. 23, 1969 and recorded in Barnstable Registry of Deeds
in Plan Book 243 Page 121.
For Grantor’s Title, see deed recorded in Barnstable County Registry of Deeds in Book 28077,
Page 269.
Street Address: 71 Harju Road, (Centerville Village), Barnstable MA
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
20
EXHIBIT B
Sketch Plan of the Premises
Barnstable County Registry of Deeds Plan Book 243, Page 121
Conservation Restriction Premises
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
21
EXHIBIT C
Town Council Order – CPA Funding
HARJU ROAD CONSERVATION RESTRICTION, CENTERVILLE MA
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EXHIBIT D
Town Council Order – CR Approval
Prince Ave CR Locus Map
Openspace by Ownership Solid
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111 PRINCE AVENUE CONSERVATION RESTRICTION
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Property location: 111 Prince Avenue, Marstons Mills (Barnstable)
Grantor: Town of Barnstable
Grantee: Barnstable Land Trust, Inc.
Property Address: 111 Prince Avenue, Barnstable, Massachusetts
Grantor's Title: Barnstable County Registry of Deeds in Book 29046, Page 215
Plan of Record: Barnstable County Registry of Deeds Plan Book 272 Pages 29, 30 (Lot 1)
CONSERVATION RESTRICTION
THE INHABITANTS OF THE TOWN OF BARNSTABLE, a Massachusetts municipal
corporation, by and through its TOWN MANAGER, with principal offices at Town Hall, 367 Main
Street, Hyannis, Barnstable County, Massachusetts 02601-3907, its successors and assigns,
("Grantor"), for nominal consideration, 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 charitable corporation with an address of 1540 Main Street, West
Barnstable, Massachusetts 02668, its successors and permitted 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 vacant
land totaling approximately 2.57 acres located in the Village of Marstons Mills, Town of Barnstable,
County of Barnstable, Commonwealth of Massachusetts (hereinafter referred to as “Premises”), said
Premises being described in Exhibit A and shown as Lot 1 on a plan of land entitled “Plan of Land,
Marstons Mills, Barnstable, Mass. for Old Post Landing (a limited Partnership) dated May 7, 1973,
drawn by Charles N. Savery, Inc.” and recorded in the Barnstable County Registry of Deeds in Plan
Book 272, Pages 29 and 30, sketches of which plan are attached hereto in Exhibit B1 and Exhibit B2,
all of which exhibits are attached hereto and made a part hereof. The Grantor and Grantee, their
successors and assigns, are bound by and subject to the terms and conditions of this Restriction.
The conveyance of this Restriction is made pursuant to the vote of the Barnstable Town Council, at a
duly called meeting held on May 7, 2015, on Agenda Item No.2015-138, to authorize the Town to
grant this Restriction on the Premises in compliance with the provisions set forth herein, and as defined
in the Community Preservation Act, G.L.c.44B § 1 et. seq. as applied pursuant to Chapter 149, § 298
of the Acts of 2004, as amended by Chapter 352, §§ 129-133 of the Acts of 2004 (the so-called
“Barnstable County Community Preservation Act” or “CPA”). A copy of the Town Council Order is
attached hereto as Exhibit C.
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 purposes of this Restriction are to assure that the Premises, while
permitting the acts and uses described in Article III herein, will be retained in perpetuity predominately in
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its natural, scenic and open condition; to protect and promote the conservation of water supplies, native
vegetation, wetlands, soils, natural watercourses, habitat and wildlife thereon; to protect and enhance the
value of the abutting conservation areas; to allow and maintain appropriate public access for enjoyment of
the wildlife and open space resources and for passive recreation. The Premises is to be preserved primarily
in its natural state and to improve public access to recreational opportunities at the Prince Cove Town
Landing, a deep water landing that provides a safe place to launch and haul out recreational and other
vessels (“Prince Cove Town Landing”). The conservation and permanent protection of the Premises will
yield a significant public benefit for the following reasons (hereinafter, the “conservation values”):
A. The Premises contains 2.57 acres of pine-oak upland forest which hosts Statewide Wildlife
Action Plan species of greatest conservation need. Fox, coyote, and deer, Eastern Box Turtle,
migratory warblers, and bobwhite quail are among the species that prefer to inhabit the forested
upland.
B. The Premises contains Prime Forest Land, a defined MassGIS map layer based on USDA Natural
Resources Conservation Service soil data, which reflect high potential for white pine and black oak
forest development, wetlands, and riparian area presence. 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.
C. In 1991, the Barnstable Assembly of Delegates, pursuant to the Cape Cod Commission Act,
Chapter 716 of the 1988 Massachusetts Acts, adopted a Regional Policy Plan (as amended in 1996,
2002, 2009, 2015, 2018 and 2021), which identifies the following goals (references are to the
2018 RPP, amended March 2021 Plan):
o “To protect, preserve, or restore the quality and natural values and functions of ocean
resources” (Ocean Resources Goal, p. 61).
Locate development away from sensitive resource areas and habitats” (p. 61);
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. 61);
“Protect wetlands and their buffers from vegetation and grade changes.”
o “To protect, preserve, or restore wildlife and plant habitat to maintain the region’s natural
diversity” (Wildlife and Plant Habitat Goal, p. 61);
“Maintain existing plant and wildlife populations and species diversity.”
o “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.” (Open Space Goal, p. 61).
Granting this Conservation Restriction will advance each of these goals. The Ocean Resources Goal
will be served in that by allowing the Premises to remain undeveloped, and help protect the water quality
of the nearby Marstons Mills River (across Prince Avenue) which empties into Prince Cove and leads
eventually to Nantucket Sound. Conservation of the Premises will buffer and protect the wetlands along
the Marstons Mills River (Wetland Resources Goal), and therefore protect wildlife that forage, nest and
reproduce in the Riverfront Area along the river, and within the Premises’ 2.7 acres of pine-oak upland
forest (Wildlife and Plant Habitat Goal). In addition, the Premises will enhance public access for passive
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111 PRINCE AVENUE CONSERVATION RESTRICTION
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recreation such as walking and nature study, connecting with trails on conservation land across Prince
Avenue and allow parking for the launching of kayaks, canoes and other non-motorized craft (Open
Space Goal).
D. The Premises is within the 200-foot wide Riverfront Area of the Marstons Mills River, a perennial
stream and estuary. This Area, as defined in the Rivers Protection Act, Chapter 258 of the Acts of
1996, supports the eight interests of the Wetlands Protection Act: protection of public and private
water supply, protection of groundwater supply, protection of land containing shellfish, protection
of wildlife habitat, flood control, storm damage prevention, prevention of pollution, and protection
of fisheries. The law also establishes the policy of the state to protect the natural integrity of rivers
and to encourage and establish open space along rivers. The Marstons Mills River supports an active
anadromous fish run for alewife and river herring and the state-listed rare bridle shiner is found in
the Mill Pond, just upstream of the Premises.
E. The Premises is proximate to and will enhance the value of large parcels of protected open space
owned by the Town of Barnstable and the Barnstable Land Trust, Inc., the local non-profit land
conservation organization, particularly within the Marstons Mills River Corridor across the street.
There are approximately 13 acres to the north, and 20+ acres to the south along the river that
comprise the Marstons Mills River Conservation Area.
F. 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.”
In this plan, concerns about open space protection, maintaining public access to fresh and marine
waterfront areas were listed. The Plan’s guiding principles include: “Preservation of open space for
protection of drinking water resources, and for the protection of other natural, historic and scenic
resources is a community-wide priority…” The plan also provides guidance on public access to fresh
and marine waterways. (p.6) The OSRP’s goals include: “Goal 1: Protect and maintain a maximum
amount of open space to enhance environmental protection, recreational opportunities and
community character; Goal 2: Plan, coordinate and execute open space protection measures that
complement community efforts to protect water supply, protect fresh and marine surface waters,
preserve historic, scenic and cultural resources, and provide opportunities for farming and
agriculture; Goal 3: Provide diverse recreational opportunities and access throughout Barnstable and
ensure that the current and future needs of all user groups are met appropriately; and Goal 4: Provide
adequate public access to and safe enjoyment of the Town’s open space and recreational resources
and programs, particularly its shoreline areas and fresh and marine waterways. Access should be
provided in balance with resource sustainability.” (pp. 104-105). Through protection of the
Premises, an additional 2.57 acres of open space are conserved that support public access to the
conservation land across the street (13 acres on the river) where the public may access Marstons
Mills River for recreational purposes, including kayaking, canoeing, birdwatching, and other passive
recreation and water-based activities.
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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.
Additionally, the Barnstable Town Council’s Strategic Plan for fiscal year 2015 identified the goal
to preserve and protect significant natural and historic resources for visual quality, outdoor
recreation, public access, wildlife habitat, and cultural history.
G. 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 habitats; and it would contribute to the
preservation of open space.
H. Consistency with Clearly Delineated State Conservation Policy. The Premises possesses significant
open space, natural, aesthetic, ecological, plant and wildlife habitat, solid and water resource quality,
watershed, and scenic values (collectively “conservation values”) of great importance to the Grantee
and the people of Barnstable and the Commonwealth of Massachusetts. Protection of the Premises
will protect in 2.57 acres of pine-oak upland forest habitat which is home to Statewide Wildlife Action
Plan species of greatest conservation need. Fox, coyote, and deer, Eastern Box Turtle, migratory
warblers, and bobwhite quail, among other important species. The Premises is within the 200-foot wide
Riverfront Area of the Marstons Mills River, as defined in the Rivers Protection Act, Chapter 258 of
the Acts of 1996, and supports the protection of public and private water supply, protection of
groundwater supply, protection of land containing shellfish, protection of wildlife habitat, flood
control, storm damage prevention, prevention of pollution, and protection of fisheries.
I. 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. 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, and (ii) is intended to serve as an objective information
baseline for subsequent monitoring of compliance with the terms of this Conservation 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.
J. 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.
The terms of this Restriction are as follows:
II. PROHIBITED ACTIVITIES: In order to carry out the purposes set forth in Article I above, the
Grantor covenants for itself and its legal representatives, mortgagees, 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
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Purposes and conservation values 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 Article III below, prohibited activities shall include, but shall not
be limited to, the following: A. Construction or placing of any building, residential dwelling, mobile home, tennis court, ball fields,
benches, swimming pool, artificial water impoundment, billboard, or other advertising display,
landing strip or pad, roadway, asphalt or concrete pavement, trail, wind turbine, antenna, utility pole,
tower, wind turbine, 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,
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 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 of motorized or power-driven vehicles of any kind, including without limitation snowmobiles,
motorbikes or all-terrain vehicles.
H. Camping, hunting, or trapping unless for a proven nuisance to wildlife.
I. Conveyance of a part or portion of the Premises alone or division or subdivision of the Premises or
use or assignment of the dimensions, area or acreage of the Premises for purposes of subdivision or
development of unrestricted land whether or not such land is owned by the Grantor, its successors and
assigns. (Conveyance of the Premises in its entirety shall be permitted.)
J. Activities detrimental to drainage, flood control, water conservation, erosion control, soil
conservation, or wildlife habitat.
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K. The excavation of landscape features on the Premises with the intent of collecting or otherwise
removing archaeological artifacts (prehistoric and/or historic) except by formal approval of the
Massachusetts Historic Commission (MHC) through submission, with the concurrence of the
Grantee, of a project notification form (PNF) in accordance with Section 27C of Chapter 9 of the
Massachusetts General Laws, and associated regulations, as amended.
L. Subdivision or conveyance of a part or portion of the Premises, it being intended to keep the
Premises in single ownership.
M. No portion of the Premises may be used towards any building, septic system or other development
requirements on any other parcel outside the Premises.
N. Any commercial, residential, industrial or other municipal uses.
O. 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. Measures, such as the installation of fencing and signage, taken in order to prevent unauthorized
vehicle entry and dumping, vandalism or other acts destructive to the Premises.
B. With the prior written approval of the Grantee, measures taken in order to protect landform
stability (i.e, to maintain a naturally occurring feature on the land’s surface, e.g., bank or hill from
erosion).
C. The use of the Premises for passive recreational activities such as hiking, snowshoeing, cross-country
skiing, nature study or research, and other like activities, including access by motorized wheelchairs
or other disabled assistance devices.
D. The maintenance and use of trails on the Premises and with the prior written approval of the Grantee,
the relocation or construction of new trails, provided that all applicable federal, state, regional and local
approvals are obtained in advance, and that any relocated trails or new trails are no wider than eight (8)
feet.
E. The installation, maintenance and use of an unpaved parking area and standard accessory items, such
as signing, curbing, and plantings, but not lighting, trash receptacles or portable toilets, on
approximately one-half acre of the 2.57-acre Premises. Said parking area may be used by the general
public to access the Premises for passive recreational uses, and to access the Prince Cove Town
Landing. The specific dimensions of the parking area are defined in the sketch attached hereto in
Exhibit D. Trees may be pruned but not felled on the slope if said trees endanger the public safety or
interfere with the convenience of the parking area. Grantor shall not install the parking area without
the prior written approval of the Grantee.
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F. The erection and maintenance of signs identifying ownership of the Premises, the property
boundaries, the Premises’ status as a conservation reservation, 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; 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.
H. The use of motorized vehicles (1) by the Grantor as reasonably necessary to carry out activities
permitted under this Restriction, (2) for access by Grantee for purposes set forth in Article VI, below,
(3) for access by police, fire, emergency, public works, or other governmental personnel carrying out
their official duties, and (4) by the public for use of a parking area installed pursuant to Article III.D.
The use of motorized vehicles for the purposes described herein shall be limited to the existing trails
or those trails that may be approved and installed pursuant to Article III.D. 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.
I. Archaeological investigations consisting of site inspections and subsurface excavations subject to
and in accordance with an Archaeological Field Investigation Permit issued by the State
Archaeologist under G.L. c. 9, §26A, and associated regulations, and Grantee’s written approval in
accordance with Article IV, below.
J. Such other non-prohibited activities or uses of the Premises may be permitted with the prior approval of
the Grantee provided that the Grantee has made a finding, such finding to be documented in writing and
kept on file at the office of the Grantee, that such activities are consistent with the Reserved Rights, do
not impair the conservation values and purposes of this Conservation Restriction, and, where feasible,
result in a net gain in conservation value of the Premises.
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, 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.
The exercise of any right or obligation reserved by the Grantor under this Article III shall be in compliance
with all applicable federal, state and local law. The inclusion of any reserved right in this Article III
requiring a permit from a public agency does not imply that the Grantee or the Commonwealth takes any
position on whether such permit 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:
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a. Describe the nature, scope, design, location, timetable and any other material aspect of the
proposed activity;
b. Describe how the proposed activity complies with the terms and conditions of this Conservation
Restriction, and will not materially impair the Purposes and/or Conservation Values;
c. Identify all permits, licenses, or approvals required for the proposed activity, and the status of
any such permits, licenses, or approvals.
d. Describe any other material aspect of the proposed activity in sufficient detail to permit the
Grantee to make an informed judgment as to its consistency with the Purposes and Conservation
Values.
B. Grantee Review. Where Grantee’s approval is required, Grantee shall grant or withhold approval in
writing within sixty (60) days of receipt of Grantor’s request. Grantee’s approval shall only be
granted upon a showing that the proposed activity will minimize impacts to the Conservation Values
and will not materially impair the Purposes and/or Conservation Values. Grantee may require
Grantor to secure expert review and evaluation of a proposed activity by a mutually agreed upon
party.
C. Resubmittal. Grantee’s failure to respond within sixty (60) days of receipt shall not constitute
approval of the request. Grantor may subsequently submit the same or a similar request for approval.
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 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 may 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, 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 objectionable actions and is
making a good faith effort to remedy the violation and Grantee reasonably determines there is no
ongoing diminution of the conservation values of the Restriction.
C. The Grantor and its successors and assigns shall each be liable under this section for any such
violations of this Restriction as may exist during their respective periods of ownership of the
Premises. Any new owner may be held responsible for any continuing violations existing 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 all reasonable
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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. If Grantor prevails in any
action brought by Grantee to enforce the terms of this Restriction, the Grantee or its heirs, successors
and assigns, as the case may be, shall, to the extent allowed by law, reimburse the Grantor for all
reasonable costs and expenses, including attorney’s fees, incurred in defending such action to
enforce this Restriction, provided the Grantee’s action is deemed by the court or by other competent
authority to be unreasonable or arbitrary and capricious.
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.
VI. GRANTEE'S RIGHT OF ACCESS; INSPECTION:
The Restriction hereby conveyed does not grant to the Grantee any right to enter upon the Premises except
at reasonable times and in a reasonable manner for the following purposes:
A. To perform a survey of boundary lines;
B. To inspect the Premises to determine compliance within provisions of this Restriction;
C. To enter the Premises with or without the presence of an employee or employees of the Grantor 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 give
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 irreparable harm to the Premises.
D. The Restriction hereby conveyed includes the grant of the right to the general public to enter upon
the Premises, and to use the Premises for the purposes set forth in Articles III.C and III.H above.
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 or change in the
Premises resulting from 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 desirable that the Premises be restored, the parties will cooperate in
attempting to restore the Premises, if feasible.
VIII. COSTS AND TAXES: Grantor agrees to pay and discharge when and if due any and all real
property taxes and other assessments levied by competent authority on the Premises.
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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. Without limiting the foregoing, the Grantor and its successors and assigns agree themselves
to execute any such instrument upon reasonable request.
X. 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 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;
B. The assignee is required to hold this Restriction and enforce its terms for conservation purposes;
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.
F. No such assignment of the right to enforce the Restriction shall diminish the rights or benefits held
by the Grantee or its successors pursuant to this Restriction, and the Grantee shall retain the
equivalent right to enforce this Restriction.
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 the terms of this Restriction,
in full or by reference, in any deed or other legal instrument by which Grantor conveys or transfers any
interest in all or a portion of the Premises, including, without limitation, a leasehold interest. The Grantor
further agrees to notify the Grantee in writing at least thirty (30) days before conveying or transferring
the Premises, or any part thereof or interest therein, including a leasehold interest. Any transfer shall
comply with Article 97 of the amendments to the Constitution of the Commonwealth of Massachusetts,
if applicable.
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
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occurring prior to the transfer, and liability for the transfer itself if the transfer is a violation of this
Restriction, shall survive the transfer.
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 Secretary of Energy and Environmental Affairs and if applicable, shall comply
with the provisions of Article 97 of the Amendments to the Massachusetts Constitution, and any gifts,
grants or funding requirements. Any amendment shall be recorded in the Barnstable County Registry of
Deeds.
XV. EXTINGUISHMENT:
A. If circumstances arise in the future such as render the purpose of this Conservation Restriction
impossible to accomplish, this restriction can only be terminated or 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 extinguishment or other release 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 Article XV.B, subject, however, to any
applicable law which expressly provides for a different disposition of the proceeds and after
complying with the terms of any gift, grant, or funding requirements. Grantee shall use its share of
the proceeds in a manner consistent with the conservation purpose 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, including any requirements of the CPA.
C. Grantor/Grantee Cooperation Regarding Public Action. Whenever all or part of the Premises or any
interest therein is taken by public authority other than Grantor under power of eminent domain or
other act of other 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, including any requirements of the CPA. If a less than fee interest is
taken, the proceeds shall be equitably allocated according to the nature of the interest taken. The
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Grantee shall use its share of the proceeds like a continuing trust in a manner consistent with the
conservation purposes of this grant.
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 related
to the Restriction, all of which are merged herein.
D. Joint Obligation: The obligations imposed by this Restriction upon the parties that together comprise
the "Grantor" and "Grantee" shall be joint and several.
E. 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.
F. 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: Town of Barnstable, c/o Town Manager
367 Main Street
Hyannis MA 02601-3907
To Grantee: Barnstable Land Trust, Inc.
1540 Main Street
West Barnstable MA 02668
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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
G. Subordination: The Grantor shall record at the Barnstable Registry of Deeds simultaneously with
this Restriction all documents necessary to subordinate any mortgage, promissory note, loan, lien,
equity credit line, reference assignment of mortgage, lease, financing statement or any other
agreement which gives rise to a surety interest affecting the Premises.
H. 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.
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 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.
Attached hereto and incorporated herein are the following:
Signatures:
Grantor: Town of Barnstable by and through its Town Manager
Grantee Acceptance: Barnstable Land Trust, Inc.
Approval: Town of Barnstable Town Council
Approval: Secretary of Energy and Environmental Affairs
Exhibits:
A. Description of the Premises
B.1. Reduced Copy of Recorded Plan of the Premises
B.2 Excerpt Copy of the Plan of the Premises
C. Town Council Order – CPA funding
D. Sketch Plan of Parking Area
E. Town Council Order – CR approval
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GRANT AND APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, hereby grant and approve
the foregoing Conservation Restriction to Barnstable Land Trust, Inc. pursuant to Section 32 of
Chapter 184 of the Massachusetts General Laws.
TOWN OF BARNSTABLE
TOWN MANAGER: ______________________
Mark S. Ells
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On the day of , 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 personal knowledge of identity, and who being by me duly sworn did say that he
is the Town Manager of the Town of Barnstable; that he is duly authorized to act on behalf the Town of
Barnstable and she acknowledged the foregoing instrument to be his free act and deed.
______________________
Notary Public
My Commission Expires
15
111 PRINCE AVENUE CONSERVATION RESTRICTION
BARNSTABLE MA
ACCEPTANCE OF GRANT
This Conservation Restriction from Town of Barnstable was accepted by Barnstable Land Trust, Inc. this
__________ day of________________, 2024.
By: _____________________________
Leigh Townes
Its: President, duly authorized
By: _____________________________
Jill McCleary
Its: Treasurer, duly authorized
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2024, before me, the undersigned notary public,
personally appeared Leigh Townes and Jill McCleary, 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.
______________________________
Notary Public
My Commission Expires:
16
111 PRINCE AVENUE CONSERVATION RESTRICTION
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 Town of Barnstable to
the Barnstable Land Trust, Inc., pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws
and hereby certifies approval of the foregoing Conservation Restriction. An attested copy of the vote of the
Town Council is attached hereto and included herein as Exhibit E.
TOWN COUNCIL PRESIDENT:
_________________________________________ Felicia R. Penn
THE COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On the day of , 2024, before me, the undersigned notary public, personally appeared Felicia
R. Penn, the person whose name is signed on the document and proved to me through satisfactory evidence
of identification, which was personal knowledge of identity, and who being by me duly sworn did say that
she is the President of the Town Council of the Town of Barnstable; that she is duly authorized to act on
behalf the Town Council; and she acknowledged the foregoing instrument to be the free act and deed of Town
of Barnstable Town Council.
Notary Public
My Commission Expires:
111 PRINCE AVENUE CONSERVATION RESTRICTION
BARNSTABLE MA
17
SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts, hereby certifies that the foregoing Conservation Restriction from the Town of
Barnstable to Barnstable Land Trust, Inc., has been approved 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
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:
111 PRINCE AVENUE CONSERVATION RESTRICTION
BARNSTABLE MA
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CONSERVATION RESTRICTION
ON LAND OWNED BY
TOWN OF BARNSTABLE IN
BARNSTABLE, MASSACHUSETTS
EXHIBIT A
Description of the Premises
All of the vacant land situated in that part of the Town of Barnstable known as Marstons
Mills, Barnstable County, Massachusetts, bounded and described as follows:
Being all of Lot 1 on a plan of land entitled, “Plan of Land, Marstons Mills,
Barnstable Mass. for Old Post Landing (a Limited Partnership) dated May 7, 1973,
drawn by Charles N. Savery, Inc.” and recorded in Barnstable County Registry of
Deeds in Plan Book 272, Pages 29 and 30.
Street Address: 111 Prince Avenue, (Marstons Mills) Barnstable MA 02648
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BARNSTABLE MA
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EXHIBIT B.1
Sketch Plan of the Premises
Barnstable County Registry of Deeds Plan Book 272, Page 29
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BARNSTABLE MA
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EXHIBIT B.2
Excerpt Copy of Sketch Plan of the Premises
Barnstable County Registry of Deeds Plan Book 272, Page 29
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BARNSTABLE MA
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EXHIBIT C
TOWN COUNCIL ORDER – CPA Funding
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BARNSTABLE MA
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EXHIBIT D
Sketch Plan of the Parking Area
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BARNSTABLE MA
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EXHIBIT E
TOWN COUNCIL ORDER – CR Approval