HomeMy WebLinkAboutDraft Conservation Restriction Smiths Creek 08.22.2024 CleanSmiths Creek Conservation Restriction, West Barnstable
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GRANTOR: ORENDA WILDLIFE LAND TRUST, INC.
PRIMARY GRANTEE: TOWN BARNSTABLE
SECONDARY GRANTEE: THE COMPACT OF CAPE COD CONSERVATION TRUSTS,
INC.
ADDRESS OF PREMISES: 564 and 0 Main Street (Route 6A), (West) Barnstable, MA 02668
FOR GRANTOR’S TITLE SEE: Barnstable County Registry of Deeds at Book _____, Page _____,
and Barnstable Registry District of the Land Court Certificate # .
FOR GRANTOR’S PLAN SEE: Barnstable County Registry of Deeds at Plan Book 166, Page 141 and
Land Court Plan 38226-B.
GRANT OF CONSERVATION RESTRICTION
I. STATEMENT OF GRANT
ORENDA WILDLIFE LAND TRUST, INC., a Massachusetts nonprofit corporation with an
office address at 4011 Main Street, Cummaquid, MA 02637 and a mailing address of P.O. Box
669, West Barnstable, MA 02668, being the sole owner of the Premises as defined herein, for its
successors and assigns (“Grantor”), acting pursuant to Sections 31 and 32 of Chapter 184 of the
Massachusetts General Laws, grants, with QUITCLAIM COVENANTS, IN PERPETUITY AND
EXCLUSIVELY FOR CONSERVATION PURPOSES to the INHABITANTS OF THE TOWN
OF BARNSTABLE, a Massachusetts municipal corporation with principal offices at Town Hall,
367 Main Street, (Hyannis), Town of Barnstable, Barnstable County, Massachusetts 02601-3907,
acting by and through its TOWN MANAGER, its permitted successors and assigns (“Primary
Grantee”), for consideration of One Hundred Thousand and 00/100 Dollars ($100,000.00) paid,
and to THE COMPACT OF CAPE COD CONSERVATION TRUSTS, INC., a Massachusetts
nonprofit corporation with an office address at 36 Red Top Road, Brewster, MA 02631 and a
mailing address of P.O. Box 443, Barnstable, MA 02630, its permitted successors and assigns
(“Secondary Grantee”), for nominal consideration, the following Conservation Restriction on
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two tracts of adjoining land located in the Town of Barnstable, Barnstable County, Commonwealth
of Massachusetts containing a total of 5.46 acres, more or less, (“Premises”), which Premises is
more particularly described in Exhibit A and shown in the attached reduced copies of survey plans
in Exhibit B, both of which are incorporated herein and attached hereto. As used herein, the terms
“Grantee” and “Grantees” shall refer to the Primary Grantee and the Secondary Grantee
collectively.
The Primary Grantee acquired this Conservation Restriction utilizing, in part, Community
Preservation Act funds pursuant to Chapter 44B § 1 et seq. of the Massachusetts General Laws ,
which funds were authorized for such purposes by a vote of the Barnstable Town Council held on
, on Agenda Item . An attested copy of the
Town Council Order is attached hereto as Exhibit C.
II. PURPOSES:
This Conservation Restriction is defined in and authorized by Sections 31 and 32, of Chapter 184
of the Massachusetts General Laws and otherwise by law. The purposes of this Conservation
Restriction (“Purposes”) are to ensure that the Premises will be maintained in perpetuity in its
natural, scenic, or open condition and available for passive outdoor recreational use, and to prevent
any use or change that would materially impair the Conservation Values (as defined below).
Conservation Partnership. The fee interest in the Premises was acquired utilizing, in part,
assistance from the Conservation Partnership program which requires, pursuant to Section 2A of
Chapter 286 of the Acts of 2014 and Section 2A of Chapter 102 of the Acts of 2021, the
conveyance of this Conservation Restriction. (PENDING)
The Conservation Values protected by this Conservation Restriction include the following:
• Open Space. The Premises contributes to the protection of the scenic and natural character
of Barnstable and the protection of the Premises will enhance the open-space value of these
and nearby lands. The Premises abuts land already conserved, including 17 acres± of
privately-owned conservation restriction-protected land to the northeast. The protection of
the Premises will continue the decades-long effort by the Town of Barnstable, Department
of Fish and Game, the Barnstable Land Trust and the Grantor to preserve ecologically
important areas within the 3,700+ acre Barnstable Great Marsh.
• ACEC. The Commonwealth of Massachusetts, through the authority of the Secretary of
Energy and Environmental Affairs under Massachusetts General Law Chapter 21A, § 2(7),
designated the Sandy Neck Barrier Beach System as an Area of Critical Environmental
Concern (ACEC) in 1978. The Premises includes 1.75 acres± of area located within the
ACEC.
• Floodplain. The Premises includes 1.9 acres± of area designated within the Federal
Emergency Management Agency (FEMA) 100-year Special Flood Hazard Area with a
Base Flood Elevation of 13-14 feet along Smiths Creek. The protection of the Coastal
Floodplain can slow down flood waters and allow them to flow across a natural landform
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surface, providing frictional resistance and reducing their energy and destruction potential,
allow flood waters to spread over a wide area without obstructions, allow flood waters to
be detained, absorbed into the ground, or evaporated into the atmosphere, and protect the
land from storm erosion by providing a substrate for vegetation that helps to stabilize
sediments and slow down flood waters.
• Soils and Soil Health. The Premises includes 2.25 acres± of Farmland of Statewide
Importance and 4.4 acres± of Prime Forest Land, Forest of Statewide and Local
Importance, and Wetland of State and Local Importance as identified by the USDA Natural
Resources Conservation Service (source: MassGIS MassMapper). The protection of the
Premises will promote healthy soils and healthy soils practices as such terms are defined
in Chapter 358 of the Acts of 2020, which added definitions of these terms to Section 7A
of Chapter 128 of the Massachusetts General Laws.
• Wildlife Habitat. The Premises is in close proximity to (175 feet±) areas designated by the
MA Division of Fisheries and Wildlife acting by and through its Natural Heritage and
Endangered Species Program (NHESP) as “Priority Habitats of Rare and Endangered
Species,” the protection of which aligns with NHESP’s wildlife and habitat protection
objectives.
• Public Access. Public access to the Premises will be allowed for passive outdoor
recreation, education and nature study.
• Biodiversity. The Premises is designated as BioMap Wetland Core Habitat and Wetland
Core Buffer Critical Natural Landscape, 0.15 acres± of the Premises is designated as
BioMap Critical Natural Landscape Blocks, and 1.9 acres± of the Premises is designated
as Critical Natural Landscape Coastal Adaptation Area, as defined by the Massachusetts
Natural Heritage and Endangered Species Program. BioMap, last 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.
• Habitat Connectivity and Ecosystem Integrity. The Premises includes areas identified by
the UMass Conservation Assessment and Prioritization System (CAPS) as Freshwater
Wetland and Aquatic Landscape of high ecological integrity. CAPS measures the
ecosystem integrity of land and can be used to demonstrate the value of land as having
outstanding unfragmented habitat value.
• Water Quality. All of Cape Cod is a high-yield aquifer, designated as a Sole Source
Aquifer by the United States Environmental Protection Agency (USEPA) in 1982. All of
the Premises lies within 300 feet of freshwater and tidal wetlands, including 900 feet of
streambank on Smiths Creek. Protection of the Premises will help protect the coast from
additional development and associated septic systems whose leachate would contribute
nitrogen to Barnstable Harbor and contribute to eutrophication and possible algal blooms.
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• Wetlands. The wooded and shrub swamp wetlands on the Premises provide valuable
habitat for a diverse array of wildlife species as well as provide the many other public
benefits of wetlands protection recognized by the Commonwealth of Massachusetts
(Section 40 of Chapter 131 of the Massachusetts General Laws).
• Climate Change Resiliency. The Premises is identified as an area of above average
Terrestrial Resilience according to The Nature Conservancy’s (TNC) Resilient Land
Mapping Tool, including above average Landscape Diversity and slightly above average
Local Connectedness. TNC’s Resilient Land Mapping Tool was developed in order to map
‘climate-resilient’ sites that are ‘more likely to sustain native plants, animals, and natural
processes into the future.’ The protection of these climate resilient sites is an important step
in both reducing human and ecosystem vulnerability to climate change and adapting to
changing conditions.
• Consistency with Clearly Delineated Barnstable County Conservation Policy. Protection
of the Premises will assist in achieving Barnstable County conservation goals. In July
1991, the Barnstable County Assembly of Delegates, pursuant to the Cape Cod
Commission Act (Chapter 716 of the Acts of 1989), adopted a Regional Policy Plan,
amended in 1996, 2002 2009, 2012, and 2018 which provided, inter alia (references are to
the 2018 RRP, amended in 2021 to accommodate climate change goals and objectives):
o “To maintain a sustainable supply of high quality untreated drinking water and
protect, preserve, or restore the ecological integrity of Cape Cod’s fresh and marine
surface water resources.” (Water Resources Goal, p. 54) and
▪ Protect and preserve groundwater quality
▪ Protect, preserve and restore fresh water resources
▪ Protect, preserve and restore marine water resources
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);
and
▪ “Protect wetlands and their buffers from vegetation and grade changes”
▪ “Protect wetlands from changes in hydrology”
▪ “Protect wetlands from stormwater discharges”
o "To protect, preserve, or restore wildlife and plant habitat to maintain the region's
natural diversity" (Wildlife and Plant Habitat Goal, p. 61); and
▪ "Maintain existing plant and wildlife populations and species diversity."
▪ Protect and preserve rare species habitat, vernal pools, 350-foot buffers to
vernal pools.
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."
o “To prevent or minimize human suffering and loss of life and property or
environmental damage resulting from storms, flooding, erosion, and relative sea
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level rise, including but not limited to that associated with climate change” (Coastal
Resiliency Goal, p.62); and
▪ “Minimize development in the floodplain”
▪ “Plan for sea level rise, erosion, and floods”
▪ “Reduce vulnerability of built environment to coastal hazards”.
This Conservation Restriction will advance each of these objectives. The Water Resources
Goal will be served by protecting ground and coastal waters from detrimental impacts of
development, the Wetland Resources Goal will be served by protecting coastal wetlands
and their buffers from detrimental impacts of development. Wildlife and Plant Habitat Goal
will be served because the protection of the Premises will protect BioMap-designated
habitat areas. The Open Space Goal will be served by protecting a scenic area with public
access. The Coastal Resiliency Goal will be met by preventing man-made disturbance
within the FEMA Special Flood Hazard Area and by preserving coastal areas suitable for
habitat migration in response to climate change impacts.
• Consistency with Clearly Delineated Town of Barnstable Conservation Policy. Protection
of the Premises will further the Town of Barnstable’s documented goals regarding
conservation land. The Town outlined its conservation goals in its Open Space and
Recreational Plan (1984, amended 1987, 1998, 2005, 2010, 2018), identifying goals,
policies, and actions to guide conservation efforts, among them the goal of preserving
“quality open spaces throughout the Town which protect and enhance its visual heritage.”
Additional objectives include (references are to the 2018 Plan):
1) "Preservation of open space for protection of drinking water resources, and for
protection of other natural, historic and scenic resources is a community-wide
priority; and,
2) Protection of open space should continue to be an integral component of the
Town's efforts." (p. 6)
To achieve this vision, the Plan sets several goals for the town including:
1) "To protect and maintain the maximum amount of open space to enhance
environmental protection, recreational opportunities, and community character;
and,
2) “Plan, coordinate and execute open space protection measures that complement
community efforts to protect water supply, protect fresh and marine surface waters,
[and] preserve historic, scenic and cultural resources..." (pp. 10-11).
Additionally, the Barnstable Town Council’s Strategic Plan for fiscal year 2024-2025
identified the goal to “conserve 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.”
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
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Board of Selectmen, Assessors, and Conservation Commission, which encourages the use
of conservation restrictions in perpetuity to protect natural resources in accordance with
the purposes of the Open Space and Recreation Plan, and which further specified that
purposes of a conservation restriction could include the following:
o preserve scenic view;
o prevent disturbance of wetlands;
o preserve a shoreline;
o prevent the cutting of trees or forests;
o preserve open space;
o preserve important natural habitats of fish, wildlife or plants; and,
o limit or prevent construction on land of natural resource value.
• Consistency with Clearly Delineated State Conservation Policy. The protection of the
Premises will advance the goals of the Massachusetts Clean Energy and Climate Plan for
2050, published in 2022. The Commonwealth aims to permanently conserve at least 40%
of Massachusetts lands and waters by 2050.
• 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: promote protection of state-recognized habitats,
as well as preserve open space, provide for passive public recreation, and maintain the
scenic and rural character of the village of West Barnstable for enjoyment by the public.
• Historic Resources. The Premises includes 65 feet of frontage on State Route 6A, also
known as the Old King’s Highway. In 1973, the Massachusetts legislature adopted the Old
Kings’ Highway Historic District to protect the historical integrity of the route. In 1981 the
Mass. Department of Environmental Management (now the Department of Conservation
and Recreation) identified the Barnstable Great Marsh as one of the few Noteworthy
Landscapes in the state. The protection of the Premises will prevent a new curb cut,
driveway and forest cutting along the scenic roadway.
III. PROHIBITED and PERMITTED ACTS AND USES
A. Prohibited Acts and Uses
The Grantor will not perform or allow others to perform the following acts and uses which are
prohibited on, above, and below the Premises:
1. Structures and Improvements. Constructing, placing, or allowing to remain any
temporary or permanent structure including without limitation any building, tennis
court, landing strip, mobile home, swimming pool, asphalt or concrete pavement,
graveled area, roads, parking area, sign, fence, gate, billboard or other advertising,
antenna, utilities or other structures, utility pole, tower, wind turbine, solar panel, solar
array, conduit, line, septic or wastewater disposal system, storage tank, or dam;
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2. Extractive Activities/Uses. Mining, excavating, dredging, withdrawing, or removing
soil, loam, peat, gravel, sand, rock, surface water, ground water, or other mineral
substance or natural deposit, or otherwise altering the topography of the Premises;
3. Disposal/Storage. Placing, filling, storing or dumping of soil, refuse, trash, vehicle
bodies or parts, rubbish, debris, junk, tree and other vegetation cuttings, liquid or solid
waste or other substance or material whatsoever;
4. Adverse Impacts to Vegetation. Cutting, removing, or destroying trees, shrubs, grasses
or other vegetation;
5. Adverse Impacts to Water, Soil, and Other Features. Activities detrimental to drainage,
flood control, water conservation, water quality, erosion control, soil conservation,
natural habitat, archaeological conservation, or ecosystem function;
6. Introduction of Invasive Species. Planting or introducing any species identified as
invasive by the Massachusetts Invasive Plant Advisory Group or identified as invasive
in such recognized inventories as the Massachusetts Introduced Pests Outreach Project,
the Northeast Aquatic Nuisance Species Panel, or other such inventories, and any
successor list as mutually agreed to by Grantor and Grantees;
7. Motor Vehicles. Using, parking, or storing motorized vehicles, including motorcycles,
mopeds, all-terrain vehicles, off-highway vehicles, motorboats or other motorized
watercraft, snowmobiles, launching or landing aircraft, or any other motorized
vehicles, acknowledging that vehicles necessary for public safety (i.e., fire, police,
ambulance, other government officials) may have a legal right to enter the Premises;
8. Subdivision. Subdividing or conveying a part or portion of the Premises (as compared
to conveyance of the Premises in its entirety which shall be permitted), it being the
Grantor’s and Grantee’s intention to maintain the entire Premises under unified
ownership;
9. Use of Premises for Developing Other Land. Using the Premises towards building or
development requirements on this or any other parcel;
10. Adverse Impacts to Stone Walls, Boundary Markers. Disrupting, removing, or
destroying stone walls, granite fence posts, or any other boundary markers;
11. Hunting and Trapping. Hunting and trapping are strictly prohibited on the Premises;
12. Residential, Commercial, or Industrial Uses. Using the Premises for residential,
commercial or industrial purposes; and,
13. Inconsistent Uses. Any other uses of the Premises that are inconsistent with the
Purposes or that would materially impair the Conservation Values.
B. Permitted Acts and Uses
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Notwithstanding the Prohibited Acts and Uses described in Paragraph III.A, the Grantor
may conduct or permit the following acts and uses on the Premises, provided they do not
materially impair the Purposes and/or Conservation Values. In conducting any Permitted
Act and Use, Grantor shall minimize impacts to the Conservation Values to ensure any
such impairment thereto is not material.
1. Vegetation Management. Maintaining vegetation, including pruning, trimming,
cutting, and mowing, and removing brush, all to prevent, control, and manage hazards,
disease, insect or fire damage, and/or in order to maintain the condition of the Premises
as documented in the Baseline Report (see Paragraph XV);
2. Non-native, Nuisance, or Invasive species. Removing non-native, nuisance, or invasive
species, interplanting native species, and controlling species in a manner that minimizes
damage to surrounding, non-target species and preserves water quality;
3. Composting. Stockpiling and composting stumps, trees, brush, limbs, and similar
biodegradable materials originating on the Premises, provided that no stockpiling or
composting shall occur within 100 feet of a wetland;
4. Natural Habitat and Ecosystem Improvement. With prior written approval of the
Grantees, conducting measures designed to restore native biotic communities, or to
maintain, enhance or restore wildlife, wildlife habitat, ecosystem function, or rare or
endangered species including planting native trees, shrubs, and other vegetation;
5. Archaeological Investigations. Conducting archaeological activities, including without
limitation archaeological research, surveys, excavation and artifact retrieval, but only
in accordance with an archaeological field investigation plan, which plan shall also
address restoration following completion of the archaeological investigation, prepared
by or on behalf of the Grantor and approved in advance of such activity, in writing, by
the Massachusetts Historical Commission State Archaeologist (or appropriate
successor official) and by the Grantees. A copy of the results of any such investigation
on the Premises is to be provided to the Grantees;
6. Trails. Maintaining and constructing trails as follows:
a. Trail Maintenance. Conducting routine maintenance of trails, which may
include widening trail corridors up to six (6) feet in width overall, with a
treadway up to four (4) feet in width.
b. New Trails. With prior written approval of the Grantee, constructing new trails
or relocating existing trails, provided that any construction or relocation results
in trails that conform with the width limitations above.
c. Trail Features. With prior written approval of the Grantee, constructing bog
bridging, boardwalks, footbridges, railings, steps, culverts, benching, cribbing,
contouring, or other such features, together with the use of motorized equipment
to construct such features;
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7. Signs. Constructing, installing, maintaining, and replacing signs and informational
kiosks with respect to the Permitted Acts and Uses, the Purposes, the Conservation
Values, trespass, public access, identity and address of the Grantor, sale of the
Premises, the Grantees' interest in the Premises, boundary and trail markings, any gift,
grant, or other applicable source of support for the conservation of the Premises;
8. Motorized Vehicles. Using motorized mobility vehicles by persons with mobility
impairments and as otherwise permitted herein for land management purposes; and,
9. Outdoor Passive Recreational and Educational Activities. Hiking, nature observation,
nature and educational walks and outings, outdoor educational activities, and other non-
motorized outdoor recreational and educational activities.
C. Site Restoration
Upon completion of any Permitted Acts and Uses, any disturbed areas shall be restored
substantially to the conditions that existed prior to said activities, including with respect to soil
material, grade, and vegetated ground cover.
D. Compliance with Permits, Regulations, Laws
The exercise of any Permitted Acts and Uses under Paragraph III.B shall be in compliance with
all applicable federal, state and local laws, rules, regulations, zoning, and permits, and with the
Constitution of the Commonwealth of Massachusetts. The inclusion of any Reserved Right
requiring a permit, license or other approval from a public agency does not imply that the Grantees
or the Commonwealth takes any position whether such permit, license, or other approval should
be issued.
E. Notice and Approval
1. Notifying Grantee. Whenever notice to or approval by Grantees is required, Grantor
shall notify or request approval from Grantees, 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; and,
d. Describe any other material aspect of the proposed activity in sufficient detail
to permit the Grantees to make an informed judgment as to its consistency with
the Purposes and Conservation Values.
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2. Grantee Review. Where Grantee’s approval is required, the Secondary Grantee, within
thirty (30) days of receipt of Grantor’s request, shall notify the Primary Grantee of the
Secondary Grantee’s decision. Within sixty (60) days of the Primary Grantee’s receipt
of Grantor’s request, the Primary Grantee shall either affirm, amend or reverse the
decision of the Secondary Grantee, shall notify the Secondary Grantee thereof in
writing, and shall issue its decision to the Grantor in writing. The Primary Grantee’s
decision shall in all cases be the final and controlling decision binding on both
Grantees. In the event that no decision is received from the Secondary Grantee within
thirty (30) days, the Primary Grantee shall proceed to issue its decision within sixty
(60) days of Grantor’s request. Grantee’s approval shall only be granted upon a
showing that the proposed activity will minimize impacts to the Conservation Values
and will not materially impair the Purposes and/or Conservation Values. Grantee may
require Grantor to secure expert review and evaluation of a proposed activity by a
mutually agreed upon party.
3. Resubmittal. Grantees’ 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.
IV. INSPECTION AND ENFORCEMENT
A. Entry onto the Premises
The Grantor hereby grants to the Grantees, and their duly authorized agents or representatives, the
right to enter the Premises upon reasonable notice and at reasonable times, for the purpose of
inspecting the Premises to determine compliance with or to enforce this Conservation Restriction.
B. Legal and Injunctive Relief
1. Enforcement. The rights hereby granted shall include the right to enforce this
Conservation Restriction by appropriate legal proceedings and to obtain compensatory
relief, including without limitation, compensation for interim losses (i.e., ecological
and public use service losses that occur from the date of the violation until the date of
restoration) and equitable relief against any violations, including, without limitation,
injunctive relief and relief requiring restoration of the Premises to its condition prior to
the time of the injury (it being agreed that the Grantees will have no adequate remedy
at law in case of an injunction). The rights hereby granted shall be in addition to, and
not in limitation of, any other rights and remedies available to the Grantees for the
enforcement of this Conservation Restriction.
2. Notice and Cure. In the event the Grantees determine that a violation of this
Conservation Restriction has occurred and intend to exercise any of the rights described
herein, the Grantees shall, before exercising any such rights, notify the Grantor in
writing of the violation. The Grantor shall have thirty (30) days from receipt of the
written notice to halt the violation and remedy any damage caused by it, after which
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time Grantees may take further action, including instituting legal proceedings and
entering the Premises to take reasonable measures to remedy, abate or correct such
violation, without further notice. Provided, however, that this requirement of deferment
of action for thirty (30) days applies only if Grantor immediately ceases the violation
and Grantees determine that there is no ongoing violation. In instances where a
violation may also constitute a violation of local, state, or federal law, the Grantees may
notify the proper authorities of such violation.
3. Reimbursement of Costs and Expenses of Enforcement. Grantor covenants and agrees
to reimburse to Grantees all reasonable costs and expenses (including counsel fees)
incurred by the Grantees in enforcing this Conservation Restriction or in taking
reasonable measures to remedy, abate or correct any violation thereof. In the event of
a dispute over the boundaries of the Conservation Restriction, Grantor shall pay for a
survey by a Massachusetts licensed professional land surveyor and to have the
boundaries permanently marked.
4. Coordination between Primary and Secondary Grantee. Whenever there is a question
of whether there is a violation of this Conservation Restriction, or how to proceed in
addressing the violation, the Primary Grantee shall consult with the Secondary Grantee.
The Primary Grantee shall then determine whether there is a violation and how to
proceed in addressing the violation. The Primary Grantee’s decision shall in all cases
be the final and controlling decision binding on both Grantees. In the event that no
response is received from the Secondary Grantee within thirty (30) days, the Primary
Grantee shall notify Grantor and proceed as provided in Paragraph IV.B.2.
C. Non-Waiver
Enforcement of the terms of this Conservation Restriction shall be at the sole discretion of the
Grantees. Any election by the Grantees as to the manner and timing of its right to enforce this
Conservation Restriction or otherwise exercise its rights hereunder shall not be deemed or
construed to be a waiver of such rights.
D. Disclaimer of Liability
By acceptance of this Conservation Restriction, the Grantees do 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 Grantees or their agents.
E. Acts Beyond the Grantor’s Control
Nothing contained in this Conservation Restriction shall be construed to entitle the Grantees to
bring any actions against the Grantor for any injury to or change in the Premises resulting from
natural causes beyond the Grantor’s control, including but not limited to fire, flood, weather,
climate-related impacts, and earth movement, or from any prudent action taken by the Grantor
under emergency conditions to prevent, abate, or mitigate significant injury to the Premises
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resulting from such causes. In the event of any such occurrence, the Grantor and Grantee s will
cooperate in the restoration of the Premises, if desirable and feasible.
V. PUBLIC ACCESS
Subject to the provisions of this Conservation Restriction, the Grantor hereby grants access to the
Premises to the general public and agrees to take no action to prohibit or discourage access to and
use of the Premises by the general public, but only for daytime use and only as described in
Paragraph III.B.9 provided that such agreement by Grantor is subject to the Grantor’s reserved
right to establish reasonable rules, regulations, and restrictions on such permitted recreational use
by the general public for the protection of the Purposes and Conservation Values. Grantor has the
right to control, limit, or prohibit by posting and other reasonable means activities or uses of the
Premises not authorized in Paragraph III.B.9. The Grantees may require the Grantor to post the
Premises against any use by the public that results in material impairment of the Conservation
Values. This grant of public access to the Premises is solely for the purposes described in Section
17C of Chapter 21 of the Massachusetts General Laws and the Grantor and Grantees hereto express
their intent to benefit from exculpation from liability to the extent provided in such section.
VI. TERMINATION/RELEASE/EXTINGUISHMENT
A. Procedure
If circumstances arise in the future that render the Purposes impossible to accomplish, this
Conservation Restriction can only be terminated, released, or extinguished, whether in whole or
in part, by a court of competent jurisdiction under applicable law after review and approval by the
Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts, or
successor official (“Secretary”), and any other approvals as may be required by Section 32 of
Chapter 184 of the Massachusetts General Laws.
B. Grantor’s and Grantees’ Right to Recover Proceeds
If any change in conditions ever gives rise to termination, release, or extinguishment of this
Conservation Restriction under applicable law, then Primary Grantee, on a subsequent sale,
exchange, or involuntary conversion of the Premises, shall be entitled to a portion of the proceeds
in accordance with Paragraph VI.C, subject, however, to any applicable law which expressly
provides for a different disposition of the proceeds, and after complying with the terms of any gift,
grant, or funding requirements. The Primary Grantee shall use its share of any proceeds in a manner
consistent with the Purposes or the protection of the Conservation Values. The Secondary Grantee
shall not share in any recovered proceeds.
C. Grantee’s Receipt of Property Right
Grantor and Grantees agree that the conveyance of this Conservation Restriction gives rise to a
real property right, immediately vested in the Grantee, with a fair market value that is at least equal
to the proportionate value that this Conservation Restriction, determined at the time of the
conveyance, bears to the value of the unrestricted Premises. The proportionate value of the
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Primary Grantee’s property right as of the Effective Date (see Paragraph XII) was determined to
be 241%. Such proportionate value of the Primary Grantee’s property right shall remain constant.
D. Cooperation Regarding Public Action
Whenever all or any part of the Premises or any interest therein is taken by public authority under
power of eminent domain or other act of public authority, then the Grantor and the Grantees shall
cooperate in recovering the full value of all direct and consequential damages resulting from such
action. All related expenses incurred by the Grantor and the Grantees shall first be paid out of any
recovered proceeds, and the remaining proceeds shall be distributed between the Grantor and
Grantees in accordance with Paragraph VI.B and Paragraph VI.C. If a less than fee interest is
taken, the proceeds shall be equitably allocated according to the nature of the interest taken. The
Grantees shall use its share of any proceeds in a manner consistent with the Purposes or the
protection of the Conservation Values.
VII. DURATION and ASSIGNABILITY
A. Running of the Burden
The burdens of this Conservation Restriction shall run with the Premises in perpetuity and shall be
enforceable against the Grantor and the successors and assigns of the Grantor holding any interest
in the Premises.
B. Execution of Instruments
The Grantees are authorized to record or file any notices or instruments appropriate to assuring the
perpetual enforceability of this Conservation Restriction. The Grantor, on behalf of itself and its
successors and assigns, appoints the Grantees its attorney-in-fact to execute, acknowledge and
deliver any such instruments on its behalf. Without limiting the foregoing, the Grantor and its
successors and assigns agree themselves to execute any such instruments upon request.
C. Running of the Benefit
The benefits of this Conservation Restriction shall run to the Grantees, shall be in gross and shall
not be assignable by the Grantees, except when all of the following conditions are met:
1. the Grantees requires that the Purposes continue to be carried out;
2. the assignee is not an owner of the fee in the Premises;
3. the assignee, at the time of the assignment, qualifies under and 26.U.S.C. 170(h), and
applicable regulations thereunder, if applicable, and is eligible to receive this
Conservation Restriction under Section 32 of Chapter 184 of the Massachusetts
General Laws; and
1 CPA funding of $100,000/$410,000 appraised value = 24%
Smiths Creek Conservation Restriction, West Barnstable
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4. the assignment complies with Article 97 of the Amendments to the Constitution of the
Commonwealth of Massachusetts, if applicable.
VIII. SUBSEQUENT TRANSFERS
A. Procedure for Transfer
The Grantor agrees to incorporate by reference the terms of this Conservation Restriction in any
deed or other legal instrument which grants any interest in all or a portion of the Premises,
including a leasehold interest and to notify the Grantees not less than twenty (20) days prior to the
effective date of such transfer. Any transfers shall receive prior approval by Grantees to assure
that the Premises is transferred to a qualified conservation organization. Failure to do any of the
above shall not impair the validity or enforceability of this Conservation Restriction. If the Grantor
fails to reference the terms of this Conservation Restriction in any deed or other legal instrument
which grants any interest in all or a portion of the Premises, then the Grantees may record it in the
Barnstable County Registry of Deeds and the Barnstable Land Registry District, and at the
Grantor’s expense, a notice of this Conservation Restriction. Any transfer will comply with Article
97 of the Amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
B. Grantor’s Liability
The Grantor shall not be liable for violations occurring after their ownership should they convey
ownership of the property. Liability for any acts or omissions occurring prior to any transfer and
liability for any transfer if in violation of this Conservation Restriction shall survive the transfer.
Any new owner shall cooperate in the restoration of the Premises or removal of violations caused
by prior owner(s) and may be held responsible for any continuing violations.
IX. ESTOPPEL CERTIFICATES
Upon request by the Grantor, the Grantees shall, within sixty (60) days execute and deliver to the
Grantor any document, including an estoppel certificate, which certifies the Grantor’s compliance
or non-compliance with any obligation of the Grantor contained in this Conservation Restriction.
X. NON MERGER
The parties intend that any future acquisition of the Premises shall not result in a merger of the
Conservation Restriction into the fee. The Grantor agrees that it will not grant, and the Grantees
agrees that it will not take title, to any part of the Premises without having first assigned this
Conservation Restriction following the terms set forth in Paragraph VII.C to ensure that merger
does not occur and that this Conservation Restriction continues to be enforceable by a non-fee
owner.
XI. AMENDMENT
A. Limitations on Amendment
Smiths Creek Conservation Restriction, West Barnstable
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Grantor and Grantees may amend this Conservation Restriction only to correct an error or
oversight, clarify an ambiguity, maintain or enhance the overall protection of the Conservation
Values, or add real property to the Premises, provided that no amendment shall:
1. affect this Conservation Restriction’s perpetual duration;
2. be inconsistent with or materially impair the Purposes;
3. affect the qualification of this Conservation Restriction as a “qualified conservation
contribution” or “interest in land” under any applicable laws, including 26 U.S.C.
Section 170(h), and related regulations;
4. affect the status of Grantees as “qualified organizations” or “eligible donees” under any
applicable laws, including 26 U.S.C. Section 170(h) and related regulations, and
Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws; or
5. create an impermissible private benefit or private inurement in violation of federal tax
law, as determined by an appraisal, conducted by an appraiser selected by the Grantees,
of the economic impact of the proposed amendment; or
6. alter or remove the provisions described in Paragraph VI (Termination
/Release/Extinguishment); or
7. cause the provisions of this Paragraph XI to be less restrictive; or
8. cause the provisions described in Paragraph VII.C (Running of the Benefit) to be less
restrictive.
B. Amendment Approvals and Recording
No amendment shall be effective unless documented in a notarized writing executed by Grantees
and Grantor, approved by the Town of Barnstable and by the Secretary in the public interest
pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws, and recorded in the
Barnstable County Registry of Deeds and the Barnstable Land Registry District. 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.
XII. EFFECTIVE DATE
This Conservation Restriction shall be effective when the Grantor and the Grantees have executed
it, the administrative approvals required by Section 32 of Chapter 184 of the Massachusetts
General Laws have been obtained, and it has been recorded in the Barnstable County Registry of
Deeds and the Barnstable Land Registry District.
XIII. NOTICES
Any notice, demand, request, consent, approval or communication that either party desires or is
required to give to the other shall be in writing and either served personally or sent by first class
mail, postage pre-paid, addressed as follows:
To Grantor: Orenda Wildlife Land Trust, Inc.
Smiths Creek Conservation Restriction, West Barnstable
16
P.O. Box 669
West Barnstable MA 02668
To Primary Grantee: Town of Barnstable
367 Main Street
Hyannis MA 02601
To Secondary Grantee: The Compact of Cape Cod Conservation Trusts, Inc.
P.O. Box 443
Barnstable MA 02630
or to such other address as any of the above parties shall designate from time to time by written
notice to the other or, if notice is returned to sender, to an address that is reasonably ascertainable
by the parties.
XIV. GENERAL PROVISIONS
A. Controlling Law
The interpretation and performance of this Conservation Restriction shall be governed by the laws
of the Commonwealth of Massachusetts.
B. Liberal Construction
Any general rule of construction to the contrary notwithstanding, this Conservation Restriction
shall be liberally construed in order to effect the Purposes and the policy and purposes of Sections
31, 32, and 33 of Chapter 184 of the Massachusetts General Laws. If any provision in this
instrument is found to be ambiguous, any interpretation consistent with the Purposes that would
render the provision valid shall be favored over any interpretation that would render it invalid.
C. Severability
If any provision of this Conservation Restriction or the application thereof to any person or
circumstance is found to be invalid, the remainder of the provisions of this Conservation
Restriction shall not be affected thereby.
D. Entire Agreement
This instrument sets forth the entire agreement of the Grantor and Grantees with respect to this
Conservation Restriction and supersedes all prior discussions, negotiations, understandings, or
agreements relating to the Conservation Restriction, all of which are merged herein.
XV. BASELINE DOCUMENTATION REPORT
The Conservation Values, as well as the natural features, current uses of, and existing
improvements on the Premises, such as, but not limited to, trails, woods roads, structures, meadows
Smiths Creek Conservation Restriction, West Barnstable
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or other cleared areas, agricultural areas, and scenic views, as applicable, are described in a
Baseline Documentation Report (“Baseline Report”) title Baseline Report for Smiths Creek
Conservation Restriction, and dated 2025 prepared by Secondary Grantee with
the cooperation of the Grantor, consisting of maps, photographs, and other documents and on file
with the Grantee and included by reference herein. The Baseline Report (i) is acknowledged by
Grantor and Grantees to be a complete and accurate representation of the condition and values of
the Premises as of the date of this Conservation Restriction, (ii) is intended to fully comply with
applicable Treasury Regulations, (iii) is intended to serve as an objective information baseline for
subsequent monitoring of compliance with the terms of this Conservation Restriction as described
herein, and (iv) may be supplemented as conditions on the Premise change as allowed over time.
Notwithstanding the foregoing, the parties may utilize any evidence of the condition of the
Premises at the time of this grant in addition to the Baseline Report.
XVI. MISCELLANEOUS
A. Pre-existing Public Rights
Approval of this Conservation Restriction pursuant to Section 32 of Chapter 184 of the
Massachusetts General Laws by any municipal officials and by the Secretary, is not to be construed
as representing the existence or non-existence of any pre-existing rights of the public, if any, in
and to the Premises, and any such pre-existing rights of the public, if any, are not affected by the
granting of this Conservation Restriction.
B. No Surety Interest
The Grantor attests that there is no mortgage, promissory note, loan, lien, equity credit line,
refinance assignment of mortgage, lease, financing statement or any other agreement which gives
rise to a surety interest affecting the Premises.
C. Executory Limitation
If either Grantee shall cease to exist or to be qualified to hold conservation restrictions pursuant to
Section 32 of Chapter 184 of the Massachusetts General Laws, or to be qualified organization
under 26 U.S.C. 170(h), and applicable regulations thereunder, if applicable, and a prior
assignment is not made pursuant to Paragraph VII, then that Grantee’s rights and obligations under
this Conservation Restriction shall run to the other Grantee.
D. Prior Encumbrances
This Conservation Restriction shall be in addition to and not in substitution of any other restrictions
or easements of record affecting the Premises.
E. The following signature pages are included in this Grant:
Grantor – Orenda Wildlife Land Trust, Inc.
Grantee Acceptance – Town of Barnstable Town Manager
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Secondary Grantee Acceptance – The Compact of Cape Cod Conservation Trusts, Inc.
Approval – Town of Barnstable Town Council
Approval of the Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts.
F. The following exhibits are attached and incorporated herein:
Exhibit A: Legal Description of Premises
Exhibit B: Reduced Copies of Recorded/Registered Plans of Premises
Exhibit C: Town Council Order
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WITNESS my hand and seal this ____day of ___________________, 2025.
By:
Daniel J. Morast
Its President, duly authorized
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2025, before me, the undersigned notary
public, personally appeared Daniel Morast, President, Orenda Wildlife Land Trust, Inc., and
proved to me through satisfactory evidence of identification which was personal knowledge to be
the person whose name is signed on the proceeding or attached document, and acknowledged t o
me that he signed it voluntarily for its stated purpose on behalf of the corporation.
______________________________
Mark H. Robinson, Notary Public
My Commission Expires: 8 July 2027
CERTIFICATE OF VOTE
I, Caitlin Wojkowski duly elected Clerk of the Orenda Wildlife Land Trust, Inc., hereby certify
that at a meeting of the Board of Directors duly called on the day of
, 2025, at which meeting, acting throughout upon motion duly made and seconded, a
quorum being present, it was unanimously
VOTED: that Daniel Morast, President of Orenda Wildlife Land Trust, Inc., be and hereby is
authorized in the name of Orenda Wildlife Land Trust, Inc. to grant a Conservation Restriction to
the Town of Barnstable and The Compact of Cape Cod Conservation Trusts, Inc. on its property
at, 564 and 0 Main Street (Route 6A), (West) Barnstable MA, this execution thereof shall be
sufficient evidence of the Board of Directors’ approval.
I further certify that Daniel Morast is the duly elected President of Orenda Wildlife Land Trust,
Inc., and that I am the duly elected Clerk and that said vote is still in full force and effect.
A true copy,
Attest:
Caitlin Wojkowski, Clerk
Orenda Wildlife Land Trust, Inc.
Date: , 2025
Smiths Creek Conservation Restriction, West Barnstable
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ACCEPTANCE OF GRANT
The foregoing Conservation Restriction from Orenda Wildlife Land Trust, Inc. was accepted by
The Compact of Cape Cod Conservation Trusts, Inc., this ____ day of ________________,
2025.
By: _____________________________
Leonard W. Johnson
Its: President, duly authorized
By: ___________________________
Henry Lind
Its: Treasurer, duly authorized
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2025, before me, the undersigned notary
public, personally appeared Leonard W. Johnson, President of The Compact of Cape Cod
Conservation Trusts, Inc., and Henry Lind, Treasurer of The Compact of Cape Cod Conservation
Trusts, Inc., and proved to me through satisfactory evidence of identification which was personal
knowledge to be the persons whose names are signed on the proceeding or attached document, and
acknowledged to me that they signed it voluntarily for its stated purpose on behalf of the
corporation.
______________________________
Mark H. Robinson, Notary Public
My Commission Expires: 8 July 2027
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APPROVAL OF TOWN MANAGER
I, Mark S. Ells, as Town Manager of the Town of Barnstable, Massachusetts, authorized by a vote
of the Town Cuncil at a duly-noticed meeting held on ________________________ on agenda
item ______________, a copy of the Town Council Order being attached hereto as Exhibit C,
hereby approve in the public interest pursuant to Section 32 of Chapter 184 of the Massachusetts
General Laws and accept the foregoing Conservation Restriction from Orenda Wildlife Trust, Inc.
to the Town of Barnstable and The Compact of Cape Cod Conservation Trusts, Inc.
TOWN OF BARNSTABLE
TOWN MANAGER: ______________________
Mark S. Ells
Barnstable, ss
On the day of , 2025, before me, the undersigned notary public,
personally appeared Mark S. Ells, the person whose name is signed on the document and proved
to me through satisfactory evidence of identification, which was
, and who being by me duly sworn did say that he is the Town Manager of the Town of
Barnstable; that he is duly authorized to act on behalf the Town of Barnstable and he acknowledged
the foregoing instrument to be his free act and deed.
______________________
Notary Public
My Commission Expires
Smiths Creek Conservation Restriction, West Barnstable
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APPROVAL OF THE TOWN OF BARNSTABLE
TOWN COUNCIL
At a public meeting duly held on , on agenda item
___________the Town Council of the Town of Barnstable, Massachusetts, voted to approve the
foregoing Conservation Restriction from Orenda Wildlife Land Trust, Inc. to the Town of
Barnstable and The Compact of Cape Cod Conservation Trusts, Inc. in the public interest
pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws and hereby certifies
approval of the foregoing Conservation Restriction.
.
TOWN COUNCIL PRESIDENT:_
_____________________
Felicia R. Penn
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss
On the day of , 2025, 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
, 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:
Smiths Creek Conservation Restriction, West Barnstable
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APPROVAL OF SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS OF
THE COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts, hereby approves the foregoing Conservation Restriction from Orenda Wildlife
Land Trust, Inc. to the Town of Barnstable and The Compact of Cape Cod Conservation Trusts,
Inc. in the public interest pursuant to Section 32 of Chapter 184 of the Massachusetts General
Laws.
Dated: ________________, 2025
Rebecca L. Tepper
Secretary of Energy and Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss:
On this day of , 2025, 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:
Smiths Creek Conservation Restriction, West Barnstable
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EXHIBIT A
Description of the Premises
The Premises is comprised of two adjoining parcels on the north side of State Route 6A in the
village of West Barnstable, more particularly bounded and described as follows
TRACT ONE: The vacant land in the Town of Barnstable, Massachusetts, containing 3.96 acres,
more or less, shown as Lot “2” on a plan of land entitled, “Plan of Land in West Barnstable, Mass.
Belonging to the Estate of Miriam H. Rice”, dated August 18, 1961, by Nelson Bearse & Richard
Law, Surveyors, Centerville, Mass, recorded at the Barnstable County Registry of Deeds at Plan
Book 166, Page 141.
Address: 564 Main Street, (West) Barnstable, MA
Assessors Map: 133 Parcel 011
and
TRACT TWO: The vacant registered land in the Town of Barnstable, Massachusetts, containing
1.5 acres, more or less, shown as Lot “2” on a plan of land entitled, “Subdivision Plan of Land in
Barnstable – Subdivision of Land Shown on Plan 38226-A filed with Cert. of Title No. 64242,
Registry District of Barnstable County” dated April 4, 1997, by Down Cape Engineering, Inc.,
Yarmouthport, Mass, filed with the Barnstable County Land Court Registry District at Land Court
Plan 38226-B.
Address: 0 Main Street, (West) Barnstable, MA
Assessors Map: 157 Parcel 004 Lot 002
Smiths Creek Conservation Restriction, West Barnstable
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EXHIBIT B-1
Plan of Premises
TRACT ONE
For official full-size plan see Barnstable County Registry of Deeds Plan Book 166, Page 141
Smiths Creek Conservation Restriction, West Barnstable
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EXHIBIT B-2
Plan of Premises
TRACT TWO
For official full-size plan see Barnstable Registry District Plan 38226-B
Smiths Creek Conservation Restriction, West Barnstable
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EXHIBIT C
Town Council Order
Pending