Nitrogen Aggregation Plan - 2023 Law Office of Singer & Singer, LLC
26 Upper County Road
P.O.Box 67
Dennisport,Massachusetts 02639
Andrew L.Singer Tel: (508)398-2221
Marian S.Rose Fax: (508)398-1568
www.singer-law.com
Myer R. Singer(1938-2020)
March 22,2023
Via Hand Delivery
Yarmouth Board of Health
1146 Route 28 QWan
South Yarmouth,MA 02664 t'AR
2023
Re: Nitrogen Aggregation Plan
Seasons Corner Market/Shell Station HEALTH DEpr
473 et al Station Avenue, South Yarmouth
Dear Members of the Board:
I am writing to complete the paperwork for the Nitrogen Aggregation Plan that the Board approved
for the above development last year. Attached are both the final Facility Land Restriction and Credit Land
Restriction documents as recorded in the Barnstable County Registry of Deeds,Book 35688,Page 202 and
Book 35688,Page 210.
Very truly yours,
Andrew L. Singer
ALS/a
Enclosures
Copy to: Ian Jarvis,(via USPS)
Department of Environmental Protection
Southeast Regional Office
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2.1-* 3`_688 41,10465
03-20-2023 al
Locus: 473, 479, and 487(portion)Station Avenue, _
South Yarmouth Xr.tcr. 'oVy a
NT? 2 2 2023
HEALTH DEPT
Title 5 Nitrogen Loading Restriction and Easement
(Facility Land)
This Grant of a Title 5 Nitrogen Loading Restriction and Easement is made as of this a3 day of
January, 2023, by Colbea Enterprises,L.L.C.,a Delaware limited liability company,with a principal
office at 695 George Washington Highway,Lincoln,RI 02865 ["Grantor"].
WHEREAS,the Grantor is the tenant of the land located at 473,479,and 487(portion) Station
Avenue, South Yarmouth,Barnstable County,MA,which land is shown on a plan of land recorded with
the Bamstable County Registry of Deeds in Plan Book 699,Page 12,a copy of which is attached hereto
as Exhibit A and made a part hereof[collectively"Facility Land"];
WHEREAS, Sandy Island LLC, a Massachusetts limited liability company with a principal office
at c/o Micozzi Management,Inc., 159 Cambridge Street,Allston,MA 02134 ["Sandy Island"], is the
owner of the Facility Land,and current title to the Facility Land is recorded with the Bamstable County
Registry of Deeds in Book 35614,Page 135; Book 35614,Page 138; and Book 35580,Page 118;
WHEREAS,the Grantor and Sandy Island desire to restrict the amount of wastewater discharge
design flow in the improvements to be constructed on the Facility Land through the use of this Nitrogen
Loading Restriction and Easement; and
WHEREAS the Facility Land has the benefit of a Nitrogen Loading Restriction and Easement
over a parcel of land containing approximately 26,000 square feet of area and shown on a plan of land
recorded with the Barnstable County Registry of Deeds as Plan Book 297,Page 38,which plan is
attached to a Title 5 Nitrogen Loading Restriction and Easement(Credit Land),to be recorded with the
Barnstable County Registry of Deeds herewith; and
WHEREAS the Nitrogen Loading Facility Aggregation Plan has been approved by the
Board of Health in accordance with the Department of Environmental Protection's(DEP)"Guidelines for
Title 5 Aggregation of Plans and Nitrogen Loading;"said approval being based upon the agreement by
the Grantor to incur certain obligations regarding the wastewater discharge design flow in the
improvements to be located on the Facility Land and maintenance of the Restriction and Easement to
ensure protection of the nitrogen loading limitation of 440 gpd/acre discharge standard pursuant to 310
CMR 15.214 in nitrogen-sensitive areas; and to grant to the Town of Yarmouth, a Massachusetts
municipal corporation situated in Barnstable County,having an address at 1146 Route 28, South
Yarmouth,MA 02664,acting by and through its Board of Health [herein"Grantee"], a perpetual,non-
exclusive easement to ensure maintenance of the Facility Land, including but not limited to,reasonable
removal of any prohibited uses and in connection herewith a perpetual,non-exclusive easement to pass
and repass over the Facility Land for purposes of inspection of the Facility Land to ensure compliance
with and fulfillment of the terms of this Facility Land Restriction and Easement as hereafter set forth;
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and repass over the Facility Land for purposes of inspection of the Facility Land to ensure compliance
with and fulfillment of the terms of this Facility Land Restriction and Easement as hereafter set forth;
NOW, THEREFORE,pursuant to the provisions of 310 CMR 15.216,the Grantor and Sandy
Island do hereby GRANT to the Grantee,for nominal,non-monetary consideration,with Quitclaim
Covenants, a Title 5 Nitrogen Loading Restriction and Easement(Facility Land) [herein"Facility Land
Restriction and Easement"] in, on,upon,through,over and under the Facility Land,the terms and
conditions of which as follows:
PURPOSE:
The purpose of this Facility Land Restriction and Easement is to protect and preserve the quality
and quantity of groundwater resources in the area of the public and private wells in the Town of
Yarmouth, Massachusetts, in order to ensure a safe and healthy public and private water supply for the
present and future inhabitants of the area. It shall also be for the specific purpose of limiting the
introduction of nitrogen and other pollutants into and maintaining the natural uptake of pollutants and the
recharge of the groundwater which takes place on the Facility Land for the said water supply.
OBLIGATIONS AND EASEMENT:
1. Prohibitions. The Grantor and Sandy Island agree to limit the wastewater discharge design flow
to no more than 800 gallons per day.
2. Easements. In creating this Facility Land Restriction and Easement,the Grantor and Sandy
Island hereby grant to the Yarmouth Board of Health, its agents,contractors, subcontractors and
employees, a perpetual,non-exclusive EASEMENT at reasonable times and with reasonable
notice to enter upon and the right to bring equipment onto the Facility Land to do any and all acts
deemed reasonably necessary to maintain the Facility Land in a manner which ensures protection
of the nitrogen loading limitation of 440 gpd/acres discharge standard pursuant to 310 CMR
15.214 together with a right to pass and repass by foot and by vehicle over the Facility Land for
said purposes, and for purposes of inspecting the Facility Land to ensure compliance with and
fulfillment of the terms of this Facility Land Restriction and Easement.
3. Severability. If any court or other tribunal determines that any provision of this instrument is
invalid or unenforceable, such provision shall be deemed to have been modified automatically to
conform to the requirements for validity and enforceability as determined by such court or
tribunal. In the event the invalidated provision is of such a nature that it cannot be so modified,
the provision shall be deemed deleted from this instrument as though it had never been included
herein. In either case,the remaining provisions of this instrument shall remain in full force and
effect.
4. Enforcement. The Grantor and Sandy Island expressly acknowledge that a violation of the teiuis
of this instrument could result in the following:
(i) Upon determination by a court of competent jurisdiction, in the issuance of criminal and
civil penalties, and/or equitable remedies, including,but not limited to, injunctive relief,
such injunctive relief could include the issuance of an order to modify or remove any
improvements constructed upon the Facility Land in violation of the terms of this Facility
Land Restriction and Easement; and
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MAR 2 2 2023
HEALTH DEPT.
(ii) In the assessment of penalties and enforcement action by the Yarmouth Board of Health
and the DEP to enforce the terms of this Facility Land Restriction and Easement,
pursuant to Title 5; M.G.L.c.111, §§ 17, 31, 122, 124, 125, 125A, 127A through 1270,
and 129; and M.G.L. c.83, §11.
5. Acts Beyond Grantor's Control. Nothing contained in this Facility Land Restriction and
Easement shall be construed to entitle the Grantee or any other governmental body to bring any
action against the Grantor, Sandy Island or their respective joint ventures,members,managers,
employees, successors and assigns for any injury to or change in the Facility Land resulting from
causes beyond the Grantor's or Sandy Island 's control, including without limitation, acts caused
by trespass on,above or under the Facility Land or from any prudent action taken by the Grantor
or Sandy Island under emergency conditions to prevent, abate or mitigate significant injury to the
Facility Land resulting from such causes. Notwithstanding the above,the Grantor or Sandy
Island shall undertake economically reasonable and practicable efforts to correct any such injury
or change which is inconsistent with these grants as soon as possible.
6. Provisions to Run with the Land. This Facility Land Restriction and Easement sets forth the
rights,liabilities,agreements and obligations upon and subject to which the Facility Land or any
portion thereof, shall be left unimproved or according to which said Facility Land may be
improved,held,used, occupied, leased, sold,hypothecated,encumbered, or conveyed. The
rights, liabilities,agreements and obligations herein set forth shall run with the Facility Land, as
applicable thereto,and any portion thereof and shall inure to the benefit of and be binding upon
the Grantor, Sandy Island,and all parties claiming by,through or under the Yarmouth Board of
Health or the Grantor and Sandy Island. Sandy Island hereby covenants for itself and its
successors and assigns,to stand seized and hold title to the Facility Land,as applicable thereto,
and any portion thereof, subject to this Facility Land Restriction and Easement,provided,
however,that a violation of this Facility Land Restriction and Easement shall not result in a
forfeiture or reversion of the Sandy Island's title to the Facility Land,as applicable thereto.
7. Concurrence Presumed. It is agreed that the Grantor, Sandy Island, and all parties claiming by,
through or under them shall be deemed to be in accord with the provisions herein set forth and to
agree for and among themselves and any party claiming by,through or under them, and their
respective agents, contractors, sub-contractors and employees,that the Facility Land Restriction
and Easement herein established shall be adhered to and not violated and that their respective
interests in the Facility Land and the Facility Land Restriction and Easement, as applicable
thereto, shall be subject to the provisions herein set forth.
8. Incorporation into Deeds,Mortgages,Leases and Instruments of Transfer. Sandy Island hereby
agrees to incorporate this Facility Land Restriction and Easement, in full or by reference,into all
deeds,easements,mortgages, leases, licenses,occupancy agreements or any other instrument of
transfer by which an interest in and/or a right to use the Facility Land, or any portion thereof, is
hereafter conveyed. Notwithstanding the foregoing,failure to incorporate this Facility Land
Restriction and Easement into future documents shall not result in a violation of this Facility
Land Restriction and Easement.
9. Recordation. Sandy Island shall record this Facility Land Restriction and Easement with the
Barnstable County Registry of Deeds simultaneously with the Grantor recording.,the Credit Land
Restriction and Easement. Sandy Island shall file with the Yarmouth Board of Health and the
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MAR 2 2 2023
HEALTH DEPT.
DEP an attested copy of the Facility Land Restriction and Easement within 30 days after it is
recorded.
10. Amendment and Release. This Facility Land Restriction and Easement may be amended or
released only upon approval by the Yarmouth Board of Health,which amendment or release shall
not be unreasonably withheld, conditioned or delayed. The Yarmouth Board of Health shall
release this Facility Land Restriction and Easement in the event i)the Facility Land is connected
to a municipal sewer system and the septic systems serving the Facility Land are abandoned in
accordance with 310 CMF 15.354 or ii)the Facility Land is no longer located within a nitrogen
sensitive area pursuant to 310 CMR 15.215. Any such amendment or release shall be recorded
with the Barnstable County Registry of Deeds and an attested copy of said amendment or release
shall be filed with the Yarmouth Board of Health and the DEP within 30 days after it is recorded.
11. Term. This Facility Land Restriction and Easement shall run in perpetuity and is intended to
conform to M.G.L. c.184, §26,as amended.
12. Rights Reserved. This Facility Land Restriction and Easement is granted in connection with the
approval by the Yarmouth Board of Health of a Nitrogen Loading Facility Aggregation Plan
pursuant to 310 CMR 15.216 and the DEP's"Guidelines for Title 5 Aggregation of Flows and
Nitrogen Loading." It is expressly agreed that acceptance of the Facility Land Restriction and
Easement by the Yarmouth Board of Health or constructive approval of the Nitrogen Loading
Facility Aggregation Plan by the DEP shall not operate to bar, diminish, or in any way affect any
legal or equitable right of the Yarmouth Board of Health or the DEP to issue any future order
with respect to the Facility Land or in any way affect any other claim, action, suit,cause of action
or demand which the Yarmouth Board of Health or the DEP may have with respect thereto.
Acceptance of the Facility Land Restriction and Easement shall not serve to impose any
obligations, liabilities or any other duties upon the Yarmouth Board of Health.
13. Effective Date. This Facility Land Restriction and Easement shall become effective upon its
recordation with the Barnstable County Registry of Deeds.
[See Next Page for Signatures]
M,qR <?a?3
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WITNESS the execution hereof under seal this a-day of January,2023.
Colbea Enterprises, L.L.C. Sandy Island LLC
By MG Farlow Corp.,Manager
By: By: -
e elli C ' ' ,Authorized Signatory Giancarlo Micozzi,President and Treasurer
STa-rE of 41-IOO r tSt_h�v0
Btal31e,ss. January ,2023
r
On this Z3 day of January,2023, before me,the undersigned notary public,personally
appeared Andrew Deli Caripini,Authorized Signatory,as aforesaid,proved to me through satisfactory
evidence of identification,which was k npvt.h to be the
person whose name is signed on the preceding or attached document,and acknowledged to me that he
signed it voluntarily for its stated purpose as Authorized Signatory of Colbea Enterprises,L.L.C.
ie�ltlrrrrl
aUSSF��'it'ii
Notary Publ' 6.441, 1r%%;‘,‘....\‘‘
r.••. ...,...,.
My Commission exp es: k i v/j 2„3 / +OVARY \
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s.
i d •' ,*.. c,..;
COMMONWEALTH OF MASSACHUSETTS `�,ii��OF RHO��\`'�`
Barnstable,ss. January ,2023
On this day of January,2023,before me,the undersigned notary public,personally
appeared Giancarlo Micozzi,President and Treasurer of MG Farlow Corp.,Manager,as aforesaid,proved to
me through satisfactory evidence of identification,which was
to be the person whose name is signed on the preceding or attached
document,and acknowledged to me that he signed it voluntarily for its stated purpose as Manager of
Sandy Island LLC.
Notary Public:
My Commission expires:
MAR 222023
5
HEALTH DEPT.
WITNESS the execution hereof under seal this 1.4-_day of January,2023.
Colbea Enterprises,L.L.C. Sandy Island LLC
By MG Farlow Corp.,Manager
By: By;
Andrew Delli Caripini,Authorized Signatory Giancarlo Micozzi,President and Treasurer
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. January ,2023
On this day of January,2023,before me,the undersigned notary public,personally
appeared Andrew Deli Caripini,Authorized Signatory, as aforesaid,proved to me through satisfactory
evidence of identification,which was to be the
person whose name is signed on the preceding or attached document,and acknowledged to me that he
signed it voluntarily for its stated purpose as Authorized Signatory of Colbea Enterprises,L.L.C.
Notary Public:
My Commission expires:
COMMONWEALTH OF MASSACHUSETTS
SO F FUtjc
Barnstable, ss. January i 7 ,2023
th
On this j 9 day of January,2023,before me,the undersigned notary public,personally
appeared Giancarlo Micozzi,President and Treasurer of MG Farlow Corp.,Manager,as aforesaid,proved to
me through satisfactory evidence of identification,which was$%1,WALty «W N hlt=
to be the person whose name is signed on the preceding or attached
document,and acknowledged to me that he signed it voluntarily for its stated purpose as Manager of
Sandy Island LLC. ` ,::
Notary Public: Cu.e' t � `}My Commission expires. 5/ r 51 2 0.26, .r° i
MAR 2 2 2023 'f'"fJ79iia;1Stti‘''
HEALTH DEPT,
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APPROVAL BY YARMOUTH BOARD OF HEALTH
We,the Yarmouth Board of Health hereby approve and accept the foregoing Grant of Title 5
Nitrogen Loading Restriction and Easement(Facility Land)to the Town of Yarmouth through its Board
of Health.
Board of Health of the Town of Yarmouth
/1-7_ r-a—rz,
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss. February 6 ,2023
On this 6 day of February,2023,before me,the undersigned notary public,personally
appeared I-1 i l 1 a-v ► t hoc , as aforesaid,proved to me through satisfactory
evidence of identification,which was P-e-f-so (= siw(-edy-e _ to be the
person whose name is signed on the preceding or attached document, and acknowledged to me that he
signed it voluntarily for its stated purpose.
S
Notary Public:. _ .0-Z)
My Commission expires: tO aY
MAR 2 2 2023
HEALTH DEPT.
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P/ 669 BARNSTABL€ REGISTRY OF DEEDS
John F. Meade, Register