HomeMy WebLinkAboutHiggins Crowell Rd Yarmouth CR draft for reviewDrinking Water Supply Protection CR – Higgins Crowell Road
Yarmouth, MA
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GRANTOR: Town of Yarmouth
GRANTEE: Trustees of the Yarmouth Conservation Trust
ADDRESS OF PREMISES:423, 431, 435, 439, 443, 445, 451, 455, 461, and 465 Higgins Crowell
Road, Yarmouth, MA 02673
FOR GRANTOR’S TITLE SEE: Barnstable County Registry of Deeds at Book _____, Page _____.
FOR GRANTOR’S PLAN SEE: Barnstable County Registry of Deeds at Plan Book 420, Page 59.
GRANT OF CONSERVATION RESTRICTION
I. STATEMENT OF GRANT
The TOWN OF YARMOUTH, a Massachusetts municipal corporation with principal offices at
Town Hall, 1146 Route 28, South Yarmouth, Barnstable County, MA 02664, acting by its Board
of Selectmen through its Board of Water Commissioners pursuant to authority granted by the vote
taken under Article 19 of the November 1, 2022 Special Town Meeting, an attested copy of which
is attached hereto as Exhibit D, for its successors and assigns (“Grantor”), acting pursuant to
Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws for the purposes of
providing and promoting exclusive and perpetual protection of, soil, water and other natural
resources within the Premises hereinafter described and limiting, subject to the terms and
conditions in Section III below, the Grantor’s activities and uses of such Premises, grant, with
QUITCLAIM COVENANTS, to a majority of SHARON K. DONEGAN, DONALD F.
HENDERSON, ELIZABETH G. MANNING, RICHARD F. MARTIN, and CHRISTINE
MARZIGLIANO, as TRUSTEES of and acting as such on behalf of the YARMOUTH
CONSERVATION TRUST, established under a deed of trust dated March 3, 1986, recorded
with the Barnstable Registry of Deeds in Book 5031, Page 44, as amended, and with the Barnstable
Registry District of the Land Court as Document No. 633,110 on Certificate No. 180006, with a
mailing address at P.O. Box 376, Yarmouth Port, Massachusetts 02675, its permitted successors Street Address: 423, 431, 435, 439, 443, 445, 451, 455, 461, and 465 Higgins Crowell Road, Yarmouth, MA 02673
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and assigns (“Grantee”), for nominal consideration, IN PERPETUITY AND EXCLUSIVELY
FOR CONSERVATION PURPOSES, the following Conservation Restriction on land located in
the Town of Yarmouth, Barnstable County, Commonwealth of Massachusetts containing ten (10)
tracts of land with a total of 9.66, acres, more or less (“Premises”), which Premises is more
particularly described in Exhibit A and shown in the attached reduced copy of a survey plan in
Exhibit B, A map of the ‘Premises and Water Supply Protection Zones’ is shown in Exhibit C. All
Exhibits are incorporated herein and attached hereto.
The fee interest in the Premises was acquired utilizing, in part, Community Preservation Act funds
pursuant to Chapter 44B of the Massachusetts General Laws, which funds were authorized for
such purposes by a vote of the Town of Yarmouth Town Meeting held on November 15, 2022, an
attested copy of which vote is attached hereto as Exhibit D (the “CPA Vote”). Pursuant to Section
Massachusetts General Law Chapter 40 Section 39B and 41, and Article 97 of the Amendments
to the Massachusetts Constitution,
II. PURPOSES:
This Conservation Restriction is defined in and authorized by Sections 31, 32, and 33 of Chapter
184 of the Massachusetts General Laws and otherwise by law. The purposes of this Conservation
Restriction (“Purposes”) are to ensure that the Premises will be maintained in perpetuity for the
protection of the Town of Yarmouth Water Department’s Well #24 (“Well”) approved by
Massachusetts Department of Environmental Protection (MassDEP) as a source of public drinking
water (PWS ID #4351000), to ensure that the Premises will be maintained in its natural, scenic, or
open condition, and to prevent any use or change that would materially impair the Conservation
Values (as defined below). Furthermore, the Purpose is also to protect native vegetation, soils,
forest habitat and wildlife thereon; to protect and enhance the value of nearby conservation areas;
to allow and maintain appropriate public access for passive recreation, and to promote and to
provide for the perpetual and exclusive protection of water supply and water quality and to provide
for conservation of soil and other natural resources within the Premises.
Drinking Water Supply Protection Grant Program. The fee interest in the Premises was
acquired utilizing, in part, assistance from the Drinking Water Supply Protection Grant program,
pursuant to Chapter 312 of the Acts of 2008, § 2A, 2200-7017 and therefore the Premises is subject
to a Project Agreement recorded with the Barnstable Registry of Deeds at Book _______, Page
_____. The State provided the Town of Yarmouth with a $300,000 reimbursement grant through
this program for FY 2023.
The Department of Environmental Protection approved the acquisition of the fee interest in the
Premises by the Town of Yarmouth at a public hearing under 310 CMR 22.03 on December 20,
2022. A copy of the MassDEP approval of this acquisition is attached hereto as Exhibit E.
The Conservation Values protected by this Conservation Restriction include the following:
• Water Supply. The Premises falls within a MA Department of Environmental Protection
approved Zone II Area of Contribution to Public Water Supply. These zones are defined
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by 310 CMR 22.00 as areas of land which are critical to maintaining the public drinking
water supply. The Zone II area is also highly susceptible to contamination due to highly
transmissive soil types. Protection of the Premises from development with this Restriction
will assist in maintaining the quality of a public water supply.
• Open Space. The Premises contributes to the protection of the scenic and natural character
of Yarmouth and the protection of the Premises will enhance the open-space value of these
and nearby lands. The Premises abuts land already conserved, including 330± acres of
water supply protection land.
• Soils and Soil Health. The Premises includes both Forest Land of Statewide Importance
and Forest Land of Local Importance as identified by the USDA Natural Resources
Conservation Service. 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.
• Public Access. Public access to the Premises will be allowed for passive outdoor
recreation, education, and nature study. The Premises will permanently protect a 0.2-mile
trail loop connecting the Premises to an extensive system of trails within the abutting water
supply protection land. These trails provide connections to Sandy Pond Recreation Area,
Horse Pond Conservation Land, Bayberry Hills Golf Course and many surrounding roads
and neighborhoods and provide close-to-home recreational opportunities to Yarmouth
residents and visitors.
• Biodiversity. The Premises consist of 9.66± acres of pine-oak upland forest, identified in
the Massachusetts Department of Fish and Game Statewide Wildlife Action plan as hosting
numerous 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 this
type of forested upland.
• Consistency with Clearly Delineated Barnstable County Conservation Policy. Protection
of the Premises will assist in achieving Barnstable County conservation goals. In July
1991, the Barnstable County Assembly of Delegates, pursuant to the Cape Cod
Commission Act ( Chapter 716 of the Acts of 1989), adopted a Regional Policy Plan
("RPP"), amended in 1996, 2002, 2009, 2012, 2018, and 2021 which provided, inter alia
(references are to the 2018 RPP amended March 2021):
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, pp. 54);
o •"To protect, preserve, or restore wildlife and plant habitat to maintain the region's
natural diversity" (Wildlife and Plant Habitat Goal, pp. 55).
o •In reference to this Wildlife and Plant Habitat Goal, the RPP states, "For many
years habitat loss due to development has been the primary threat to the region's
habitats" (pp. 32); and
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o •"To conserve, preserve, or enhance a network of open space that contributes to
the region's natural community resources and systems" (Open Space Goal, pp.
55). In reference to this Open Space Goal, the RPP states, "[t]he open space of the
Cape is critical to the health of the region's natural systems, economy, and
population. Open space provides habitat for the region's diverse species and
protection of the region's drinking water supply" (pp. 30).
Granting this Restriction will advance each of these goals outlined in the RPP. The Water
Resources Goal will be served because the Premises falls entirely within a Zone II Area
of Contribution to a Public Water Supply, and implementing this Restriction will aid in
maintaining drinking water quality in the area. The Wildlife and Plant Habitat Goal will
be served because the Premises provides habitat for important plant and wildlife species.
The Open Space Goal will be advanced because the Premises abuts an extensive area of
permanently protected open space land, including Town of Yarmouth water supply
protection land.
• Consistency with the Town of Yarmouth's 2015 Open Space and Recreation Plan (updated
December 2018). Protection of the Premises will further the Town of Yarmouth's
documented goals regarding conservation of open space for conserving public water
supplies, and natural resource protection. The Plan specifies that:
o "Land acquisition efforts to increase open space, and proper management of
conservation areas, ensuring the protection of environmentally sensitive· areas
(wetlands and groundwater resources) and promoting stewardship of these areas
have been consistently identified as high priorities. (Section 7 .1.1, p. 73); and
o "Fragmentation of wildlife and plant habitat should be minimized by the
establishment of greenways and wildlife corridors of sufficient width to protect
species that inhabit the interior areas, as well as by the protection of large
unfragmented areas ... " (Section 7.1.3, pp. 75)."
o “There are opportunities to augment the value of existing conserved lands by
increasing the size of the conservation area. Undeveloped properties adjacent to
these properties should be evaluated for acquisition or other means of protection
from full development.” (Section 7.1.6 pp. 75)
In addition, the Plan articulated goals to:
o "Expand the amount of open space and conservation land. a) Identify and preserve
land for natural resource protection, drinking water protection, passive recreation,
quality of life and aesthetics (Section 8, No. 2, pp. 85); and
o "Protect and improve environmental resources, water quality and open space.
(Section 8, No. 3, pp. 85).
Each of these overarching policies and goals will be advanced in implementing this
Conservation Restriction.
• Consistency with the Town of Yarmouth 2019 Water System Master Plan. Protection of
the Premises will assist the Town of Yarmouth in achieving its water management goals.
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In 2019, the Town of Yarmouth adopted a plan for management of its water supply. The
Plan specifies that “Protecting existing wells from watershed contamination threats is
critical. If suitable land for a potential well site is available for purchase, it is always
prudent to consider land purchase for future wells and/or for watershed protection. As a
reasonable rule of thumb, the Town should evaluate opportunities for purchase of available
land within 1,000 feet of existing wells.” (Section 2.5. pp. 23). The Premises meets this
criteria for acquisition of land for drinking water supply protection.
• Consistency with Clearly Delineated Federal Conservation Policy. Protection of the
Premises meets the definition of "conservation purposes" as defined in 26 CFR 1.170A-l
4(d)(l ), 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.
• Consistency with Clearly Delineated State Conservation Policy. The Executive Office of
Energy and Environmental Affairs (EEA) has the mission of protecting, conserving, and
restoring the natural resources of the Commonwealth. To fulfill this mission, EEA
encourages municipalities to protect and conserve the quality and quantity of public
drinking water supply sources in the Commonwealth. As referenced hereinabove, the
Premises possesses significant natural, watershed, soil and water quality resources
importance to the people of Yarmouth and the Commonwealth of Massachusetts, who have
the right to clean air and water, and open space for outdoor recreation.
III. PROHIBITED and PERMITTED ACTS AND USES
A. Prohibited Acts and Uses
The Grantor will not perform or allow others to perform the following acts and uses which are
prohibited on, above, and below the Premises:
1. Structures and Improvements. Constructing, placing, or allowing to remain any
temporary or permanent structure including without limitation any building, tennis
court, landing strip, mobile home, swimming pool, asphalt or concrete pavement,
graveled area, roads, sign, fence, gate, billboard or other advertising, antenna, utilities
or other structures, utility pole, tower, wind turbine, solar panel, solar array, conduit,
line, septic or wastewater disposal system, storage tank, or dam;
2. Extractive Activities/Uses. Mining, excavating, dredging, withdrawing, or removing
soil, loam, peat, gravel, sand, rock, surface water, ground water, or other mineral
substance or natural deposit, or otherwise altering the topography of the Premises;
3. Disposal/Storage. Placing, filling, storing or dumping of soil, refuse, trash, vehicle
bodies or parts, rubbish, debris, junk, tree and other vegetation cuttings, liquid or solid
waste or other substance or material whatsoever;
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4. Adverse Impacts to Vegetation. Cutting, removing, or destroying trees, shrubs, grasses
or other vegetation;
5. Adverse Impacts to Water, Soil, and Other Features. Activities detrimental to drainage,
flood control, water conservation, water quality, erosion control, soil conservation,
natural habitat, archaeological conservation, or ecosystem function;
6. Introduction of Invasive Species. Planting or introducing any species identified as
invasive by the Massachusetts Invasive Plant Advisory Group or identified as invasive
in such recognized inventories as the Massachusetts Introduced Pests Outreach Project,
the Northeast Aquatic Nuisance Species Panel, or other such inventories, and any
successor list as mutually agreed to by Grantor and Grantee;
7. 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, trapping or camping. Camping of any kind. Hunting or trapping unless for a
proven nuisance to wildlife.
12. Residential or Industrial Uses. Using the Premises for residential or industrial purposes;
13. Inconsistent Uses. Using the Premises for commercial purposes that are inconsistent
with the Purposes or that would materially impair the Conservation Values, or for any
other uses or activities that are inconsistent with the Purposes or that would materially
impair the Conservation Values.
B. Permitted Acts and Uses
Notwithstanding the Prohibited Acts and Uses described in Paragraph III.A, the Grantor
may conduct or permit the following acts and uses on the Premises, provided they do not
materially impair the Purposes and/or Conservation Values. In conducting any Permitted
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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;
4. Natural Habitat and Ecosystem Improvement. With prior written approval of the
Grantee, conducting measures designed to restore native biotic communities, or to
maintain, enhance or restore wildlife, wildlife habitat, ecosystem function, or rare or
endangered species including planting native trees, shrubs, and other vegetation;
5. Archaeological Investigations. Conducting archaeological activities, including without
limitation archaeological research, surveys, excavation and artifact retrieval, but only
in accordance with an archaeological field investigation plan, which plan shall also
address restoration following completion of the archaeological investigation, prepared
by or on behalf of the Grantor and approved in advance of such activity, in writing, by
the Massachusetts Historical Commission State Archaeologist (or appropriate
successor official) and by the Grantee. A copy of the results of any such investigation
on the Premises is to be provided to the Grantee;
6. Trails. Maintaining and constructing trails as follows:
a. Trail Maintenance. Conducting routine maintenance of trails, which may
include widening trail corridors up to eight (8) feet in width overall, with a
treadway up to five (5) feet in width.
b. New Trails. With prior written approval of the 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;
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
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Premises, the Grantee's interest in the Premises, boundary and trail markings, any gift,
grant, or other applicable source of support for the conservation of the Premises;
8. Motorized Vehicles. Using motorized vehicles by persons with mobility impairments
or as necessary for engaging in trail maintenance activities permitted herein, by the
Grantor.
9. Outdoor Passive Recreational and Educational Activities. Hiking, non-motorized
biking, horseback riding, cross-country skiing, snowshoeing, nature observation,
nature and educational walks and outings, outdoor educational activities, and other non-
motorized outdoor recreational and educational activities;
C. Site Restoration
Upon completion of any Permitted Acts and Uses, any disturbed areas shall be restored
substantially to the conditions that existed prior to said activities, including with respect to soil
material, grade, and vegetated ground cover.
D. Compliance with Permits, Regulations, Laws
The exercise of any Permitted Acts and Uses under Paragraph III.B shall be in compliance with
all applicable federal, state and local laws, rules, regulations, zoning, and permits, and with the
Constitution of the Commonwealth of Massachusetts. The inclusion of any Reserved Right
requiring a permit, license or other approval from a public agency does not imply that the Grantee
or the Commonwealth takes any position whether such permit, license, or other approval should
be issued.
E. Notice and Approval
1. Notifying Grantee. Whenever notice to or approval by Grantee is required, Grantor
shall notify or request approval from Grantee, by a method requiring proof of receipt,
in writing not less than sixty (60) days prior to the date Grantor intends to undertake
the activity in question, unless a different time period is specified herein. The notice
shall:
a. Describe the nature, scope, design, location, timetable and any other material
aspect of the proposed activity;
b. Describe how the proposed activity complies with the terms and conditions of
this Conservation Restriction, and will not materially impair the Purposes
and/or Conservation Values;
c. Identify all permits, licenses, or approvals required for the proposed activity,
and the status of any such permits, licenses, or approvals.
d. Describe any other material aspect of the proposed activity in sufficient detail
to permit the Grantee to make an informed judgment as to its consistency with
the Purposes and Conservation Values.
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2. Grantee Review. Where Grantee’s approval is required, Grantee shall grant or withhold
approval in writing within sixty (60) days of receipt of Grantor’s request. Grantee’s
approval shall only be granted upon a showing that the proposed activity will minimize
impacts to the Conservation Values and will not materially impair the Purposes and/or
Conservation Values. Grantee may require Grantor to secure expert review and
evaluation of a proposed activity by a mutually agreed upon party.
3. Resubmittal. Grantee’s failure to respond within sixty (60) days of receipt shall not
constitute approval of the request. Grantor may subsequently submit the same or a
similar request for approval.
IV. INSPECTION AND ENFORCEMENT
A. Entry onto the Premises
The Grantor hereby grants to the Grantee, and its duly authorized agents or representatives, the
right to enter the Premises upon reasonable notice and at reasonable times, for the purpose of
inspecting the Premises to determine compliance with or to enforce this Conservation Restriction.
B. Legal and Injunctive Relief
1. Enforcement. The rights hereby granted shall include the right to enforce this
Conservation Restriction by appropriate legal proceedings and to obtain compensatory
relief, including without limitation, compensation for interim losses (i.e., ecological
and public use service losses that occur from the date of the violation until the date of
restoration) and equitable relief against any violations, including, without limitation,
injunctive relief and relief requiring restoration of the Premises to its condition prior to
the time of the injury (it being agreed that the Grantee will have no adequate remedy at
law in case of an injunction). The rights hereby granted shall be in addition to, and not
in limitation of, any other rights and remedies available to the Grantee for the
enforcement of this Conservation Restriction.
2. Notice and Cure. In the event the Grantee determines that a violation of this
Conservation Restriction has occurred and intends to exercise any of the rights
described herein, the Grantee shall, before exercising any such rights, notify the
Grantor in writing of the violation. The Grantor shall have thirty (30) days from receipt
of the written notice to halt the violation and remedy any damage caused by it, after
which time Grantee may take further action, including instituting legal proceedings and
entering the Premises to take reasonable measures to remedy, abate or correct such
violation, without further notice. Provided, however, that this requirement of deferment
of action for thirty (30) days applies only if Grantor immediately ceases the violation
and Grantee determines that there is no ongoing violation. In instances where a
violation may also constitute a violation of local, state, or federal law, the Grantee may
notify the proper authorities of such violation.
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3. Reimbursement of Costs and Expenses of Enforcement. Grantor covenants and agrees
to reimburse to Grantee all reasonable costs and expenses (including counsel fees)
incurred by the Grantee in enforcing this Conservation Restriction or in taking
reasonable measures to remedy, abate or correct any violation thereof. In the event of
a dispute over the boundaries of the Conservation Restriction, Grantor shall pay for a
survey by a Massachusetts licensed professional land surveyor and to have the
boundaries permanently marked.
C. Non-Waiver
Enforcement of the terms of this Conservation Restriction shall be at the sole discretion of Grantee.
Any election by the Grantee as to the manner and timing of its right to enforce this Conservation
Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a
waiver of such rights.
D. Disclaimer of Liability
By acceptance of this Conservation Restriction, the Grantee does not undertake any liability or
obligation relating to the condition of the Premises pertaining to compliance with and including,
but not limited to, hazardous materials, zoning, environmental laws and regulations, or acts not
caused by the Grantee or its agents.
E. Acts Beyond the Grantor’s Control
Nothing contained in this Conservation Restriction shall be construed to entitle the Grantee to
bring any actions against the Grantor for any injury to or change in the Premises resulting from
natural causes beyond the Grantor’s control, including but not limited to fire, flood, weather,
climate-related impacts, and earth movement, or from any prudent action taken by the Grantor
under emergency conditions to prevent, abate, or mitigate significant injury to the Premises
resulting from such causes. In the event of any such occurrence, the Grantor and Grantee will
cooperate in the restoration of the Premises, if desirable and feasible.
V. PUBLIC ACCESS
Subject to the provisions of this Conservation Restriction, the Grantor hereby grants access to the
Premises to the general public and agrees to take no action to prohibit or discourage access to and
use of the Premises by the general public, but only for daytime use and only as described in
Paragraph III.B.9 provided that such agreement by Grantor is subject to the Grantor’s reserved
right to establish reasonable rules, regulations, and restrictions on such permitted recreational use
by the general public for the protection of the Purposes and Conservation Values. Grantor has the
right to control, limit, or prohibit by posting and other reasonable means activities or uses of the
Premises not authorized in Paragraph III.B.9. The Grantee may require the Grantor to post the
Premises against any use by the public that results in material impairment of the Conservation
Values. This grant of public access to the Premises is solely for the purposes described in Section
17C of Chapter 21 of the Massachusetts General Laws and the Grantor and Grantee hereto express
their intent to benefit from exculpation from liability to the extent provided in such section.
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VI. TERMINATION/RELEASE/EXTINGUISHMENT
A. Procedure
If circumstances arise in the future that render the Purposes impossible to accomplish, this
Conservation Restriction can only be terminated, released, or extinguished, whether in whole or
in part, by a court of competent jurisdiction under applicable law after review and approval by the
Secretary of Energy and Environmental Affairs of the Commonwealth of Massachusetts, or
successor official (“Secretary”), and any other approvals as may be required by Section 32 of
Chapter 184 of the Massachusetts General Laws.
B. Grantor’s and Grantee’s Right to Recover Proceeds
If any change in conditions ever gives rise to termination, release, or extinguishment of this
Conservation Restriction under applicable law, then Grantee, on a subsequent sale, exchange, or
involuntary conversion of the Premises, shall be entitled to a portion of the proceeds in accordance
with Paragraph VI.C, subject, however, to any applicable law which expressly provides for a
different disposition of the proceeds, and after complying with the terms of any gift, grant, or funding
requirements. The Grantee shall use its share of any proceeds in a manner consistent with the
Purposes or the protection of the Conservation Values.
C. Grantee’s Receipt of Property Right
Grantor and Grantee agree that the conveyance of this Conservation Restriction gives rise to a real
property right, immediately vested in the Grantee, 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
Grantee’s property right as of the Effective Date (See Paragraph XII.) was determined to be 5%.
Such proportionate value of the Grantee’s property right shall remain constant. Any proceed
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
requirement of the CPA and the Project Agreement.
D. Cooperation Regarding Public Action
Whenever all or any part of the Premises or any interest therein is taken by public authority under
power of eminent domain or other act of public authority, then the Grantor and the Grantee shall
cooperate in recovering the full value of all direct and consequential damages resulting from such
action. All related expenses incurred by the Grantor and the Grantee shall first be paid out of any
recovered proceeds, and the remaining proceeds shall be distributed between the Grantor and
Grantee in accordance with Paragraph VI.B and Paragraph VI.C. If a less than fee interest is taken,
the proceeds shall be equitably allocated according to the nature of the interest taken. The Grantee
shall use its share of any proceeds in a manner consistent with the Purposes or the protection of
the Conservation Values.
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VII. DURATION and ASSIGNABILITY
A. Running of the Burden
The burdens of this Conservation Restriction shall run with the Premises in perpetuity, and shall
be enforceable against the Grantor and the successors and assigns of the Grantor holding any
interest in the Premises.
B. Execution of Instruments
The Grantee is authorized to record or file any notices or instruments appropriate to assuring the
perpetual enforceability of this Conservation Restriction. The Grantor, on behalf of itself and its
successors and assigns, appoints the Grantee its attorney-in-fact to execute, acknowledge and
deliver any such instruments on its behalf. Without limiting the foregoing, the Grantor and its
successors and assigns agree themselves to execute any such instruments upon request.
C. Running of the Benefit
The benefits of this Conservation Restriction shall run to the Grantee, shall be in gross and shall
not be assignable by the Grantee, except when all of the following conditions are met:
1. the Grantee requires that the Purposes continue to be carried out;
2. the assignee is not an owner of the fee in the Premises;
3. the assignee, at the time of the assignment, qualifies under and 26.U.S.C. 170(h), and
applicable regulations thereunder, if applicable, and is eligible to receive this
Conservation Restriction under Section 32 of Chapter 184 of the Massachusetts
General Laws; and
4. the assignment complies with Article 97 of the Amendments to the Constitution of the
Commonwealth of Massachusetts, if applicable.
VIII. SUBSEQUENT TRANSFERS
A. Procedure for Transfer
The Grantor agrees to incorporate by reference the terms of this Conservation Restriction in any
deed or other legal instrument which grants any interest in all or a portion of the Premises,
including a leasehold interest and to notify the Grantee not less than twenty (20) days prior to the
effective date of such transfer. Failure to do any of the above shall not impair the validity or
enforceability of this Conservation Restriction. If the Grantor fails to reference the terms of this
Conservation Restriction in any deed or other legal instrument which grants any interest in all or
a portion of the Premises, then the Grantee may record it in the Barnstable County Registry of
Deeds, 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
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The Grantor shall not be liable for violations occurring after their ownership. Liability for any acts
or omissions occurring prior to any transfer and liability for any transfer if in violation of this
Conservation Restriction shall survive the transfer. Any new owner shall cooperate in the
restoration of the Premises or removal of violations caused by prior owner(s) and may be held
responsible for any continuing violations.
IX. ESTOPPEL CERTIFICATES
Upon request by the Grantor, the Grantee shall, within thirty (30) days execute and deliver to the
Grantor any document, including an estoppel certificate, which certifies the Grantor’s compliance
or non-compliance with any obligation of the Grantor contained in this Conservation Restriction.
X. NON MERGER
The parties intend that any future acquisition of the Premises shall not result in a merger of the
Conservation Restriction into the fee. The Grantor agrees that it will not grant, and the Grantee
agrees that it will not take title, to any part of the Premises without having first assigned this
Conservation Restriction following the terms set forth in Paragraph VII.C to ensure that merger
does not occur and that this Conservation Restriction continues to be enforceable by a non-fee
owner.
XI. AMENDMENT
A. Limitations on Amendment
Grantor and Grantee may amend this Conservation Restriction only to correct an error or oversight,
clarify an ambiguity, maintain or enhance the overall protection of the Conservation Values, or
add real property to the Premises, provided that no amendment shall:
1. affect this Conservation Restriction’s perpetual duration;
2. be inconsistent with or materially impair the Purposes;
3. affect the qualification of this Conservation Restriction as a “qualified conservation
contribution” or “interest in land” under any applicable laws, including 26 U.S.C.
Section 170(h), and related regulations;
4. affect the status of Grantee as a “qualified organization” or “eligible donee” under any
applicable laws, including 26 U.S.C. Section 170(h) and related regulations, and
Sections 31, 32, and 33 of Chapter 184 of the Massachusetts General Laws; or
5. create an impermissible private benefit or private inurement in violation of federal tax
law, as determined by an appraisal, conducted by an appraiser selected by the Grantee,
of the economic impact of the proposed amendment; or
6. alter or remove the provisions described in Paragraph VI (Termination
/Release/Extinguishment); or
7. cause the provisions of this Paragraph XI to be less restrictive; or
8. cause the provisions described in Paragraph VII.C (Running of the Benefit) to be less
restrictive
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B. Amendment Approvals and Recording
No amendment shall be effective unless documented in a notarized writing executed by Grantee
and Grantor, approved by the Town of Yarmouth 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.
XII. EFFECTIVE DATE
This Conservation Restriction shall be effective when the Grantor and the Grantee have executed
it, the administrative approvals required by Section 32 of Chapter 184 of the Massachusetts
General Laws have been obtained, and it has been recorded in the Barnstable County Registry of
Deeds.
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: Town of Yarmouth
1146 Route 28
Yarmouth, MA 02664
To Grantee: Trustees of the Yarmouth Conservation Trust
P.O. Box 376
Yarmouth Port, MA 02675
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
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instrument is found to be ambiguous, any interpretation consistent with the Purposes that would
render the provision valid shall be favored over any interpretation that would render it invalid.
C. Severability
If any provision of this Conservation Restriction or the application thereof to any person or
circumstance is found to be invalid, the remainder of the provisions of this Conservation
Restriction shall not be affected thereby.
D. Entire Agreement
This instrument sets forth the entire agreement of the Grantor and Grantee with respect to this
Conservation Restriction and supersedes all prior discussions, negotiations, understandings, or
agreements relating to the Conservation Restriction, all of which are merged herein.
XV. BASELINE DOCUMENTATION REPORT
The Conservation Values, as well as the natural features, current uses of, and existing
improvements on the Premises, such as, but not limited to, trails, woods roads, structures, meadows
or other cleared areas, agricultural areas, and scenic views, as applicable, are described in a
Baseline Documentation Report (“Baseline Report”) prepared by Grantee with the cooperation of
the Grantor, consisting of maps, photographs, and other documents and on file with the Grantee
and included by reference herein. The Baseline Report (i) is acknowledged by Grantor and Grantee
to be a complete and accurate representation of the condition and values of the Premises as of the
date of this Conservation Restriction, (ii) is intended to fully comply with applicable Treasury
Regulations, (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.
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C. Executory Limitation
If Grantee shall cease to exist or to be qualified to hold conservation restrictions pursuant to Section
32 of Chapter 184 of the Massachusetts General Laws, or to be qualified organization under 26
U.S.C. 170(h), and applicable regulations thereunder, if applicable, and a prior assignment is not
made pursuant to Paragraph VII, then Grantee’s rights and obligations under this Conservation
Restriction shall vest in such organization as a court of competent jurisdiction shall direct pursuant
to the applicable Massachusetts law and with due regard to the requirements for an assignment
pursuant to Paragraph VII.
D. Prior Encumbrances
This Conservation Restriction shall be in addition to and not in substitution of any other restrictions
or easements of record affecting the Premises.
E. The following signature pages are included in this Grant:
Grantor and Approval - Town of Yarmouth, acting by its Board of Selectmen and through its Board
of Water Commissioners
Grantee Acceptance – Trustees of the Yarmouth Conservation Trust
Approval of Yarmouth Board of Selectmen
Approval of the Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts.
B. The following exhibits are attached and incorporated herein:
Exhibit A: Description of Premises
Exhibit B: Reduced Copy of Recorded Plan of Premises
Exhibit C: Water Supply Protection Zones
Exhibit D: Town Authorizing the Use of CPA Funds
Exhibit E: Record of MassDEP Public Hearing and Approval of Land Acquisition
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GRANT AND APPROVAL OF TOWN OF YARMOUTH, ACTING BY ITS BOARD OF
SELECTMEN AND THROUGH ITS BOARD OF WATER COMMISSIONERS
We, the undersigned, being a majority of the Board of Water Commissioners of the Town of
Yarmouth, Massachusetts, hereby certify that at a public meeting duly held on
________________________, 2023, the Board of Water Commissioners voted to approve in the
public interest and grant the foregoing Conservation Restriction to the Trustees of the Yarmouth
Conservation Trust pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws and
do hereby approve in the public interest and grant the foregoing Conservation Restriction.
TOWN OF YARMOUTH BOARD OF WATER
COMMISSIONERS:
Michael Stone
Daniel Horgan
Mark Forest
Dorcas McGurrin
Peter Q. Smith
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2023, before me, the undersigned notary
public, personally appeared Michael Stone, Daniel Horgan, Mark Forest, Dorcus McGurrin, and
Peter Q. Smith, and proved to me through satisfactory evidence of identification which was
______________________________ to be the persons whose names are signed on the proceeding
or attached document, and acknowledged to me that they signed it voluntarily for its stated
purpose.
______________________________
Notary Public
My Commission Expires:
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ACCEPTANCE OF GRANT
The foregoing Conservation Restriction from Town of Yarmouth, acting by its Board of Selectmen
and through its Board of Water Commissioners, was accepted by a majority of the Trustees of
Yarmouth Conservation Trust this __________ day of ________________, 2023.
Donald F. Henderson
Elizabeth G. Manning
Richard F. Martin
Sharon Donegan
Christine Marzigliano
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2023, before me, the undersigned notary
public, personally appeared
______________________________________________________________________________
__________________ 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 s/he signed it voluntarily for its stated purpose.
______________________________
Mark H. Robinson, Notary Public
My Commission Expires: 8 July 2027
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APPROVAL OF TOWN OF YARMOUTH BOARD OF SELECTMEN
We the undersigned, being a majority of the Board of Selectmen of the Town of Yarmouth, hereby
certify that at a public meeting duly held on _________ __, 2023, the Board of Selectmen
voted to approve the foregoing Conservation Restriction from the Town of Yarmouth, acting by
its Board of Selectmen and through its Board of Water Commissioners to the Trustees of the
Yarmouth Conservation Trust in the public interest pursuant to Section 32 of Chapter 184 of the
Massachusetts General Laws.
TOWN OF YARMOUTH BOARD OF
SELECTMEN:
Michael Stone
Daniel Horgan
Mark Forest
Dorcas McGurrin
Peter Q. Smith
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2023, before me, the undersigned notary
public, personally appeared Michael Stone, Daniel Horgan, Mark Forest, Dorcus McGurrin, and
Peter Q. Smith, and proved to me through satisfactory evidence of identification which was
______________________________ to be the persons whose names are signed on the proceeding
or attached document, and acknowledged to me that they signed it voluntarily for its stated
purpose.
______________________________
Notary Public
My Commission Expires:
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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 the Town of
Yarmouth, acting by its Board of Selectmen and through its Board of Water Commissionersto the
Trustees of the Yarmouth Conservation Trust in the public interest pursuant to Section 32 of
Chapter 184 of the Massachusetts General Laws.
Dated: ________________, 2023
Rebecca L. Tepper
Secretary of Energy and Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss:
On this day of , 2023, before me, the undersigned notary
public, personally appeared Rebecca L. Tepper, and proved to me through satisfactory evidence
of identification which was ______________________________ to be the person whose name is
signed on the proceeding or attached document, and acknowledged to me that she signed it
voluntarily for its stated purpose.
______________________________
Notary Public
My Commission Expires:
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EXHIBIT A
Description of the Premises
The land in Yarmouth Massachusetts, containing 9.66 acres, +/-, shown as Parcels 1 through 10
on a plan of land titled “Plan of Land in West Yarmouth, Massachusetts for John T. Wiggin”,
dated July 1, 1986, by Thomas E. Kelley, Professional Land Surveyor, 346 Long Pond Drive,
South Yarmouth, Mass 02664, recorded at the Barnstable County Registry of Deeds in Plan
Book 420, Page 59, a reduced copy of which is attached hereto as Exhibit B.1.
For title see deed dated recorded in the Barnstable County Registry
of Deeds in Deed Book 420, Page 59.
Containing 9.66 acres, more or less.
Town of Yarmouth Assessors Map 64, Lots 30, 31, 32, 33, 34, and 35
and Map 74, Lots 1, 2, 3, and 4
Street Address: 423, 431, 435, 439, 443, 445, 451, 455, 461, and 465 Higgins Crowell Road,
Yarmouth, MA 02673
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EXHIBIT B
Reduced Copy of Plan of Premises
For official full size plan see Barnstable County Registry of Deeds Plan Book 420 Page 59
Conservation
Restriction
Parcels
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EXHIBIT C
Water Supply Protection Zones
NOTES: This Conservation Restriction overlays land acquired for public water
supply protection pursuant to M.G.L c.40 s.39B, s.41 and Article 97 of the
Amendments to the Constitution of the Commonwealth of Massachusetts. .
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EXHIBIT D
Town Authorizing the Use of CPA Funds
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EXHIBIT E
Record of MassDEP Public Hearing and Approval of Land Acquisition
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