HomeMy WebLinkAboutDRAFT Open Space Restriction-Easement
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TOWN OF YARMOUTH
Open Space Restriction and Easement
Whereas, the Planning Board of the Town of Yarmouth, pursuant to Chapter 40A, Section 9 of
the Massachusetts General Laws and Section 402 of the Zoning Bylaw of the Town of
Yarmouth, has granted a Special Permit which requires that land designated Open Space in the
development be specifically restricted in its use; and,
Whereas, it is the intention of this grant to convey such restrictions over said Open Space which
shall remain in perpetuity; and,
Whereas, the preservation of open space is stated public purpose of the Town of Yarmouth, now,
therefore,
DeWitt P. Davenport, Trustee of Davenport Realty Trust, with an address of 20 North Main
Street, South Yarmouth, MA 02664, referred to as “Grantor” for consideration paid and in
consideration of an approval of a Residential Cluster Subdivision with Open Space, consisting of
a parcel of land, being shown on a Subdivision Plan entitled "Definitive Subdivision Plan of
Land of the proposed Single-Family Cluster Development at Lot 2, Route 6A, Yarmouth Port,
MA for The Davenport Companies", prepared by John M. O'Reilly, P.L.S., of J.M. O'Reilly &
Associates Inc., and dated February 18, 2022 and stamped March 15, 2022, which plan is
recorded at Plan Book ______, Page ____, and its successors in interest shall ensure that all
“Open Space” Lots on said plan shall be preserved for common use and enjoyment of the owners
for passive recreational purposes and conservation. The restrictions upon the said Open Space
lot(s), as required by the Yarmouth Zoning By-laws and herein mentioned Residential Cluster
Subdivision shall be enforced by Miracle Way Homeowner’s Association, Inc., its successors
in interest, home owner’s association, property owners or by the Town of Yarmouth.
In order to ensure that said Open Space Lot shall be kept in an open and natural state and not be
built upon for residential use or developed for accessory uses, such as parking or roadway, the
Grantor hereby agrees that:
A. Except a set forth in Paragraph B, neither the Grantor nor his successors or assigns will
perform or give permission to others to perform the following acts or uses on the
premises:
1. Paving or construction for road or parking purposes unless shown on the approved
definitive plan;
2. Construction or placing of any buildings, permanently affixed mobile homes, signs,
billboards, septic systems or other advertising, utilities or other structures on or above
the ground;
3. Dumping or placing of soil or other substances on the ground as landfill, or dumping
or placing of trash, waste or unsightly or offensive materials;
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4. No trees, grasses or other vegetation on the premises shall be cut, removed or
otherwise destroyed, except for the selective clearing of shrubbery, trees and other
vegetation for the purposes of beautification and maintenance of vistas which has
obtained approval from the Conservation Commission;
5. Excavation or dredging or removal of loam, peat, gravel, soil, rock or other material
substance or natural deposit in such a manner as to affect the surface of the premises
except for the purposes of beautification and maintenance of walkways and vistas
which has obtained approval from the Conservation Commission;
6. Use of the premises except for passive recreational purposes, or purposes which do
not alter the premises in its natural condition;
7. Activities detrimental to drainage, flood control, water or soil conservation, or erosion
control; or
8. Other acts or uses detrimental to the preservation of the premises in its present natural
condition.
9. No use shall be made of the premises and no activity thereon shall be allowed which
is or may become inconsistent with the intent of this grant, being the preservation of
the premises predominantly in their present condition, the protection of the
environmental systems and scenic enjoyment.
10. Notwithstanding the above, the Open Space is subject to rights of others to the 180
foot wide easement to the New Bedford Gas & Edison Light Company, n/k/a Cape &
Vineyard Electric Company, and a Water Easement to the Town of Yarmouth, both
as shown on a plan recorded in Plan Book 326, Page 22. Neither the owner of the
Property, the Homeowner’s Association, nor their successors in interest will be
responsible for the maintenance, repair and/or replacement of facilities therein noted.
B. The provisions of Paragraph A. notwithstanding, the following uses and activities shall be
Allowed on the premises only after appropriate permitting by the Yarmouth Conservation
Commission:
1. The creation of walking paths, riding trails or bicycle paths for the use of the Open
Space Development residents for recreational use;
2. Any active or passive recreational or conservation purposes as may be permitted by
the Planning Board and Conservation Commission of the Town of Yarmouth;
3. Such other recreational or conservational purposes as may be permitted by the
Planning Board and Conservation Commission of the Town of Yarmouth, evidence of
which shall be the recording of a modification of the Special Permit permitting such
uses;
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4. Any farming, agriculture, horticulture, silviculture, forestry and/or park use; and
5. Cultivation or harvesting of crops, flowers and hay; the planting of trees and shrubs
and mowing of grasses; and the construction and maintenance of fences or other
common elements necessary in conjunction therewith;
6. Landscaping, excavating and filling, well-digging, removal or cutting of vegetation,
creation of paths, installation of utilities, fencing and plowing, provided that such
activities are normally associated with the permitted uses in Paragraphs 1 through 5
above.
7. Such other changes or activities requested by the grantor and expressly consented to
by the Grantee as are consistent with the purpose of this restriction.
The Miracle Way Homeowner’s Association, Inc., its successors in interest, agree to be
responsible for the operation and maintenance of the private roadways, including catch basins,
and other facilities located in the Open Space or Association property, including any utilities,
drainage systems, landscaping, slope easements, drainage easements, sewer easements, slope
easements and sight easements which are not located on any Lot designated on the Plan. Any
and all costs and fees for the maintenance and replacement of these systems shall be shared
equally by the owners of the 14 Lots. Any maintenance and/or repair of drainage swales and/or
drywells, including periodic cleaning, located on a Lot shall be the sole responsibility of the
owner of said Lot. Any and all taxes imposed on Open Space and roads shall be shared equally
by the owners of the 14 lots.
This open space restriction-easement does not grant public access to this property except for
those as described above.
This restriction shall be binding upon and may be enforced against the Grantor and his heirs,
successors and assigns by the Grantee as holder of this restriction and all references herein to the
Grantor and Grantees shall include reference to their respective successors and assigns. This
conservation restriction shall be in addition to and not in lieu of any restrictions or easements of
record.
For title reference see the Deed recorded at Book _________, Page ____.
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Witness my hand and seal this _____ day of June, 2022.
Davenport Realty Trust
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DeWittt P. Davenport, Trustee
COMMONWEALTH OF MASSACHUSETTS
BARNSTABLE, SS.
On this ___ day of June, 2022, before me, the undersigned notary public, personally appeared
DeWitt P. Davenport, proved to me through satisfactory evidence of identification, namely a
Massachusetts Driver’s License, 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
Trustee of the Davenport Realty Trust.
_______________________________
Notary Public
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