HomeMy WebLinkAboutNitrogen Aggregation Plan 1/6/25 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)
January 6,2025
Via Hand Delivery
Yarmouth Board of Health
1146 Route 28
South Yarmouth,MA 02664
Re: Amended Nitrogen Aggregation Plan—South Yarmouth JAN 08 2024
West Great Western Road-Grant
446 Station Avenue -Release
Dear Members of the Board:
I am writing to submit recorded copies of the amended Nitrogen Aggregation Plan for the above as
approved last year. Attached are both the Amended Facility Land Restriction and Credit Land Restriction
documents as recorded in the Barnstable County Registry of Deeds,Book 36745 Page 51 and Book 35745,
Page 22.
Thank you.
Very truly yours,
Andrew L. Singer
Enclosures(2)
Copy to: Ian Jarvis,(via USPS)
Department of Environmental Protection
Southeast Regional Office
w/Enclosures(2)
Bk 36745 Pg51 #51529
12-23-2024 @ 12 : 28p
Locus: 473 Station Avenue,South Yarmouth
Amendment to Title 5 Nitrogen Loading Restriction and Easement
(Facility Land)
WHEREAS,Colbea Enterprises, L.L.C.,a Delaware limited liability company,with a principal
office at 695 George Washington Highway,Lincoln,RI 02865["Colbea"],and Sandy Island LLC,a
Massachusetts limited liability company with a principal office at do Micozzi Management,Inc.,159
Cambridge Street,Allston,MA 02134("Sandy Island"),entered into a Title 5 Nitrogen Loading
Restriction and Easement(Facility Land),dated January 23,2023,and recorded with the Barnstable
County Registry of Deeds in Book 35688,Page 202(-Facility Land Restriction and Easement"];and
WHEREAS,Colbea is a tenant at Sandy Island's property located at 473 Station Avenue,South
Yarmouth,MA,which land is shown on a plan of land recorded with the Barnstable County Registry of
Deeds in Plan Book 699, Page 12("Facility Land"];and
WHEREAS Colbea has entered into an Amended Credit Land Restriction and Easement with the
Town of Yarmouth Board of Health that releases the Original Credit Land located at 446 Station Avenue,
South Yarmouth and referenced in the Facility Land Restriction and Easement,and substituting thereby
Substitute Credit Land on West Great Western Road,South Yarmouth in an Amended Credit Land
Restriction and Easement;and
WHEREAS,the parties desire to reflect this change from the Original Credit Land to the
Substitute Credit Land.
NOW THEREFORE. in consideration of the provisions contained herein and in the Facility Land
Restriction and Easement and the Amended Credit Land Restriction and Easement,the parties hereby
agree to amend the Facility Land Restriction and Easement as follows:
1. The fourth Whereas clause is hereby deleted in its entirety and replaced with the
following:
"WHEREAS the Facility Land has the benefit of a Nitrogen Loading Restriction and
Easement over a portion of a parcel of land located on West Great Western Road,South
Yarmouth,MA,restricting approximately 26,000 square feet of area marked as to be Deed
Restricted on a plan of land entitled"Nitrogen Makeup Exhibit,Colbea Enterprises,LLC,"
prepared by Control Point Associates,Inc.,dated 4-12-2024,which plan is attached to an
Amended Title 5 Nitrogen Loading Restriction and Easement(Credit Land).to be
recorded with the Barnstable County Registry of Deeds herewith;and:and
2. In all other respects,the Facility Land Restriction and Easement is hereby ratified and
confirrned.
Bk 36745 Pg52 #51529
WITNESS the execution hereof under seal this I day of September,2024
Colbea Enterprises, L.L.C. Sandy Island LLC
By MG Farlow Corp.,Manager
By: By:
An rew Delli pini,Authorized Signatory Giancarlo Micozzi,President and Treasurer
STATE OF RHODE ISLAND
Newport,ss. September /9 ,2024
On this firth day of September,2024, before me,the undersigned notary public, personally
appeared Andrew Delli Caripini,AuthorOlaiaiWFjy,as aforesaid,proved to me through satisfactory
evidence of'identification,which NOES to be the
person whose name is signed on Se eding oY ed document, and acknowledged to me that he
signed it voluntarily for its statetrpultoplleCigkiIyAze&Signatory of Colbea Enterprises, L.L.C.
UBL4G lo:
' to,%•• Notary Public: CA/1/
O�RHOD
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COMMONWEALTH OF MASSACHUSETTS
Suffolk,ss. September ,2024
On this day of September,2024, 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:
2
Bk 36745 Pg53 #51529
WITNESS the execution hereof under seal this f I day of September,2024
Colbea Enterprises,L.L.C. Sandy Island LLC
By MO Farlow Corp.,Manager
By: By:
Andrew Dclli Caripiru,Authorized Signatory Giancarlo Micozzi,President and Treasurer
STATE OF RHODE ISLAND
Newport,ss. September ,2024
On this day of September,2024,before me,the undersigned notary public,personally
appeared Andrew Delli 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
Suffolk,ss. September II,2024
On this Mit day of September,2024,before me,the undersigned notary public,personally
appeared Giancarlo Micozzi,President and Treasurer of MG Fariow Corp.,Manager,as aforesaid,proved to me
through satisfactory evidence of identification,which was Raton w144 Kt,ruku Y'o M�
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: 6.4f —
My Commission expires: t.<'l �-,
2
Bk 36745 Pg54 #51529
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
c___
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(
COMMONWEALTH OF MASSACHUSETTS
Barnstable,ss. OctoberC).1 ,2024
On this 5fi day of October,2024, before me,the undersigned notary public,personally
appeared C"J_-Li _ 0E oresaid,proved to me through satisfactory
evidence of identification,which was c rair34, -' 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.
Notary Public,-
My Commission expires: '`,,,,h n '•,,•••••'
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JOHN F. MEADE, REGISTER
BARNSTABLE COUNTY REGISTRY OF DEEDS
RECEIVED & RECORDED ELECTRONICALLY
Bk 36745 Pg22 #51517
12-23-2024 @ 12 : 07p
Locus: Grant-- West Great Western Road, South Yarmouth
Release --446 Station Avenue, South Yarmouth
Amended Title 5 Nitrogen Loading Restriction and Easement
(Credit Land)
This Gratfoan Amended Title 5 Nitrogen Loading Restriction and Easement(Credit Land) is
made as of this y of September,2024. 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 entered into a Title 5 Nitrogen Loading Restriction and Easement
(Credit Land),dated January 23, 2023,and recorded with the Barnstable County Registry of Deeds in
Book 35688,Page 210 ["Original Credit Land Restriction"],thereby restricting land located at 446
Station Avenue,South Yarmouth, MA ["Original Credit Land"],and FURTHER WHEREAS,the
Grantor desires to have the Original Credit Land released from the Original Credit Land Restriction;and
WHEREAS,the Grantor is the owner in fee simple of the land located on West Great Western
Road,South Yarmouth,Barnstable County, MA,which land is shown as Lot 32 on Yarmouth Assessor's
Map 108 and further on a plan of land entitled"Nitrogen Makeup Exhibit,Colbea Enterprises, LLC,"
prepared by Control Point Associates, Inc.,dated 4-12-2024,a copy of which is attached hereto as Exhibit
A and made a part hereof and a portion of which as marked is to be Deed Restricted as substitute credit
land hereunder["Substitute Credit Land"],and FURTHER WHEREAS,the Grantor desires to have the
Substitute Credit Land placed under nitrogen restriction;and
WHEREAS,the Grantor is the tenant at the property located at 473 Station Avenue, South
Yarmouth,MA,which land is shown on a plan of land recorded with the Barnstable County Registry of
Deeds in Plan Book 699, Page 12("Facility Land"); and
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
WHEREAS the Facility Land has the benefit of a Nitrogen Loading Restriction and Easement,
being more particularly bounded and described in a Title 5 Nitrogen Loading Restriction and Easement
(Facility Land), recorded with the Barnstable County Registry of Deeds in Book 35688,Page 202
["Facility Land Restriction and Easement"]; 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 and Sandy Island 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 Grantor,Sandy island,and the Town of
Bk 36745 Pg23 #51517
Yarmouth,a Massachusetts municipal corporation situated in Barnstable County,having an address at
1146 Route 23,South Yarmouth, MA,acting by and through its Board of Health("Grantee"j,a perpetual,
non-exclusive casement to ensure maintenance of the Substitute Credit Land as nitrogen credit 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 Substitute Credit Land for purposes of
inspection of the Substitute Credit Land to cnsurc compliance with and fulfillment of the terms of this
Amended Credit Land Restriction and Easement as hereafter set forth;
NOW, THEREFORE, pursuant to the provisions of 310 CMR 15.216,the Grantee does hereby
release the Original Credit Land from the Original Credit Land Restriction and the Grantor does hereby
GRANT to the Grantee,for nominal,non-monetary consideration, with Quitclaim Covenants,an
Amended Title 5 Nitrogen Loading Restriction and Easement(Credit Land)["Amended Credit Land
Restriction and Easement"j,consisting of approximately 26,000 square feet of land, in,on,upon, through,
over and under the Substitute Credit Land as shown on Exhibit A, the terms and conditions of which as
follows:
PURPOSE:
The purpose of this Amended Credit 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 Substitute Credit Land for the said water supply and
for the specific benefit of the above-referenced Facility Land.
OBLIGATIONS AND EASEMENT:
1 Prohibitions. The Grantor agrees to maintain the Substitute Credit Land as nitrogen credit land
by prohibiting activities which have a detrimental effect on nitrogen loading on the Substitute
Credit Land,including but not limited to,wastewater discharges, the use of nitrogen fertilizer,the
introduction of artificial impervious surfaces, the raising,breeding or keeping of animals,
livestock or poultry for commercial purposes,and the creation or introduction of land under
water. A change in the condition of the Substitute Credit Land which results in the Substitute
Credit Land or a portion thereof being within a Velocity Zone or Regulatory Floodway will
render the Substitute Credit Land or said portion thereof ineligible for nitrogen credit pursuant to
310 CMR 15 216
2. Easements. In creating this Amended Credit Land Restriction and Easement, the Grantor hereby
grants 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 Substitute Credit Land to do any and all acts
deemed reasonably necessary to maintain the Substitute Credit Land as nitrogen credit land,
together with a right to pass and repass by foot and by vehicle over the Substitute Credit Land for
said purposes, and for purposes of inspecting the Substitute Credit Land to ensure compliance
with and fulfillment of the terms of this Amended Credit 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
2
Bk 36745 Pg24 #51517
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 expressly acknowledges that a violation of the terms 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 Credit Land in violation of the terms of this
Amended Credit Land Restriction and Easement;and
(ii) in the assessment of penalties and enforcement action by the Yarmouth Board of Health
and the DEP to enforce the terms of this Amended Credit Land Restriction and Easement,
pursuant to Title 5; M.G.L.c.I 11,§§ 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 Amended Credit Land Restriction and
Easement shall be construed to entitle the Grantee or any other governmental body to bring any
action against the Grantor or the Grantor's respective joint ventures,members,managers,
employees,successors,and assigns for any injury to or change in the Substitute Credit Land
resulting from causes beyond the Grantor's control, including without limitation,acts caused by
trespass on,above or under the Substitute Credit Land or from any prudent action taken by the
Grantor under emergency conditions to prevent,abate or mitigate significant injury to the
Substitute Credit Land resulting from such causes. Notwithstanding the above,the Grantor 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 Amended Credit Land Restriction and Easement sets forth
the rights,liabilities,agreements and obligations upon and subject to which the Substitute Credit
Land or any portion thereof,shall be let unimproved or according to which said Substitute Credit
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
Substitute Credit Land and the Facility Land,as applicable thereto,and any portion thereof and
shall inure to the benefit of and be binding upon the Grantor and all parties claiming by,through
or under the Yarmouth Board of Health or the Grantor. The Grantor hereby covenants for itself
and its successors and assigns, to stand seized and hold title to the Substitute Credit Land,as
applicable thereto,subject to this Amended Credit Land Restriction and Easement,provided,
however,that a violation of this Amended Credit Land Restriction and Easement shall not result
in a forfeiture or reversion of the Grantor's title to the Substitute Credit Land.as applicable
thereto.
7. Concurrence Presumed. it is agreed that the Grantor and all parties claiming by,through or under
the Grantor 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 Amended Credit Land Restriction
3
Bk 36745 Pg25 #51517
and Easement herein established shall be adhered to and not violated and that their respective
interests in the Substitute Credit Land and the Amended Credit 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. The Grantor hereby
agrees to incorporate this Amended Credit 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 Substitute Credit Land,or
any portion thereof,is hereafter conveyed. Notwithstanding the foregoing, failure to incorporate
. this Amended Credit Land Restriction and Easement into future documents shall not result in a
violation of this Amended Credit Land Restriction and Easement.
9. Recordation. The Grantor shall record this Amended Credit Land Restriction and Easement with
the Barnstable County Registry of Deeds. The Grantor shall file with the Yarmouth Board of
Health and the DEP an attested copy of the Amended Credit Land Restriction and Easement
within 30 days after it is recorded.
10. Amendment and Release. This Amended Credit Land Restriction and Easement may be amended
or released only upon approval by the Yarmouth Board of I lealth,which amendment or release
shall not be unreasonably withheld, conditioned or delayed. The Yarmouth Board oft lealth shall
release this Amended Credit 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 arc
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 off lealth and the DEP within 30
days after it is recorded.
I I. Term. This Amended Credit Land Restriction and Easement shall run in perpetuity and is
intended to conform to M.G.L.c.(84,§26,as amended.
12. Rights Reserved. This Amended Credit 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 Amended Credit 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 Substitute Credit Land or Facility Land,as applicable thereto,
or in arty 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 Amended Credit
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 Amended Credit Land Restriction and Easement shall become effective
upon its recordation with the Barnstable County Registry of Deeds,
(Sec Next Page for Signatures]
4
Bk 36745 Pg26 #51517
WITNESS the execution hereof under seal this if lay of September,2024.
Colbea Enterprises, L.L.C.
By:
• rlt-t+e i Car';'Authorized Signatory
STATE OF RHODE ISLAND
Newport,ss. �,�, September 17 ,2024
On this I7" day of September,2024, before me,the undersigned notary public,personally
appeared Andrew Delli Caripini,Authorized Signatory,as aforesaid,proved to me through satisfactory
evidence of identification, which was c. ti'Ne 140 tA/42_. to be the
person whose name is signed on the preced g or attached document,and acknowledged to me that he
signed it voluntarily for its statedwie as Authorized Signatory of Colbea Enterprises.L.L.C.
hE
s R� - Notary Publi • 64-1/
A""-"N. Corn /9 O`missi expires: nci,o,1,1
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5
Bk 36745 Pg27 #51517
•
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(Credit Land)to the Town of Yarmouth through its Board of
Health.
Board of Health of the Town of Yarmouth
•
//
COMMONWEALTH OF MASSACIIUSETTS
Barnstable,ss. October."ll 2024
On this day of October,2024,before me, the undersigned notary public,personally
appearedCM1 -�ul c- fie_ ,as aforesaid,proved to me through satisfactory
evidence of identification,which was ruff )t c 4_4^ 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.
Notary Public: "l
My Commission expires: �Q �mrni• . O
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�. 23-20 NITROGEN MAKEUP EXHIBIT
& -- COLBEA ENTERPRISE LLC Bk 36745 Pg28 #51517
.i1C 1.20.10.
2345 MA GREAT WESTERN ROAD
LOT 32,MAP ICI
r"":44" TOWN OF YARMOUTH,BARNSTABLE COUNTY I/,
611 COMMONWEALTH OF MASSACHUSETTS
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MAP 108 - LOT 34
N/F Lands of Town
of Yarmouth
Book 1509-Page 980 `.
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/Deed restriction to be placed over
a portion of Map 108,Lot 32 for
perpetual use as Nitrogen Make Up
Lands- Subject to Town approval
Map 109 Lot 33
N/F Lands of Town of (25,961 SF or 0.596 acres)
Yarmouth l ': f
Book 13054 - Page 280
MAP 108 -LOT 32
Remaining portion of Map 108 Lot 32
to be used as Nitrogen Make Up Lands
for future projects or for sale as
/ . Nitrogen Make Up Lands
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JOHN F. MEADE, REGISTER
BARNSTABLE COUNTY REGISTRY OF DEEDS
RECEIVED & RECORDED ELECTRONICALLY