HomeMy Public PortalAbout2022 05 31 Public Meeting PacketHUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
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GRANTOR: Brewster Conservation Trust
GRANTEE: Town of Brewster, Conservation Commission
ADDRESS OF PREMISES: 0 Holly Avenue (Rear), Brewster, MA 02631
FOR GRANTOR’S TITLE SEE: Barnstable County Registry of Deeds Book ___, Page ___
(pending)
FOR PLAN OF RECORD SEE: Barnstable County Registry of Deeds Plan Book 219, Page 79
CONSERVATION RESTRICTION
JOSEPH BIERNAT, AMY CHESNUT, BETH FINCH, DEBRA JOHNSON, PETER
JOHNSON, MARTIN KAMARCK, DONALD KEERAN, JOHN LAMB, STEPHEN
McKENNA, HAL MINIS, BONNIE NEWMAN, ROGER V. O’DAY, PETER W. SOULE,
CHARLES L. SUMNER, SEAMUS WOODS, and ROSEMARY VAN ANTWERP, as
Trustees of the BREWSTER CONSERVATION TRUST, under a Declaration of Trust dated
June 22, 1983 and recorded with the Barnstable County Registry of Deeds in Book 3791, Page 25,
as amended, with a mailing address of P.O. Box 268, Brewster, MA, 02631, being the sole owner
of the Premises as defined herein, for its successors and assigns holding any interest in the Premises
as hereinafter defined (“Grantor”), acting pursuant to Sections 31, 32, and 33 of Chapter 184 of
the Massachusetts General Laws, grants with QUITCLAIM COVENANTS to THE TOWN OF
BREWSTER, a Massachusetts municipal corporation with an address of 2198 Main Street,
Brewster, Massachusetts, 02631, acting by and through its Conservation Commission and Select
Board and pursuant to authority granted by the vote taken under Article __ of the September __,
2022 Special Town Meeting, an attested copy of which is attached hereto as Exhibit C, by authority
of Section 8C of Chapter 40 of the Massachusetts General Laws, (“Grantee”), in consideration of
TWO HUNDRED AND FIFTY THOUSAND and 00/100 DOLLARS ($250,000.00), IN
PERPETUITY AND EXCLUSIVELY FOR CONSERVATION PURPOSES, the following
Conservation Restriction on land located in the Town of Brewster, County of Barnstable,
Commonwealth of Massachusetts, containing approximately 4.925 acres (“Premises”), which
Premises is more particularly described in Exhibit A and shown in the attached reduced plan in
Exhibit B, both of which are incorporated herein and attached hereto.
I. 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 purpose of this Conservation
Restriction is to assure that the Premises will be maintained in perpetuity for conservation and
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passive recreation purposes, in a natural, scenic and undeveloped condition, and to prevent any
use or change that would impair or interfere with its conservation and preservation values
(“conservation values”).
Barnstable County Community Preservation Act. The acquisition of this Conservation
Restriction is made pursuant to the vote of the Town of Brewster Special Town Meeting, at a duly
called meeting held on ________2022, as Warrant Article ___, to appropriate funds for the purpose
of acquiring a conservation restriction on the Premises for conservation and passive outdoor
recreation purposes as defined in the aforesaid Community Preservation Act, G.L.44B § 1 et seq.
as applied pursuant to Chapter 149, §298 of the Acts of 2004, as amended by Chapter 352, §129-
133 of the Acts of 2004 (the so called "Barnstable County Community Preservation Act” or
"CPA"). A copy of the Town Meeting vote is attached hereto as Exhibit C.
Local Acquisitions for Natural Diversity (“LAND”) Grant Program. The conservation
restriction on the Premises was acquired by using, in part, funds from the Local Acquisitions for
Natural Diversity (“LAND”) Grant Program pursuant to Section 11 of Chapter 132A of the
Massachusetts General Laws and Section 2A of Chapter 286 of the Acts of 2014 and therefore the
Premises is subject to a LAND Grant Project Agreement (“Project Agreement”) recorded at the
Barnstable County Registry, Book __, Page __. A copy of the recorded Project Agreement is
attached hereto as Exhibit D (pending).
The conservation values include the following:
Open Space Protection. The Premises contributes to the protection of the scenic and natural
character of Brewster and its protection will enhance the open-space value of the Premises
as well as other protected open space parcels, including: (i) land-trust owned conservation
land immediately east, Baker’s Pond Conservation Area; and (ii) the MA Department of
Conservation and Recreation’s Nickerson State Park in close proximity to the west (over
1,900 acres). The land around Nickerson State Park, including the Premises was listed by
the Massachusetts Department of Conservation and Recreation in 1981 as a Scenic
Landscape. Surrounding Town land includes the highest location in Brewster at 134 feet
above sea level.
Baker’s Pond Conservation Area. The Brewster Conservation Trust (BCT) and the Town
of Brewster own a 90-acre assemblage of pine-oak-huckleberry woodlands which run
along the eastern side of the Premises, on the western side of Baker’s Pond – a pond which
is located on the Brewster-Orleans town boundaries. Referred to as the Baker’s Pond
Conservation Area, this protected open space includes a vernal pond and Huckleberry Hill,
the highest point in Brewster (134-feet). BCT maintains a two-mile trail within the
Conservation Area which is frequented by white-tailed deer, fox, and coyote.
Supporting the Statewide Land Conservation Plan. In 2003 the Statewide Land
Conservation Plan was drafted, which identifies the most significant available,
undeveloped and unprotected open space lands needed to protect, among other things,
biodiversity habitats. Conserving the Premises supports the Statewide Land Conservation
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Plan in maintaining extensive woodlands of hundreds of acres which enable deer, coyote,
fox and other large mammals to breed, roam and forage.
Protection of Wildlife Habitat. The Premises contains Massachusetts Natural Heritage &
Endangered Species Program (“NHESP”) BioMap2 Critical Natural Landscape.
BioMap2, published in 2010, was designed to guide strategic biodiversity conservation in
Massachusetts over the next decade by focusing land protection and stewardship on the
areas that are most critical for ensuring the long-term persistence of rare and other native
species and their habitats, exemplary natural communities, and a diversity of
ecosystems. BioMap2 is also designed to include the habitats and species of conservation
concern identified in the State Wildlife Action Plan. Therefore, the protection of the
Premises aligns with NHESP’s wildlife and habitat protection objectives and would ensure
perpetual protection for each of these state-recognized habitats.
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, and 2018, which provided, inter alia
(references are to the 2018 RPP):
“To protect, preserve, or restore wildlife and plant habitat to maintain the region’s
natural diversity” (Wildlife and Plant Habitat Goal, p. 55).
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” (p. 32); and
“To conserve, preserve, or enhance a network of open space that contributes to the
region’s natural community resources and systems” (Open Space Goal, p. 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…” (p. 30);
Granting this Conservation Restriction will advance each of these goals. The Premises is
adjacent to the BCT’s Baker’s Pond Conservation Area and in the vicinity of Nickerson
State Park. Additionally, the Premises lies entirely within an NHESP BioMap2 Critical
Natural Landscape. Therefore, this Conservation Restriction will ensure that important
wildlife and plant life habitats remain undisturbed in perpetuity. The Open Space Goal will
be served in preventing development on the Premises.
Consistency with Clearly Delineated Town of Brewster Conservation Policy. . Protection
of the Premises will further the Town of Brewster’s documented goals regarding
conservation of land. In 2020, the Town of Brewster outlined its conservation goals in its
updated Open Space and Recreational Plan, identifying policies and actions to guide
conservation efforts. Protecting this Premises from development supports the Town’s
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BREWSTER, MA
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goals for maintaining open space, preserving the rural and scenic character of the area,
and protecting habitat diversity and fresh surface waters.
Additionally, the Town of Brewster has adopted a Conservation Restriction Program
(“CRP”), consisting of policies and guidelines approved by the Board of Selectmen,
Assessors and Conservation Commission in 1989, which encourages the use of
conservation restrictions in perpetuity as a means of “protecting water resources and clean
air, preserving open space, forest lands, and natural habitat of fish, wildlife or plants and
providing scenic enjoyment, outdoor recreation and education of the public;” and which
further specified that purposes of a conservation restriction could include the following:
to prevent the cutting of trees;
to preserve important natural habitats; and,
to limit or prevent construction on land of natural resource value
For similar reasons outlined above, granting this Conservation Restriction aligns with the
goals of the Town of Brewster’s Conservation Restriction Program.
Consistency with Clearly Delineated Federal Conservation Policy. Protection of the
Premises meets the definition of “conservation purposes” as defined in 26 CFR 1.170A-
14(d)(1), because its conservation would: 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 would
enhance public access to additional Brewster woodlands.
Consistency with Clearly Delineated State Conservation Policy. The Premises possesses
significant open space, natural, aesthetic, ecological, plant and wildlife habitat, solid and
water resource quality, watershed, and scenic values (collectively “Conservation Values”)
of great importance to the Grantee and the people of Brewster and the Commonwealth of
Massachusetts.
These and other conservation values of the Premises, as well as its current uses and state of
improvement, 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 referenced 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, and (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. Notwithstanding the foregoing, the parties
may utilize any evidence of the condition of the Premises at the time of this grant other than
the Baseline Report, should the Baseline Report be unavailable or if it does not adequately
address the issues presented.
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BREWSTER, MA
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II. PROHIBITED ACTS AND USES, EXCEPTIONS THERETO, AND PERMITTED
USES
A. Prohibited Acts and Uses
Subject to the exceptions set forth herein, 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) Constructing, placing or allowing to remain any temporary or permanent building, tennis
court, landing strip, mobile home, swimming pool, asphalt or concrete pavement, sign,
fence, billboard or other advertising display, wind turbine, antenna, utility pole, tower,
solar panel, solar array, conduit, line or other temporary or permanent structure or facility
on, above or under the Premises;
(2) Mining, excavating, dredging or removing from the Premises of soil, loam, peat, gravel,
sand, rock or other mineral resource or natural deposit or otherwise making topographical
changes to the area;
(3) Placing, filling, storing or dumping of soil, refuse, trash, vehicle bodies or parts, rubbish,
debris, junk, tree and other vegetation cuttings generated off-site, waste or other substance
or material whatsoever or the installation of underground storage tanks;
(4) Cutting, removing or otherwise destroying trees, grasses or other vegetation;
(5) Activities detrimental to drainage, flood control, water conservation, water quality, erosion
control, soil conservation, wildlife habitat, or archaeological conservation;
(6) Hunting, trapping, or camping;
(7) Use, parking or storage of vehicles including motorcycles, mopeds, all-terrain vehicles,
trail bikes, or any other motorized vehicles on the Premises except for vehicles necessary
for public safety (i.e., fire, police, ambulance, other government officials) in carrying out
their official duties or as necessary for the mobility impaired;
(8) Subdivision or conveyance of a part or portion of the Premises alone, or division or
subdivision of the Premises (as compared to conveyance of the Premises in its entirety
which shall be permitted), and no portion of the Premises may be used towards building or
development requirements on this or any other parcel. The development rights which are
encumbered and extinguished by this Conservation Restriction shall not be transferred to
any other property pursuant to a transferable development rights plan, cluster development
plan, or otherwise;
(9) The use of the Premises for business, residential or industrial use, other municipal use or
commercial recreation;
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BREWSTER, MA
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(10) Any other use of the Premises or activity which is inconsistent with the purpose of this
Conservation Restriction or which would impair its conservation values.
B. Reserved Rights and Exceptions
The Grantor reserves the right to conduct or permit the following activities and uses on the
Premises, but only if such uses and activities do not impair the conservation values or purposes of
this Conservation Restriction.
(1) Vegetation Management. The selective minimal removing of brush, pruning and cutting
to prevent, control or remove hazards, disease, insect or fire damage, or to preserve the
present condition of the Premises, including vistas as documented in the Baseline Report,
woods roads, fence lines and trails and meadows;
(2) Non-Native or Nuisance Species. The removal of non-native or invasive species, the
interplanting of native species, and the control of species in a manner that minimizes
damage to surrounding, non-target species and preserves water quality;
(3) Composting. The stockpiling and composting of stumps, trees, brush, limbs, and similar
biodegradable materials originating on the Premises, provided that such stockpiling and
composting is in locations where the presence of such activities will not impair the
conservation values (including scenic values) of this Conservation Restriction. No such
activities will take place closer than one hundred (100) feet from any wetland, waterbody
or stream. All exercise of this reserved right shall take into account sensitive areas and
avoid harm to nesting species during nesting season;
(4) Wildlife Habitat Improvement. With the prior written approval of Grantee, measures
designed to restore native biotic communities, or to maintain, enhance or restore wildlife,
wildlife habitat, or rare or endangered species including selective planting of native trees,
shrubs and plant species;
(5) Pest Control. With the approval of the Grantee, trapping and removal of animals for pest
control purposes.
(6) Archaeological Investigations. The right to conduct archaeological activities, including
without limitation archaeological research, surveys, excavation and artifact retrieval, but
only (a) after written notification to and approval by Grantee, and (b) in accordance with
an archaeological field investigation plan prepared by or on behalf of the Grantor and
approved in advance of such activity, in writing, by the Massachusetts Historic
Commission (“MHC”) State Archaeologist as required by Massachusetts General Laws. A
copy of the results of any scientific investigation on the Premises is to be provided to the
Grantee. Plans for restoration of the site of any archaeological activity shall be submitted
to the Grantee in advance of restoration, and such restoration shall be conducted only in
accordance with a plan approved by the Grantee.
Activities detrimental to archeological and historic resources, including but not limited to
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earth moving and the alteration of historic stone walls/cellar holes/features, shall not be
deemed to be detrimental to archeological and historic resources if a description of the
proposed activity and its location is submitted in writing (e.g., on a Project Notification
Form) with a plan of land (or assessors map) and a USGS map with the Premises outlined
thereon, to MHC and MHC issues a letter stating that the proposed activity is not within a
resource area or is determined to not have an adverse effect on said resources. Grantor and
Grantee shall make every reasonable effort to prohibit any person from conducting
archaeological field investigation on the Premises, including metal detecting, digging, or
artifact collecting, without approval of the MHC State Archaeologist (or appropriate
successor official), and shall promptly report any such prohibited activity to the MHC State
Archaeologist (or appropriate successor official). Grantor and Grantee shall include the
prohibition against digging, artifact collecting, or metal detecting in any list of rules for
visitors to the Premises;
(7) Trails. The marking, clearing and maintenance of existing trails as shown in the Baseline
Report. With prior approval of the Grantee, the construction of new trails or the relocation
or alteration of existing trails, provided that any construction, relocation, or alteration
results in trails that are no wider than eight (8) feet;
(8) Parking. Grantor may install a parking area for up to four (4) vehicles to enhance public
access provided such installation causes no more than minimal disturbance on the
Premises.
(9) Right to Install Resting Benches on the Premises. The Grantor reserves the right to install
on the Premises several resting benches for enjoyment by the public, provided such
installation causes no more than minimal disturbance on the Premises and does not
negatively impact its conservation values;
(10) Signs. The erection, maintenance and replacement of signs with respect to trespass, trail
access, identity and address of the occupants, sale of the Premises, the Grantee's interest in
the Premises, any gift, grant, or other applicable source of support for the conservation of
the Premises, and the protected conservation values;
(11) Fences. Subject to Grantee’s approval, Grantor reserves the right to erect and maintain
open-faced (i.e., sight-pervious) fences, such as wooden split rail, for property boundary
delineation, safety reasons, and trail demarcation, so long as the dimensions and design of
said fences do not impede free wildlife passage;
(12) Outdoor Passive Recreational Activities. The Grantor and its invitees are permitted to
conduct non-commercial, passive recreational uses of the Premises during daylight hours,
subject to reasonable regulation by the Grantor. Passive outdoor recreation activities may
include walking, jogging, cross-country skiing, bird watching, hiking, wildlife observation,
photography, fishing, sketching, painting, and other similar activities that do not conflict
with the conservation values and that are permitted by law;
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(13) Site Restoration. Any work undertaken in conjunction with the Reserved Rights
described in this Paragraph II(B) shall seek to minimize disturbance to the Conservation
Values and other natural features within the Premises that may be impacted as a result of
exercising of any of the Reserved Rights described herein. Upon completion of any site
work performed in conjunction with the Reserved Rights described in this Paragraph
II(B), any disturbed areas shall be restored substantially to the conditions with respect to
soil material, grade, and vegetated ground cover as documented in the Baseline Report, as
applicable, or in conformance with the conditions with respect to soil material, grade, and
vegetated ground cover that existed prior to said work, if said work is done in any area
not documented in the Baseline Report;
(14) Permits, Regulations, Laws. The exercise of any right reserved by Grantor under this
Paragraph II(B) shall be in compliance with zoning, the Wetlands Protection Act, and all
other applicable federal, state and local laws, rules, regulations, and permits. The
inclusion of any reserved right requiring a permit from a public agency does not imply
that the Grantee or the Commonwealth takes any position whether such permit should be
issued.
(15) Best Management Practices. The exercise of any right reserved by Grantor under this
Paragraph II(B) shall follow, when available and if applicable, established, up to date,
and regionally-applicable Best Management Practices or similar standards developed by a
governmental agency or other entity with known expertise in the area of practice and
designed to protect the natural features potentially affected by the action(s).
C. Notice and Approval.
Whenever notice to or approval by Grantee is required, Grantor shall notify 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. The notice shall describe the nature, scope, design, location,
timetable and 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 of this Conservation
Restriction. 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 not be
unreasonably withheld, but shall only be granted upon a showing that the proposed activity shall
not impair the purposes of this Conservation Restriction.
Grantee agrees to use reasonable diligence to respond to Grantor’s request within 60 days of
delivery. Grantee’s failure to respond within the sixty (60) calendar day period shall be deemed a
denial of the request (hereinafter, a “Deemed Denial”). A Deemed Denial is not final or binding
on Grantee, and Grantor may re-submit the same or a similar request for approval.
III. LEGAL REMEDIES OF THE GRANTEE
A. Legal and Injunctive Relief.
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The rights hereby granted shall include the right to enforce this Conservation Restriction by
appropriate legal proceedings and to obtain injunctive and other equitable relief against any
violations, including, without limitation, relief requiring restoration of the Premises to their
condition prior to the time of the injury complained of (it being agreed that the Grantee will have
no adequate remedy at law). 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. Grantee agrees to cooperate for a reasonable period of time prior to resorting to legal
means in resolving issues concerning violations provided Grantor ceases objectionable actions and
Grantee determines there is no ongoing diminution of the conservation values of the Conservation
Restriction. Prior to resorting to legal means to enforce any violations of this Conservation
Restriction, the Grantee shall first notify the Grantor and request the Grantor to remedy the
violation. The Grantor shall cease the violation immediately upon receipt of notice of the violation
and make a good faith effort to remedy violation. If the violation is not remedied within sixty (60)
days of receipt of notice but the Grantor has complied with its obligations under the preceding
sentence, then the parties shall make a good faith effort to mediate the dispute before the Grantee
commences litigation. If the Grantor has failed to comply with its obligations under this paragraph
and the violation has not remedied within sixty (60) days of receipt of notice, the Grantee may
commence litigation without engaging in mediation.
Grantee shall not, however, have the right to bring an action against Grantor with respect to a
violation of this Conservation Restriction by trespassers or other third persons whose entry on the
Premises is not authorized or not voluntarily acquiesced in by Grantor; Grantor agrees that Grantor
will not voluntarily acquiesce in any violation of this Conservation Restriction by trespassers or
such other third persons; and Grantor further agrees that Grantor will make reasonable efforts to
deter such activities and to remedy the violation and will cooperate with Grantee to enforce this
Conservation Restriction against trespassers and such other third persons.
Grantor covenants and agrees to reimburse to Grantee all reasonable costs and expenses (including
reasonable counsel fees) incurred in enforcing this Conservation Restriction or in taking
reasonable measures to remedy, abate or correct any violation thereof, provided that a violation of
this Conservation Restriction is acknowledged by Grantor or determined by a court of competent
jurisdiction to have occurred. In the event of a dispute over the boundaries of the Conservation
Restriction, Grantor shall pay for a survey and to have the boundaries permanently marked.
B. Non-Waiver
Enforcement of the terms of this Conservation Restriction shall be at the 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.
C. 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,
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but not limited to, hazardous materials, zoning, environmental laws and regulations, or acts not
caused by the Grantee or its agents.
D. 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
causes beyond the Grantor’s control, including but not limited to fire, flood, storm 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.
IV. ACCESS
The Grantor hereby grants to the Grantee, or its duly authorized agents or representatives, the right
to enter the Premises (i) after reasonable notice and at reasonable times and in a reasonable manner,
for the purpose of inspecting the Premises to determine compliance with or to enforce this
Conservation Restriction; and (ii) after sixty (60) days prior written notice, except in an emergency
in which case notice shall be given as soon as is practicable, to take any and all actions with respect
to the Premises as may be necessary or appropriate, with or without order of court, to remedy,
abate or enforce any violation hereof unless the Grantor has prior to the expiration of said sixty
(60) days given written notice to the Grantee reasonably addressing all alleged violations and
setting forth a reasonable plan to remedy any such alleged violation and has made reasonable
efforts to cease the activity or to begin remediation.
The Grantor grants access to the trails on 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 for the activities described in Section II(B)(11) 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 of this Conservation Restriction. Grantor has
the right to control, limit, or prohibit by posting and other reasonable means activities or uses of
the Premises not authorized in Section II(B)(11). The Grantor’s right to grant public access
across the Premises is subject to the restrictions described in this Conservation Restriction. Any
public use which is permitted by the terms of this Conservation Restriction constitutes
permission to use the Premises for purposes described in Section 17C of Chapter 21 of the
Massachusetts General Laws and the Grantor and Grantee hereto benefit from exculpation from
liability to the extent provided in such section. The Grantee may require the Grantor to post the
Premises against any use that may result in rutting or erosion or other damage to the natural
resources of the Premises.
V. EXTINGUISHMENT
A. If circumstances arise in the future such as render the purpose of this Conservation
Restriction impossible to accomplish, this restriction can only be terminated or extinguished,
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whether in whole or in part, by a court of competent jurisdiction under applicable law after review
and approval by the Massachusetts Secretary of Energy and Environmental Affairs. If any change
in conditions ever gives rise to extinguishment or other release of the 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 V(B),
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. Grantee
shall use its share of the proceeds in a manner consistent with the conservation purpose set forth
herein.
B. Proceeds. 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 Sixty-Nine and 44/100 percent (69.44%)1 of the fair market value of the unrestricted Premises
determined at the time of the conveyance. Such proportionate value of the Grantee’s property
right shall remain constant. Any proceeds will be distributed only after complying with the terms
of any gift, grant, or other funding requirements, including Barnstable County Community
Preservation Act (CPA) and Local Acquisitions for Natural Diversity (LAND) funding
requirements (proposal pending).
C. Grantor/Grantee 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 V(B), after complying with the terms of any law, gift, grant, or funding requirements,
including those of the CPA and the LAND Grant Project Agreement (pending). 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 the proceeds like a continuing trust in a manner consistent
with the conservation purposes of this grant.
VI. DURATION & 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 their 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.
1 The Town (Grantee) paid $250,000 for this Conservation Restriction, representing 69.44% of the fee simple
purchase price of $360,000 by the Brewster Conservation Trust (Grantor).
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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 in the following
instances:
As a condition of any assignment, the Grantee shall require that the purpose of this Conservation
Restriction continues to be carried out; that the assignee is not an owner of the fee in the Property,
and the assignee, at the time of the assignment, qualifies under Section 170(h) of the Internal
Revenue Code of 1986, as amended, and applicable regulations thereunder, and is a donee eligible
to receive this Conservation Restriction under Section 32 of Chapter 184 of the Massachusetts
General Laws. Any assignment will comply with Article 97 of the Amendments to the Constitution
of the Commonwealth of Massachusetts, if applicable.
VII. SUBSEQUENT TRANSFERS
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
execution of such transfer. Failure to do any of the above shall not impair the validity or
enforceability of this Conservation Restriction. Any transfer will comply with Article 97 of the
Amendments to the Constitution of the Commonwealth of Massachusetts, if applicable.
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.
VIII. ESTOPPEL CERTIFICATES
Upon request by the Grantor, the Grantee shall, within thirty (30) days written notice, 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, and which otherwise evidences the status of this Conservation Restriction as may be
requested by the Grantor.
IX. 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 to a non-fee owner that is qualified under Section 170(h) of the Internal
Revenue Code of 1986, as amended, and applicable regulations thereunder and is eligible to
receive this Conservation Restriction under Section 32 of Chapter 184 of the Massachusetts
General Laws in order to ensure that merger does not occur and that this Conservation Restriction
continues to be enforceable by a non-fee owner.
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
13
X. AMENDMENT
If circumstances arise under which an amendment to or modification of this Conservation
Restriction would be appropriate, Grantor and Grantee may jointly amend this Conservation
Restriction; provided that no amendment shall be allowed that will affect the qualification of this
Conservation Restriction or the status of Grantee under any applicable laws, including Section
170(h) of the Internal Revenue Code of 1986, as amended, or Sections 31-33 of Chapter 184 of
the Massachusetts General Laws. Any amendments to this conservation restriction shall occur only
in exceptional circumstances. The Grantee will consider amendments only to correct an error or
oversight, to clarify an ambiguity, or where there is a net gain in conservation value. All expenses
of all parties in considering and/or implementing an amendment shall be borne by the persons or
entity seeking the amendment. Any amendment shall be consistent with the purposes of this
Conservation Restriction, shall not affect its perpetual duration, shall be approved by the Secretary
of Energy and Environmental Affairs and if applicable, shall comply with the provisions of Article
97 of the Amendments to the Massachusetts Constitution, and any gifts, grants or funding
requirements. Any amendment shall be recorded in the Barnstable County Registry of Deeds.
XI. 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 a timely manner in the Barnstable
County Registry of Deeds.
XII. 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: Brewster Conservation Trust
P.O. Box 268
Brewster, MA 02631
To Grantee: Town of Brewster Conservation Commission
2198 Main Street
Brewster, MA 02631
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.
XIII. GENERAL PROVISIONS
A. Controlling Law. The interpretation and performance of this Conservation Restriction
shall be governed by the laws of the Commonwealth of Massachusetts.
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
14
B. Liberal Construction. Any general rule of construction to the contrary notwithstanding,
this Conservation Restriction shall be liberally construed in favor of the grant to affect the purpose
of this Conservation Restriction and the policy and purposes of Sections 31, 32, and 33 of Chapter
184 of the Massachusetts General Laws. If any provision in this instrument is found to be
ambiguous, any interpretation consistent with the purpose of this Conservation Restriction 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 provision of this
Conservation Restriction shall not be affected thereby.
D. Entire Agreement. This instrument sets forth the entire agreement of the parties 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.
XIV. 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 of Energy and Environmental Affairs 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. Subordination. The Grantor shall record at the appropriate Registry of Deeds
simultaneously with this Conservation Restriction all documents necessary to subordinate any
mortgage, promissory note, loan, lien, equity credit line, refinance assignment of mortgage, lease,
financing statement or any other agreement which gives rise to a surety interest affecting the
Premises.
C. Attached hereto and incorporated herein by reference are the following:
Signature pages:
Grantor – Brewster Conservation Trust
Grantee Acceptance – Town of Brewster Conservation Commission
Approval and Grant by Town of Brewster Select Board
Approval of the Secretary of Energy and Environmental Affairs.
Exhibits:
Exhibit A: Description of Premises
Exhibit B: Sketch Plan of Premises
Exhibit C: Town of Brewster Town Meeting Vote
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
15
Exhibit D: Copy of Recorded LAND Project Agreement
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
16
GRANT:
This Conservation Restriction to the Town of Brewster Conservation Commission was granted by
Brewster Conservation Trust this ____ day of ____________, 2022.
BREWSTER CONSERVATION TRUST
By its Trustees, duly authorized
______________________________ ______________________________
Martin Kamarck, Trustee & President John Lamb
______________________________ ______________________________
Joe Biernat Steve McKenna
______________________________ ______________________________
Beth Finch Bonnie Newman
______________________________ ______________________________
Debra Johnson Roger V. O’Day
______________________________ ______________________________
Peter Johnson Peter W. Soule
______________________________ ______________________________
Hal Minis Charles L. Sumner
______________________________ ______________________________
Donald Keeran Rosemary Van Antwerp
______________________________
Seamus Woods
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this ___day of ______________, 2022, before me, the undersigned notary public, personally
appeared Martin Kamarck, Trustee and President of the Brewster Conservation Trust, and proved
to me through satisfactory evidence of identification, which was personal knowledge, to be the
person whose name is signed on the proceeding or attached document, and acknowledged to me
that he signed it voluntarily for its stated purpose.
______________________________
Mark H. Robinson, Notary Public
My Commission Expires: 8 July 2027
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
17
ACCEPTANCE
We, the undersigned, being a majority of the Conservation Commission of the Town of Brewster,
Massachusetts, hereby certify that at a public meeting duly held on
________________________2022, the Conservation Commission voted to accept the foregoing
Conservation Restriction from the Brewster Conservation Trust, in the public interest pursuant to
Section 32 of Chapter 184 and Section 8C of Chapter 40 of the Massachusetts General Laws and
do hereby grant the foregoing Conservation Restriction.
TOWN OF BREWSTER
CONSERVATION COMMISSION:
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 2022, 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 he signed it voluntarily for its stated purpose.
______________________________
Notary Public
My Commission Expires:
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
18
APPROVAL OF SELECT BOARD
We, the undersigned, being a majority of the Select Board of the Town of Brewster, hereby certify
that at a public meeting duly held on __________________, 2022, the Select Board voted to
approve the foregoing Conservation Restriction to the Town of Brewster, acting by and through
its Conservation Commission and its Select Board, from the Brewster Conservation Trust, in the
public interest pursuant to Section 32 of Chapter 184 of the Massachusetts General Laws.
SELECT BOARD:
COMMONWEALTH OF MASSACHUSETTS
Barnstable, ss:
On this day of , 20__, before me, the undersigned notary
public, personally appeared Cynthia Bingham, 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:
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
19
APPROVAL BY SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the Commonwealth of
Massachusetts, hereby certifies that the foregoing Conservation Restriction from the Town of
Brewster, acting by and through its Conservation Commission and its Select Board, to Brewster
Conservation Trust, has been approved in the public interest pursuant to Section 32 of Chapter 184
of the Massachusetts General Laws.
Dated: ________________, 202__
KATHLEEN A. THEOHARIDES
Secretary of Energy and Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss:
On this day of , 202__, before me, the undersigned notary
public, personally appeared KATHLEEN A THEOHARIDES, 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:
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
20
EXHIBIT A
Description of the Premises
The Premises subject to this Conservation Restriction consists of all of a total of 4.925 acres of
land located in the Town of Brewster, Barnstable County, Commonwealth of Massachusetts,
shown on Barnstable County Registry of Deeds Plan Book 219, Page 79, entitled “Plan of Land
in Brewster (East), Mass. as claimed by Richard O. Staff, Scale 1 in = 50 ft. October 1967,
Schofield Brothers Registered Civil Engineers & Land Surveyors, Orleans & Framingham,
Mass.”
For Grantor’s title, see deed recorded with the Barnstable County Registry of Deeds in Deed
Book ___ Page ___. (pending)
Town of Brewster Assessors Map ID: Map 137-1-0.
Street Address: 0 Holly Avenue (Rear), Brewster, MA 02631 (AKA 0 Angler’s Cartway)
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
21
EXHIBIT B
Reduced Plan of Premises
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
22
EXHIBIT C
Attested Copy of Town Meeting Vote: pending
HUCKLEBERY HILL NW CONSERVATION RESTRICTION
BREWSTER, MA
23
EXHIBIT D
Copy of Recorded LAND Project Agreement (pending)
4 'x 6 ' p o o l
e q u i p . p a d24ACAC
G E N .
36
3637
3
8
39
39
3
9
3 9
40418O
8O
10O
Hedge16O
14O
6O
12P 8O
Deck
Patio
Deck
Existing Dwelling Top of FNDN El= 41.8± Finish Floor El=42.9±
50' Buffer
Zone
100' Buffer
Zone
Covered Entry
BH
CH
DeckA /C
G E N
Catch
Basin Rim 39.1±
Existing
Driveway CWCWCWCWCWCWCWCWCWCWCWCWCWCWCWCWCW39.22
39.87
40.03
40.40
40.52
40.83
40.66
40.83
40.76
40.75
40.95
40.87
41.29
39.11
38.81
38.85
39.85
40.64
43.65 42.12 41.56
39.30
38.72
41.66
40.4040.45
40.53
40.97 40.93
40.65
40.60
39.90
39.59
39.37
39.94
40.52
41.25
39.1139.14
39.38
38.73
39.31
39.33
40.32
40.55
40.60
40.01
40.38
40.79
40.83
40.18
44.61 44.12
44.90
43.51
43.82
41.71
39.04
41.61
41.33
37.32
35.67
40.30
40.16
40.36
39.67
38.83
43.58
43.27
43.69
44.32
39.10
39.82
40.29
38.24
E
E
40.9740.8140.8040.7040.0539.6039.5239.7340.4441.2640.4039.7439.302 2
2 4
2 6
2 2
2 4
E d g e o f V e lo c it y Z o n e (a s s c a le d f r o m F I R M M a p s ) V E E l=1 5
Existing Gravel Driveway24IO
IO
IO
IO
CL
IG
IG
IG
IG IG
IG
IG
CL
CL CL CL
CL CL CL
CL CL CL
CL
IG
VD
VD
VD
RVRV
RV
CP
CP
CP
CP CP
CP CP
CP
CP
CP
RV
RV
RV
RV
CP
CP
CP
CP
CP
CP
CP
CL CL
CL
CL
CL CP
GM GM
GM
GM
GM
GM
GM
GM
GM
GM GM
GM
GM
GM
GM
GM
GM
GM
GM GM
GM
GM
GM
GM
GM
GM
GM
GM
GM GM
GM GM GM
CL
CL
CLCL
CLCL
CL
CL
CL
CL
CLCL
CL
CL
CL
CP
CP
CP
CP
CP
CP
CPCP VAVA
VA
VA
VA
VA
VA
VA
VA
VAVA
VA VA
VA
VA
VA
VA
VA
VA
VA
VA
VA
VA
VA
VA VA
VA VA
VA
VA VA
VAVA
VAVA
VA
VA
VA
VA
VA
VA
VA
VA
VA
VA
VAVA VA
VA VA
VA
CP
PLANTING SCHEDULE
ID Qty Latin Name Common Name Scheduled Size
TREES
IO 4 Ilex opaca American Holly 6'-8' ht. B&B
SHRUBS
CL 32 Clethra alnifolia Summersweet #5 cont.
CP 27 Comptonia peregrina Sweetfern #3 cont.
IG 8 Ilex glabra Inkberry #10 cont.
RV 7 Rosa virginiana Virginia Rose #3 cont.
VA 51 Vaccinium angustifolium Lowbush Blueberry #1 cont.
VD 3 Viburnum dentatum Arrowwood Viburnum #7 cont.
PERENNIALS
GM 33 Geranium maculatum Wild Geranium #1 cont.
50'
100'
EXISTING HEDGE TO REMAIN
EXISTING PERMEABLE DRIVEWAY
TO REMAIN & REPAIR AS NEEDED
PROPOSED STEPPING STONE
WALKWAY (12 SQUARE FEET)
PROPOSED
ADDITION &
ATTACHED
DECK
PROPOSED MITIGATION
PLANTING WITHIN LIMIT OF
LANDSCAPE WORK
(+/- 800 SQUARE FEET)LIM IT O F LA N D S C A P E W O R K
LIMIT OF LANDSCAPE WORKEXISTING OAK TO REMAIN
PHASE 1
BUFFER RESTORATION
(COMPLETE)
PHASE 2
BUFFER RESTORATION
(COMPLETE)
PHASE 3
BUFFER RESTORATION
(COMPLETE)
PHASE 4
BUFFER RESTORATION
(IN PROGRESS)
EXISTING WALKWAY TO REMAIN
SETBACKEXISTING
DWELLING
EXISTING DECK
EXISTING
PATIO
PROPOSED UTILITY WELL
PROPOSED
WINDOW WELL
50'
100'
LEAF MULCH FOOTPATH
REVISIONS:
SCALE:DATE:
#:DATE:DESCRIPTION:
SHEET TITLE:
SHEET NUMBER:
Lutzker Residence
May 4, 2022
NOT FOR CONSTRUCTION
45 Dune Road,
Brewster MA
411 Main Street, Stoneham, MA 02180
366 Fore Street, Portland, ME 04101
617.905.2246 p | 617.321.4014 f
General Notes:
1. Existing conditions and topographic data are
from a site plan of land ; prepared by J.M.
O'Reilly & Associates, Inc .
1573 Main Street 2nd Floor / P.O. Box 1773
Brewster, MA 02631
- Tel: (508)-896-6601
2. Existing conditions supplemented from data
collected by: Matthew Cunningham Landscape
Design LLC, 411 Main Street, Stoneham, MA
02108 / 366 Fore Street, Portland, ME 04101
- Tel: (617) 905.2246
3. True and current conditions may differ from
those indicated on the plan. Contractor shall
verify true conditions in the field prior to
construction and notify landscape designer of
significant discrepancies.
4. Contractor shall verify location of any existing
utilities and services and provide protection during
construction. Contractor shall directly coordinate
with DIG Safe. Utilities damaged during
construction shall be repaired at contractor's
expense.
5. Contractor shall contact and inform client and
landscape designer to any unforeseen conditions
which may affect the intended design as set forth
in the drawings.
6. Contractor shall secure any necessar y permits
required for the work from any state or local
agencies, departments, utility companies or other
authorities having jurisdiction and affected by the
work.
7. All work shall be in in accordance with the
Massachusetts State Building Code.
8. Contractor shall leave site clean and orderly
during all phases of the construction process.
Remove from the site all excess materials, soils,
debris, and equipment. Store materials only in an
approved location.
9. Do not scale drawings.
10. All angles are assumed to be 90 degrees
unless other wise stated.
1/8"= 1'-0"
L-0.0
Landscape Plan
0'4'8'16'