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HomeMy Public PortalAbout2022 05 31 Public Meeting PacketHUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 1 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 HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 2 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 HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 3 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 HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 4 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. HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 5 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; HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 6 (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 HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 7 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; HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 8 (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. HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 9 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, HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 10 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, HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 11 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). HUCKLEBERY HILL NW CONSERVATION RESTRICTION BREWSTER, MA 12 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'