OLD FORT FIELD at CHASE GARDEN CREEK
Conservation Restriction, Dennis, MA
CONSERVATION RESTRICTION
XYZ, its successors and assigns (hereinafter “Grantor"), for and in consideration of _____________________ Dollars ($________________), grants to THE TOWN OF LIBERTY, a Massachusetts municipal corporation, with an address of 1 Main Street, LIBERTY, Massachusetts, 02660, acting by and through its Conservation Commission, by authority of MGL c.40 s.8c, its successors and permitted assigns ("Grantee”), IN PERPETUITY and exclusively for conservation purposes, the following described CONSERVATION RESTRICTION (the “Restriction”), on three adjoining parcels of vacant unregistered land totaling approximately 8.21 acres, located at 97, 105 and 107 New Boston Road, in the Town of Liberty, County of Barnstable, Commonwealth of Massachusetts, said parcels being described in Exhibit A and shown on Exhibit A-1 both of which are attached hereto, said parcels hereinafter referred to as the “Premises.” For title, see deed recorded in Barnstable County Registry of Deeds Book _________, Page _____.
Purposes: This Restriction is defined in and authorized by Article 97 of the Amendments to the Constitution of the Commonwealth of Massachusetts, as amended, acts in amendment thereof or in addition thereto; and Sections 31-33 of Chapter 184 of the General Laws of Massachusetts. This Restriction is intended to assure that, while permitting the acts and uses described in Section B herein, the Premises will be retained in perpetuity in a natural, scenic, and open condition for the protection of its natural resources, plants, wildlife, natural habitat, and open space. This Restriction will yield a significant public benefit because the Premises’ protection will advance the following policies and objectives:
WHEREAS, the Town of Dennis, at a duly called Special Town Meeting held on ______________, 2010, acting on Article ___ of the Warrant, voted to purchase from the Dennis Conservation Trust a perpetual Conservation Restriction over the Premises, to be held by the Conservation Commission of the Town of Dennis, and further authorized the Board of Selectmen to purchase the Conservation Restriction utilizing funds collected through the so-called “Community Preservation Funds” pursuant to Section 298 of Chapter 149 of the Acts of 2004, an attested copy of which vote is attached hereto as Exhibit B; and
WHEREAS, the Massachusetts Executive Office of Energy and Environmental Affairs (EOEEA) Division of Conservation Services LAND Grant Program has contracted with the Grantee, as evidenced by the Project Agreement dated ______________, 2010, by and between the Commonwealth of Massachusetts and Grantee, attached hereto as Exhibit C (the “Project Agreement”); to grant the Grantee the sum of $_______________ to reimburse the Grantee for a portion of its purchase costs of this Conservation Restriction; and,
WHEREAS, the Great and General Court of Massachusetts established the Old Kings Highway Regional Historic District on the northern shore of Barnstable County through Chapter 740 of the Acts of 1973; and,
WHEREAS, in 2001 the Massachusetts Department of Fisheries, Wildlife and Environmental Law Enforcement published a report entitled BioMap: Guiding Land Conservation for Biodiversity in Massachusetts, which identified critical habitat “areas, that if protected, would provide suitable habitat over the long term for the maximum number of Massachusetts’ terrestrial and wetland plant, animal species, and natural communities;” and,
WHEREAS, the BioMap contains Core Habitat areas, which depict the most viable habitats for rare species and natural communities in Massachusetts, and Supporting Natural Landscape areas, which buffer and connect Core Habitat areas and which identify large, naturally vegetated blocks that are relatively free from the impact of roads and other development; and,
WHEREAS, in 1998, MNHESP published a report entitled Our Irreplaceable Heritage: Protecting Biodiversity in Massachusetts, which stated, “We believe that [there are] eight ecosystem types or natural community assemblages [that are] the most important targets for biodiversity conservation. They represent the most threatened or ecologically essential areas for rare plants and animals in Massachusetts,” (p. 29) and singled out salt marsh in particular as important to conserve (p. 30); and,
WHEREAS, in July 1991 the Barnstable Assembly of Delegates, pursuant to the Cape Cod Commission Act (Chapter 716 of the Acts of 1989), adopted a Regional Policy Plan, amended in 1996, 2002 and 2009, which provided, inter alia (references are to the 2009 Plan):
· Wetlands Goal to “preserve and restore the quality and quantity of inland and coastal wetlands and its buffers on Cape Cod” (WET1);
· Wildlife and Plant Habitat Goal to “prevent loss or degradation of critical wildlife and plant habitat…and to maintain existing populations and species diversity” (WPH1);
· Open Space and Recreation Goal to “preserve and enhance the availability of open space that provides wildlife habitat…and protects the region’s natural resources and character” (OS1); and,
· Heritage Preservation and Community Character Goal to “protect and preserve the important historic and cultural features of Cape Cod’s landscape…that are critical components of the region’s heritage and economy” (HPCC1); and,
WHEREAS, in 2003, The Compact of Cape Cod Conservation Trusts, Inc. completed its Cape Cod Wildlife Conservation Project (“Wildlife Project”), a wildlife habitat analysis and parcel ranking for all vacant or underdeveloped parcels on Cape Cod, Massachusetts; and,
WHEREAS, in March 2002, the Town of Dennis prepared a Draft Local Comprehensive Plan, which identified the following conservation goals and objectives:
· a Wetlands goal to “preserve and restore the quality and quantity of inland and coastal wetlands on Cape Cod” (p.100);
· a Wildlife and Plant Habitat goal to “prevent loss or degradation of critical wildlife and plant habitat, to minimize the impact of new development on wildlife and plant habitat and to maintain existing populations and species diversity” by minimizing fragmentation of wildlife and plant habitat and establishing greenways and wildlife corridors (p.116);
· an Open Space and Recreation goal to “protect and enhance Dennis’ fragile environmental resources, including water quality, scenic beauty and unique habitats” (p.123) through land acquisition or regulatory and non-regulatory protection mechanisms; and
· a Heritage Preservation/Community Character goal to “protect and preserve the important historic and cultural features of the Town’s landscape…that are critical components of Dennis’ heritage and economy” (p.331); and
WHEREAS, in 1998, the Town of Dennis prepared a Conservation, Recreation and Open Space Plan, updated in 2003 and 2008, which identified the following conservation and open space goals, objectives and action items (references are to 2008 Plan):
· Goal 1: Preserve Land for Open Space and Recreation
§ Objective: Continue to work with the Dennis Conservation Trust…to protect lands with important resources.
§ Action: By means of regulatory or non-regulatory methods set aside lands that meet one or more of the following criteria for conservation or recreational purposes: a. Lands within or adjacent to designated protected open space or potential open space areas; b. Lands within or adjacent to fresh and saltwater bodies, beaches, salt and fresh water wetlands…; c. Lands… that provide refuge to federally or state listed endangered, or threatened species or species listed as of special concern; d. Lands providing wildlife corridors that allow movement and migration of wildlife indigenous to Dennis; …f. Lands that abut existing public and private recreation and open space lands; g. Lands that could be designed to promote hiking…trails; … and j. Lands suitable for… passive or restricted access conservation uses.
§ Action: Work with the Dennis Conservation Trust to continue to protect important open areas throughout the town.
· Goal 4: Preserve the Historic and Scenic Character of the Town
§ Objective: Retain and protect natural, historic, scenic and archeological resources in Dennis.
· Goal 6: Enhance Recreational Opportunities Appropriate and Accessible to All Age Groups
§ Objective: Improve and increase recreational facilities, public and private to meet current and future needs; and,
WHEREAS, in 1991, the Town of Dennis adopted a Conservation Restriction Program, consisting of policies and guidelines approved by the Board of Selectmen, which encourages the use of conservation restrictions; and,
WHEREAS, preservation of the Premises satisfies each of these enumerated objectives because the Premises:
1) consists of approximately 8.21 acres encompassing a diversity of habitats, including freshwater wetlands, brackish salt marsh, and dense Eastern red cedar woodlands, providing important wildlife habitat;
2) is located immediately adjacent to, or within close proximity to, over 65 acres of land protected as open space;
3) preserves land within a BioMap Supporting Natural Landscape Area;
4) protects sensitive rare species habitat, including that of the eastern box turtle, a Species of Special Concern in Massachusetts;
5) protects the Chase Garden Creek’s (the town’s largest Northside estuary) freshwater riverfront wetland resources, which runs down the middle of the Premises, preserving water quality for shellfish beds downstream and the Cape Cod Bay water recharge area;
6) is located within the Old Kings Highway Regional Historic District, in Dennis, north of Route 6A, a heavily-traveled public and scenic way;
7) is cited as the location of one of the two forts built in Dennis in the 1640’s to prevent Native American uprising (Dennis, Cape Cod; From Firstcomers to Newcomers, 1639-1993, Nancy Thatcher Reid, 1996, pp. 42-43);
8) preserves historic and archaeological resources associated with the ancient and historic period occupation and land use of the Old Kings Highway Regional Historic District;
9) contains approximately 1,500 feet of roadside greenbelt for travelers on New Boston Road;
10) is ranked “Medium” for habitat protection priority in the Cape Wildlife Project;
11) will be open to the public for conservation and passive recreation purposes;
12) is a substantial contributing element to the overall scenic and historic character of the area by being maintained predominantly in its natural condition; and,
WHEREAS, accordingly, the Premises possess significant open, natural, and scenic values (collectively, "conservation values") of great importance to the Grantee and the people of Dennis and the Commonwealth of Massachusetts; and,
WHEREAS, the appropriate use and management of the Premises, balanced with preservation considerations and appropriate treatment of historic and archaeological resources, and the consideration of public educational and interpretive initiatives, help to meet the environmental objectives of the Dennis Conservation Trust, the Town of Dennis and the Commonwealth of Massachusetts for conservation of important cultural resources and for education; and,
WHEREAS, the Town of Dennis has in recent years come under increasing pressure for development, and such development can destroy or otherwise severely impact the open character, natural resources, and scenic beauty of the area; and,
WHEREAS, the Grantor is a publicly-supported, tax-exempt non-profit organization whose primary purpose is to preserve and conserve natural areas for aesthetic, scientific and educational purposes; and,
WHEREAS, the Grantee consists of a municipality that is qualified to hold restrictions in perpetuity; and,
WHEREAS, the Grantor intends, as owner of the Premises, to convey to the Grantee the right to preserve and protect the conservation values of the Premises in perpetuity.
NOW, THEREFORE, in consideration of the above and the mutual covenants, terms, conditions, and restrictions contained herein, the Grantor and the Grantee voluntarily agree that the CONSERVATION RESTRICTION described herein is an appropriate means to achieve the community’s open space goals and objectives.
The terms of this Conservation Restriction are as follows:
A. Prohibited Uses. Except as to reserved rights set forth in Section B below, neither the Grantor nor its successors or assigns will perform or permit others to perform the following acts or uses, which are prohibited on, above and below the Premises:
1) Construction or placing of any temporary or permanent building, structure, facility or improvement, including but not limited to any dwelling unit or habitable living space, tennis court, landing strip, mobile home, swimming pool, asphalt or concrete pavement, antenna, tower, windmill, water tower, water storage tank, well, or other structure or facility on, under or above the Premises;
2) Construction of any roads or driveways through or on the Premises, or the clearing of vegetation, or the addition, removal or movement of soil for such purpose;
3) Mining, excavating, or removing from the Premises of soil, loam, peat, gravel, sand, rock or other mineral resource or natural deposit from the Premises;
4) Placing, filling, storing or dumping on the Premises of soil, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, tree cuttings generated off-site, waste or other substance or material whatsoever;
5) Cutting, mowing, removing or otherwise destroying trees, grasses or other vegetation;
6) Activities detrimental to drainage, flood control, water or soil conservation, erosion control or the quality of surface or ground water;
7) The use of motorcycles, motorized trail bikes, all-terrain vehicles, snowmobiles and all other motor vehicles, except motorized wheelchairs, or as required by police, firemen or other governmental agents in carrying out their lawful duties or for purposes of upkeep, maintenance, and habitat management of the Premises;
8) Any commercial recreation, commercial agriculture, or business or industrial use; any animal husbandry or horse paddocking or stables, paddocks, grazing areas or enclosures and the storage or dumping of manure or other animal wastes;
9) Hunting or trapping;
10) Removal or dislocation of stone walls, or other historical and cultural landscape features, except with the concurrence of Grantee pursuant to the notice provisions of Paragraph C herein;
11) Granting of permission for artifact collecting, either from the surface or the subsurface of the Premises, or for archaeological investigations, except when undertaken in accordance with a research design and methodology permitted and approved by the Massachusetts State Archaeologist or successor official, in accordance with Chapter 9, Sections 26 to 27C of the General Laws, and associated regulations 950 CMR 70, and with the concurrence of Grantee pursuant to the notice provisions of Paragraph C herein;
12) Any use inconsistent with conservation and passive recreation;
13) 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), it being the intent to keep the Premises in single ownership;
14) All development rights in the Premises are terminated and extinguished by this Restriction; and the Premises may not be used for the purpose of calculating the amount of Grantor’s or any other land available for additional subdivision or calculating the building requirements on this or any other land owned by the Grantor or any other person; and,
15) Any other use of the Premises, which will materially impair its conservation values or purposes.
B. Reserved Rights. Notwithstanding the provisions of Section A above, the following uses and activities are permitted, but only if such uses and activities do not materially impair the purposes of this Restriction: