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HomeMy WebLinkAboutLegal Document - 358 DALE STREET 5/25/2012 Bk r26g Ps 268 *15482 �C16—�1-2+D 12 a1 12 330 DECLARATION OF RESTRICTION THIS DECLARATION OF RESTRICTION(hereinafter the"Declaration")is made this 25th day of May,2012,by Stephen M.Smolak,of 761 Dale Street,North Andover, Massachusetts 01845(hereinafter the"Declarant"). WITNESSETH WHEREAS,Declarant is the owner of that certain parcel of land,consisting of 64,487 square feet(1.48 acres),known and numbered as 358 Dale Street,as generally depicted on the Town of North Andover Assessors Maps as Map 64,Lot 26,and as more particularly shown on a plan entitled"Site Plan in North Andover,MA,358 Dale Street,Map 64,Lot 26," dated February 16,2012(Rev.March 27,2012),prepared for Stephen Smolak by Engineering& Surveying Services (collectively,the"Property"). A copy of the Site Plan is attached as Exhibit A. For title reference,see deed to Edward J.Welch,Jr.as Trustee of E.C.W.Trust,dated December 26,1991 recorded with the Essex North District Registry of Deeds in Book 3370, Page 99.(collectively,the"Property");and WHEREAS, the Property is located within the Town of North Andover Watershed Protection Zoning District as defined under Section 4.136 of the Town of North Andover Zoning Bylaws, as amended (the "District") where the purpose of the District is to preserve the purity of the groundwater, Lake Cochichewick and its tributaries; to maintain the groundwater table, and to maintain filtration and purification functions of the land within the District, while conserving the natural environment;and protecting the public health,safety and welfare; WHEREAS, the Declarant was granted a Watershed Protection District Special Permit by Decision,dated May 1,2012,issued by the North Andover Planning Board (the"Decision"), which Decision is recorded with said Deeds in Book, ,Page ; WHEREAS,Special Condition 3 of the Decision requires the Declarant to limit the use of fertilizers on the Property to those which are either organic or slow-release nitrogen or phosphorous-free,and imposes restrictions on the porous pavement portion of the driveway as depicted on the Site Plan,both of which are required to be incorporated as a deed restriction on the Property; NOW,THEREFORE,Declarant hereby voluntarily declares and imposes in perpetuity upon the Property the following covenants,conditions and restrictions for the benefit of Declarant,its successors and assigns,and the Town of North Andover,by and through its Planning Board(hereinafter the"Town"),and said Property shall be held,transferred,sold, conveyed,occupied and used subject to the covenants,conditions,and restrictions hereinafter set forth. 1. Prohibited Acts and Uses. Subject to the Reserved Rights set forth in Section 2 below, the Declarant hereby imposes the following restrictions on the Property: (a) the use of fertilizers which are not either organic, or slow-release nitrogen and phosphorous-free are prohibited unless otherwise approved in advance in writing by the Town;and, (b) the porous pavement portion of the driveway depicted on the Site Plan shall be cleaned using a vacuum sweeper and it shall not be seal-coated or otherwise covered with non-porous material, unless otherwise approved in advance in writing by the Town. 2. Reserved Rights. Notwithstanding any provisions herein to the contrary, Declarant reserves to itself and its successors and assigns the right to undertake all other activities which are not inconsistent with the prohibited acts and uses described in Paragraph 1 above,including but not limited to,the right to divide,subdivide,resubdivide,sell and convey all or a portion of the Property that is burdened by the Declaration. 3. Term-Binding Effect In Perpetuity. This Declaration of Restriction and its provisions herein set forth shall run with the Property in perpetuity from the date of recordation in the Essex North District Registry of Deeds and shall be binding upon Declarant,Declarant's successors and assigns,and any other party having an ownership interest in said Property or claiming to have an interest with respect to said Property as tenants,invitees,licenses or otherwise,and all of the respective heirs,successors,grantees,mortgages,assigns,agents, contractors,subcontractors and employees of the foregoing. This Declaration of Restriction is hereby intended and declared to be in perpetuity and no re-recordation of this Declaration of Restriction under G.L.c. 184,ss.23-30 or any other law shall ever be necessary in order to maintain the full legal effect and authority hereof and Declarant and its successors and assigns,including but not limited to all subsequent owners of the Property,hereby waive all their legal right to and shall forego any action in law or equity of any kind whatsoever attempting to contest the validity of any provision of this Declaration of Restriction and shall not,in any enforcement action,raise the invalidity of any provision of this Declaration of Restriction. Notwithstanding the forgoing, the rights and obligations contained herein shall be enforceable against the current owner of said Property,and therefore,it being understood and agreed that,from and after any conveyance or transfer of all or a portion of the Property covered by this Declaration,only the transferee of said Lot shall be liable for the performance or observance of,and shall have the benefit of,said covenants and agreements herein. 4. Modification or Termination of Restrictions. This Agreement shall not be modified, amended,changed,or terminated or waived without the consent of the Declarant(or Declarant's successor)as well as the consent of the Town. The Declarant as well as the Town, may enforce and,if necessary,extend this Declaration in accordance with applicable law. Declarant agrees for itself,and its heirs,successors and assigns to execute and record such notices of restriction as are required to extend this Declaration in perpetuity in accordance with applicable law. The Town is hereby declared to be a benefited party to and a holder of this Declaration and hereby appoints the Town as its attorney-in-fact to execute,acknowledge, deliver and record any such notice or instrument on its and/or their behalf.Without limiting the forgoing,the Declarant and its successors and assigns agree to execute any such notices and instruments upon request of the Town. 2 5. Enforceability. The Town shall have the authority and right to enforce this Declaration of Restriction.The Town shall have the right to bring proceedings at law or equity against any party or parties violating or attempting to violate the terms of this Declaration to enjoin them from so doing and to cause any such violation to be remedied,after providing written notice to such party or parties and the Town shall recover its attorneys fees and costs in any action of enforcement. Notwithstanding the forgoing,if all or a portion of the Property is conveyed to a successor owner where a violation has occurred or will occur resulting in an enforcement action being taken, then the Town may only seek such enforcement against the owner of said lot(s)on which the violation has occurred,and therefore,it being understood and agreed that,from and after any conveyance or transfer of any portion of the Property covered by this Declaration,the transferee of said portion of the Property shall be liable for the performance or observance of, and shall have the benefit of,said covenants and agreements herein. 6. Severability. If any court or other tribunal of competent jurisdiction determines that any provision of this Declaration of Restriction is invalid or unenforceable,such provision shall be deemed to have been modified automatically to conform to the requirements for validity and enforceability as determined by such court or tribunal. In the event the provision invalidated is of such a nature that it cannot be so modified,the provision shall be deemed deleted from this instrument as though it had never been included herein. In either case, the remaining provisions of this instrument shall remain in full force and effect. 7. Non-Waiver. Any election by the Town as to the manner and timing of its right to enforce this Declaration of Restriction or otherwise exercise its rights hereunder shall not be deemed or construed to be a waiver of such rights. 8. Incorporation Into Deeds. Declarant and Declarant's successors and assigns,including all subsequent owners of the Property or portions thereof,shall inform a potential purchaser in writing of this Declaration and shall incorporate this Declaration of Restriction,in full or by reference,into all deeds.Any such deed purporting to convey any portion of the Property without including this Declaration of Restriction in full or by reference shall be deemed and taken to include said Declaration of Restriction in full even though said Declaration of Restriction is not expressly described or referenced therein. 9. Recordation/Registration. Declarant shall record and/or register this Declaration of Restriction with the appropriate Registry of Deeds and/or Land Registration Office prior to any work being performed on the Property and prior to the issuance of a building permit. 10. Amendment and Release. No amendment or release of this Declaration of Restriction shall be effective unless it has been approved in writing by the Town(hereinafter the"Town Approval") and said amendment or release and the requisite Town Approval has been recorded with the appropriate Registry of Deeds and/or Land Registration Office. 3 IN WITNESS WHEREOF,Stephen M. Smolak,has caused these presents to be signed, acknowledged and delivered this 25th day of May,2012. � 1 By:Ai) Stephe M..Smolak COMMONWEALTH OF MASSACHUSETTS Essex,ss. May 25,2012 On this day before me, the undersigned notary public,personally appeared Stephen M. Smolak, proved to me through satisfactory evidence of identification, which was ❑ photographic identification with si v►ature issued by a state governmental agency, ❑ oath or affirmation of a credible witness, P personal knowledge of the undersigned, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that she/he signed it voluntarily for its stated purpose. (J1JQLO Notary Public SEAL My Commission Expires: 3/ 13 12 j- 40 EI E1 I WCOMOR IBM awiftrlik Nt►Commblon 20 4 EXHIBIT"A" SITE PLAN See that Plan recorded prior hereto as an Exhibit to the May 7,2012"Notice of Decision"issued by the Town of North Andover Planning Board.