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HomeMy WebLinkAbout2012-06-05 Planning Board Supplemental Materials (95) DECLARATION OF PROTECTIVE USE COVENANTS, CONDITIONS AND RESTRICTIONS This Declaration of Protective Use Covenants, Conditions and Restrictions is made as of this 1st day of [July, 2009DATE], by [OWNER X and OWNER YKevin Murphy and Elizabeth Murphy], their successors and assigns (herein collectively referred to as the “Declarant”). WITNESSETH: WHEREAS, Declarants areis the current owners of real property, consisting of two TWO parcelss of land collectively consisting of approximately 21,875 sq. ft.3.52 acres of land and 45,000 sq. ft. of land, known and numbered as 2302 643 and 651 TurnpikeTurnpike Street, being shown as Parcel 1 and Parcel 2, [PARCEL X and PARCEL Y] respectively, on a plan entitled “[Plan of LandPLAN OF LAND in North Andover, Mass]. owned by Kevin and Elizabeth A. Murphy[OWNER X and OWNER Y]” dated February 29, 2008[DATE], Scale 1”=60’[X] prepared by Scott L Giles, R.P.L.S[NAME]., and whereby Parcel [PARCEL X and PARCEL Y]1 ((2302 Turnpike643 and 651 Turnpike Street) is identified in a Deed to to Kevin Murphy and Elizabeth A. Murphy[OWNER X and OWNER Y] recorded with the Essex North District Registry of Deeds in Book 9834, Page 206, and Parcel 2[BOOK, PAGE, PARCEL]) is identified in a Deed to Kevin Murphy and Elizabeth A. Murphy and is recorded with said Deeds in Book 10019, Page 161[BOOK and PAGE] (hereinafter referred to as the “Property;” and, WHEREAS, the Declarants’t’s Property was the subject of Warrant Article [X]44 of the 2008 2012 Annual Town Meeting for the Town of North Andover where said Article requests approval for a change in the Town of North Andover Zoning Bylaw to allow drive-through restaurants within the CDD1 Zoning District , within those parcels that are located more than 250 ft. from the Residential 6 Zoning Area rezoning of the Property from Residential 2 (R-2) to Business 2 (B-2); and, WHEREAS, the Declarants has have agreed to prohibit certain uses outlined under the list of uses permitted within the Business 2 Zoning District as outlined under Section 4.127 of the Town of North Andover Zoning Bylaws; NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, and for the mutual promises and covenants contained herein, the Declarants declare s that the Property is and shall be held, transferred, leased, encumbered, conveyed, improved and occupied subject to the covenants and restrictions, hereinafter set forth below: Land Subject to This Declaration. The real property which is, and shall be, held, transferred, sold, conveyed and occupied subject to this Declaration is the Property as defined above. Use Restrictions. Notwithstanding the uses permitted within the Business 2Corridor Development District 1 (CDD1) Zoning District as outlined under Section 4.12716.2 of the Town of North Andover Zoning Bylaws, the Declarant agrees the Property shall notcan be used for drive-through restaurants within those parcels that are located more than 250 ft. from the Residential 6 Zoning District, the following purposes: Automobile service station; and, Taxi depot. Drive-through facilities for restaurants greater than 1,500 s.f. gross floor area. Subject to the use limitations above, the Declarant shall be permitted to use the Property for all other uses permitted by law, including but not limited to, other uses permitted under the Town of North Andover Zoning Bylaws, as amended. Architectural Features: All development on the Property shall conform to the following criteria, as reasonably determined by the Town of North Andover Planning Board: The design of the building will conform to the local historic architectural materials and styles; The massing of the building will be broken down using visual breaks, changes in material, color and varying roof heights; Controlled and coordinated signage, lighting and landscaping will enhance the image of the building. The parking areas will be visually buffered from the road. Enforcement. It is expressly understood and agreed that this Declaration of Protective Use Covenants, Conditions and Restrictions shall attach to and run with the land and run for the benefit of the Town of North Andover. Enforcement of this Declaration shall be by a proceeding at law and/or in equity by the Town of North Andover, acting by and through its Planning Board, against any person or persons violating or threatening to violate any covenant either to restrain the violation and/or recover damages suffered by them for any violation thereof. The Declarant, or the Town of North Andover and their successors and assigns, shall have the full right to enforce this Declaration of Protective Use Covenants, Conditions and Restrictions both in law and at equity, and to recover damages. Severability. Each and every one of the covenants, conditions and restrictions contained herein shall be considered to be an independent and separate covenant and agreement, and in the event that any one or more of the covenants, conditions and restrictions shall, for any reason, be held to be invalid or unenforceable by a court of law, then all remaining covenants, conditions and restrictions shall nevertheless remain in full force and effect. Duration. All of the foregoing covenants and restrictions shall continue and remain in full force and effect at all times against the owner(s) of any lot(s) in such Property, regardless of how such title was acquired, in perpetuity, unless applicable law provides that such covenants and restrictions cannot continue and remain in full force and effect in perpetuity, in which case they shall continue and remain in full force and effect for a period of thirty (30) years from the date of recording hereof, after which time said Declaration shall automatically be extended for successive ten (10) year periods, by an instrument which shall be recorded with the Essex North District Registry of Deeds by the owner(s) of the Property or which may be recorded by the Town of North Andover, within the time prescribed by M.G.L. c. 184, s. 27. Non-Waiver. The failure or delay of the Town of North Andover or Declarant to enforce the restrictions, covenants or other provisions herein shall not be deemed a waiver of the right to do so thereafter as to the same breach or to one occurring prior or subsequent. Amendment and Termination. The provisions in this Declaration may be amended, modified, and/or terminated by vote of the record title holder of the property, and with the assent of the Town of North Andover Planning Board, but such amendment, modification and/or termination shall not be effective until such time as it is reduced to writing, signed by the Property owner(s) of record, and recorded with the Essex North District Registry of Deeds. Successors Bound. All of the covenants, conditions and restrictions described herein shall run with the land, and the grantees of the Property, by accepting the deed thereto, accept the same subject to such covenants, conditions and restrictions, and agrees for themselves, their heirs, administrators, successors and assigns to be bound by each such covenant, condition and restriction jointly, separately and severally. Extent of Covenants, Conditions and Restrictions. The covenants, conditions and restrictions created pursuant to this Declaration: (a) shall be subject to restrictions presently of record, if any; and, (b) shall only be effective after: (i) the North Andover Town Meeting adopts the Zoning Bylaw Amendment in the form set forth in the published 201208 Annual Town Warrant, (ii) all subsequent actions shall have been completed that are necessary to cause such Zoning Bylaw Amendment to be incorporated into the Zoning Bylaw (such as approval by the Attorney General); (iii) to the extent that any referenda challenging the Town Meeting’s adoption of the Zoning Bylaw Amendment or any other appeal of the Town Meeting’s adoption of the Zoning Bylaw Amendment has occurred, such referendum or appeal [a] has been fully adjudicated by a court having jurisdiction over such a matter (which court upholds the Town Meeting’s adoption of the Zoning Bylaw Amendment) the decision of which is not subject to appeal or from which no appeal is taken within the relevant period; [b] such referendum or appeal is dismissed with prejudice, or [c] the appeal is settled by the parties thereto with the Zoning Bylaw Amendment remaining in force and effect without any modification thereto (collectively, “Final Zoning Bylaw Approval”). IN WITNESS WHEREOF, Declarant has caused this Declaration to be executed under seal by Kevin Murphy and Elizabeth Murphy[OWNER], this 1st day of July, 2009[DATE]. ____________________________ Elizabeth Murphy[OWNER 1] ____________________________ Kevin Murphy[OWNER2] COMMONWEALTH OF MASSACHUSETTS ESSEX COUNTY On this 1st day of July, 2009[DATE], before me, the undersigned notary public, personally appeared Elizabeth Murphy and Kevin Murphy[OWNER] proved to me through satisfactory evidence of identification, which was a ( driver’s license; ( personally known to me; or ( personally known to 3rd party witness personally known to me, to be the persons whose names are signed on the preceding or attached document, and acknowledged to me that he/she signed it voluntarily for its stated purpose. _____________________ _______ Notary Public My Commission Expires: ACCEPTANCE BY TOWN OF NORTH ANDOVER The undersigned Board of Selectmen of the Town of North Andover hereby accept the foregoing Declaration of Protective Use Covenants, Conditions and Restrictions on behalf of the Town. ___________________________________ ___________________________________ Selectman Selectman _______________ ____________________ ___________________________________ Selectman Selectman ___________________________________ Selectman Commonwealth of Massachusetts Essex, ss. , 2009 On this _____ day of __________, 2009, before me, the undersigned notary public, personally appeared the above-name Board of Selectmen proved to me through satisfactory evidence of identification, which was known to me to be the person whose name is signed on the preceding document in my presence and acknowledged to me that they signed it voluntarily for its stated purpose, as Selectmen of the Town of Andover. ___________________________________ Notary Public My Commission Expires: