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Home My WebLink About1993-11-12 Conservation Restriction Correspondence HoV 22 193 16:36 1<1,')PELI PHL) Pf;TGF- P,2/5 KORELMAN AND PAM;.E. P.C. 6AREP4 T K11.1'e I I VAPC pFErj.qaH A i 04 C. - i 7*13U.-1 _AWE AY70RNE35 A! LAW jFANNZ- s ,ULtl,H A 101 ARCH $7R�!::T 1508TON. MA55ACHUSETT5 o2ltO-1137 cHi,Ffvi, AN4 RhI`JK,- V Of 7 mAROLk 1303TQ�'- P R AN Ot It I%,. t ....... --OL -R I-1ARV ION610 01, -0,4 OF KA'J�16.FFN E. C Not,l,f 1 14 NoI4 e�,AMP PAS 1,7K Cu.iVE-IL0 '4131 LB:3-00 1'! FO- I I :,:"q November 22 , 1993 NIA EA69-2-IMME .Mo. Kathleen Bradley COIWell, ToWn planner North Andover ToWn Hall 1.20 Main street North Andover, M-A 01845 Re: Cobblestone Crossing Basements and Deed with ConservatiOA Re9gXjgt j0_nS 7__rkQLAETj 10ear Ks - Colwell ; You have requested an opinion as! to whether action by th* Sward of Selectmen is needed to release any interests in land held by the Town as a result of certain instruments eXr--Outed tY the Trustee Of CObble0tOnQ CrIo5sing Realty Trust (the "Realty Trust") in connection with the original Cobblestone Crossing subdivision approved by the Planning Board. You informed me that ttie Planning Board has amended the 5ubdivision plan so that (.1ertain easements granted to the Town and a certain deed of optn space land granted to a homeowner's trust do not relate to U10 right land as shown on the new subdivision plan and that new aa$ements and neyo arrangements for the preservation of open spice Are needed. The Realty Trust is planning to convey out pertain lots that are burdened by S the prior, eaemexits or included withill the open space land previously deeded and wish to clear tho title of those lots. It is lay opinion that the Board of selectmen cannot rele4*0 or abandon a recorded easement conveyed to the. Town unless k authorized by Town Meeting, The attorney for the Realty Trust has informed me, however, that the title insurance company is satisfied that if the easements were never accepted by the Town, th�r, the conveyance was never completed. We ad-vise mianiCiPal ci.ients to foMally accept all land and easementss by Town Meeting NOV 22 199 IS::3'' !CUF'EL! RND PRIDE F.:=,/5 E Kof*E�_MAN AND P,AIGE, P.C. ;Ms ,' -Cathleen E. Bradley, Town Planner November 22 , 1993 Page 2 action, but the law is not clear on whether Town Meeting act~iott is necessary to evidence acceptance of an easement. It is not Tleoessary for me to give an opinion on this question, however, since the title insurance company will be satisfied with a TovA clerk's certification that Town Meeting has not accepted the easements. This affidavit oan be recorded with the Registry Of Deeds. To further dear the title, replacement easements or amended easements can be recorded with the Town clerk's affidavit. The replacement or amended easements might state that these replacement or amended easements are in subt5,ti .uLiu,L for the earlier easements which were naVeT accepted. At the next: ap�ortuni.ty, Town Meeting can formally act to accept the replacement or amended easements. Th!e warrant article and the vote can have language indicating that the earlier recorded easements aro not accepted, and another Town clerk's certification as to the Grote can be recorded. With respoot to the i.nstrumant entitled "Deed with Conservation Restrictions, " dated JtAn'e 29, 1993 , it is my apititan that this deed goes not grant the Town any rights in land and therefore that the Town need not release any rights. By this deed the Realty Trust granted to the Trustee of Cobblestone Crossing Homeowner's Trust (the "Homeowner's Trust) certain la*d (the "Open Space band") and a conservation easement on a portion of l,ot 17 as .9hown on the previous s4bdi.vision plan. The dew also purported to grant to the Homeovner's 'Trust a conserva t iov restriction with respect to the open Space Land. This conservation restriction, to be enforceable, should have been 4p�eryead by the Realty Trust, rather than granted to the Homeowner's. Trust; then it would be Rnforoeable by the Realty . Trust. Alternatively, a conservation restriction could have been granted to the Conservation comsni.asiQT1 or to a non--profit corporation whose purpose is conservation; then it would be enforceable by the Conservation commission or by the non-profit corporation and, if approved by the 5e0retary of Environmental Affairs, by the State. in this case, however, the holder of the restriction and the owner of the rand burdened by the restriction are the same. The concept of merger of interests in land ineana �. .._n that the restriction is no longer enforceable. I will leave it to the Realty Trust's attorneys to figure out .how to clear the title, but Town action is riot required. if the Planning Board r'ecp1ires a conservation restriction on the new open space land, cane should be taken to make sure that the holder of the restriction is separate from the owner of the land. and that the holder of the restriction has an interest in enforcing it. HOV 22 `93 16*38 KOPELV... , RND PRIGE P.4/; K4PELMAN AND PAIGE, P.C. a. Kathleen E. Bradley, own Planner oVember 22 , 1993 T have enclosed a photocopy of a �certificatiQn prepared by the Realty Trust's attorney and whichil had earlier approved %0 F to form, for execution by the Town Clerk. it as my understandiAg t that a representative: of the Realty 'trust has delivered the original. for exeouti.on by the Town Clerk and that it has been Executed by him and delivered to the Realty Trust for recording } s ; with the Registry of Deeds, 4 If you have further questions regarding the matters jddressed in this setter, do riot hesitate to contact me. Very truly yours, j, A� jea a S , MoKnight $H/paz to: Town Manager f i i� 1r it NOV 22 '93 11 KC!PELI'%--. AND PAI 0 F H GE P.5/5 go 10 45 - -1 W AFFIDAV17' Re-foronce is made to (a) a Grant of Easement from Linda E. Markham, Trustee of Cobblestone Crossing Realty Trust, to the InhAbitants of the Town of North Andover, which Grant of Eascmcnt is dated June 29, 1993 and recorded with the Essex North Registry of Dccd5 in BQok 3772, 1'2ge 279, and (b) a Conveyance of Easements and Vfflities from said Trustee to the Town of North Andover, which Conveyance is dated Jane 29, 1993 and recorded with said Deeds in Book 3772, Page 280. The undersigned, Daniel Long, being the Town Clerk of the Town of North Andover, hereby affirins that neither said Grant of Easement nor said Convtyanco of Easements and Utilities has been accepted ley vote of the North Andover Town M e e t i n g Executed, under seat, this day ofNovember, 1993. Daniel Long, Towti Clerk