HomeMy WebLinkAbout1993-11-12 Conservation Restriction Documents i
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LEONARD KOPELMAN KOPELMAN AND PAIGE, P.C. KAREN V, KELLY
DONALD G, PAIGE DEBORAH A, ELIASON
ELIZABETH A. LANE ATTORNEYS AT LAW JEANNE S, MCKNIGHT
JOYCE FRANK JUD€TH C. CUTLER !
JOHN W. GIORGIO 101 ARCH STREET ANNE-MARIE M, HYLAND !
B ARBgRA J. SAINT ANDRE RICHARD BOWED$ '
JOEL B, BARD BOSTON, MASSACHUSETTS 02110-1137 CHERYL ANN BANKS
EVERETT J. MARDER B pSTON OFFICE DAVID J. DONKSK4
k6371 951�0007 BRkAN W. RIf.EY
JOSEPH L. TEHAN, JR. KIMBERLY A. HOLLIDAY
FAX W171 951.2735
WILLIAM HEWIG III MARY L. GIORGIO
THERESA M. DOWDY 14ORTHAMPTON OFFICE KATHLEEN E. CONNOLLY I
PATRICK J. COSTELLO I4€31 585.8632 - ` ; JOHN G. GANNON
WORCESTER OFFICE !!
k5081 752'0203
November 22 , 1993
VIA FACSIMILE
Ms. Kathleen Bradley Colwell,
Town Planner .
North Andover. Town Hall
120 Main Street
North :Andover, .,MA.,018.4 5
Re: Cobblestone •Crossing Easements. and Deed with Conservation
Restrictions - Town Action to Clear Title
Dear Ms. Colwell;
You have requested an opinion as to whether action by the
Board of Selectmen is needed to release any interests in land
held by the Town as a result of • certain instruments executed by
the Trustee of Cobblestone Crossing Realty Trust (the "Realty
Trust") in connection with the original Cobblestone Crossing
subdivision approved by the Planning Board. You informed me that
the Planning Board has amended the subdivision plan so that
certain easements granted to the Town and a certain deed of open
space land granted to a homeowner's trust do not relate to the
right land as shown on the new subdivision plan and that new
easements and new arrangements for the preservation of open space
are needed. The Realty Trust is planning to convey out certain
lots that are burdened by the prior easements or included within
the open space land previously deeded and wish to clear the title
of these lots.
It �is my opinion that the Board . of Selectmen cannot release
or abandon a recorded easement conveyed to the Town unless
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,
then the conveyance was never completed. We advise municipal
clients to formally accept all land and easements by Town Meeting
PRINTED ON RECYCLED PAPER
KoPELMAH AND PAIGE, P.C.
Ms. Kathleen E. Bradley,
Town Planner
November 22 , 1993
Page 2
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action, but the law is not clear on whether Town Meeting action
is necessary to evidence acceptance of an easement. It is not
necessary for me to give an opinion on this question, however,
since the title insurance company will be satisfied with a Town
Clerk's certification that Town Meeting has not accepted the
easements. This affidavit can be recorded with the Registry of
Deeds. To further clear 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 substitution for
the earlier easements which were never accepted. At the next
opportunity, Town Meeting can formally act to accept the
replacement or amended easements. The warrant article and the
vote can have language indicating that the earlier recorded
easements are not accepted, and another Town Clerk's
certification as to the vote can be recorded.
With respect to the instrument entitled "Deed with
Conservation Restrictions, " dated June 29, 1993 , it is my opinion
that this deed does 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 land
(the "Open Space Land") and a conservation easement on a portion
of Lot 17 as shown on the previous subdivision plan. The deed
also purported to grant to the Homeowner's Trust a conservation
restriction with respect to the open Space Land. This
conservation restriction, to be enforceable, should have been
reserved by the Realty Trust, rather than granted to the
Homeowner's Trust; then it would be enforceable by the Realty
Trust. Alternatively, a conservation restriction could have been
granted to the Conservation Commission 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 Secretary of Environmental
Affairs, by the State. In this case, however, the holder of the
restriction and the owner of the land burdened by the restriction
are the same. The concept of merger of interests in land means
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 not required. If the Planning Board
requires a conservation restriction on the new open space land,
care 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.
KOPELMAN AND PAGE, RC,
Ms. Kathleen E. Bradley,
Town Planner
November 22 , 1993
Page 3
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I have enclosed a photocopy of a certification prepared by
the Realty Trust's attorney and which I had earlier approved as
to form, for execution by the Town Clerk. It is my understanding
that a representative of the Realty Trust has delivered the
original for execution by the Town Clerk and that it has been
executed by him and delivered to the Realty Trust for recording
with the Registry of Deeds.
If you have further questions regarding the matters
addressed in this letter, do not hesitate to contact me.
Very truly yours,
Jea a S. McKnight
JSM/paz
Enc.
cc: Town Manager
NOV - 13 - 43 T H U 4I T0LAiNDFNANDO 'v' ER P 02
AFFIDAVIT
Reference 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 Easement is dated June 29, 1993 and recorded
with the Essex North Registry of Deeds in Book 3772, Page 279, and (b) a
Conveyance of Easements and Utilities from said Trustee to the Town of North
Andover, which Conveyance is dated June 29, 1993 and recorded with said Deeds
in Book 3772, Page 284.
The undersigned, Daniel Long, being the Town Clark of the Town of North
Andover, hereby affirms that neither said Grant of Easement nor said Conveyance
of Easements and Utilities has been accepted by vote of the North Andover Town
Meetinga�tict�c�fiemeard of1�c�tmen.
Executed, under seal, this day of November, 1993,
Daniel Long, Town Clerk
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CON E R W A T aO f V RESTHWTION
1. GRANT.INO CLAUSE:
1, Thomas D, L tu.dani, Trustee of Cobblestone Crossing Realty Trust, arldlt
dated ,tune 291 1993, and recorded with the Essex North Registry of Leeds in
Book 3772, Page 287, having an address at 733 Turnpike Street, Suite 209, North.
Andover, .NIA 01845 ("Grantor"), acting pursuant to Sections 31, 32 and 33 of
Chapter) 184 of the General Laws, grant, with Quitclaim Covenants, to the
Inhabitants of the Town of North Andover, acting by and through its Conservation
Commission, located at 120 fain Street, North Andover, MA, and its successors
and permitted Assigns ("Granwe") in perpetuity and exclusively for conservation
purposes as sct forth in Section 8C of Chapter 40 of the General Laws, the
following described Conservation Restriction on certain parcels of land located ill
the Town of North Andover, Massaohusetts, said parcels beilig described as
follows (the "Premises"):
(a) Parcel A-2 (containing 3,920 s.f.) and Parcel A®4 (containing 16,500 s.f.),
both as shown on a plan (the "Original Platy") entitled "Cobblestone Crossing,
Definitive Subdivision Plan, North Andover, MA," whioll Original Plan is
recorded with Essex North Deeds as Plan No. 12251;
(b) Lot "V (containing 13,283 ,s,f,), as shown on a plan (the "revised Plan")
entitled "Revised Definitive Plan, Cobblestone Crossing in North Andover,
,Mass.," which .Revised Plan is recorded with Essex. North Deeds as Platt No.
12286;
(c) Lot "Y" (containing 37,780 s.f.) and Parcel "A-3-A" (containing 43,958
s,f.), bath as described on the attached Exhibit A; and
(d) Parcel 'I" (containing 23,364 st), Hot "M" (eontaiuing 771 s.f.}, Area of
Open Space Restriction „lei`" (containing 2,410 s.f'.), Open Space Restriction
"O" (containing 684 s.f.), .Parcel "P" (containing 64,445 s.f,), Area, of
Cotrser-vation Restriction "Q" (containing 2,724 •.f,), Area of Conservation
Restriction "R" (containing 1,609 s.f), Area of Conservation Restriction "S"
(containing 1,221 s.f.), Area shown as "Area, of Open Space Restriction =
1,094 s.f.", and Area, drown as "Area of Open Space Restriction = 1,974 s.f.
all as shown on a plan (the "Modified .Plan") entitled "Modified Definitive
Platy, Cobblestone C;rossiag in North Andover, Mass,," -which Modified Plan is
recorded with Essex North Deeds as Plan No. 12330.
11, PURPOSES:
The Premisos contain unusual unique or outstanding qualities the protoction
of which in their predominantly natural or open oondition will be of benefit to the
pubho.
Ill. PROHIBITED ACTS AND USES, EXCEPTIONS THERETO, AND
PERMITTED USES;
A.
Subject to the exceptions set forth in paragraph B below, the following acts
and uses are prohibited can the Preiitises:
1. Constructing or placing of any building, tonnis cocrrt, landing strip,
mobile home, swimming pool, fences, asphalt or concrete pavement, sign,
billboard or other Advertising display, antenna, utility kale; tower, conduit,
line or other temporary or permanent structure or facility on, below or above
the Premises,
2. Mining, excavating, dredging or removing from the Premises of' soil,
loam, peat, gravel, sand., rock or other alincral resource or .natural deposit;
43. Placing, filling, storing or domphig on the 1'remisos of soil, refuse, trash,
vehicle bodies or parts, rubbish, debris, junk, waste or other substance or
.material whatsoever or the installation of underground storage tanks;
4. C:tiCtir:tg, removing or othet-vrise destroying trees, grasses or otlier
vegetalion;
5, Activities detrimental to drainage, flood control, water oonser•vation,
erosion control or soil conservation;
6, Any other use of'the Premises or activity which would materially impair
significant conservation interests tactless necessary for• the protection of the
conservation interests that are the sub,joot of this Conservation Restriction or
within tine scope of nor�rrial subdivision development consistent with
subdivision approvals granted by the Town of North Andover,
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B.
The fallowing acts and vases otherwise prohibited in subparagraph A are,
permitted but only if such acts or uses do not materially impair significant
conservation interests:
1. Constralctian all d naaaintectatlee of the entry way in substantial conformity
with the architect's concept shown on Sheet C-5 of'tlhe Orig Ill, l Flan,
2. Excavation and removal from the Premises of soil, gravel or other Mineral
resource or natural deposit as tnity be 1noidental to the installation,
maintenance or removal of underground utilities, and other underground
structures pursuant to the Form M Conveyance of Easements and Utilities to
the Town of.North Andover, recorded with the lssex North Registry of Deeds
at Book Page wM� oi' to the maintenance of good drainage, soil
unnsexvratiOn Practices or to other permissible use of the Premises,
3, The pla.ciag offences that do not interfere with the conservation purposes
of this restriction.
4, Selective cutting of trees for fire protection, unpaved trail and road
maintcnance, tick control, or otherwise to preserve the present coiidition of
the Premises, including vistas.
5. Maintenance, repair and replacement of new existing drives, roadways,
sidewalks, or other paved areas,
6. Installaatiaats, maintena,noes, repairs at►d replacements which may result
from the exercise by Gratntor of Gray rights reserved in paragraph C below.
C, 'eat7tti�tc AS that C1, s,
All acts and vases not prohibited by subparagi,aphs A and B are permissible.
Further, notwithstanding anything coutained herein to the contraty, Grantee
recognizes that the Promises are being oonve.yed as part of a single-family
subdivision development, and Grantor expressly retains and reserves for itself,
and its successors and assigns, and the Premises are conveyed subject to, the
following reserved eaasenients and rights, all of Nvhich are allowed,
1. Easemeaats for l<'► 4sca.ping, slopii.tp, drainage and utility purposes in the
areas shown on the Original Plana, the Revised flan, or the Modified Plana, as
the ":ase In ay bo, and the right to do work in such oasement areas,
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2. The easement right to drain surface and subsurface water onto the
Premises (including quantity and rate) from the land retained by Grantor.
IV. LEGAL REMEDIES OF THE GXAN`EE:
A. Lr�cit3v lie i
The rights hereby granted shall include the right to enforce this C:onservatioD
Restriction by appropriate legal proocedings and to obtain injunctive and other
equitable relief against anyviolations, including, without limitation, relief
requiring restoration of the Premise to its condition prior to the time of injury
complained of (it being agreed that Grantee may have no adequate reinedy at law),
and shall be in addition to, and not in limitation of, any other rights and remedies
available to Grantee,
B. eii�nburQ,� � �f C nfor > ,
Grantor, for himself and his successors and assigns, covenants and agrees to
reimburse (irantee for all reasonablo casts and expenses (including without
limitation counsel fees) incurred in enforcing this Conservation Restriction or in
reniedying or abating any violation t1tereof,
C. f Talltee's Q, .,glaimer . li
By its acceptance of this Conservation Restriction, Grantee does not
undertake any liability or obligation relating to the condition of the Premises,
If any provision of this Conservation Restriction shall to any extent be held
invalid, :the remainder shall not be affected,
E. jgpn aWaiver.
Any election by the Grantee as to the manner and timing of its right to
enforce this Conservation Restriction or othorwise exercise its rights hereunder
shall not be deeined or construed to be a waiver of such rights,
V. ACCFSS;
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The Conservation Restriction hereby conveyed does not grant to Grantee, to
the general public, or to any person any right to enter upon the Premises except
there is granted to the Grantee acting by and through its Conservation
Commission or its designees the right to enter the Premises at r•e isonal)1e times
and in a reasonable mann.or for the purpose of inspecting the Premises to
determine oompliancc herewith and to enforce the provisions hereof,
V1. ASSIGNI ABILITY:
A. ufYttit� thre .
The burdens of this Conservation Restrictiorr shall run with the premisos it,
perpetuity, and shall be enforoeable against Grantor and the successors and
assigns of Granter holding any interest in the Pt,etrtises.
B- %r� c�fh . er�cfi
Tire benefits of this Conservation Restriction Okall be in grass and shall not
be assignable by Grantee, except: in the following instances and from time to time:
(i) as a condition of any assignment, the Grantee requites that the purpose of
this Conservation Restriction continue to be carried out, and
(ii) the assignee, at the tirne of assignment, qualifies udder Section 32 of
Chapter 184 of the General Laws as an eligible donee to receive this
Conservation Restriction directly.
VII. EFFECTIVE DATE:
This C onser-va.tior, Restriction shall be effective when Grantor and Grantee
have executed it and it has been recorded with. the Esser Forth registry of 1.leeds
Vill. .REC;ORDATION:
The Grantor shall reoord this itwstrument in timely Fashion in the North
Essex Regisoy of Deeds.
IX. SUBSEQUENT TRANSFERS:
S
GTH'Itor agVees to inoorporate by referene the terms of this Conservation
Restriction in the initial deed(s) from him by which he divests himself of Any
interest ill ail or a portion of the Premises.
The restrictions shah rornnin in full farce and effect until thirty (30) years
from this date, and may thereafter be extended and continued for further periods
of twenty (20) years each in the manner provided in .Massaebusetts {general Laws,
Chapter 184, Section 27, as it may be amended from time to time. Upon the
recording of the administrative approvals requited by Section 32 of Chapter 184
Of the General laws, the burden of this rest.riolio n shall run in perpetuity.
EXECUTED UNDER. SEAL. THIS DAB' OF DECEMBER, 1993.
C0813LESTONE, CROSSING
REALTY i'rw,s'r
Thomas D. Laudani, as Trustee
and not itislividuAlly
COMMONWEALTH OF MASSAC_IM U'T'TS
Iwsvox, s�. Deeernbcr 1993
Then personally appeared before me, the abnve-ttarTte(l 'rhom as I), l-.audani
and acknowledged the foregoing instniment to be his tree act ui)d deed as trustee
of Cobblestone Cro,ssing Realty Trust.
No( try Pubh(. _ . .._....
My C,ormnis,;ion ExpiTVS:
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