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HomeMy WebLinkAbout2012-06-12 Planning Board Supplemental Materials (30) DECLARATION OF PROTECTIVE USE COVENANTS, CONDITIONS AND RESTRICTIONS This Declaration of Protective Use Covenants, Conditions and Restrictions is made as of this 10th day of June, 2012, by Linda Jalbert Hajjar; Oscar Pancorbo and Ambrosina Pancorbo ], their successors and assigns (herein collectively referred to as the "Declarant"). WITNESSETH: WHEREAS, Declarants are current owners of real property, consisting of TWO parcels of land consisting of approximately 21,875 sq. ft. of land and 45,000 sq. ft. of land, known and numbered as 643 and 651 Turnpike Street, in North Andover, Mass owned respectively by Oscar and Ambrosina Pancorbo and Linda Jalbert Hajjar and identified by Deeds 0 recorded with the Essex North District Registry of Deeds and, WHEREAS, the Declarants' Property was the subject of Warrant Article 38 of the 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, NOW, THEREFORE,for the mutual promises and covenants contained herein, the Declarants declare that the Property is and shall be hold,transferred,leased, encumbered, conveyed, improved and occupied subject to the covenants and restrictions, hereinafter set forth below: 1. Land Subject to This Declaration: The real.pr6perty 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 Corridor Development District 1 (CDD I) Zoning District as outlined under Section 16.2 of the Town of North Andover Zoning Bylaws, the Declarant agrees the Property can be used for drive-through restaurants within those parcels that are located more than 250 ft. from the Residential 6 Zoning District, 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. 2. Architectural Features: Any drive-through restaurant located within the CDD 1 Zoning District and to be developed on"the Property" shall be designed so as to conform to existing colonial like architecture that is consistent with the overall character and community standards of the town of North Andover. 3. Enforcement. It is expressly understood and agreed that this Declaration of Protective Use 120606_Covenant_643_651_Tumpike2doex Covenants, Conditions and Restrictions shall attach to and run with the land. 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 fall right to enforce this Declaration of Protective Use Covenants, Conditions and Restrictions both in law and at equity, and to recover damages. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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 120606_Covenant_643_661_Tumpike2.doex Zoning Bylaw Amendment in the form set forth in the published 2012 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 modification thereto (collectively, "Final Zoning Bylaw Approval"). IN WITNESS WHEREOF, Declarant(s)have caused this Declaration to be executed under seal by Linda Jalbert Hajjjar, Oscar Pancorbo, and Ambrosina Pancorbo, this June 10, 2012. (,/Linda Jalb t Hajjar OSar Pancorbo Ambrosina corbo 120606_Covcnant_643_65I_Tumpike2.docx COMMONWEALTH OF MASSACHUSETTS ESSEX COUNTY On this June 10, 2012 before me, the undersigned notary public, personally appeared Linda Jalbert-Hajar, Oscar Pancorbo, and Ambrosina Pancorbo who proved to me through satisfactory evidence of identification, which was a Wdriver's license; 9-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 t he/she signed it voluntarily for its stated purpose. otar, ub is s George Scott f-lajjar `'' NotalPublic �,{ F r wnio mt aiii)oP FAamehu¢a sy Commission Expires: �-� IAy( ro nlicsion✓Aires on = PAarch 9,2018 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 120606_Covenunt_643_651_Tumpike2,doex 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: 120606_Covenant_643_651_Tumpike2.doex