CONSERVATION RESTRICTION
This DEED OF CONSERVATION RESTRICTION made this ____ day of
_________.
WITNESSETH:
WHEREAS,
Community Land Trust in the Southern Berkshires, Inc. a non-profit corporation
organized under the laws of the Commonwealth of Massachusetts, having its
principal office at 140 Jug End Road, South Egremont, Massachusetts 01258,
hereinafter called the "Grantor", is the owner in fee simple of
certain real property which is located in South Egremont, Massachusetts,
hereinafter called the "Property," which has ecological, scientific,
agricultural, and aesthetic value in its present state as a natural area and
agricultural area which has not been subject to development or exploitation,
which property is more particularly described in Exhibit A attached hereto and
incorporated herein by this reference, and which property is shown on a Plan
entitled "Plan of Land in Egremont, Massachusetts Surveyed for the Nature
Conservancy May 4, 1999 Accord Engineering and Surveying, Inc., Great
Barrington, Massachusetts" and recorded with the Berkshire Southern
District Registry of Deeds; and
WHEREAS,
THE NATURE CONSERVANCY, hereinafter called the "Grantee," is a
non-profit corporation incorporated under the laws of the District of Columbia
as a tax exempt public charity under Section 501 (c)(3) and 509 (a)(1) of the
Internal Revenue Code, qualified under section 170(h) of the Internal Revenue
Code to receive qualified conservation contributions, having its headquarters
at 4245 N. Fairfax Drive, Arlington, Virginia 22203-1606 and a local address at
P.O. Box 268, Sheffield, Massachusetts, 01257, whose purpose is to preserve
natural areas for scientific, charitable, educational, and aesthetic purposes;
and
WHEREAS,
the Property forms a critical part of a significant natural area which
qualifies as a "relatively natural habitat of fish, wildlife, or plants,
or similar ecosystem," as that phrase is used in P.L. 96-541, 26 USC
170(h)(4)(A)(ii), as amended, and in regulations promulgated thereunder, and
whereas this fact has been recognized by the designation of the Karner Brook
watershed within which the Property lies as an "Area of Critical
Environmental Concern" by the Massachusetts Executive Office of
Environmental Affairs; and
WHEREAS,
the Property abuts and provides critical buffer to other land conserved by the
Massachusetts Division of Fisheries and Wildlife and The Nature Conservancy
(collectively the "Jug End Wetlands preserved area"), which land
supports populations of several species listed by the Commonwealth of
Massachusetts' Natural Heritage and Endangered Species Program as endangered,
threatened, or of special concern; and
WHEREAS,
the Property possesses important agricultural value because a significant
portion of the property contains Hero loam (HeA) soils, which have been
identified by the U.S.
Department of Agriculture (USDA) as prime farmland, and whereas only
8 percent of the land area in Berkshire County is considered prime farmland
under the USDA criteria; and
WHEREAS,
overall the Property possesses significant ecological, wildlife, scientific, natural,
aesthetic, agricultural, and open space values (collectively,
"conservation values") which reflect the unique character of the Town
of Egremont, Berkshire County, and the Commonwealth of Massachusetts; and
WHEREAS,
the specific conservation values of the Property are documented in a report on
file at the offices of the Grantee and incorporated herein by this reference
("Baseline Documentation"), which consists of documentation that the
parties agree provides, collectively, an accurate representation of the
Property at the time of this grant and which is intended to serve as an
objective information baseline for monitoring compliance with the terms of this
grant;
NOW,
THEREFORE, in consideration of the above and the mutual covenants, terms,
conditions and restrictions contained herein and pursuant to the laws of the
Commonwealth of Massachusetts and in particular Sections 31-33 of Chapter 184
of the General Laws, Grantor hereby voluntarily grants and conveys to Grantee
and the respective successors and
permitted assigns of Grantee, with Quitclaim Covenants, a Conservation
Restriction in perpetuity over the Property of the nature and character and to
the extent hereinafter set forth.
I. Purpose.
It is the purpose of this Conservation restriction to assure that the property
will be retained forever predominantly in its natural and open condition, to
protect any rare plants, animals, or plant communities on the Property or on
other properties within the Jug End Wetlands preserve area; to prevent any use
of the Property that will significantly impair or interfere with the
conservation values or interests of the Property or of other properties within
the Jug End Wetlands preserved area; and to promote environmentally sound
agriculture and horticulture. Grantor intends that this Conservation
restriction will confine the use of the Property to such activities as are
consistent with the purpose of this Conservation restriction.
II. Prohibited Acts and Uses, Exceptions Thereto, and Permitted
Uses:
1.
Constructing or
placing of any building, tennis court, landing strip, mobile home, swimming
pool, fence, asphalt or concrete pavement, sign, billboard or other advertising
display, antenna, utility pole, tower, conduit, utility line, permanent
lighting, parking lot, or any other temporary or permanent structure or
facility on, above or below the Property.
2.
Mining, excavating,
dredging or removing from the Property of soil, loam, peat, gravel, sand, rock
or other mineral resource or natural deposit, and constructing, bulldozing,
excavating or drilling of dikes, ditches, holes, swells or other alterations in
the natural topography of the Property.
3.
Placing, filling,
storing or dumping on the Property of soil, refuse, trash, vehicle bodies or
parts, rubbish, debris, junk, waste, chemicals (including but not limited to
oil, fertilizers, insecticides, herbicides, or any other toxic or hazardous
substance as defined under applicable federal or state law) or other substance
or material whatsoever or the installation of underground storage tanks.
4.
Pollution,
alteration, depletion, diversion, channelization, damming, draining, or
extraction of surface water, natural water courses, lakes, ponds, marshes,
subsurface water, or any other water bodies.
5.
Operating of
motorized or mechanical vehicles, including but not limited to off-road
vehicles, snowmobiles, trail bikes or all-terrain vehicles.
6.
The construction of
any new roads on the Property.
7.
Purposefully
introducing non-native species of plants and animals determined to be invasive
or otherwise detrimental to the ecology and biodiversity of the adjoining Jug
End Wetlands preserve, as determined by Grantee.
8.
The subdivision of
the Property except for the purposes of protecting any portion of the Property
through fee ownership by a conservation group or agency or through other
ownership approved by the Grantee. The Property or any portion thereof shall
not be included as part of the gross area of other property not subject to this
Conservation Restriction for purposes of determining density, lot coverage, or
open space requirements under otherwise applicable laws, regulation or
ordinances controlling land use and building density. No development rights
which have been encumbered or extinguished by this Conservation Restriction
shall be transferred to any other lands pursuant to a transferable development
rights scheme or cluster development arrangement or otherwise.
9.
Any other use of the
Property or activity which would materially impair significant conservation
interests unless necessary for the protection of the conservation interests
that are the subject of this Conservation Restriction.
B.
Permitted Uses.
The following acts and uses, including those prohibited in paragraph II.A., are
permitted, subject to the provisions of all applicable federal, state, and
local laws and regulations:
1.
Agricultural
activities, including but not limited to the raising of crops and foods for
animals and human consumption; u-pick gardens, community gardens; the raising
of trees and nursery products, subject to the prohibition on invasive plants
set forth in paragraph II.A.8, above; and the grazing or pasturing of animals.
Provided, however, that within the area on the Plan labeled as "Buffer
Area" the only agricultural activities that shall be permitted without
express written consent of the Grantee are the planting and mowing of grass or
hay, including such tillage operations as may be necessary for the
establishment of a suitable perennial hay crop, and the establishment and
selective harvesting of native species and trees, including fruit and nut
trees, all such agricultural and horticultural activities within the Buffer
Area to be undertaken without the use of any chemicals without the express
written consents of the Grantee. All such agricultural activities on the
Property shall be conducted in accordance with a Land Management Plan entered
into by the Grantor and its
intended Lessee of the Property and to be approved in writing by Grantee, the
purpose of said plan being to promote sustainable and environmentally sound
agriculture. Said Land Management Plan shall be maintained in counterpart
copies in the files of the Grantor and Grantee and may be revised by Grantor
from time to time, with Grantee to approve any changes pertaining to the
Property in writing, such consent not to be unreasonably withheld.
2.
The maintenance,
improvement, and replacement of all or a part of the existing barn, sheds, and
other outbuildings on the Property, provided that any replacement structures
shall not exceed in size the total square footage of the combined footprint of
the existing barn, sheds, and other outbuildings, as documented in the Baseline
Documentation. Permitted uses of the barn, sheds, and other outbuildings
permitted herein are storage, shelter for animals, growing of plants,
value-added processing of farm raised products, retail sale of agricultural
products, and other agricultural activities, as well as educational and
community-based activities, including classes, meetings, agro-tourism, and
similar activities. None of the structures permitted hereunder shall be used as
a permanent dwelling for persons not involved in agricultural pursuits. No
structures other than fences, as provided for below, shall be permitted in the
Buffer Area.
3.
The construction of
new greenhouses, sheds, and other agricultural outbuildings, for agricultural
use only, on that portion of the Property that is both outside the Buffer Area
and also east of a line running northwesterly from the north east corner of the
area labeled as "Residential Area" on the Plan, along the same course
as the easterly boundary of said Residential Area, to the northerly boundary of
the property with land of the Commonwealth. Provided, however, that such
greenhouses, sheds, and other agricultural outbuildings shall be allowed within
the area west of the above-described line to the extent that they are
replacement structures within the terms of paragraph II.B.2, above. Any new
greenhouses, sheds, and other agricultural outbuildings shall not exceed 15,000
square feet in total for structures without foundations or other permanent
understructures and 3,000 square feet total for structures with foundations or
other permanent understructures.
4.
The use or storage
of any quantities of fertilizers, insecticides, herbicides, and other chemicals
including toxic chemicals, of the kind and quantity ordinarily used as part of
a small farm operation, the use and storage of any such toxic chemicals to be
specified in the Land Management Plan, provided that such chemicals shall not
be used or stored within the Buffer Area.
5.
The creation and
maintenance of compost, manure, leaf, and other organic refuse piles and log
piles on the Property in conjunction with the agricultural use of the Property,
provided that such piles are outside the
Buffer Area.
6.
The installation,
maintenance, repair, replacement, removal and relocation of electric, gas,
and/or water facilities (including utility lines, pressure tanks, pumps, etc.),
wells for domestic water and agricultural use, public sewer lines and/or other
public or private utilities, including telephone and other communication
services, over or under the Property for the purpose of providing electrical,
gas, water, off-site sewer and other utilities to the Property for agricultural
uses or for the use of the area€labeled a "Residential Area" on the
Plan. This paragraph shall not include the right to place on-site septic
systems on the Property other than self-contained composting toilets or other
non-effluent producing systems.
7.
The construction and
maintenance of unpaved trails, tracks and farm roads not to exceed 20 feet in
width on the Property and the construction and maintenance of an unpaved
driveway and parking area around the existing or replacement barn or elsewhere
on the Property to access a farmstand or other retail agricultural operation
and attendant uses permitted under paragraph II.B.2, above.
8.
The construction,
maintenance and improvement of sight-pervious fences, including electric
fences, that define the Property boundary and/or the boundary of the Buffer Area
or which are designed to fence in livestock or to exclude agricultural
predators, and the placement of gates on the Property, provided that both the
Grantor and the Grantee shall have keys to any locked gate.
9.
Use of vehicles on
the Property for land management and agricultural purposes, including access by
and parking of vehicles attendant to the uses permitted under paragraph II.B.2,
above, and for emergency and safety purposes.
10.
Erection of signs by
Grantor or Grantee identifying the name and ownership of the Property,
advertising any farmstand or other permitted activity, and/or to educate the
public about the conservation and agricultural values protected and any
limitations relating to public access.
11.
Rare species and
natural community management by Grantee or Grantee's designee, including the
removal of exotic or invasive species, trapping, prescribed burning, vegetation
management in the wetlands and other management activities, all such activities
to be undertaken in accordance with Grantee's management policies and practices
and in consultation with and with prior written notice to the Grantor so as to
avoid any disturbance to permitted agricultural activities. Prescribed burning
shall require Grantor's written permission if performed by the Grantee.
12.
Hunting and trapping
in accordance with all applicable laws and regulations.
13.
All acts and uses
not prohibited by paragraphs II.A. above, or by this subparagraph B. are
permissible, provided they are consistent with the purpose of this Conservation
Restriction.
C.
Discretionary
Consent. Grantee's consent
for activities otherwise prohibited under paragraphs II.A. or B., above, may be
given under the following conditions and circumstances. If, owing to unforeseen
or changed circumstances, any of the activities prohibited in paragraph II. A.
or B. are deemed desirable by
Grantor and Grantee, Grantee may, in
its sole discretion, give permission for such activities, subject to the
limitations herein. Such request for permission shall be in writing. Grantee
may give its permission only if it determines, in its sole discretion, that
such activities (1) do not violate the purpose of this Conservation Restriction
and (2) either enhance or do not impair any significant conservation interests
associated with the Property. Notwithstanding the foregoing, the Grantee and
Grantor have no right or power to agree to any activities that would result in
the termination of this Conservation Restriction under the requirements of
Massachusetts General Laws Chapter 184, Sections 31-33. Under no circumstances
shall any additional residential, commercial, or industrial structures or any
commercial or industrial activities not otherwise allowed herein be allowed on
the property.
III. Grantee's
Rights and Legal Remedies. To accomplish the purpose of this Conservation
Restriction, the following rights are conveyed to Grantee:
A.
Access for
Inspection. The right to enter the Property at all reasonable times upon 12
hours advance notice in person, by telephone, or by facsimile for the purposes
of (a) inspecting the Property to determine if the Grantor is complying with
the covenants and purposes of this Conservation Restriction; (b) enforcing the
terms of this Conservation Restriction; (c) taking any and all actions with
respect to the Property as may be necessary or appropriate, with or without
order of court, to remedy or abate violations hereof.
B.
Monitoring and
Management. The right, but not the obligation, to monitor and manage for the
condition and continued survival and quality of rare plant and animal
populations, plant communities, and natural habitats on the Property or within
the Jug End Wetlands preserved area, as further set forth in paragraph
II.B.,11, above.
C.
Legal and Injunctive
Relief. The rights hereby granted shall include the right to enforce this
Conservation Restriction by appropriate legal proceedings and to obtain
injunctive and other equitable relief against any violations, including,
without limitation, relief requiring restoration of the Property to its
condition prior to the time of the injury complained of (it being agreed that
the Grantee may have no adequate remedy at law), and shall be in addition to,
and not in limitation of, any other rights and remedies available to the
Grantee.
D.
Reimbursement of
Costs of Enforcement. The Grantor, and thereafter the successors and
assigns of the Grantor covenant and agree to reimburse the Grantee for all
reasonable costs and expenses (including without limitation counsel fees)
incurred in enforcing this Conservation Restriction or in remedying or abating
any violation thereof should Grantee be successful in any suit to enforce the
terms of this conservation restriction.
E.
Grantee's
Liability. By its acceptance of this Conservation Restriction, the Grantee
does not undertake any liability or obligation relating to the condition of the
Property or for actions and uses of the Grantor on the Property. Grantee
assumes all liability, however, for its agents and invitees on the Property,
including on any associated rights of way.
F.
Severability
Clause. If any provision of this Conservation Restriction shall to any
extent be held invalid, the remainder shall not be affected.
G.
Non-Waiver.
Any election by the Grantee as to the manner and timing of its right to enforce
this Conservation Restriction or otherwise exercise its rights hereunder shall
not be deemed or construed to be a waiver of such rights.
IV. Public
Access. The Conservation Restriction hereby conveyed does not grant to the
general public, or to any other person any right to enter upon the Property
except the Grantee's access rights under paragraph III. A. and B., above.
V. Easement
Documentation Report. The Grantor agrees to sign and acknowledge a Property
Condition Certification and an easement documentation report prepared by
Grantee establishing the baseline condition of the Property at the time of this
grant, as provided in Treas. Reg. 1.170A-14(g)(5).
VI. Costs
and Liabilities. Grantor retains all responsibilities and shall bear all
costs and liabilities of any kind related to the ownership, operation, upkeep,
and maintenance of the Property, including the payment of all taxes or other
assessments levied against the Property and maintenance of adequate comprehensive
general liability insurance coverage. Grantor shall keep the Property free of
any liens arising out of any taxes and any work performed for, materials
furnished to, or obligations incurred by Grantor.
VII. Extinguishment.
A.
Grantee's
Receipt of Property Right. Grantor and Grantee agree that the
conveyance of this Conservation Restriction gives rise for purposes of this
paragraph to a real property right, immediately vested in Grantee, with a fair market value that is at least
equal to the proportionate value that this Conservation Restriction determined
at the time of this agreement bears to the value of the unrestricted Property
at that time. Such proportionate value of the Grantee's property right shall
remain constant.
B.
Right of Grantee
to Recover Proportional Value at Disposition. If any occurrence ever gives
rise to extinguishment or other release of the Conservation Restriction under
applicable law, then the Grantee, on a subsequent sale, exchange, or
involuntary conversion of the Property shall be entitled to recover a portion
of the proceeds of such sale, exchange, or involuntary conversion equal to such
proportionate value, subject, however, to any applicable law which expressly
provides for a different disposition of proceeds.
C.
Grantor/Grantee
Cooperation Regarding Public Action. Whenever all or any part of the Property or any interest
therein is taken by public authority under power of eminent domain or other act
of public authority, then the Grantor and the Grantee shall cooperate in
recovering the full value of all direct and consequential damages resulting
from such action.
D.
Allocation of
Expenses upon Disposition. All related expenses incurred by the Grantor and
the Grantee shall first be paid out of any recovered proceeds, and the
remaining proceeds shall be distributed between the Grantor and the Grantee as
provided in paragraph VII. A., above.
E.
Continuing Trust
of Grantee's Share of Proceeds of Conservation Restriction Disposition. The
Grantee shall use its share of the proceeds in a manner consistent with the
conservatism purposes of this grant.
VIII. Amendment.
If circumstances arise under which an amendment to or modification of this
Conservation Restriction would be appropriate, Grantor and Grantee may jointly
amend this Conservation Restriction; provided that no amendment shall be
allowed that will affect the qualification of this Conservation Restriction or
the status of the Grantee under any applicable laws, including Section 170(h)
of the Internal Revenue Code of 1986, as amended, or Sections 31-33 of chapter
184 of the General Laws of Massachusetts, and any amendment shall be consistent
with the purpose of this Conservation Restriction, and shall not affect its
perpetual duration. Any such amendment shall be approved by the parties herein
and shall be recorded in the official records of Berkshire County,
Massachusetts.
IX. Assignability.
A.
Running of the
Burden. The burdens of this Conservation Restriction shall run with the
Property in perpetuity, and shall be enforceable against the Grantor and the
successors and assigns of the Grantor holding any interest in the Property.
B.
Execution of
Instruments. The Grantee is authorized to record or file any notices or
instruments appropriate to assuring the perpetual enforceability of this
Conservation Restriction; the Grantor on behalf of itself and its successors
and assigns appoints the Grantee their attorney-in-fact to execute, acknowledge
and deliver any such instruments on its behalf. Without limiting the foregoing,
the Grantor and its successors and assigns agree themselves to execute any such
instruments upon request.
C.
Running of the
Benefit. The benefits of this Conservation Restriction shall be in gross
and shall not be assignable by the Grantee, except in the following instances
and from time to time: 1. as a condition of any assignment, the Grantee
requires that the purpose of this Conservation Restriction continue to be
carried out, and 2. the assignee, at the time of assignment, qualifies under
Section 170(h) of the Internal Revenue Code of 1986, as amended, and applicable
regulations thereunder, and under Section 32 of Chapter 184 of the General Laws
as an eligible donee to receive this Conservation Restriction directly.
X. Subsequent
Transfers. The Grantor agrees to incorporate by reference the terms of this
Conservation Restriction in any deed or other legal instrument by which it
divests itself of any interest in all or a portion of the Property, including a
leasehold interest.
XI. Miscellaneous.
Approval of this Conservation Restriction pursuant to M. G. L. Chapter 184,
Section 32 by any municipal official and by the Secretary of Environmental
Affairs is not to be construed as representing the existence or non-existence
of any pre-existing rights of the public in and to the Property, and any such
pre-existing rights of the public, if any, are not affected by the granting of
this Conservation Restriction.
XII. No
Merger. The Grantor and Grantee agree that the terms of this Conservation
Restriction shall survive any merger of the fee and easement interest in the
Property or any portion thereof.
XIII. Estoppel
Certificates. Upon request by the Grantor, the Grantee shall within twenty
(20) days execute and deliver to the Grantor any document, including an
estoppel certificate, which certifies the Grantor's compliance with any
obligation of the Grantor contained in this Conservation Restriction.
XIV. Effective
Date. This Conservation Restriction shall be effective when the Grantor and
the Grantee have executed it, the administrative approvals required by Section
32 of Chapter 184 of the General Laws have been obtained, and it has been
recorded, or if registered land, it has been registered.
XV. Recordation.
The Grantor shall record this instrument in timely fashion in the Berkshire
Southern District Registry of Deeds.
IN
WITNESS WHEREOF, COMMUNITY LAND TRUST IN THE SOUTHERN BERKSHIRES, INC. causes
these presents to be signed, acknowledged and delivered by
_____________________, its President, and _____________________, its Treasurer,
this ____ day of ___________.
COMMUNITY LAND TRUST IN THE SOUTHERN BERKSHIRES,
INC.
_______________________________ _________________________________
By: By:
Its: President Its:
Treasurer
COMMONWEALTH OF MASSACHUSETTS
Berkshire, ss. ______________
, 2____
Then personally appeared the above named Robert
Swann, President, and acknowledged the foregoing instrument to be the free act
and deed of Community Land Trust in the Southern Berkshires, Inc., before me.
_____________________________
Notary
Public
My
Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
Berkshire, ss. ______________
, 2____
Then personally appeared the above named Susan
Witt, Treasurer, and acknowledged the foregoing instrument to be the free act
and deed of Community Land Trust in the Southern Berkshires, Inc., before me.
_____________________________
Notary
Public
My
Commission Expires:
ACCEPTANCE OF GRANT
The above Conservation restriction is accepted
this ______ day of ____________.
THE
NATURE CONSERVANCY
_________________________________
By:
Its:
Assistant Secretary
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK,
ss. ________________,
2_____
Then personally appeared the above-named
__________________ and acknowledge the foregoing to be the free act and deed of
The Nature Conservancy, before me.
_________________________________
Notary
Public
My
Commission Expires:
APPROVAL BY SELECTMAN
We,
the undersigned, being a majority of the Selectman of the Town of Egremont, Massachusetts,
hereby certify that we voted to approve the foregoing Conservation Restriction
to THE NATURE CONSERVANCY pursuant to M. G. L. Ch. 184, 32 at a meeting held on
___________________________.
SELECTMEN
____________________________
Chairman
____________________________
____________________________
COMMONWEALTH OF MASSACHUSETTS
____________________________, ss. ______________________,
2___
Then
personally appeared the above-named
___________________________ and acknowledged the foregoing to be his/her
free act and deed, before me.
_________________________________
Notary
Public
My
Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
____________________________, ss. ______________________,
2___
Then
personally appeared the above-named
___________________________ and acknowledged the foregoing to be his/her
free act and deed, before me.
_________________________________
Notary
Public
My
Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
____________________________, ss. ______________________,
2___
Then
personally appeared the above-named
___________________________ and acknowledged the foregoing to be his/her
free act and deed, before me.
_________________________________
Notary
Public
&nb