HomeMy WebLinkAboutBoard of Selectmen Agenda September 21, 2011 Packet_201402061642277578
MEMORANDUM OF UNDERSTANDING
BETWEEN
NANTUCKET BOARD OF SELECTMEN, THE TOWN MANAGER AND
NANTUCKET AIRPORT COMMISSION
This Memorandum of Understanding is entered into this _______ day of
_________, 2011, between the Nantucket Board of Selectmen (“Board”), the Nantucket
Airport Commission (“Commission”), and the Town Manager.
WHEREAS, the Commission is responsible for the operation and maintenance of
the Nantucket Memorial Airport (“Airport”) and is authorized under G.L. c.90, §51I to
expend funds available to the Airport and to “make contracts for the maintenance
operation, construction, enlargement and improvement to the Airport and for the
purchase of materials, supplies and equipment pursuant to the laws of the Commonwealth
governing the making of like contracts;” and
WHEREAS, the Town Administration has identified certain procurement
practices by the Airport that do not conform to the requirements of law, and which have
resulted in some instances in the disapproval by the Town Accountant pursuant to G.L.
c.41, §56, of warrants for payment to vendors and contractors doing business with the
Airport; and
WHEREAS, the Massachusetts Attorney General has commenced an
investigation into procurement practices at the Airport and it is expected that the Attorney
General will issue findings that the Airport, through its Airport Manager, has engaged in
procurements and contracting practices in violation of the laws of the Commonwealth
relating to procurement and bidding of public contracts; and
WHEREAS, the Board has initiated the process of retaining a consultant to
conduct a forensic audit, fiscal and operational review of the Airport relating to
procurement and other matters; and
WHEREAS, the Commission, independent of the Attorney General’s
investigation, has determined that the Airport Manager and staff working under the
direction and supervision of the Airport Manager, has not taken adequate steps to ensure
that all procurements by the Airport are in compliance with Massachusetts law; and
WHEREAS, the Town of Nantucket employs a Chief Procurement Officer
(“CPO”) under G.L. c.30B, who is certified as a Massachusetts Public Purchasing
Official; and
WHEREAS, the Board and the Commission have jointly determined that placing
the Airport procurement function under a centralized procurement system under the
supervision and direction of the CPO is necessary and appropriate in order to assure
future compliance of Airport-related procurements with Massachusetts law; and,
2
WHEREAS, although the Nantucket Town Charter provides that the Airport is
not part of the Town Administration function, the Commission has requested the
assistance of the Town Administration in conducting Airport-related procurements.
NOW, THEREFORE, the Board, the Commission, and the Town Manager agree
as follows:
1. The Commission and the Board agree that the CPO shall have full
authority to supervise and direct all Airport-related procurements, and shall have full
authority to establish procurement practices and procedures to be followed by Airport
staff. Such practices and procedures may include, but not necessarily be limited to:
(a) formal training of Airport staff performing procurement functions
under the supervision and direction of the CPO;
(b) establishing written contracts using the Town’s standard form
contract for all procurements in excess of $5,000, and for such other
contracts as the CPO determines to be advisable;
(c) ensuring that prevailing wage rates are included in all procurement
documents where applicable and that the Prevailing Wage Law is enforced
on all applicable Airport contracts;
(d) ensuring that all contracts are awarded on the basis of fair and open
competition;
(e) avoiding bid splitting and unwarranted increases in the scope of
services through the change order process;
(f) maintaining adequate documentation in a separate procurement file
for every procurement exceeding $5,000;
(g) interpretation of the so-called “aviation use” exemption under G.L.
c.30B, §1(29) to specific Airport procurements; and
(h) any other practices and procedures that are deemed necessary by
the CPO to insure compliance by the Airport with the laws of the
Commonwealth, any findings and orders of the Attorney General, the
conclusions and recommendations of the forensic audit, fiscal and
operational review report, and good and accepted procurement practices.
2. The Commission will instruct Airport staff to cooperate fully with the
Town Administration in establishing a program whereby all Airport-related procurements
will be conducted under the supervision and direction of the CPO.
3
3. The Commission agrees to establish procedures applicable to all Airport
staff to maintain a procurement file for all procurements in excess of $5,000, which file
shall include all documents and backup information as the CPO determines is necessary
in order to ensure that adequate information is readily available to demonstrate
compliance with public bidding laws.
4. The Town Administration shall continue to instruct its financial staff not
to approve any warrants for the payment of bills by vendors, contractors, and consultants,
pursuant to G.L. c.41, §56, unless there is adequate documentation from Airport staff and
the CPO that procurement laws have been complied with.
5. The Commission agrees that it will establish employment policies
applicable to staff employed by the Commission which provides for disciplinary
measures against any staff member that does not cooperate fully with the CPO in
implementing the policies and procedures established in this Memorandum of
Understanding.
6. The Commission agrees to establish a written policy that the execution of
all Airport contracts in excess of $25,000 be approved and executed by the Airport
Commission.
7. The Commission, the Board, and the Town Administration shall cooperate
fully with the Office of the Attorney General in the current investigation, and shall
instruct its staff to do the same. The Parties to this Memorandum of Agreement agree to
cooperate to implement any and all orders issued by the Attorney General as is
reasonably possible. The Commission also agrees to cooperate with the Board and the
Town Administration in implementing the recommendations as a result of the forensic
audit, fiscal and operational review as approved by the Board.
8. In light of the significant increase in the responsibilities of the Town
Administration and the CPO to implement this Memorandum of Understanding, the
Commission and the Board agree that, when formulating the Airport’s annual operating
budget, the Airport Enterprise Fund, established under G.L. c.44, §43F ½ , will be
charged the indirect costs associated with the implementation of this Memorandum of
Understanding, including the hiring of additional staff by the Town Administration, if
determined to be necessary. The amount of the indirect cost charge shall be reasonably
determined by the Town Administration in conformance with all requirements of the
Massachusetts Department of Revenue relating to indirect cost allocation for Enterprise
Funds.
4
SIGNED THIS _____ DAY OF _________, 2011:
Board of Selectmen Airport Commission Town Manager
_______________________ _______________________ ________________________
_______________________ _______________________
_______________________ _______________________
_______________________ _______________________
_______________________ _______________________
433570/nantair/0006
September 22, 2011
Michael Busby
40B Project Coordinator
MassHousing Finance Agency
1 Beacon Street
Boston, MA 02108
RE: Town of Nantucket Comments on Site Approval Application for Sachem’s Path 40B
Dear Mr. Busby:
Thank for you seeking the Town’s comments regarding the above. The site is a parcel that the
Town transferred to the Nantucket Housing Authority for this type of development. The Board of
Selectmen, at its September 21, 2011 meeting, agreed to forward the following preliminary
comments:
1. Traffic. A review or study should be conducted regarding the impact of increased traffic
on area roads and neighborhoods. Additionally, egress to the development is of concern,
specifically where and how many roadways and pedestrian paths will be located.
Interconnection/integration of roads to the contiguous Housing Authority properties is something
that may be beneficial to incorporate into the final design.
2. Parking. Parking availability must be adequate so as to eliminate or mitigate overflow
problems we are experiencing in other developments which have become overly burdensome to
public safety departments. Consideration should be given to a common parking area for guests
and visitors in addition to minimum parking spaces in designated spots for each dwelling unit.
Parking should not be allowed in landscaped areas or outside of the development.
3. Existing sewer line. There is a sewer line that runs through the property. Conceptual
plans show only roads being constructed over the location of the line; however, precautions and
protections must be in place to protect that line, which is a high pressure sewer force main (is
it??) that runs to the Surfside Wastewater Treatment Facility. Any impact on that line would be
extremely problematic.
4. Dwellings. The Historic District Commission has some concerns which have been
expressed to the Housing Assistance Corporation and Nantucket Housing Authority in some
preliminary discussions, relating to diversity in dwelling size, design and spacing. Adequate
restrictions on occupancy must be in place, including no conversions of non-habitable space into
bedroom/habitation space. The Town has faced problems of this nature in other developments
and, again, unnecessary burdens have been placed on public safety departments as a result. We
encourage the dwellings to be as energy-efficient as possible.
5. Infrastructure. All dwellings must be connected to Town sewer and water. There should
be no septic systems. There should be adequate interior pedestrian connections and/or facilities.
Access to public transportation and the possible improvement/enhancement of nearby NRTA
shuttle stops should be included. A playground and/or other family amenity(s) is highly
encouraged.
1. Financial Feasibility. The Town has already participated in financially underwriting this
project in the value of the land that it has provided as well as through the dedication of
Community Preservation Act (CPA) funds in 2011. The Board has not been provided with
information that the applicant has secured borrowing commitments for the finished units,
identified potential buyers and would like to understand what further public resources are
intended to be committed. Your letter references “information regarding municipal actions
previously taken to meet affordable housing needs” including “overlay districts adopted under
MGL c. 40R”. The Board of Selectmen participated in discussions with the Nantucket Housing
Authority in 2009 about the possibility of this site being ideal for such an overlay and remains
disappointed about the outcome. Under the provisions of c. 40R, there would be an off-set for
possible waivers of local fees.
Thank you for the opportunity to comment on this significant project.
Sincerely,
C. Elizabeth Gibson
Town Manager
Cc: Gisele Gauthier, Housing Assistance Corp
Renee Ceely, Executive Director, Nantucket Housing Authority
Planning Department
Zoning Board of Appeals
Historic District Commission
Director of Human Services
Police Chief
Fire Chief
DPW Director
Building Commissioner
Code Enforcement Director
Nantucket Regional Transit Authority Administrator
Law Office of Stephen J. Small, Esq., P.C.
Stefan Nagel, Esq., Of Counsel
One Gateway Center, Suite 801
Newton, MA 02458-2804
617-357-4012
Facsimile 617-357-1857
www.lawofficeofstephensmall.com
snagel@stevesmall.com
MEMORANDUM
To: Chairman, Board of Selectmen, Town of Nantucket
From: Stefan Nagel, Esq., Counsel to Grantor
Through: Cormac Collier, Executive Director, Nantucket Land Council, Inc.
Date: September 19, 2011
Subject: Summary of Conservation Restriction: Hummock Pond of Nantucket
HOA to Nantucket Land Council and Nantucket Islands Land Bank
________________________________________________________________________
Acres Protected: 56 acres +/-.
Property Address: 180 Hummock Pond Rd. (46 acres +/-); 220 Hummock Pond Rd.
(10 acres +/-), running north from Heller Way toward Bartlett
Farm Rd., Nantucket, Massachusetts, shown as lots 78 and 47 on
the attached subdivision plan.
Grantor: Hummock Pond of Nantucket Homeowners Association, Inc.
Grantees: Nantucket Land Council, Inc. and Nantucket Islands Land Bank
Term of the Conservation Restriction: Perpetual, as reflected in the so-called
“habendum” paragraph, and confirmed at paragraphs L, Q and S of
the conservation restriction.
Prior Approvals: The conservation restriction has been approved in writing by the
Grantor and both Grantees. In accordance with state law and
practice the conservation restriction has also been approved by
staff of the Massachusetts Executive Office of Energy and
Environmental Affairs. Therefore, in accordance with MGL chap.
184, sec. 32, the Secretary of Energy and Environmental Affairs
1
will be prepared to approve the conservation restriction in writing
upon submission to him of the final, executed document approved
by the Nantucket Board of Selectmen.
Conservation Values Protected by the Conservation Restriction:
Open Space Preservation
The protected property adjoins other conservation lands owned and protected by the
Nantucket Land Council and the Nantucket Islands Land Bank
Water Quality
A significant portion of the property lies within the newly created Hummock Pond
Watershed District. Particularly because of the size of the encumbered property, the
conservation restriction protects the water quality not only of Hummock Pond, but also of
Nantucket’s sole source aquifer.
Preservation of Open Space
Preservation of the property as open space is pursuant to the following governmental
permits and declarations: Nantucket Planning Board Special Permit File no. 013-81 and
Statement of Conditions of Subdivision Approval by the Planning Board dated May 27,
1981. In addition, the conservation restriction preserves open space pursuant to clearly
delineated governmental conservation policy and eliminates the possibility of new
development along a new public bike path easement to be granted by the Grantor, thereby
preserving views for the general public.
Protection of Natural Habitat
The property falls within an area designated by the Massachusetts Natural Heritage
Program as “Priority Habitat for State-Protected Rare Species”. The conservation
restriction therefore protects a significant relatively natural habitat of plants and related
ecosystem. Moreover, the conservation restriction will contribute to the protection of
coastal and wetland ecosystems.
Prohibited and Permitted Uses (Paragraphs B and C of the Conservation
Restriction):
The property may not be developed, mined, or subdivided, no refuse may be deposited,
and its surface may not be altered, with minor exceptions as follows:
For the construction of a public bike and pedestrian path along Hummock Pond
Road;
For the conduct of land conservation activities;
2
For the construction of septic systems and wells ONLY to replace those systems
owned by adjacent homeowners which have failed and cannot be relocated
on their property, as such failure is defined in accordance with
Massachusetts laws as verified by the Nantucket Health Department.
The above are subject to the prior approval of the Grantees, which approval may be
withheld (see paragraph E of the conservation restriction).
The exercise of additional rights of modest consequence is reserved to the property
owner, provided conservation values are not impaired.
Enforcement Rights of the Grantees (Paragraphs F, G and J of the Conservation
Restriction):
The Grantees may enforce the conservation restriction. Except in the case of emergency,
the property owner is provided a period in which to “cure” the violation. If the property
owner does not timely begin curative activities, then the Grantees may initiate corrective
actions, including appropriate legal proceedings. In cases of violations, the Grantees’
costs of enforcement may be recovered.
Extinguishment (Paragraph H of the Conservation Restriction):
In accordance with guidance provided under federal rules and standards promulgated by
the Massachusetts Executive Office of Energy and Environmental Affairs, the
conservation restriction may be terminated (extinguished) only by a court of competent
jurisdiction under extremely limited circumstances. In the event of extinguishment, the
Grantees are entitled to a proportionate share of post-extinguishment sale proceeds as
defined in the document.
Amendment (Paragraph T of the Conservation Restriction):
Amendments to the conservation restriction may be made under only exceptional
circumstances because of limitations imposed under federal and state law, and principles
related to the possible application of a “charitable trust”. Nonetheless, in keeping with
best conservation restriction drafting practices, the possibility of amendment and the
circumstances under which amendments may be considered are addressed in the
document.
Disclaimer: This summary is meant to be used as a guide to the terms of the conservation
restriction and in no way replaces or supersedes the conservation restriction. Reference
to the conservation restriction should be made for specific details. In case of any conflict
between this summary and the conservation restriction, the provisions of the conservation
restriction shall control.
3
4
L:EASE-MEMOS\HUMMOCKPONDHOA.DOC
1 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
CONSERVATION RESTRICTION
Hummock Pond of Nantucket Homeowners Association, Inc.
to
Nantucket Land Council, Inc.
and
Nantucket Islands Land Bank
The Hummock Pond of Nantucket Homeowners Association, Inc., a
Massachusetts corporation whose business and mailing address is 10 Ishmael Road,
Nantucket, MA 02554, and its successors and assigns (collectively, the "Grantor"),
acting pursuant to Sections 31, 32, and 33 of Chapter 184 of Massachusetts General
Laws, hereby grant with quitclaim covenants to the Nantucket Land Council, Inc., a
Massachusetts non-profit corporation with a principal place of business at 6 Ash Lane,
Nantucket, Massachusetts 02554, and its successors and permitted assigns and to the
Nantucket Islands Land Bank, a governmental body of the Commonwealth of
Massachusetts with an office located at 22 Broad Street, Nantucket, MA 02554, and its
successors and permitted assigns, as equal co-holders (both, collectively, "Grantee"),
for sixty thousand dollars ($60,000) and other consideration, in perpetuity and
exclusively for conservation purposes, the following described Conservation
Restriction on a certain parcel of land located in the Town of Nantucket,
Massachusetts, consisting of Lots 47 and 78 shown on Land Court Plan 35893-H filed
with Certificate No. 8638 at the Nantucket Registry District of the Land Court
constituting approximately 56 acres, and more particularly described as set forth in
Exhibit A (the “Premises”). A copy of said Land Court Plan 35893-H depicting the
Premises which are subject to the Conservation Restriction hereunder is attached
hereto as Exhibit B.
For Grantor’s title see Certificate of Title No. _____ at the Nantucket Registry
District of the Land Court.
Grantor Hummock Pond of Nantucket Homeowners Association, Inc. is a
membership homeowner’s organization incorporated under the laws of the
Commonwealth of Massachusetts. Its membership consists of owners of certain Lots
numbered 41 - 78 (excluding Lots 47 and 78) shown on Land Court Plan 35893-H filed
with Certificate No. 8638 at the Nantucket Registry District of the Land Court.
Therefore, “Member(s)” shall mean the record owner, whether one or more persons or
entities, of the fee simple title to any Lot numbered 41 – 78, excluding Lots 47 and 78,
shown on the Land Court Plan 35893-H filed with Certificate No. 8638 at the
Nantucket Registry District of the Land Court. For purposes of, and as used in this
Conservation Restriction, the terms “Member” and “Members” do not include the
“Grantor” unless a Member or Members become assigns or successors to the original
Grantor, and the term “Grantor” does not include a “Member” or “Members” unless
expressly stated..
2 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
Grantee warrants that Grantee is a charitable organization described in Section
501(c)(3) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder (the “Code”), and a “charitable corporation whose purposes include
conservation of land” in accordance with MGL Chap. 184, Section 32 whose primary
purpose is “To encourage, support and engage in research, study, and education
regarding land in the County of Nantucket …and to engage in, institute, defend and to
support in any legal manner or way any litigation or administrative procedures
regarding such land, its ownership and utilization; and to engage in such other
activities as are necessary or reasonably appropriate thereto.”
Grantee represents that Grantee is a “qualified organization,” as that term is
defined in Section 170(h)(3) of the Code.
Grantee has received a determination letter from the Internal Revenue Service
dated November 24, 2003, to the effect that Grantee is a “publicly-supported”
organization described in Section 509(a)(1) and Section 170(b)(A)(vi) of the Code, and
is not a private foundation under Section 509(a)(1) of the Code.
Grantor and Grantee recognize the natural, scenic, and special character of the
Premises and have the common purpose of the conservation and protection in
perpetuity of the Premises through the use of restrictions on the Premises.
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS, in
consideration of the above and mutual covenants, terms, conditions, and restrictions
contained herein, and pursuant to Section 170(h) of the Code and the laws of the
Commonwealth of Massachusetts, including M.G.L. Chapter 184, Sections 31-33,
Grantor hereby voluntarily grants and conveys to Grantee and its successors and
permitted assigns a conservation restriction (the “Restriction” or “Conservation
Restriction”) in perpetuity and for conservation purposes over the Premises of the
nature and character and to the extent hereinafter set forth. Grantor herein declares
that the Premises shall be held, mortgaged, encumbered, transferred, sold, conveyed,
used, and occupied subject to the covenants, conditions, and restrictions hereinafter
set forth, which covenants, conditions, and restrictions shall be deemed to run with the
land in perpetuity and to burden the Premises in perpetuity.
A. PURPOSES:
This Conservation Restriction is defined in and authorized by Sections 31-33 of
Chapter 184 of the General Laws and otherwise by law. The purpose of this
Conservation Restriction is to assure that the Premises will be maintained in its current
condition in perpetuity and for conservation purposes, predominantly in a natural,
scenic and undeveloped condition, and to prevent any use or change that would
materially impair or interfere with its conservation values.
3 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
The specific conservation values of the Premises are documented in a report to
be kept on file at the offices of Grantee and incorporated herein by this reference,
which documentation (“Baseline Documentation”) the parties agree provides an
accurate representation of the Premises as of the effective date of this grant and which
is intended to serve as an objective information baseline for monitoring compliance
with the terms of this grant.
This Conservation Restriction is intended to protect the aforementioned
conservation values of the Premises and Nantucket by prohibiting all buildings; by
prohibiting practices such as commercial agriculture and raising of animals which can
damage or alter natural plant communities; and by encouraging conservation of the
land in its predominantly vacant and undeveloped condition, as more particularly
described herein.
These conservation values are more particularly described as including the
following:
• Open Space Preservation. The protection of the Premises contributes to the
protection of the scenic and natural character of surrounding permanently protected
Nantucket Islands Land Bank land to the north being used as pasture land and open
space, to the south land owned by the Nantucket Islands Land Bank which is an open
undeveloped track extending to the Atlantic Ocean, and a conservation restriction to
the west held by the Nantucket Land Council which is used as open space and
pasture land and abuts Hummock Pond and the protection of the Premises will
enhance the open-space value of these lands.
* Water Quality. The Premises are located on Nantucket Island which has a sole
source aquifer for the use of its inhabitants. Protection of the Premises will further
protect the water quality of the aquifer. The Premises is also located within the
Hummock Pond Watershed. Protection of the Premises will prevent further pollutants
from entering groundwater from this location and ultimately into Hummock Pond.
• Scenic Protection. The Premises are located along Hummock Pond Rd and
Heller’s Way afford the public with uninterrupted views of pristine vegetation and open
space which if developed would interrupt, obstruct and fragment beneficial scenic
vistas. The Grantor has also granted a bike path easement to the Town of Nantucket
which will provide additional scenic views along the entire stretch of Hummock Pond
Road for the length of the bike path.
• Protection of Wildlife Habitat. The entire Premises fall within an area
designated as “Priority Habitat for State-Protected Rare Species” by the
Massachusetts Natural Heritage Program. The Premises are comprised of a coastal
shrub understory, a pitch pine forest, open grasslands and heathlands, and numerous
wetland ecosystems.
4 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
Because development on Nantucket threatens to destroy much of the Island’s
natural environment and threatens to introduce exotic and invasive species of plants,
conservation of the Premises in its predominantly undisturbed and natural condition
maintains increasingly rare indigenous wildlife and plant habitats on Nantucket.
• Furtherance of Governmental Policy. Preservation of the Premises is pursuant
to clearly delineated conservation policy expressed in Nantucket’s Master Plan,
adopted by Nantucket’s voters at the Annual Town Meeting in April 2009, which states
in the Town of Nantucket 2007 Open Space and Recreation Plan as Goal/Objectives
1C: “The town should encourage the use of creative regulatory and non-regulatory
land protection tools such as conservation restrictions, tax abatements, gifts and
zoning measures.”; and in The Nantucket Comprehensive Community Plan (NCCP),
including the following objectives therein: Objective 4.1, “To aggressively acquire land
and conservation restrictions to protect natural ecosystems;” Objective 4.2, “To
encourage land management activities by the Land Bank and nonprofit entities to
provide permanent resource protection;”
Preservation of the Premises as open space is further pursuant to clearly
delineated governmental conservation policy in accordance with "Nantucket's Goals
and Objectives for Balanced Growth" which was adopted in November 1990 by Town
Meeting and states as Objective A-1: "To identify and acquire critical open spaces
through outright ownership or by less-than-fee means, such as conservation
restrictions, scenic easements, and the purchase of development rights, in order to
complete the Island's open space network.
Preservation of the Premises as open space is pursuant to the following permits
and Declarations: Nantucket Planning Board Special Permit File no. 013-81 and
Statement of Conditions of Subdivision Approval by the Planning Board dated May 27,
1981. Furthermore, the prohibited uses and reserved rights described herein are more
restrictive than the conditions outlined in the Special Permit and further protect the
conservation values of the property.
B. Prohibited Uses. Except for reserved rights as set forth in Paragraph C below,
Grantor will neither perform nor give permission to others to perform the following acts
or uses which are prohibited on, under, and above the Premises:
(1) The construction or placement of any temporary or permanent building, landing
strip, helicopter landing area, tennis court, mobile home, swimming pool, asphalt or
concrete pavement, stadium, bleachers, outdoor lighting equipment, ropes course,
sign, billboard, or other advertising display, utility pole, tower, conduit or line, septic
system, or any other temporary or permanent structure on, above, or under the
Premises;
5 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
(2) Excavating, mining, dredging or removing from the Premises of soil, loam, peat,
gravel, sand, rock or other mineral resource or natural deposit except as necessary for
proper drainage or soil conservation and then only in a manner which does not impair
the Purpose of this Conservation Restriction;
(3) Placing, filling, storing or dumping on the Premises of soil, refuse, trash, boats,
trailers, vehicle bodies or parts, rubbish, debris, junk, waste or other substance or
material whatsoever or the installation of underground tanks;
(4) Cutting, removing or otherwise destroying trees, grasses or other vegetation on
the Premises;
(5) The conduct of activities detrimental to drainage, flood control, water
conservation, water quality, erosion control or soil conservation;
(6) The use of motorcycles, motorized trail bikes, snowmobiles and all other
motorized vehicles and activities;
(7) Division or subdivision of the Premises, except for merging all or a portion of the
Premises with abutting property or properties. No portion of the Premises – either
following such merger or in the absence of such merger – may be used to satisfy or
comply with building, development or density requirements on the Premises or on any
other property;
(8) All commercial and municipal structures and all commercial or industrial
activities and uses;
(9) Any work, including, but not limited to, filling and/or construction of roads, in
wetlands as defined by the Wetlands Protection Act (Chapter 131, Section 40) or the
Nantucket Wetlands Bylaw (Chapter 136 of the Nantucket Code);
(10) The use of the Premises for recreation, business, residential or industrial use of
the Premises.
(11) The use of pesticides and fertilizers; and
(12) Any other use of the Premises or the conduct of any other activity on the
Premises which would materially impair the Premises’ conservation values unless
necessary for the protection of the conservation values that are the subject of this
Conservation Restriction.
C. Reserved Rights. The provisions of Paragraph B notwithstanding, the following
acts and uses by Grantor are permitted on, above or under the Premises provided
they do not materially impair the Premises’ conservation values and they are not
inconsistent with the purposes of this Conservation Restriction. These rights are
6 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
conveyed to the Grantor and not to individual Members of the original Grantor
Hummock Pond of Nantucket Homeowners Association, Inc, or any successor
membership entity. The original Grantor Hummock Pond of Nantucket Homeowners
Association, Inc. or successor homeowner association, if any, may exercise these
rights in accordance with its own governance process and by-laws which may include
authorizing third parties or its Members to carry out actions permitted under the
provisions of this Paragraph C.
(1) The right to excavate and remove soil, gravel or other mineral resource or
natural deposit only as may be necessary for the conduct of those uses and activities
permitted in this Conservation Restriction, or for the maintenance of good drainage,
soil conservation practices or other use of or activity on the Premises permitted under
this Conservation Restriction. Immediately following the completion of such use or
activity any disturbed area shall be restored to the greatest extent possible to its
undisturbed condition immediately preceding the initiation of the excavation or
removal;
(2) Subject to Grantee’s prior approval in accordance with Paragraph E hereof, the
right to locate and install (and thereafter, without such approval, to maintain)
subsurface septic systems and wells blended into surrounding topography and
landscaping, only for the purpose of replacing previously operational septic systems
and wells located on Members’ Lots which have failed or are deemed to have failed as
defined by Massachusetts law, as long as all reasonable efforts to locate the system or
portions of the system or well on a Member’s Lot is exhausted, as verified by the
Nantucket Health Department. No septic system or well may be constructed on the
Premises which is necessitated by new construction. Immediately following the
completion of such installation, any disturbed area shall be restored to the greatest
extent possible to its condition immediately preceding initiation of the installation. The
Grantor shall set its own procedures to ensure funds are set aside to ensure disturbed
areas are restored;
(3) Subject to Grantee’s prior approval in accordance with Paragraph E hereof, the
right to grant and use underground utility easements and associated rights of way as
long as no other reasonable alternative locations exist. Immediately following the
completion of any associated excavation, any disturbed area shall be restored to the
greatest extent possible to its undisturbed condition immediately preceding initiation of
the excavation. The Grantor shall set its own procedures to ensure funds are set
aside to ensure disturbed areas are restored;
(4) The right to grant a permanent public access easement abutting Hummock Pond
Road for bicycles and pedestrians to the Town and/or County of Nantucket and -
subject to Grantee’s prior approval in accordance with Paragraph E hereof as to final
easement location along Hummock Pond Road, width of easement area, and
requirements for the restoration of disturbed land areas - - the right to allow the said
Town and/or County to construct a bicycle and pedestrian path, paved or unpaved,
7 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
and to maintain the easement area for said uses. All work shall avoid wetland
resource areas as protected by the Massachusetts State Wetlands Protection Act and
the Nantucket Wetlands Bylaw to the greatest extent possible. All work taking place
within wetland jurisdictional areas must be approved by applicable local, state, and
federal agencies.
(5) The right to excavate a known archaeological site identified by and under the
direction of a qualified organization such as the Massachusetts Historical Commission
according to Massachusetts Regulations 950 CMR 70;
(6) The right to use, clear, maintain in their unpaved condition and relocate for
walking, including dog walking, horseback riding and bicycling purposes those trails
and paths existing on the effective date of this grant as shown in the Baseline
Documentation. Such trails and paths shall not exceed ten (10) feet in width;
(7) Subject to Grantee’s prior approval in accordance with Paragraph E, hereof The
right to conduct any activity, such as selective cutting, mowing or burning, to manage
the habitat of any threatened or rare species, as identified by the Massachusetts
Natural Heritage Program or its successors, and/or any other natural plant community
on Nantucket, and/or to enhance or manage wildlife. Grantee may impose conditions
or limitations to protect wildlife, natural vegetation and environmental systems. Such
conditions and limitations may include the limited erection of nest boxes or osprey
poles;
(8) Subject to Grantee’s prior approval in accordance with Paragraph E, hereof the
right to plant indigenous species of plants which are native to Nantucket.
(9) Subject to Grantee’s prior approval in accordance with Paragraph E, hereof the
right to control noxious or invasive plant and animal species by mechanical and/or
chemical means on the Premises,
(10) The right to control ticks with applications of Damminix Tick Tubes or a similar
product that uses targeted tick, life cycle control, from the border of the Premises up to
15 feet within the Premises;
(11) The right to walk and conduct other noncommercial passive recreational
(including educational) activities on foot;
(12) The right to remove diseased or dead trees, bushes or limbs;
(13) The right to trim bushes and trees that overhang abutting property lines
whether diseased, dead or not;
(14) The right to survey and to conduct scientific research, including occasional
erection of bird mist nets;
8 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
(15) In addition to the right to replace in their same locations those signs existing on
the effective date of this grant, as shown in the Baseline Documentation, with signs of
similar dimensions and materials, the additional right to erect new signs after the
effective date of this grant and to approve where the Grantee may erect new signs.
Aside from new signs described in the next sentence, such new signs are to be no
greater than twelve (12) inches square, and are to inform and educate the public about
the Premises and this Conservation Restriction. Notwithstanding the limitations of the
preceding two sentences, signs which mark street locations or which are needed for
safety or traffic notifications may be erected along roadways which cross or enter the
Premises;
(16) The right to erect and maintain fence posts and post and rail fences and to
approve where Grantee may erect fence posts and post and rail fences;
(17) The right to use motor vehicles only as necessary and solely for exercising any
of the reserved rights in this Paragraph C or as necessary by the police, firefighters,
Board of Health agents, Department of Environmental Protection personnel, or other
governmental agents in carrying out their lawful duties; and
(18) The right to construct a dry well or install other drainage structures, limited to
the greatest extent possible, to cure water drainage problems on Ahab Drive, provided
specifications are approved in advance of construction by the Grantee in accordance
with Paragraph E hereof. Immediately following the completion of such construction or
installation any disturbed area shall be restored nearly as possible to its undisturbed
condition immediately preceding initiation of the construction or installation.
Certain reserved rights under this Paragraph C may require permits from one or
more public agencies. The inclusion of any such rights herein does not imply that
Grantee or the Commonwealth takes any position on whether any such permit should
be issued.
D. Prior Notice to Grantee. Grantor agrees to notify Grantee, in writing, at least
thirty (30) days prior to exercising those rights reserved in subparagraph 3 of
Paragraph C hereof, and again shortly before commencing uses and activities
previously approved by Grantee in accordance with Paragraph E hereof. The notice
shall describe the nature, scope, design, location, timetable and any other material
aspect of the planned activity in sufficient detail to permit Grantee to monitor the
proposed activity to assure that it is conducted in a manner that is not inconsistent with
the purposes of this Conservation Restriction.
E. Prior Approval of Grantee. Whenever approval by Grantee is required under the
provisions of subparagraphs 2, 3, 4, 7, 8, 9, and 18 of Paragraph C hereof, Grantor
shall request such approval in writing delivered to Grantee not less than thirty (30)
days prior to the date Grantor intends to undertake the activity in question; however,
9 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
Grantee may waive or reduce the required period of time, provided said waiver is
obtained in writing prior to the initiation of such activity. The request for approval shall
describe the nature, scope, design, location, timetable and any other material aspect
of the proposed activity in sufficient detail to permit Grantee to make an informed
judgment as to its consistency with the purposes of this Conservation Restriction.
Grantee Nantucket Land Council, Inc. and Grantee Nantucket Islands Land Bank shall
jointly grant, condition or withhold approval in writing within thirty (30) days of receipt of
Grantor's written request for approval. Grantor's written request for approval shall
specifically recite the length of time provided by this Conservation Restriction for
review and response by Grantee. Grantee’s approval shall not be unreasonably
withheld, but it shall only be granted upon Grantee’s determination that the proposed
activity is not inconsistent with the purposes of this Conservation Restriction. Failure of
Grantee to respond in writing within thirty (30) days shall be deemed to constitute
approval by Grantee of the request as submitted, so long as significant conservation
values are not impaired by the use or activity and the request has set forth the
provisions of this section relating to deemed approval after such thirty (30) days.
Any notice, demand, request, consent, approval or communication that either
party desires or is required to give to the other shall be in writing and either served
personally or sent by first class mail, postage prepaid, addressed as follows:
To Grantor: Hummock Pond of Nantucket Homeowners Association, Inc.
10 Ishmael Road, Nantucket, MA 02554
Nantucket, Massachusetts 02554
To Grantee: Nantucket Land Council, Inc.
Post Office Box 502
Nantucket, Massachusetts 02554
Attn: Cormac Collier
Nantucket Islands Land Bank
22 Broad Street
Nantucket, MA 02554
Attn: Eric Savetsky
or to such other address as either party from time to time shall designate by written
notice to the other.
F. Breach by Grantor.
In the event that a potential breach of this Conservation Restriction by the
Grantor, by a third party employed by the Grantor, or by a party under contract to the
Grantor, comes to the attention of Grantee, and Grantee in the exercise of its best
professional judgment concludes that a breach may have occurred or is occurring,
Grantee shall notify Grantor in writing of such an alleged breach. Except in the event
of an emergency which requires immediate action, Grantor shall have thirty (30) days -
10 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
or such additional time as Grantee deems reasonably necessary depending on the
circumstances of the alleged breach - after delivery of such notice to initiate corrective
actions, including restoration of the Premises, that are reasonably calculated to correct
swiftly the conditions constituting such a breach. If Grantor fails to initiate such
corrective action within such time, Grantee may in its discretion undertake such
actions, including appropriate legal proceedings as are reasonably necessary to effect
the correction of each such alleged breach. If a court of competent jurisdiction
determines, or the Grantor acknowledges, that such correction resulted from Grantor’s
violation of this Conservation Restriction, then Grantee’s costs of each such
correction, including Grantee's expenses, court costs and legal fees, shall be paid by
Grantor.
G. Acts Beyond Grantor's Control; Third Party Breach.
(1) Nothing contained in this Conservation Restriction shall be construed to entitle
Grantee to bring any action against Grantor, or to recover from Grantor Grantee’s
corrective or enforcement expenses, for any injury to or change in the Premises
resulting from causes beyond Grantor's control, including, but not limited to the
following: fire, flood, storm, earth movement and actions taken by agents of any
governmental authority in the performance of their official duties, and from those
breaches resulting from trespass or incursions on the Premises by a third party
(including a Member) against which the Grantor has made reasonable independent
efforts or joint efforts with the Grantee to cure such third party breaches in accordance
with the provisions of the following subparagraph 2 below, or any prudent action taken
by Grantor under emergency conditions to prevent, abate or mitigate significant injury
to the Premises resulting from such causes.
(2) In the case of a perceived breach by a third party (including a Member) either
Grantor or Grantee shall notify the other in writing of such an alleged violation. If the
Grantee, in the exercise of its best professional judgment, concludes that a breach
may have occurred or is occurring, then - except in the event of an emergency which
requires Grantee’s immediate corrective action, to which Grantor herewith agrees -
Grantee and Grantor shall jointly notify the third party in writing of such an alleged
breach. The Grantee and Grantor shall attempt to negotiate a remediation with the
third party of the violation, such remediation to be completed at the third party’s
expense. Remediation may include, but is not limited to, restoration of the Premises in
such a manner as is reasonably calculated to correct swiftly the conditions constituting
such a breach. If the third party fails to take action to remediate the breach, then the
Grantee alone and/or with the assistance and cooperation of the Grantor may in its
sole discretion undertake such actions against the third party, including appropriate
proceedings in law and in equity as are reasonably necessary to effect the correction
of each such breach. Grantee’s costs of corrective action, court costs and legal fees
incurred in the manner described in this subparagraph may be recovered against the
third party.
11 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
Nothing in this section shall limit Grantor’s right, independently or jointly with
Grantee, to bring any action against third parties for injuries or damages to the
Premises, or for violations of this Conservation Restriction, caused or proximately
caused by third parties.
H. Extinguishment
(1) If circumstances arise in the future such as render the Purpose of this
Conservation Restriction impossible to accomplish, this Conservation Restriction can
only be terminated or extinguished, whether in whole or in part, by a court of
competent jurisdiction under applicable law. If any change in conditions ever gives
rise to extinguishment or other release of this Conservation Restriction
under applicable law, then Grantee, on the first subsequent sale of the Premises
following termination or extinguishment, shall be entitled to a portion of the proceeds in
accordance with subparagraphs (2) and (3) of this Paragraph H, subject, however, to
any applicable law which expressly provides for a different disposition of proceeds.
Grantee shall use its share of the proceeds to advance the conservation of Nantucket
lands and waters in a manner consistent with the conservation purposes set forth
herein.
(2) Grantor and Grantee agree that the grant of this Conservation Restriction gives
rise to a real property right, immediately vested in Grantee, with a value that is
determined by the ratio of the consideration recited herein for this Conservation
Restriction to the assessed value ascribed by the Nantucket Assessor to the Premises
on the effective date of this grant. Such ratio (hereinafter, the “proportionate value”)
shall be included in the Baseline Documentation and shall remain constant over time.
(3) Whenever all or any part of the Premises 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. All related expenses incurred
by the Grantor and the Grantee shall first be paid out of any recovered proceeds, and
the remaining proceeds (including, for purposes of this subparagraph, proceeds from
any lawful sale of the Premises unencumbered by the restrictions hereunder) shall be
distributed between the Grantor and the Grantee in shares equal to said proportionate
value. If a less-than-fee interest is taken, the proceeds shall be equitably allocated
according to the nature of the interest taken. The Grantee shall use its share of the
proceeds in a manner consistent with the conservation purposes of this grant.
I. Access. The Conservation Restriction hereby conveyed does not grant to the
Grantee, to the public generally, or to any other person any right to enter upon the
Premises, except as follows: there is hereby reserved the right of Grantor to convey a
right of public access in accordance with subparagraph C(4) hereof. In addition, there
is hereby granted to the Grantee and its representatives the right to enter the
Premises at reasonable times and in a reasonable manner, for the purpose of
12 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
inspecting the Premises to determine compliance herewith, of enforcing this
Conservation Restriction, and after thirty (30) days prior written notice of taking any
and all actions with respect to the Premises as may be necessary or appropriate with
or without order of court, to remedy, abate or otherwise enforce any violation hereof.
Nothing herein, however, shall impair any rights of others or of the public generally
now existing in any portion of the Premises.
J. Legal and Equitable Remedies of Grantee. The rights hereby granted shall
include the right to enforce this Conservation Restriction in accordance with its terms,
including by appropriate legal proceedings and to obtain injunctive and other equitable
relief against violations, including, without limitation, relief requiring restoration of the
Premises to its condition prior to the time of the injury complained of (it being agreed
that Grantee shall have no adequate remedy at law), and shall be in addition to, and
not in limitation of, any other rights and remedies available to Grantee.
Grantor covenants and agrees to reimburse Grantee for those reasonable costs
and expenses (including without limitation counsel fees) incurred by Grantee in
enforcing this Conservation Restriction or in remedying or abating any violation
thereof, provided Grantor has been determined by final judgment (after all appeal
periods have passed) of a court of competent jurisdiction or by mutual agreement of
Grantor and Grantee to be responsible for any such violations which resulted in
Grantee’s incurring enforcement, remediation or abatement costs.
By its acceptance of this Conservation Restriction, Grantee does not undertake
any liability or obligation relating to the condition of the Premises not caused by the
Grantee or Grantee’s agents.
Any forbearance by Grantee in the manner and timing of its rights to enforce this
Conservation Restriction or otherwise exercise its rights hereunder shall not be
deemed or construed to be a waiver of such rights.
K. Severability. If any provision of this Conservation Restriction shall to any extent
be held invalid, the remainder shall not be affected and shall remain in full force and
effect.
L. Duration and Assignability. The burdens of this Conservation Restriction shall
run with the Premises in perpetuity and shall be enforceable in perpetuity against the
original Grantor, all successors and assigns of the original Grantor holding any interest
in the Premises, and third parties as described in this Conservation Restriction.
Grantee is hereby authorized to record or file any notices or instruments appropriate to
assuring the perpetual enforceability of this Conservation Restriction, and the original
Grantor, and all successors in title or interest to the Premises, to the extent
permissible under applicable law, appoints Grantee its attorney-in-fact to execute,
acknowledge and deliver any such instruments on its behalf. Without limiting the
13 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
foregoing, the original Grantor and all successors in title or interest to the Premises,
agrees to execute any such instruments upon request.
The benefits of this Conservation Restriction shall be in gross and assignable,
but only to an entity or governmental unit able and authorized to enforce such
restrictions , which entity shall also have purposes similar to those of Grantee and
which encompass the purposes set forth in this Conservation Restriction. Such entity
or governmental unit must qualify 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 Massachusetts General Laws as an eligible donee to receive this
Conservation Restriction directly. Any assignment of benefits by Grantee (or
successor) must require the transferee to carry out the purposes of this Conservation
Restriction. Furthermore, no assignment by the Grantee of this Conservation
Restriction shall be effective unless previously approved in writing by the Nantucket
Planning Board and by the Grantor, whose approval will not be unreasonably withheld.
Any assignment shall be in accordance with Article 97 of the Amendments to the
Massachusetts Constitution if applicable.
M. Effective Date. While the Grantor may execute this instrument prior to obtaining
title to the Premises and the receipt of final acceptance and approvals of this
Conservation Restriction, this Conservation Restriction shall be effective only when
Grantor has obtained such title, Grantor and Grantee have both executed this
Conservation Restriction, the administrative approvals required by Section 32 of
Chapter 184 of the General Laws have been obtained, and this Conservation
Restriction has been filed for registration at the Nantucket Registry District of the Land
Court and noted upon the Certificate of Title for the Premises. The Grantee shall file
this instrument for registration in timely manner at the Nantucket Registry District of
the Land Court and note it upon the Certificate of Title for the Premises.
N. Subsequent Transfers. Grantor agrees:
(1) to incorporate by reference the terms of this Conservation Restriction into any
deed or other legal instrument which divests Grantor of any interest in all or a portion
of the Premises, including, without limitation, a leasehold interest, and
(2) to make reference to this Conservation Restriction in any executory contract
for the transfer of any interest in the Premises. Grantor further agrees to give written
notice to Grantee of all transfers of any interest in all or a portion of the Premises and
to provide such notice forthwith upon every transfer if such notice has not been given
prior to a transfer. Such notice to Grantee shall include the name, address and
telephone number of the transferee and his/her legal representative, if any. Failure of
Grantor to comply with this Paragraph N shall not impair the validity of this
Conservation Restriction or limit its enforceability in any way.
14 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
O. Estoppel Certificates. Upon request by Grantor, Grantee shall within twenty (20)
days execute and deliver to Grantor any document which certifies the status of
Grantor's compliance with any obligation of Grantor contained in this Conservation
Restriction and which otherwise evidences the status of this Conservation Restriction,
as may be reasonably requested by Grantor, including a so-called estoppel certificate
if applicable in form suitable for registration with Nantucket Registry District and
notation upon the Certificate of Title then outstanding for the Premises.
P. Limitation of Grantor Liability. The Grantor shall not be liable for violations
occurring after its, his or her ownership. Liability for any acts or omissions not
excepted by operation of Paragraphs F or G hereof occurring prior to any transfer and
liability preceding any transfer if in violation of this Conservation Restriction and not
excepted by operation of Paragraphs F or G hereof shall survive the transfer.
Irrespective of the above, any new owner of the Premises shall cooperate in the
restoration of the Premises or removal of violations caused by prior owner(s).
Q. Merger. Grantor and Grantee agree that the terms of this conservation restriction
shall survive any merger of the fee and conservation restriction interests in the
Premises.
Grantor and Grantee further agree that, should the Nantucket Land Council, Inc.
or the Nantucket Islands Land Bank (or any successor in interest to the Nantucket
Land Council, Inc. or the Nantucket Islands Land Bank) come to own all or a portion of
the fee interest subject to this Conservation Restriction, (i) Grantor, if retaining a
portion of the fee interest and Grantee shall observe and be bound by the obligations
and the restrictions imposed upon the Premises by this Conservation Restriction; (ii)
this Conservation Restriction shall not be extinguished through the doctrine of merger
in whole or in part in view of the public interest in its enforcement; (iii) Grantee shall be
considered to have reserved its right to transfer a Conservation Restriction; and (iv)
the Grantee as promptly as practicable prior to the acquisition of the fee shall assign
the Grantee's interest in this Conservation Restriction of record to another Grantee in
conformity with the requirements of this Paragraph Q., subject to prior written approval
by the Nantucket Planning Board and by the Grantor, whose approval will not be
unreasonably withheld.
The instrument of assignment shall refer to the provisions of this subparagraph,
and shall contain confirmatory language suitable to reserve a right to re-impose this
Conservation Restriction to the extent, if any, necessary to continue it in force.
R. Successor Grantee. If Grantee shall cease to exist or to be a qualified
organization under Section 170(h) of the Internal Revenue Code of 1986, as amended,
or to be authorized to acquire and hold conservation restrictions under M.G.L. Chapter
184, Section 32, as amended, and a prior assignment of this Conservation Restriction
has not been made, then Grantee's rights and obligations under this Conservation
Restriction shall become vested in and fall upon the first (by order of listing) of the
15 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
below-named organizations which agrees to acceptance of the assignment and which
qualifies for assignment under the terms of this paragraph, and such vesting shall
have been previously approved in writing by the Nantucket Planning Board:
(a) Nantucket Conservation Foundation, Inc., Nantucket, Massachusetts
(b) The Massachusetts Audubon Society, Lincoln, Massachusetts
(c) Nantucket Islands Land Bank, Nantucket, Massachusetts
In the event that none of the above-named organizations agrees to acceptance and
qualifies for assignment, Grantee's rights and obligations shall become vested in such
other organization, previously approved in writing by the Nantucket Planning Board
and by the Grantor, whose approval will not be unreasonably withheld, as a court of
competent jurisdiction shall direct under the doctrine of cy pres. Any assignment shall
be in accordance with Article 97 of the Amendments to the Massachusetts Constitution
if applicable.
S. Restriction in Perpetuity. The provisions hereof shall inure to and be binding upon
the heirs, executors, devisees, administrators, successors and assigns as the case
may be of the parties hereto and shall be restrictions running with the land in
perpetuity. The term “Grantor” herein, unless the context or wording otherwise
requires, shall include all successors and assigns of the original Grantor Hummock
Pond of Nantucket Homeowners Association, Inc. The term “Grantee” herein, unless
the context or wording otherwise requires, shall include all successors and assigns of
the original Grantee Nantucket Land Council, Inc. and Nantucket Land Bank
Commission.
T. 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 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. Any amendments to this conservation restriction shall occur
only in exceptional circumstances. The Grantee will consider amendments only to
correct an error or oversight, to clarify an ambiguity, or where there is a net gain in
conservation value. All expenses of all parties in considering and/or implementing an
amendment shall be borne by the persons or entity seeking the amendment. Any
amendment shall be consistent with the purposes of this Conservation Restriction,
shall not affect its perpetual duration, shall be approved by the Secretary of Energy
and Environmental Affairs and the Town of Nantucket, and if applicable, shall comply
with the provisions of Art. 97 of the Amendments to the Massachusetts Constitution,
and any gift, grant or funding requirements. Any amendment shall be filed for
registration at the Nantucket Registry District of the Land Court and noted upon the
Certificate of Title for the Premises.
16 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
U. Controlling Law The interpretation and performance of this Conservation
Restriction shall be governed by the laws of the Commonwealth of Massachusetts.
V. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Conservation Restriction shall be liberally construed in favor of
the grant to effect the purpose of this Conservation Restriction and the policy and
purposes of Massachusetts General Laws Chapter 184, Sections 31-33. If any
provision in this instrument is found to be ambiguous, any interpretation consistent
with the purpose of this Conservation Restriction that would render the provision valid
shall be favored over any interpretation that would render it invalid.
17 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
The foregoing Conservation Restriction is hereby executed by the undersigned, as a
sealed instrument under Massachusetts law.
Executed and sealed on __________________________, 2011.
Hummock Pond of Nantucket Homeowners Association, Inc.:
By: _________________________ By: _________________________
Officers Name: Officers Name:
Its: President Its: Treasurer
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this ___ day of __________, 2011, before me, the undersigned notary public,
personally appeared __________, proved to me through satisfactory
evidence of identification, which was ____________________ , to be the person
whose name is signed on the preceding or attached document, and
acknowledged to me that he signed it voluntarily for its stated purpose.
___________________________________
Notary Public
My Commission Expires:
18 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
ACCEPTANCE OF GIFT BY THE NANTUCKET LAND COUNCIL, INC.
The gift of the above Conservation Restriction from, Hummock Pond of Nantucket
Homeowners Association, Inc., is hereby accepted this ____day of _________, 2011.
Nantucket Land Council, Inc.
By:
___________________________ _____________________________
Officer’s Name Officer’s Name
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this ___ day of __________, 2011, before me, the undersigned notary public,
personally appeared _____________________________, proved to me through
satisfactory evidence of identification, which were __________________ , to be
the person whose name is signed on the preceding or attached document, and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose.
___________________________________
(Print Name) Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this ___ day of __________, 2011, before me, the undersigned notary public,
personally appeared ____________________, proved to me through satisfactory
evidence of identification, which were___________________________ , to be
the person whose name is signed on the preceding or attached document, and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose.
___________________________________
(Print Name) Notary Public
My Commission Expires:
19 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
ACCEPTANCE OF GIFT BY THE NANTUCKET ISLANDS LAND BANK
The gift of the above Conservation Restriction from, Hummock Pond of Nantucket
Homeowners Association, Inc., is hereby accepted this ____day of __________, 2011.
Nantucket Islands Land Bank.
By:
___________________________ _____________________________
Commissioner’s Name Commissioner’s Name
___________________________ _____________________________
Commissioner’s Name Commissioner’s Name
___________________________
Commissioner’s Name
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this ___ day of __________, 2011, before me, the undersigned notary public,
personally appeared _____________________________, proved to me through
satisfactory evidence of identification, which were __________________ , to be
the person whose name is signed on the preceding or attached document, and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose.
___________________________________
(Print Name) Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this ___ day of __________, 2011, before me, the undersigned notary public,
personally appeared ____________________, proved to me through satisfactory
evidence of identification, which were___________________________ , to be
the person whose name is signed on the preceding or attached document, and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose.
___________________________________
(Print Name) Notary Public
My Commission Expires:
20 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
APPROVAL BY SELECTMEN OF THE TOWN OF NANTUCKET
We, the undersigned members of the Board of Selectmen of the Town of Nantucket,
Massachusetts, hereby certify that at a meeting held on _________________, 2011,
we voted to approve the foregoing Grant of Conservation Restriction by, Hummock
Pond of Nantucket Homeowners Association, Inc., to the Nantucket Land Council, Inc.
and Nantucket Islands Land bank pursuant to Massachusetts General Laws, Chapter
184, Section 32, and also hereby certify at said meeting we made a finding that this
restriction is in the public interest.
Board of Selectmen
of the Town of Nantucket
__________________________
__________________________ __________________________
__________________________ ___________________________
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this ___ day of _________, 2011, before me, the undersigned notary public,
personally appeared ___________________________________________
______________________________________________________________,
proved to me through satisfactory evidence of identification, which were
_______________________________________________ , to be the person(s)
whose name is signed on the preceding or attached document, and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose.
___________________________________
(Print Name) Notary Public
My Commission Expires:
21 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
APPROVAL BY
SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS,
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the
Commonwealth of Massachusetts, hereby certifies that the foregoing Grant of
Conservation Restriction by , Hummock Pond of Nantucket Homeowners Association,
Inc. to the Nantucket Land Council, Inc. and the Nantucket Islands Land Bank has
been approved in the public interest pursuant to Massachusetts General Laws,
Chapter 184, Section 32. Said approval is not to be construed as representing the
existence or non-existence of any pre-existing rights of the public, if any, in and to the
Premises, and any such pre-existing rights of the public, if any, are not affected by the
granting of this Conservation Restriction.
_______________ _______________________________________
Date Secretary of Energy and Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
, ss.
On this ___ day of _________, 2011, before me, the undersigned notary public,
personally appeared ____________________________________, proved to me
through satisfactory evidence of identification, which were _________________ ,
to be the person whose name is signed on the preceding or attached document,
and acknowledged to me that (he)(she) signed it voluntarily for its stated
purpose.
___________________________________
(Print Name) Notary Public
My Commission Expires:
22 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
EXHIBIT A
Description of Premises
Lots 47 and 78 shown on Land Court Plan 35893-H filed with Certificate No. 8638 at
the Nantucket Registry District of the Land Court.
For Grantor’s title see Certificate of Title No. ____ at the Nantucket Registry District of
the Land Court.
23 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
EXHIBIT B
Copy of Land Court Plan 35893-H Showing the Premises (Lots 47 and 78 on the Plan)
Follows on the Next Page
24 of 24
Conservation Restriction
V 17 Hummock Pond of Nantucket Homeowners Association, Inc. to Nantucket Land Council, Inc.
and Nantucket Islands Land Bank
Board of Dkeskors
Karen K. Uorchert
President
laiif A. Bennett
\'ice President
\Irilliam VWet
Mce President
Howard N. Blitrnan
Treasurer
Susan E. Robinsor!
Clerk & Asrisi~rtr Treasure;
Larj Bred<iran
Williarn S. Brenizer
Karen K. Cixk
\Villi'il!iam M. Crozier, 3r.
P'ii'iip B . Day
Lucy S. DiXon
Christine Donelan
Roberr Friedman
Nancy Glilespie
Wsde Greene
Jean Haffenrsffer
Mcry Heller
Charles A. Kiivert 111
Lauze! Ried Langworthy
Peter McCaus!aed
Eileen P. McG:ath
Pia 6. Mu~hy
Swan R. Shapizo
Carl Fk. Sjoiund
H. Brooks Si?ii:n
Lars 0. Soderberg
Peter -W&~~CUS
Hosz.csrlrry Director
Suzanne Muelier
Comac Collier
Executive Director
Emily L. MacKinnon
Resource Ecologist
Linda Spe1-y
Developmerrl Director
Nantucket Land Council, Inc.
Six Ash Lane
Post Office Box 502
Kanmcltet, bZassachusetts 02354
508 228-2818
Fzx 508 228-6456
nlc@nan-tucketlandcouncii.o~g
wm:nant~lckedandcozncil. org
Rick A&erton, Ch~mm
Nmwcket Board sf Selecmea?
16 Broad Street
Nmacket, MA 02554
Dear Mr. Athe&on,
The Nmtucket Ed Council has submieed for yow review a conservation
sest~ction donated by Debmk and James McIntosk sf I2 Uncziaena Street
in Sudside, Nanhcket bfassachuse&s.
The Consewation restP1cPion w<ll provide ~i~ificant public benefit by
protectkg gromdw-ater, native plant md ~ldlife, scelc views, and is
consistent with si@ficmt open space reco endations outlined in the
Nanbcket Master Plan and the Swfside Area Neighborhood Plm.
The enclosed Tow- of Nmithcket GIS plan provides Mher location
infomation. I would be happy to mswer my questions that you may have.
Planning Protec~ng Preserving
Town of Nantucket Web GIs - Printable Map file:///C:/Docurnents and Se~/Comc/Desktop/PrintableMap.aspxh~
Town of Nantucket Web GIs
Prop ID 80 91
Address 12 UNCATENA ST
Owner MCINTOSH JAMES R &
DEBORAH H
54 PIPPIN DR
GLASTONBURY, CT 6033
Sale Date 09/09/1996
Sale Price $0
Lot Size 1.15 acres
NOT A LEGAL DOCUMENT
For general reference only: Important
caveats which must be considered
when using this data are available from
the Nantucket GIs Coordinator.
Disclaimer The information displayed on this or
any other map produced by The Town of
Nantucket is for reference purposes only. The
Town of Nantucket does not guarantee the
accuracy of the data. Users are responsible for
determining the suitability for individual needs.
All information is from the Town of Nantucket
Geographic: Information System (GIS) database.
Town of Nantucket, Massachusetts
Map Composed
9/19/2011
CopyrigM 2005 Town of Nantucket, MA. All rigMs reserved. Developed by AppGeo
1
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
Version 4 9.12.11
CONSERVATION RESTRICTION
Deborah H. & James R. McIntosh
12 Uncatena Street, Nantucket MA
to
Nantucket Land Council, Inc.
We Deborah & James McIntosh of 437 East Carriage Drive, Glastonbury, CT,
06033, (“Grantor”) acting pursuant to Sections 31, 32, and 33 of Chapter 184 of
Massachusetts General Laws, hereby grant with quitclaim covenants to the
Nantucket Land Council, Inc., a Massachusetts non-profit corporation with a
principal place of business at 6 Ash Lane, Nantucket, Massachusetts 02554, and
its successors and permitted assigns ("Grantee"), in perpetuity and exclusively
for conservation purposes, the following described Conservation Restriction on a
certain parcel of land located in the Surfside area in the Town of Nantucket,
Massachusetts, constituting approximately 1.15 acres, and more particularly
described as set forth in Exhibit A. A plan described as Plan Book 2 Page 60 by
Henry Wilson dated May 17, 1889, depicts the parcel which is subject to the
Conservation Restriction hereunder and is attached hereto as Exhibit B (the
"Premises).
For Grantor’s title see, Book 208 Page 322 and Book 514 Page 246 at the
Nantucket Registry District.
Grantee warrants that Grantee is a charitable organization described in
Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder (the “Code”), whose primary purpose is “To encourage,
support and engage in research, study, and education regarding land in the
County of Nantucket …and to engage in, institute, defend and to support in any
legal manner or way any litigation or administrative procedures regarding such
land, its ownership and utilization; and to engage in such other activities as are
necessary or reasonably appropriate thereto.”
Grantee represents that Grantee is a “qualified organization,” as that term is
defined in Section 170(h)(3) of the Code; and
Grantee has received a determination letter from the Internal Revenue
Service dated November 24, 2003, to the effect that Grantee is a “publicly-
supported” organization described in Section 509(a)(1) and Section 170(b)(A)(vi)
of the Code, and is not a private foundation under Section 509(a)(1) of the Code;
and
2
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
Grantor and Grantee recognize the natural, scenic, and special character of
the Premises and have the common purpose of the conservation and protection
in perpetuity of the Premises through the use of restrictions on the Premises;
NOW, THEREFORE, KNOW ALL PERSONS BY THESE PRESENTS, in
consideration of the above and mutual covenants, terms, conditions, and
restrictions contained herein, and pursuant to Section 170(h) of the Code and the
laws of the Commonwealth of Massachusetts, including Massachusetts General
Laws. Chapter 184, Sections 31-33, Grantor hereby voluntarily grants and
conveys to Grantee and its successors and permitted assigns a conservation
restriction (the “Restriction” or “Conservation Restriction”) in perpetuity and for
conservation purposes over the Premises of the nature and character and to the
extent hereinafter set forth. Grantor herein declares that the Premises shall be
held, mortgaged, encumbered, transferred, sold, conveyed, used, and occupied
subject to the covenants, conditions, and restrictions hereinafter set forth, which
covenants, conditions, and restrictions shall be deemed to run with the land in
perpetuity and to burden the Premises in perpetuity.
A. PURPOSES:
This Conservation Restriction is defined in and authorized by Sections 31-
33 of Chapter 184 of the Massachusetts General Laws and otherwise by law.
The purpose of this Conservation Restriction is to assure that the Premises will
be maintained substantially in its current condition in perpetuity and for
conservation purposes, predominantly in a natural, scenic and undeveloped
condition, and to prevent any use or change that would materially impair or
interfere with its conservation and preservation values.
The specific conservation values of the Premises are documented in a
report to be kept on file at the offices of Grantee and incorporated herein by this
reference, which documentation (“Baseline Documentation”) the parties agree
provides an accurate representation of the Premises as of the effective date of
this grant and which is intended to serve as an objective information baseline for
monitoring compliance with the terms of this grant; and
This Conservation Restriction is intended to protect the aforementioned
natural and scenic resources of the Premises and Nantucket by prohibiting all
buildings; by prohibiting practices such as commercial agriculture and raising of
animals which can damage or alter natural plant communities; and by
encouraging conservation of the land in its predominantly vacant and
undeveloped condition.
3
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
These values include the following:
• Open Space Preservation. The protection of the Premises contributes to the
protection of the scenic and natural character of surrounding and abutting
permanently protected land and other Nantucket protected lands, and the
protection of the Premises will enhance the open-space value of these lands,
provide significant open space corridors and improve the overall public benefit
and value of open space in the neighborhood.
* Water Quality. The Premises are located on Nantucket Island which has a
sole source aquifer for the use of its inhabitants. Protection of the Premises will
further protect the water quality of the aquifer and surrounding wells. Protection
of the premises will also reduce nutrient and pollutant leaching and runoff which
will protect down gradient water sources including the Atlantic ocean to the
south.
• Scenic Protection. The Premises abut a walking path (Uncatena Street)
and afford the public with uninterrupted views of pristine vegetation and open
space. Development in the local area has increased dramatically in the past
twenty years and protection of the Premises will provide the public with a
protected open space vista to be enjoyed in perpetuity.
• Protection of Wildlife Habitat. The entire Premises falls within an area
designated as “Priority Habitat for State-Protected Rare Species” by the
Massachusetts Natural Heritage Program. The Premises provide a unique
natural habitat for a wide variety of plant and animal species. The Premises are
comprised of a coastal shrub understory consisting of huckleberry, viburnum,
black cherry, low bush blueberry which provide unique foraging and nesting
habitat to bird, mammal and insect species.
• Furtherance of Government Policy. Preservation of the Premises is
pursuant to clearly delineated conservation policy expressed in Nantucket’s
Master Plan, adopted by Nantucket’s voters at the Annual Town Meeting in April
2009, which states in the Town of Nantucket 2007 Open Space and Recreation
Plan as Goal/Objectives 1C: “The town should encourage the use of creative
regulatory and non-regulatory land protection tools such as conservation
restrictions, tax abatements, gifts and zoning measures.”; and in The Nantucket
Comprehensive Community Plan (NCCP), including the following objectives
therein: Objective 4.1, “To aggressively acquire land and conservation
restrictions to protect natural ecosystems;” Objective 4.2, “To encourage land
management activities by the Land Bank and nonprofit entities to provide
permanent resource protection;”
Preservation of the Premises as open space is further pursuant to clearly
delineated governmental conservation policy in accordance with "Nantucket's
4
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
Goals and Objectives for Balanced Growth" which was adopted in November
1990 by Town Meeting and states as Objective A-1: "To identify and acquire
critical open spaces through outright ownership or by less-than-fee means, such
as conservation restrictions, scenic easements, and the purchase of
development rights, in order to complete the Island's open space network
Preservation of the Premises as open space is further pursuant to clearly
delineated governmental conservation policy in accordance with the Town of
Nantucket Surfside Area Plan which was adopted by the Nantucket Planning and
Economic Development Commission on August 3, 2009, and states in Section
6.3. “Support the use of conservation restrictions and other conservation tools as
a means to preserve open space situated on private property.”
B. Prohibited Uses. Except for reserved rights as set forth in Paragraph C
below, neither Grantor, nor the heirs, devisees, successors or assigns of Grantor,
will perform or give permission to others to perform the following acts or uses
which are prohibited on, under, or above the Premises:
(1) The construction or placement of any temporary or permanent building,
landing strip, helicopter landing area, tennis court, mobile home, swimming pool,
asphalt or concrete pavement, stadium, bleachers, outdoor lighting equipment,
ropes course, sign, billboard, or other advertising display, utility pole, utility tower,
utility conduit or utility line, septic system, or any other temporary or permanent
structure on, above, or under the Premises;
(2) Excavating, mining, dredging or removing from the Premises of soil, loam,
peat, gravel, sand, rock or other mineral resource or natural deposit except as
necessary for proper drainage or soil conservation and then only in a manner
which does not impair the Purpose of this Conservation Restriction;
(3) Placing, filling, storing or dumping on the Premises of soil, refuse, trash,
boats, trailers, vehicle bodies or parts, rubbish, debris, junk, waste or other
substance or material whatsoever or the installation of underground tanks;
(4) Cutting, removing or otherwise destroying trees, grasses or other
vegetation on the Premises;
(5) Activities detrimental to drainage, flood control, water conservation, water
quality, erosion control or soil conservation;
(6) The use of motorcycles, motorized trail bikes, snowmobiles and all other
motorized vehicles and activities;
5
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
(7) Division or subdivision of the Premises, except for merging all or a portion
of the Premises with abutting property or properties;
(8) All commercial and municipal structures and all commercial or industrial
activities and uses;
(9) Any work, including, but not limited to, filling and/or construction of roads, in
wetlands as defined by the Wetlands Protection Act (Chapter 131, Section 40) or
the Nantucket Wetlands Bylaw (Chapter 136 of the Nantucket Code);
(10) The use of the Premises for more than de minimis commercial recreation,
business, residential or industrial use of the Premises.
(11) The use of pesticides and fertilizers; and
(12) Any other use of the Premises or activity which would materially impair
conservation interests unless necessary for the protection of the conservation
interests that are the subject of this Conservation Restriction.
C. Reserved Rights. The provisions of Paragraph B notwithstanding, the
following acts and uses by Grantor and the heirs, devisees, successors and
assigns of Grantor are permitted provided they do not materially impair the
conservation interests or purposes of this Conservation Restriction or are not
considered inconsistent with the intent of this grant:
(1) The right to excavate and remove soil, gravel or other mineral resource or
natural deposit only as may be necessary for the conduct of those uses and
activities permitted in this Conservation Restriction, or for the maintenance of
good drainage, soil conservation practices or other permissible use of the
Premises; provided that following the completion of such use or activity any
disturbed area shall be restored to its prior undisturbed condition;
(2) The right to excavate a known archaeological site identified by and under
the direction of a qualified organization such as the Massachusetts Historical
Commission according to Massachusetts Regulations 950 CMR 70;
(3) The right to use, clear, and maintain trails and paths;
(4) The right to conduct any activity, such as selective cutting, mowing or
burning, which is used to manage the habitat of any threatened or rare species,
as identified by the Massachusetts Natural Heritage Program or its successors,
and/or any other natural plant community on Nantucket and/or to enhance or
manage wildlife. Such activity shall be undertaken only with the express written
permission of Grantee in accordance with Paragraph E and under the guidance
of Grantee, which may include conditions or limitations to protect wildlife, natural
6
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
vegetation and environmental systems, and such activity may include the limited
erection of nest boxes or osprey poles;
(5) The right to plant indigenous species of plants which are native to
Nantucket or are found planted in nearby Surfside areas as long as they do not
detract from the overall purpose of the restriction, nor present an ornamental or
manicured material change to the substantially natural and pristine nature of the
Premises;
(6) The right to control noxious or invasive plant and animal species by
mechanical and/or chemical means on the Premises only pursuant and subject to
a plan approved by Grantee in accordance with Paragraph E hereof;
(7) The right to walk and conduct other passive educational and recreational
activities on foot;
(8) The right to remove diseased and dead trees and the right to cut, trim, and
remove trees grasses, and other vegetation on the Premises only in a manner
that maintains the character of the natural vegetation existing on the Premises on
the date of this conservation restriction.
(9) The right to survey and to conduct scientific research, and the right to
maintain bee hives;
(10) The right to erect signs which are no greater than twelve (12) inches
square, to inform and educate the public;
(11) The right to erect and maintain fence posts and post and rail fences;
(12) The use of motor vehicles only as necessary and solely for exercising any
of the reserved rights in this Paragraph C or as necessary by the police,
firefighters, Board of Health agents, Department of Environmental Protection
personnel, or other governmental agents in carrying out their lawful duties.
Certain reserved rights under this Paragraph C may require permits from one or
more public agencies. The inclusion of any such rights herein does not imply that
Grantee or the Commonwealth takes any position on whether any such permit
should be issued.
D. Prior Notice to Grantee. Grantor agrees to notify Grantee, in writing, before
exercising any right reserved herein, the exercise of which may have a significant
impact upon the conservation interests associated with the Premises.
E. Notice and Approval. Whenever notice to or approval by Grantee is required
under the provisions of Paragraphs B, C, or D, Grantor shall notify Grantee in
7
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
writing not less than sixty (60) days prior to the date Grantor intends to undertake
the activity in question; however, Grantee may waive or lessen the required
period of time, provided said waiver is obtained in writing prior to the initiation of
such activity. The notice shall describe the nature, scope, design, location,
timetable and any other material aspect of the proposed activity in sufficient
detail to permit Grantee to make an informed judgment as to its consistency with
the purposes of this Conservation Restriction. Where Grantee's approval is
required, Grantee shall grant or withhold its approval in writing within sixty (60)
days of the receipt of Grantor's written request. Grantor's written request shall
specifically recite the length of time provided by this Conservation Restriction for
review and response by Grantee. Grantee’s approval shall not be unreasonably
withheld, but it shall only be granted upon a showing that the proposed activity
shall not materially impair the purposes of this Conservation Restriction. Failure
of Grantee to respond in writing within sixty (60) days shall be deemed to
constitute approval by Grantee of the request as submitted, so long as there
exists no violation hereunder and the request sets forth the provisions of this
section relating to deemed approval after sixty (60) days in the notice.
Any notice, demand, request, consent, approval or communication that either
party desires or is required to give to the other shall be in writing and either
served personally or sent by first class mail, postage prepaid, addressed as
follows:
To Grantor: Deborah H. and James R. McIntosh
437 East Carriage Drive, Glastonbury, CT, 06033
Nantucket, Massachusetts 02554
With a copy to:
To Grantee: Nantucket Land Council, Inc.
Post Office Box 502
Nantucket, Massachusetts 02554
Attn: Cormac Collier
or to such other address as either party from time to time shall designate by
written notice to the other.
F. Breach. In the event that a breach of these restrictions by Grantor or by a
third party comes to the attention of Grantee, Grantee shall notify Grantor in
writing of such a breach. Except in the event of an emergency which requires
immediate action, Grantor shall have thirty (30) days or such additional time as
may be reasonably necessary depending on the circumstances of the breach
after receipt of such notice to undertake actions including restoration of the
Premises that are reasonably calculated to correct swiftly the conditions
constituting such a breach. If Grantor fails to take such corrective action,
Grantee may at its discretion undertake such actions, including appropriate legal
proceedings as are reasonably necessary to effect the correction of each such
8
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
breach, and the cost of each such correction, including Grantee's expenses,
court costs and legal fees, shall be paid by Grantor.
G. Acts Beyond Grantor's Control. Nothing contained in this Conservation
Restriction shall be construed to entitle Grantee to bring any action against
Grantor for any injury to or change in the Premises resulting from causes beyond
Grantor's reasonable control, including, but not limited to, fire, flood, storm, earth
movement,, actions taken by agents of any governmental authority in the
performance of their official duties, and acts caused by trespass on the Premises
not affirmatively contributed to by acts or omissions of Grantor, or from any
prudent action taken by Grantor under emergency conditions to prevent, abate or
mitigate significant injury to the Premises resulting from such causes.
H. Extinguishment.
(1) If circumstances arise in the future such as render the Purpose of this
Conservation Restriction impossible to accomplish, this Conservation Restriction
can only be terminated or extinguished, whether in whole or in part, by a court of
competent jurisdiction under applicable law. If any change in conditions ever
gives rise to extinguishment or other release of this Conservation Restriction
under applicable law, then Grantee, on a subsequent sale, exchange or
involuntary conversion of the Premises, shall be entitled to a portion of the
proceeds in accordance with subparagraph (2) of this Paragraph H, subject,
however, to any applicable law which expressly provides for a different
disposition of proceeds. Grantee shall use its share of the proceeds to advance
the conservation of Nantucket lands and waters in a manner consistent with the
conservation purposes set forth herein.
(2) Proceeds. Grantor and Grantee agree that the grant of this Conservation
Restriction gives rise 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 the grant, bears to the value
of the unrestricted Premises at that time. Such proportionate value of Grantee's
property right shall remain constant over time.
(3) Whenever all or any part of the Premises 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. All
related expenses incurred by the Grantor and the Grantee shall first be paid out
of any recovered proceeds, and the remaining proceeds (including, for purposes
of this subparagraph, proceeds from any lawful sale of the property
unencumbered by the restrictions hereunder or any other property received in
connection with an exchange or involuntary conversion of the Premises) shall be
distributed between the Grantor and the Grantee in shares equal to said
proportionate value. If a less-than-fee interest is taken, the proceeds shall be
9
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
equitably allocated according to the nature of the interest taken. The Grantee
shall use its share of the proceeds like a continuing trust in a manner consistent
with the conservation purposes of this grant.
I. Access. The Conservation Restriction hereby conveyed does not grant to the
Grantee, to the public generally, or to any other person any right to enter upon
the Premises, except as follows: there is hereby granted to the Grantee and its
representatives the right to enter the Premises at reasonable times and in a
reasonable manner, for the purpose of inspecting the Premises to determine
compliance herewith, of enforcing this Conservation Restriction, and after thirty
(30) days prior written notice of taking any and all actions with respect to the
Premises as may be necessary or appropriate with or without order of court, to
remedy, abate or otherwise enforce any violation hereof. Nothing herein,
however, shall impair any rights of others or of the public generally now existing
in any portion of the Premises.
J. Legal Remedies of Grantee. 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 Premises to its
condition prior to the time of the injury complained of (it being agreed that
Grantee shall have no adequate remedy at law), and shall be in addition to, and
not in limitation of, any other rights and remedies available to Grantee;
Grantor and thereafter the successors and assigns of Grantor covenant and
agree to reimburse 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, provided Grantor has been
determined by final judgment (after all appeal periods have passed) of a court of
competent jurisdiction or by mutual agreement of Grantor and Grantee to be
responsible for any such violations;
By its acceptance of this Conservation Restriction, Grantee does not
undertake any liability or obligation relating to the condition of the Premises not
caused by the Grantee or Grantee’s agents.
Any forbearance by Grantee in the manner and timing of its rights to enforce
this Conservation Restriction or otherwise exercise its rights hereunder shall not
be deemed or construed to be a waiver of such rights.
K. Severability. If any provision of this Conservation Restriction shall to any
extent be held invalid, the remainder shall not be affected and shall remain in full
force and effect.
L. Duration and Assignability. The burdens of this Conservation Restriction
shall run with the Premises in perpetuity and shall be enforceable in perpetuity
against Grantor and all successors and assigns of Grantor holding any interest in
the Premises. Grantee is hereby authorized to record or file any notices or
10
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
instruments appropriate to assuring the perpetual enforceability of this
Conservation Restriction, and Grantor, ,on behalf of themselves and their
successors and assigns, to the extent permissible under applicable law, appoints
Grantee their attorney-in-fact to execute, acknowledge and deliver any such
instruments on their behalf. Without limiting the foregoing, Grantor and all
successors in title or interest to the Premises, agrees to execute any such
instruments upon request.
The benefits of this Conservation Restriction shall be in gross and assignable,
but only to an entity or governmental unit able and authorized to enforce such
restrictions, which entity shall also have purposes similar to those of Grantee and
which encompass the purposes set forth in this Conservation Restriction. Such
entity or governmental unit must qualify 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 Massachusetts General Laws as an
eligible donee to receive this Conservation Restriction directly. Any assignment
of benefits by Grantee (or successor) must require the transferee to carry out the
purposes of this Conservation Restriction. Furthermore, no assignment by the
Grantee of this Conservation Restriction shall be effective unless previously
approved in writing by the Nantucket Planning Board. Any assignment shall be
in accordance with Article 97 of the Amendments to the Massachusetts
Constitution if applicable.
M. Effective Date. This Conservation Restriction shall be effective when
Grantor and 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 at the Nantucket Registry of Deeds. This Conservation Restriction
shall be registered in a timely manner.
N. Subsequent Transfers. Grantor agrees:
(1) to incorporate by reference the terms of this Conservation Restriction
into any deed or other legal instrument which divests Grantor of any interest in all
or a portion of the Premises, including, without limitation, a leasehold interest,
and
(2) to make reference to this Conservation Restriction in any executory
contract for the transfer of any interest in the Premises. Grantor further agrees to
give written notice to Grantee of all transfers of any interest in all or a portion of
the Premises and to provide such notice forthwith upon every transfer if such
notice has not been given prior to a transfer. Such notice to Grantee shall include
the name, address and telephone number of the transferee and his/her legal
representative, if any. Failure of Grantor to comply with this Paragraph N shall
not impair the validity of this Conservation Restriction or limit its enforceability in
any way.
O. Estoppel Certificates. Upon request by Grantor, Grantee shall within twenty
(20) days execute and deliver to Grantor any document which certifies the status
11
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
of Grantor's compliance with any obligation of Grantor contained in this
Conservation Restriction and which otherwise evidences the status of this
Conservation Restriction, as may be reasonably requested by Grantor, including
a so-called estoppel certificate if applicable in form suitable for recording in the
Nantucket Registry of Deeds.
P. Limitation of Grantor Liability. The Grantor shall not be liable for violations
occurring after his or her ownership. Liability for any acts or omissions occurring
prior to any transfer and liability for any transfer if in violation of this conservation
restriction shall survive the transfer. Any new owner shall cooperate in the
restoration of the Premises or removal of violations caused by prior owner(s) and
may be held responsible for any continuing violations.
Q. Merger. Grantor and Grantee agree that the terms of this conservation
restriction shall survive any merger of the fee and conservation restriction
interests in the Premises.
Grantor and Grantee further agree that, should the Nantucket Land Council,
Inc. (or any successor in interest to the Nantucket Land Council, Inc.) come to
own all or a portion of the fee interest subject to this Conservation Restriction, (i)
Grantor, if retaining a portion of the fee interest, and Grantee shall observe and
be bound by the obligations and the restrictions imposed upon the Premises by
this Conservation Restriction; (ii) this Conservation Restriction shall not be
extinguished through the doctrine of merger in whole or in part in view of the
public interest in its enforcement; (iii) Grantee shall be considered to have
reserved its right to transfer a Conservation Restriction; and (iv) the Grantee as
promptly as practicable prior to the acquisition of the fee shall assign the
Grantee's interest in this Conservation Restriction of record to another entity in
conformity with the requirements of this Paragraph Q., subject to prior written
approval by the Nantucket Planning Board.
The instrument of assignment shall refer to the provisions of this
subparagraph, and shall contain confirmatory language suitable to reserve a right
to re-impose this Conservation Restriction to the extent, if any, necessary to
continue it in force.
R. Successor Grantee. If Grantee shall cease to exist or to be a qualified
organization under Section 170(h) of the Internal Revenue Code of 1986, as
amended, or to be authorized to acquire and hold conservation restrictions under
M.G.L. Chapter 184, Section 32, as amended, and a prior assignment of this
Conservation Restriction has not been made, then Grantee's rights and
obligations under this Conservation Restriction shall become vested in and fall
upon the first (by order of listing) of the below-named organizations which agrees
to acceptance of the assignment and which qualifies for assignment under the
terms of this paragraph, and such vesting shall have been previously approved
in writing by the Nantucket Planning Board:
(a) The Massachusetts Audubon Society, Lincoln, Massachusetts
12
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
(b) Nantucket Conservation Foundation, Inc., Nantucket, Massachusetts
In the event that none of the above-named organizations agrees to acceptance
and qualifies for assignment, Grantee's rights and obligations shall become
vested in such other organization, previously approved in writing by the
Nantucket Planning Board, as a court of competent jurisdiction shall direct under
the doctrine of cy pres.
S. Successor Entities. In the event that any organization, political subdivision
or other entities identified in this conservation restriction shall cease to exist or
have its responsibilities or powers transferred to another body, such successor
body shall assume the function and authority of the original identified
organization, political subdivision or other entity for the purpose described in this
conservation restriction.
T. Restriction in Perpetuity. The provisions hereof shall inure to and be binding
upon the heirs, executors, devisees, administrators, successors and assigns as
the case may be of the parties hereto and shall be restrictions running with the
land in perpetuity.
U. 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 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. Any amendments to this
conservation restriction shall occur only in exceptional circumstances. The
Grantee will consider amendments only to correct an error or oversight, to clarify
an ambiguity, or where there is a net gain in conservation value. All expenses of
all parties in considering and/or implementing an amendment shall be borne by
the persons or entity seeking the amendment. Any amendment shall be
consistent with the purposes of this Conservation Restriction, shall not affect its
perpetual duration, shall be approved by the Secretary of Energy and
Environmental Affairs and if applicable, shall comply with the provisions of Art. 97
of the Amendments to the Massachusetts Constitution, and any gifts, grants or
funding requirements. Any amendment shall be recorded in the Nantucket
Registry of Deeds.
V. 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 in the Nantucket Registry of Deeds. The Grantee shall record
this instrument in timely manner in the Nantucket Registry of Deeds.
13
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
W. Controlling Law. The interpretation and performance of this Conservation
Restriction shall be governed by the laws of the Commonwealth of
Massachusetts.
X. Liberal Construction. Any general rule of construction to the contrary
notwithstanding, this Conservation Restriction shall be liberally construed in favor
of the grant to affect the purpose of this Conservation Restriction and the policy
and purposes of Massachusetts General Laws Chapter 184, Sections 31-33. If
any provision in this instrument is found to be ambiguous, any interpretation
consistent with the purpose of this Conservation Restriction that would render the
provision valid shall be favored over any interpretation that would render it
invalid.
14
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
The foregoing Conservation Restriction is hereby executed by the
undersigned, as a sealed instrument under Massachusetts law.
WITNESS my hand and seal this day of 2011.
Deborah H. McIntosh
WITNESS my hand and seal this day of 2011.
James R. McIntosh
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss. , 2011.
On this ___ day of __________, 2011, before me, the undersigned notary public,
personally appeared Deborah H McIntosh and James R. McIntosh, proved to me
through satisfactory evidence of identification, which were _______________ , to
be the persons whose names are signed on the preceding or attached document,
and acknowledged to me that they signed it voluntarily for its stated purpose.
___________________________________
Notary Public (Print Name)
My Commission Expires:
15
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
ACCEPTANCE OF GIFT BY THE NANTUCKET LAND COUNCIL, INC.
The gift of the above Conservation Restriction from, Deborah H. and James R.
McIntosh, is hereby accepted this __day of ____, 2011.
Nantucket Land Council, Inc.
By:
___________________________ _____________________________
Officer’s Name Officer’s Name
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this ___ day of __________, 2011, before me, the undersigned notary public,
personally appeared _____________________________, proved to me through
satisfactory evidence of identification, which were __________________ , to be
the person whose name is signed on the preceding or attached document, and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose.
___________________________________
(Print Name) Notary Public
My Commission Expires:
COMMONWEALTH OF MASSACHUSETTS
Nantucket, ss.
On this ___ day of __________, 2011, before me, the undersigned notary public,
personally appeared ____________________, proved to me through satisfactory
evidence of identification, which were___________________________ , to be
the person whose name is signed on the preceding or attached document, and
acknowledged to me that (he)(she) signed it voluntarily for its stated purpose.
___________________________________
(Print Name) Notary Public
My Commission Expires:
16
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
APPROVAL BY BOARD OF SELECTMEN OF THE TOWN OF NANTUCKET
We, the undersigned members of the Board of Selectmen of the Town of
Nantucket, Massachusetts, hereby certify that at a meeting held on
_________________________, 2011, the Board of Selectmen voted to approve
the foregoing Grant of Conservation Restriction by Deborah H. and James R.
McIntosh to the Nantucket Land Council, Inc. , pursuant to Massachusetts
General Laws, Chapter 184, Section 32, as being in the public interest.
Board of Selectmen of the
Town of Nantucket
_______________________________
____________________________
__________________________________
_____________________________
__________________________________
COMMONWEALTH OF MASSACHUSETTS
NANTUCKET, ss. __________________, 2011
On this _______ day of ________________, 2011, before me, the undersigned
notary public, personally appeared
________________________________________________________________
_______________________________________________________________,
proved to me through satisfactory evidence of identification, which were
_______________________________, to be the person(s) whose name is
signed on the preceding document, and acknowledged to me that he/she signed
it voluntarily for its stated purpose, as a member of the Board of Selectmen for
the Town of Nantucket.
______________________________
Notary Public
My Commission Expires: __________
17
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
APPROVAL BY
SECRETARY OF ENERGY AND ENVIRONMENTAL AFFAIRS,
COMMONWEALTH OF MASSACHUSETTS
The undersigned, Secretary of Energy and Environmental Affairs of the
Commonwealth of Massachusetts, hereby certifies that the foregoing Grant of
Conservation Restriction by Deborah H. and James R. McIntosh, to the
Nantucket Land Council, Inc. has been approved in the public interest pursuant
to Massachusetts General Laws, Chapter 184, Section 32. Said approval is not
to be construed as representing the existence or non-existence of any pre-
existing rights of the public, if any, in and to the Premises, and any such pre-
existing rights of the public, if any, are not affected by the granting of this
Conservation Restriction.
_______________ _______________________________________
Date Secretary of Energy and Environmental Affairs
COMMONWEALTH OF MASSACHUSETTS
, ss.
On this ___ day of _________, 2011, before me, the undersigned notary public,
personally appeared ____________________________________, proved to me
through satisfactory evidence of identification, which were _________________ ,
to be the person whose name is signed on the preceding or attached document,
and acknowledged to me that (he)(she) signed it voluntarily for its stated
purpose.
___________________________________
(Print Name) Notary Public
My Commission Expires:
18
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
EXHIBIT A
Description of Premises
Being shown Lots 15 through 34, inclusive in Block 159 of Surfside lands on Plan
Book 2 Page 60 filed at the Nantucket Registry of Deeds
19
Conservation Restriction
Deborah and James McIntosh to Nantucket Land Council, Inc.
Exhibit B
Nantucket Registry of Deeds Plan Book 2 Page 60
Being shown Lots 15 through 34, inclusive in Block 159 of Surfside lands
Marine & Coastal Resources Department
Town of Nantucket D. F. Fronzuto
34 Washington Street Marine Superintendent/CHM
Nantucket, MA 02554 508-228-7261
dfronzuto@nantucket-ma.gov 508-325-5388 FAX
To: Town Manager
From: Marine Superintendent
Date: September 1, 2011
RE: Public Hearing; Children’s Beach Boat Ramp
Public input, state involvement;
The project was initially designed and then redesigned after a lengthy and detailed
public hearing. There were numerous updates to the public, administration and sign-offs
from the Park and Recreation Commission and the abutters. Permits issued by the CONCOM
Massachusetts DEP and the US Army Corps of Engineers.
The chronological attached, hopefully explaining that the process has been open, detailed
and completely vetted by the public.
The State, Public Access Board Director and I met and this project was at one time (2001)
considered for partial funding by that board. Due to a limited area designated for parking
and funding limitations from the state this project was not able to funded with assistance
from the state.
Design and funding;
Childs Engineering designed this project for the Town of Nantucket. Construction cost was
$578K ($127K from WWIF) (four separate Town Meeting Votes approving funding)
Placed in Service 2007:
The ramp went into service prior to Memorial Day 2007. The ramp has several designed
improvements from the previous ramp circa 1971. The designed improvements were reviewed
by the Capital Programs Committee at their public hearings and the Finance Committee
review process and DEP public hearing in preparation for the four subsequent Town Meeting votes.
The ramp has been utilized by the boat yards, mooring companies, commercial and recreational
boaters, commercial fishermen, USCG, Mass Environmental Police, State Police and the Marine
& Coastal Resources Department since 2007.
I estimate the number of operations (boats launched and recovered) at this facility during the
last five years to be over 30,000 separate evolutions since May 2007.
NANTUCKET HARBOR IS A FEDERAL NO-DISCHARGE ZONE
Marine & Coastal Resources Department
CHILDREN’S BEACH BOAT RAMP AND BULKHEAD
Funding and permitting Chronology:
1993 P & R Annual Town Meeting (ATM) Funding for Bulkhead
(75K)
1998 Received completed plot plan from surveyor
1999-2001 Begin design, permitting, ATM funding (7K)
2000 BOS Approve parking for ramp along Easton Street
2001 Marine Dept. Annual Town Meeting Funding (100K)
(anticipated State Public Access Board match)(parking)
July 2002 Abutters appeal design
July-Dec re-design project, December appeal satisfied
2003 DEP Approves Dredge portion of project
2003 Dredge portion of project accomplished (Winthrop)
2003 Temporary Repairs made to existing ramp
2003 Marine Dept. Annual Town Meeting Funding (150K)
2004 Chapter 91 License received from the State for redesign
2004 Project to bid, lowest bid received $495,000.00
2005 FY-07 Capital request for additional funding (200K)
Project balance (251K)
2006 Project put out to bid, Low bid- $578,426.00 ($127K to come from
WWIF)
2006-07 winter construction
2007-08 Bulkhead return and temporary wave-barrier
2010 Permanently installed wave-barrier
Prop ID 42.4.2 9
Address 15 HARBOR VIEW WY
Owner NANTUCKET TOWN OF C/O PARK & REC 2 BATHING BEACH RD
NANTUCKET, MA 2554
Sale Date
Sale Price $0
Book/Page 00096/ 329
Lot Size 2.74 acres
NOT A LEGAL DOCUMENT
Disclaimer The information displayed on this or any other map produced by The Town of Nantucket is for reference purposes only. The
Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for individual needs. All information is from the Town of Nantucket
Geographic Information System (GIS) database.
For general reference only: Important
caveats which must be considered when using this data are available from the Nantucket GIS Coordinator.
Town of Nantucket, Massachusetts
9/14/2011
Map Composed
Copyright 2005 Town of Nantucket, MA. All rights reserved. Developed by AppGeo
Town of Nantucket Web GIS
Page 1 of 1Town of Nantucket Web GIS - Printable Map
9/14/2011http://host.appgeo.com/nantucketma/PrintableMap.aspx?Preserve=Width&MapWidth=221...
Prop ID 42.4.2 9
Address 15 HARBOR VIEW WY
Owner NANTUCKET TOWN OF C/O PARK & REC 2 BATHING BEACH RD
NANTUCKET, MA 2554
Sale Date
Sale Price $0
Book/Page 00096/ 329
Lot Size 2.74 acres
NOT A LEGAL DOCUMENT
Disclaimer The information displayed on this or any other map produced by The Town of Nantucket is for reference purposes only. The
Town of Nantucket does not guarantee the accuracy of the data. Users are responsible for determining the suitability for individual needs. All information is from the Town of Nantucket
Geographic Information System (GIS) database.
For general reference only: Important
caveats which must be considered when using this data are available from the Nantucket GIS Coordinator.
Town of Nantucket, Massachusetts
9/14/2011
Map Composed
Copyright 2005 Town of Nantucket, MA. All rights reserved. Developed by AppGeo
Town of Nantucket Web GIS
Page 1 of 1Town of Nantucket Web GIS - Printable Map
9/14/2011http://host.appgeo.com/nantucketma/PrintableMap.aspx?Preserve=Width&MapWidth=221...
ITEMCURRENT FEELAST INCREASETERMPROPOSED NEW FEECommercial Mooring$502002Annually$60Private Mooring 11' - 23'$752002Annually$80Private Mooring 24' - 32'$1502002Annually$160Private Mooring 33' - 49'$2252002Annually$250Repair Mooring$1502002Annually$175Private Mooring 50'+$3002002Annually$350Livery Mooring$1502002Annually$175Rental Mooring/Madaket$2002002Annually$225Rental Mooring/Town$50020083Years$525Transient Dockage$5/hour or $25/day2002N/A$15/hour or $75/dayScallop Boxes$152002$18.00Mooring Waiting List$102008AnnuallyUnchangedShellfish Permit Recreational, Resident$252006 AnnuallyUnchangedShellfish Permit Recreational, Non-resident$1002006AnnuallyUnchangedShellfish Permit Commercial, Scallop$2502004AnnuallyUnchangedShellfish Permit Commercial, other species$1502004AnnuallyUnchangedTown Pier Slip Rental, Recreational$75/foot2005AnnuallyUnchangedTown Pier Slip Rental, Commercial$100/foot2005AnnuallyUnchangedAquaculture Lease$25/acreAnnuallyUnchangedIce$2/bag; $3/block$3/bag; $5/blockNEW FEESCRUISE SHIPS $250/tripExcursion/Charter Pick-up @Town Landings, Insurance$25/day (60 days)Shellfish Permit, Recreational Weekend$50/3daysNantucket Yacht ClubPrivate Mooring Fees as established aboveGreat Harbor Yacht ClubPrivate Mooring Fees as established aboveOld North WharfPrivate Mooring Fees as established aboveMadaket MarinePrivate Mooring Fees as established above
Harbor and Shellfish Advisory Board
Town of Nantucket
Chair: Dr. Peter Boyce
To: Board of Selectmen
From: Peter Boyce, Chair
Harbor and Shellfish Advisory Board
Subject: Fee schedule for Harbor Related Activities
At our meeting on September 13, 2011, the Board discussed the fee schedule proposed by the
Marine and Coastal Resources Department.
We voted to recommend that you approve the proposed schedule with the exception of the
proposed new “Excursion/Charter pickup” fee. We felt that this fee might have unintended
consequences for the “occasional use” charter captain, and we voted to recommend that this new
fee be discussed further before adopting it. We understand the goal of imposing a charge for the
use of Town facilities, but we feel there is a difference between those commercial businesses
who use the facilities on a daily basis and those people who might use the facilities once or twice
a week.
We applaud the proposed initiation of a Weekend Recreational Shellfish Permit for $50.
However, we recommend that this be a permit valid for a whole week. Scalloping is only
permitted for five days, from Wednesday through Sunday, and a weeklong license seemed to us
to be more attractive than a weekend license. The enforcement issues would be the same in either
case.
Mosquito Control Advisory Committee (discussed by BOS 8/3/11)
Appointed by: Board of Selectmen
Membership:
1 member of BOH
1 staff member of the DPW to be designated by the Director
1 member of the ConCom
2 citizens to be appointed by the BOS
Term: One year (expiration 9/1/12)
Charge:
The committee will prepare draft special legislation for the BOS/BOH to review and include on
the 2012 ATM warrant by December 31, 2011. The committee will also develop a draft plan to
control mosquitoes on Nantucket, including equipment, staffing, professional services, supplies,
other necessary components and associated estimated costs for a program to be implemented for
FY 2013, using up to $100,000 (approved at the June 14, 2011 special election). The committee
will determine if future estimated costs exceed that amount and include this information in its
final report. The committee will work to identify mosquito “hot spots” on both public and private
property in sufficient time so that the public property can be treated in time for the 2012 season;
and, to seek the possibility of treating private property with the permission of the owner(s) if
special legislation has not been secured by then. The committee will consider and evaluate
various treatment applications and the criteria under which to apply specific applications.
Timeline:
Advertise 8/18, 8/25, 9/1
Public hearing on applications 9/21
Appointments 9/28
Committee must start meeting immediately so as to provide draft legislation by 12/31/11
Draft plan for a program for FY 13 to be provided by 2/29/12
Draft plan for a program for FY 14+ to be provided by 6/30/12
Commission on Disability (appt. by Town Manager)
Nancy Rezendes 2012
Whitey Willauer 2012
VACANT 2013
Ellen Braginton-Smith 2013
Georgia Ann Snell 2014
Jeanette Topham 2014
Milton Rowland Chairman 2014