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review of the applications recorded document that he submittedrade a tentative <br /> determination that it could approve the pending the application under MGL 3 1 <br /> 15.2162 without the need for additional restrictions to the open space. The <br /> department would require evidence that the existing restriction was at least as <br /> restrictive as what wouldhave been required under a standard departmental credit <br /> land use restriction. Now, he understood that the DEP had not yet made a final <br /> binding determination and that final departmental action could not be taken until the <br /> BOH had approved the plan. The P's counsel did in fact sign this letter approving <br /> that this was the I P's tentative determination in this matter. The matter had not <br /> been formally submitted to the IEP for approval because this board denied it. They <br /> hadn't approved it and it didn't go to through the process of the DEP until after they <br /> approved it. So it was kind of a Catch 22 here. The DEP could not have a formal say <br /> in this matter until a formal application was submitted. <br /> IVIS. warden asked when that letter gent out. <br /> Mr. Costello stated that it had been issued and received in May of 2004. <br /> Mr. Harrington couldn't see how the DEP could go along with therm because right in <br /> the r P' own form it said or within their regulation it said that they rust have the <br /> owner's permission to use that land. Right now the owner was the town. So the DEP <br /> would be going against their own regulation if they allowed this to go through <br /> because the town owned the land. It was given to therm before he had rights to use <br /> the property. <br /> Mr. Costello stated that the IEP was probably arra again he hadn't spoken with Arm <br /> Bingham about this. He was just speculating as to what their vier was going to be. r <br /> t <br /> They ere probably going to say, "Well, we can infer the town, the owner's <br /> approval, by virtue of the approval's that had been previously been issued for the <br /> subdivision in that it required this open space to be conveyed and properly restricted <br /> for the purposes of subdivision approval. The town was aware that this lana would <br /> be held in that restricted state in perpetuity accordingly the town can't now take, <br /> even thought it was a differ is board with completely different jurisdictions and <br /> regulations governing, the tonin can't now tale the position that they require <br /> additional different land to be held in open restricted state in order for you to meet <br /> these specific IEP regulations." <br /> Ms. Garron stated that there was no real documentation to substantiate that position. <br /> Mr. Costello agreed and stated that it was an open issue. There was no black letter <br /> law on this point. what was going to happen was that it would end up before a judge <br /> down in Barnstable Superior Court who will consider the pros and cans. He wanted <br /> to be honest with them. This was definitely the type of case where the equitable <br /> considerations will be taken into account. A judge was more likely than not, they <br /> were going to argue on the detailed application of the regulations that applied to this <br /> hoard's actions. They were going to look at the DEP regulations, the local <br />