8/28/1996 ZONING BOARD OF APPEALS Minutes

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from New Seabury, uh. . . in a. . . in contract form, uh. . . thirty (30) acres of open space uh. . . as part of the 1990 vote through Town Meeting. So again, since the deed containing the restrictions which is being modified here, was between New Seabury and the Town. Then therefore it was only New Seabury and the Town. . . it ' s only the parties to that Agreement that can change it. That ' s black letter Massachusetts Real Estate Law. Only the parties to an agreement can change what that agreement says. Uh. . .The 164 By-Law says in order to get this Special Permit back down to F5 you need two things to happen. You need a vote of the Board of Appeals saying this is within the spirit of the By-Law and then you need the Deed. What ' s being changed tonight . . .but what changed in 1995 was only the second thing. The first thing wasn' t touched. If we tried to. . . to change that first thing, I absolutely agree, that that place to come is before you, because you had jurisdiction over that. when you change that second thing, it ' s the parties who made that thing are the only parties who can change it . Uh. . . so therefore, it ' s improper for the Water District to. . . to request the Board of Appeals to strike down that Modification Agreement. So, I urge you to uphold the validity of the 1990 Town Meeting vote and the 1995 contract signed by the Selectmen as authorized by the Town Meeting. And as I said earlier, and I ' ll give you just a very brief detail here, there is lots of precedent for that . Uh. . .and one is the prior uh. . . agreement modified. . .modifying restrictions was dated December 27, 1971 was entered into not by the Board of Appeals, but by New Seabury and the Town of Mashpee, by the Board of Selectmen as authorized by a prior Town Meeting vote. Just exactly like this 1995 agreement modifying restrictions (inaudible) . The Board of Appeals in 1971 played no role whatsoever at that time because it didn' t have any jurisdiction with respect to the Modification Agreement. That was, as I mentioned to you. . . that was the opinion of the Town Counsel in 1971, that was the opinion of a second Town Counsel in 1990 and that is the opinion of the Town Counsel for 1995-1996 . By the way, those three Town Counsels uh. . . two of them went on to become judges . That ' s how respected their opinions were. The second thing uh. . . that I want to reiterate and I . . .and I have a quote from the case that I mentioned to you, is the 1975 case of Barns. . . in Barnstable Superior Court by then Judge David Nelson uh. . . in New Seabury Corporation vs. the Board of Appeals, Superior Court Equity Number 32799 . In his Findings of Fact, Judge Nelson expressly addresses the existence of the 1971 uh. . . agreement modifying restrictions. And he finds as follows and this is a quote from that Decision of the Superior Court which is in writing. " . . .Number (quote) . . .number 15-A Special Town Meeting was called on December 6, 1971 whereby the Town voted to authorize the Selectmen to execute, acknowledge, seal and deliver an Agreement with New Seabury Corporation which modified restrictions in the Deed at the registered land (end quote) . " -8- i i