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it here) "Plan entitled, Cluster Zoning Plan on a Portion of New <br /> Seabury, Mashpee, MA, dated January 1.6, 1964 . " And it <br /> specifically says in this, referred to as (quote) . . . "The plan. " <br /> That language in both the Deed and in the Special Permit uh. . . is <br /> no coincidence. "The plan" refers to the plan as referred to in <br /> the 1964 Deed. And what it says in the Deed is that in each <br /> section shown on "the pian" a maximum number of dwelling as <br /> defined in Section F5 of the Mashpee Zoning By-Law. And the <br /> maximum number of square feet of area, including (inaudible) <br /> excluding car parking to be devoted to commercial uses other than <br /> recreational uses shall be as follows : In Section 5 is said to <br /> be the maximum number of dwelling units was to be twenty-five <br /> (25) dwelling units and the maximum number of square feet of <br /> commercial feet was set, in Section 5, to be a hundred eighty <br /> thousand (180, 000) square feet . And it was on that basis, under <br /> basis of that plan and its futures as described in the 1964 <br /> Decision of the Zoning By-Law of Board of Appeals . Namely, that <br /> this plan respected the natural . . . the terrain, or natural <br /> features of the land; provided for a well located good balance <br /> of dwelling unit density and commercial facilities and amenities <br /> and so forth. it was on that plan and on that basis that the <br /> Board made a finding that the development of the land would <br /> fulfill the spirit and intent of the Zoning By-Laws without <br /> substantial detriment to the public good and without nullifying <br /> or substantially derogating from the intent and purposes of the <br /> Zoning By-Law. That plan, which provided twenty-five (25) <br /> dwelling units and a hundred and eighty thousand (180, 000) square <br /> feet of commercial space in Section 5, is the predicate of which <br /> the Board of Appeals in 1964 made its finding. <br /> We don' t know what the Board of Appeals in 1964 would have <br /> done with a Section 5 Plan that showed some four hundred and <br /> twenty-five (425) dwelling units. we don' t know what the Board <br /> of Appeals in 1964 would have done with a plan that showed uh. . . <br /> oh. . . three hundred and forty thousand (340, 000) square feet of <br /> commercial space in Section 5 . I don' t suggest to you that they <br /> would have approved it; I don' t suggest to you they would not <br /> have approved it. But what I do emphatically suggest to you is <br /> that Mr. Fox' s concept of a box within which the Town is free to <br /> move things around in any way that it chooses without coming back <br /> to the Board of Appeals for a finding, that moving things in that <br /> manner is consistent with the principles which guide the issuance <br /> or non-issuance of a Special Permit, is completely wrong. <br /> Now on the question which I think is confusing uh. . .perhaps <br /> confusing Mr. Fox or (inaudible) Board of the. . . the need for <br /> Selectmen of the Town deeding action is a principle black letter <br /> law in Massachusetts that if the Town holds an interest in land, <br /> and the 1964 Zoning By-Law specifically contemplates and requires <br /> that before a Special Permit Cluster Development is granted, that <br /> the Town hold an interest in land. Uh. . . it says that uh. . . <br /> dominant tenement is deeded to the Town of Mashpee by a Deed <br /> which states that the land thereby conveyed is benefitted by <br /> -11- <br /> i <br />