8/28/1996 ZONING BOARD OF APPEALS Minutes

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restrictions. In order for a town to modify and release or change or let go of any interest in land that it has . And that ' s where the 1954 Deed was . Special Town. . .not Special Town Meeting, Town Meeting actions required that Board of Selectmen, Conservation Commission, uh. . . a uh. . . a Council on Aging, any town body that manages or controls a parcel of land can' t simply vote to deed it away to someone or could the Board of Selectmen do anything with the use of land or a town do anything with a use of land, a Town Meeting vote is required. There are numerous cases on that and a Statute right on that point . So that in order for the Town to do anything vis-a-vis, changing the way these development rights were structured, Town Meeting action was absolutely required. And in 1971 that apparently happened, in 1990 it happened again. What I 'm saying to the Board is Town Meeting action (inaudible) that group isn' t enough. It ' s not the Town Meeting that is charged by Statute or by Mashpee Zoning By- Law with finding a particular configuration is consistent with public good. . . it ' s not the Town Meeting or the Board of Selectmen that is charged with finding that particular configuration of the development will not derogate from the intent and purposes of the by-law. This Board by Statute and this Board by application of the Mashpee Zoning By-Laws is the only Board that can do that . And if you look at the 1995 Agreement, the Board of Selectmen purport to (inaudible) the Board of Appeals . They simply say, The Town of Mashpee hereby authorizes four hundred and twenty- five (425) dwelling units to be erected in Section 5 . This includes being deemed by the Mashpee Board of Selectmen to be of substantial compliance with the New Seabury Special Permit. The Board of Selectmen have no business deciding what ' s in compliance with the Special Permit or not. The exclusive jurisdiction for that is with the relief courts . Uh. . .They say the same thing about three hundred and forty thousand (340, 000) square feet of commercial space. They say that the Town of Mashpee authorizes three hundred and forty thousand (340, 000) thousand square feet of area be devoted to the commercial uses in addition to recreational uses in Section 5 . This increase being deemed by Mashpee Board of Selectmen to be of substantial requirement within the New Seabury Special Permit . The Board of Selectmen simply have no authority to make those determinations . They have the right to carry out a vote of the Town Meeting authorizing them to convey an interest in land or change it . But they have no right and no power to make factual findings which are a predicate under the Zoning By-Law to that particular conveyance uh. . .being able to be carried out . Lastly, and. . . and this is very important for us to touch upon. Mr. Fox has made the assertion that any subsequent purchaser of the property would have to comply with the restrictions that the Board of Selectmen has imposed upon uh. . . the land in the Agreement . Uh. . .That ' s just flatly not true. And the reason that that ' s not true is because this Agreement hasn' t been recorded. The Agreement isn' t required to be recorded. Uh. . . It says that it may be recorded in the -12-