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-2- <br /> i . <br /> be kept in an open or natural state and not be'built for residential use or t <br /> developed for accessory uses such aspazking or roadway."(emphasis supplied.) <br /> In addition, Section 9.3623 of the Zoning By-Law in effect when your special } <br /> permit was considered and granted, provides that the open space "shall ! <br /> be kept in an open and natural state and not be built for residents use or <br /> developed for accessory uses such as parking or roadway, (emphasis supplied.) <br /> The corporation or trust shall own and maintain the common open space <br /> and shall not dispose of any of the common open space by sale or otherwise." ' <br /> (emphasis supplied.) .•,•�,; ; r • <br /> It is my opinion that your action in conveying an interest consisting of <br /> an easement in that part of the open space lot referred to in the easement <br /> deed, constitutes a violation of both Chapter 40A, Section 9 and the applicable <br /> provision of former Section 9.3623 of the Zoning Byf Law as referred to <br /> in the preceding paragraph. <br /> It is my further opinion that neither the Zoning Board of Appeals nor the <br /> Planning Board had any authority or power to grant a variance from the <br /> provisions of the by-law; as this would have constituted a use variance <br /> in violation of a specific provision of the Zoning By-Law in effect at that <br /> time. In addition, neither Board had the power to grant a waiver of the ' <br /> express prohibition contained in Chapter 40A, Section 9, Paragraph 5. <br /> I point out the foregoing in the event that you maintain a position that <br /> you did receive authorization from either or both of these Town agencies <br /> to make use of a part of the open space lot for the purpose of construction <br /> of a future roadway. This appears to be the position currently maintained <br /> by Greenbrier Corporation and Merganser Realty Trust. Let me clearly <br /> state, however, that it is the position of both the Zoning Board of Appeals <br /> and the Planning Board that no such permission was ever granted to your <br /> corporation. r <br /> r <br /> For the sake of discussion, even if an easement had been discussed with <br /> the Zoning Board of Appeals and the Planning Board, the cluster plan approved t <br /> by the Zoning Board of Appeals and the subdivision plan approved by the <br /> Planning Board would each require subsequent modification by vote of <br /> both of these boards. No such application for modification was filed by <br /> you or by anyone on your behalf with either the Zoning Board of Appeals <br /> or the Planning Board. <br /> Demand is hereby made upon you to immediately institute whatever procedure <br /> is necessary to abate and/or.prevent a violation of Chapter 40A, Section <br /> 9 and the Mashpee Zoning By-Laws, and the provisions of Chapter 41, Section <br /> 81A et seq. and the Rules and Regulations of the Planning Board as applicable <br /> to the modification of an approved subdivision plan by a change in the approved <br /> road layout (easement). <br /> I am extremely distressed at what has taken place in view of the fact that "! <br /> the Land Court has been furnished documentation which I believe to be <br /> unauthorized by the Town, and which is misleading to both the Land Court <br />