08/28/1996 ZONING BOARD OF APPEALS Decisions

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MEMORANDUM The Modification Agreement dated May 22, 1995 modifies New Seabury Corporation's Special Permit which arose as a result of Section FV of the 1964 Mashpee Zoning By- Laws, a deed from the Popponesset Corporation to the Town of Mashpee dated July 13, 1964 and a Decision by the Mashpee Board of Appeals dated February 21, 1964. Section FV of the Town of Mashpee Zoning By-Law of 1964 entitled Cluster Zoning District provides that, "if a plan of land, containing 100 or more acres...of which not less than 60 acres is registered land, is submitted to the Board of Appeals upon petition...; if the Board finds that development of the land...will fulfill the spirit and intent of this By- Law without substantial detriment to the public good; and if a portion of the registered land...is deeded to the Town of Mashpee by a deed which states that the land...is benefited by restrictions imposed thereby..." then, all other provisions relating to prohibitions on use and minimum lot size and frontage requirements shall not be applicable to said registered land. In 1964, acting under Section FV of the Mashpee Zoning By-Law the Popponesset Corporation(now known as New Seabury Corporation) filed a Petition with the Town of Mashpee Board of Appeals seeking the approval of a proposed development of 1,240 acres of registered land. The Board found that, "with the combination of contours, focal points such as bodies of water, marshes,trees, ground growth and other points of natural beauty, and the character of the adjoining already developed property, [the] tract is ideally suited for a cluster plan." The Board unanimously voted that the development of the registered land,on the cluster-zoning principal, will fulfill the spirit and intent of the Mashpee Zoning By-Law, without substantial detriment to the public good, and without nullifying or substantially derogating from the intent and purpose of the Zoning By-Law. In order to satisfy the deed provisions in Section FV the Popponesset Corporation granted to the Town of Mashpee four parcels of registered land in Mashpee. The premises conveyed were benefited by restrictions pursuant to Section FV of the Mashpee Zoning By-Law, which includes but is nothmitedLe the maximum number of dwelling"units, and the maximum number of square feet of area to be devoted to commercial uses. The Modification Agreement executed and dated May 22, 1995 between the Town of Mashpee and the New Seabury Operations Nominee Trust purports to re-modify the restrictions contained in the deed from Popponesset Corporation to the Town of Mashpee dated July 13, 1964, which was previously modified on December 27, 1971, and to re- modify the Special Permit granted by the Board of Appeals on 1964. Among the concerns of the Mashpee Water District is the fact that these most recent modifications to the deed have not been properly recorded at the Registry of Deeds or the Land Court. Because these changes have not been recorded, interested third parties do not have notice of any modifications to the development plan or the restrictions related