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Board of Appeals Mashpee Water District -N.O.A. 96-48 3. <br /> 5. The 1995 Modification Agreement does not modify or amend the February 21, <br /> 1964 Facts and Decision issued by the Board of Appeals and referred to as the <br /> special permit. Modifying or amending the special permit is unnecessary since <br /> the special permit does not specify the numbers of residential units or <br /> commercial floor area permitted in the various sections of the New Seabury <br /> development. <br /> 6. The arrangement of a Board of Appeals special permit and a separate deed <br /> with restrictions was approved by Town Meeting in 1964 when Section F.V. <br /> was added to the Zoning By-law. Section F.V. required a finding by the Board <br /> of appeals that development of the land will fulfill the spirit and intent of the <br /> Zoning By-law without substantial detriment to the public good. This finding <br /> was made by the Board of Appeals as part of the special permit. <br /> 7. Section F.V. of the 1964 Zoning By-law also required that land be deeded to <br /> the Town and that the Town would hold enforceable restrictions on all of the <br /> remaining New Seabury land. This was accomplished, as concluded by Judge <br /> David S. Nelson in the 1975 Barnstable Superior Court decision in New <br /> Seabury Corporation v Board of Appeals of Mashpee. In upholding this <br /> decision, the Massachusetts Appeals Court stated in New Seabury Corporation <br /> v. Board of Appeals of Mashpee, 28 Mass. App. Ct. 946 (1990) that New <br /> Seabury Corporation complied in all respects with the By-law requirements. <br /> Record of Decision: <br /> Upon motion duly made and seconded the Board of Appeals voted unanimously on <br /> September 11, 1996 to deny the Appeal. The Board voted to: <br /> 1. uphold the Building Inspector's decision not to rescind the Modification <br /> Agreement for the reason that the Building Inspector has no authority to <br /> rescind the Modification Agreement and further that the Town's right to <br /> enforce restrictions on the New Seabury land is an interest in land that may <br /> only be modified by agreement between the Town and the owners of the land <br /> burdened by the restrictions, as authorized by vote of Town Meeting. <br /> R <br />