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Hawthorne Park.Pdf From: Sarah F. Alger To: Andrew Vorce Cc: Vicki S. Marsh ([email protected]); Megan Trudel; Holly Visco; Terry Sanford ([email protected]); Judith Wegner Subject: Hawthorne Park Date: Friday, March 6, 2020 12:22:29 AM Dear Andrew, I was surprised to learn that the Hawthorne Park matter was discussed by the Board at its meeting today. Based upon my conversation with staff and a review of the agenda, I understood that this matter was continued until Monday night. My experience has been that when an item on the agenda is specifically marked as being continued to a date certain, as was the case here, that is notice to the public and applicants alike that the matter is off the agenda for that meeting and will not be discussed. Had we known that the matter would be discussed at today’s meeting, both my client and I certainly would have attended. That said, I understand that the Board has raised the following questions that it hopes can be addressed at or before the meeting Monday evening. We are happy to answer any questions that the Board or any interested party might have. The questions posed by the Board are below in blue, and my responses are in red. 1. What are the consequences if the Board declines to approve signing this document? I do not believe that there would be any consequences if the Board declined to approve the proposed document. The language of the special permit is clear that the permit is not affected by the failure of the applicant to find a holder for the Conservation Restriction (“CR”) as long as the Board finds that the applicant has made a good faith effort. At this point, given all of the steps that the applicant has taken and the number of organizations approached, I think it would be difficult to find that the applicant has not made a good faith effort. The applicant is offering the Grant of Right of Enforcement of Restrictions as an additional gesture of good faith to the Board. It is intended as belt and suspenders. I do not feel that it is strictly necessary, because the property is already protected by the terms of the Special Permit and the Declaration of Restrictions and Easements. The proposed restrictions are in part redundant given the terms of the Special Permit and the existing grant of right of enforcement held by the Board that allows the Board to enforce aspects of the Declaration of Restrictions and Easements, but the proposed Grant of Right of Enforcement of Restrictions provides the Board with an additional enforcement mechanism that it does not currently have. I hope that we do not lose sight of the bigger picture here. As you know, the applicant could have subdivided the property into 15 lots as a matter of right on an ANR basis – that would have meant the potential for 15 primary dwellings, 15 secondary dwellings, 15 tertiary dwellings, countless outbuildings such as shed, garages, cabanas, and studios, and 15 swimming pools. Instead, the applicant chose to go with a flex development that resulted in 17 lots with 17 primary dwellings, no secondary or tertiary dwellings, a community pool, severely limited potential for outbuildings, and over three acres of protected open space in the Town overlay district. In addition, the applicant cleaned up a junk yard that had been an enforcement nightmare for the Town for years, costing tens of thousands of dollars with no appreciable results, and removed trailer loads of abandoned and disabled vehicles (and the gasoline, oil, and other fluids in them) from the property. 2. Does the Board have the authority to hold property and enforce the restriction? As I understand it, the Board does not have the authority to hold real estate, and as a result, the Board could not hold the CR. Only the Conservation Commission and the Select Board, as well as the Land Bank, have the authority to hold real estate and thus have the authority to hold a CR, but all three of those entities have declined to hold the proposed CR at Hawthorne Park. The Board does have the power to enforce restrictions granted to it. It is a matter of routine practice for the Board to be given grants of rights of enforcement of restrictions. In fact, the Board already holds a Grant of Right of Enforcement of Restrictions in this matte that allows the Board to enforce certain provisions of the Declaration of Restrictions and Easements imposed as a condition of the Special Permit. I am hard pressed to think of an Approval Required subdivision or Special Permit that does not have some form of grant of right of enforcement of restrictions associated with it. 3. What is the HOA’S involvement in enforcement both independently and with potentially working with the Board? The HOA will be the owner of the restricted land. As a result, the HOA cannot be the holder of the right to enforce the restrictions. That said, as the owner of the land, the HOA is responsible for ensuring that the property is in compliance with the Special Permit and the Declaration of Restrictions and Easements. If the Board were to accept the proposed Grant of Right of Enforcement of Restrictions, the HOA, as the owner of the land, would be responsible for ensuring that the property was in compliance with its terms and conditions. I hope that this adequately answers the Board’s questions. I will be at the meeting Monday night and look forward to having the opportunity to discuss this matter in more detail with the Board at that time. In the meantime, please let me know if you have any further questions or need any additional information. Regards, Sarah Alger Sarah F. Alger, PC Four North Water Street Nantucket, Massachusetts 02554 508-228-1118 telephone 508-228-8004 fax Five Parker Road Osterville, Massachusetts 02655 508-428-8594 telephone 508-420-3162 fax WIRE FRAUD ALERT: Email hacking to fraudulently misdirect funds is on the rise. ALWAYS CONFIRM WIRE INSTRUCTIONS. If you receive an e-mail or other communication from this office requesting that you wire or otherwise transfer funds, please call a known contact person at this firm using a telephone number found through an independent source to verify the request and any corresponding instructions before you initiate any transfer. Please do not rely on an email that appears to originate from this office. We are not responsible for any wires sent by you to an incorrect bank account. Our wiring instructions never change. CONFIDENTIALITY NOTICE: This e-mail is intended to be viewed only by the addressees. It may contain privileged and confidential data that is exempt from disclosure under applicable law. Any dissemination of this e-mail is strictly prohibited without our prior written consent. If you are not an intended recipient, or an employee or agent thereof, or if you received this e-mail in error, please notify us immediately by reply e-mail and delete the original e-mail and any copies. We make no representations or warranties concerning the safety of this e-mail or any attached documents and suggest that all received documents be scanned by available virus detection software. GRANTOR: Hawthorne Park LLC GRANTEE: The Town of Nantucket, acting by and through its Planning Board ADDRESS OF PREMISES: 8C Hawthorne Lane PREMISES: LOT 82, Land Court Plan No. 14973-P FOR GRANTOR’S TITLE SEE: Certificates of Title Nos. 26517, 26345, 26056, and 26090 GRANT OF RIGHT OF ENFORCEMENT OF RESTRICTIONS Hawthorne Park LLC, having a mailing address in care of Alfred Terry Sanford, Manager, 105 Newbury Street, 4th Floor, Boston, Massachusetts 02116, being the sole owner of that certain parcel of land located in Nantucket, Nantucket County, Massachusetts, being an approximately 3.32 acre (144,511±square feet) property, now known and numbered as 8C Hawthorne Lane, being Lot 82 on Land Court Plan No. 14973-P ( the “Premises”), by virtue of Certificates of Tile Nos. 26517, 26345, 26056, and 26090, for its successors and assigns (the “Grantor”), hereby grants to the Town of Nantucket, acting by and through its Planning Board, having an office located at Two Fairgrounds Road, Nantucket, Massachusetts 02554, and its permitted successors and assigns (the “Grantee”), for nominal consideration, IN PERPETUITY, the right to enforce to the following restrictions (the “Restrictions”) against the land located in Nantucket, Nantucket County, Massachusetts, being an approximately 3.32 acre (144,511±square feet) property, now known and numbered as 8C Hawthorne Lane, being Lot 82 on Land Court Plan No. 14973-P ( the “Premises”)the Premises, which Premises is shown as the “Community Lot” on the plan entitled, “Restriction Plan,” drawn by Blackwell & Associates, Inc., dated December 30, 2019, recorded with Nantucket Deeds as Plan No. __________, a copy of which is incorporated herein and attached hereto as Exhibit A (the “Plan”). I. PURPOSES. This Grant of Right of Enforcement is granted in lieu of a permanent conservation restriction pursuant to the provisions of Mass. Gen. Laws c. 184, §§31 through 33 to fulfill the terms and conditions of that certain Flex Development Special Permit issued by the Nantucket Planning Board (the “Planning Board”) in File No. 61-16, dated January 9, 2017, registered with Nantucket Registry District as Document No. 156034, as amended by Amendment #1 to a Previously Granted Flex Development Special Permit issued by the Planning Board in File No. 80-17, dated November 17, 2017, registered with Nantucket Registry District as Document No. 158692 and as the same may be amended from time to time by the Planning Board (the “Special Permit”).
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