MapLink™ | Procedures | Open Space Developments

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Open Space Developments
(1) Special permit required. In open space developments, no building or premises shall be used, nor shall any building or structure be constructed or reconstructed, unless a special permit has been granted by the Planning Board in accordance with the provisions of this section.
(2) Zoning districts. Open space development shall be limited to the following zoning districts: Rural Residence RR, Residential A1, A2 and A3.
(3) Compliance with subdivision regulations. Subsequent to the granting of the special permit, compliance with the rules and regulations regarding the subdivision of land must be met.
(4) Previously approved subdivisions. Where a definitive plan has been previously approved under conventional zoning by the Planning Board and construction has not commenced, an applicant may submit a new plan under this section. As an incentive to encourage new applications to be made under this section:
(a) The number of allowable lots may be based on the previously approved plan.
(b) Consideration may be given by the Planning Board to requests for waivers from the subdivision rules and regulations if a benefit to the City is demonstrated, so that the cost of constructing roads, utilities and other infrastructure items may be reduced.
(c) Application fees may be waived by the Planning Board.

Dimensional and intensity requirements.
(1) Minimum area of site. The total area of the site proposed for open space development shall be at least five acres. Any site shall have a minimum of 50 feet of frontage on a public way.
(2) Maximum density.
Number of lots. Except as provided below, the total number of building lots on the tract proposed for open space development shall not exceed the number of lots which could reasonably be expected to be developed under a conventional plan in full conformance with zoning and subdivision regulations, health codes and wetlands protection regulations. The number of lots allowable without bonuses shall be determined as follows:
[1] The applicant shall prepare a conventional plan to show the number of lots which could be created by right under conventional zoning. In order to ensure that the lots are buildable, the plan shall not include building lots that have more than fifty-percent coverage by wetlands or by slopes of 25% or greater. The requirements for the conventional plan are further detailed under Subsection H.
[2] Alternatively, the applicant may elect to use the number of lots from a definitive subdivision plan for the same parcel which has a valid approval from the Planning Board.
Density bonuses and incentives. The applicant may apply for density bonuses as an incentive to provide certain amenities which would not otherwise be provided in the open space development. The Planning Board shall authorize an increase in the number of lots of up to 15% above the number otherwise permitted in this section as specified in the preceding Subsection E(2)(a) and (b), based on the following criteria, unless the Planning Board explains in its decision why unusual circumstances cause it to act otherwise:
Affordable housing. A bonus of one added lot for each affordable housing unit included in the open space development. Said affordable units shall be administered by the Marlborough Housing Partnership or successor agency, where applicable. The affordable housing shall meet the following requirements:
[a] The housing shall meet the requirements of the definition of "affordable housing" included in § 650-5.

[b] All affordable housing units shall meet the requirements of § 650-26A(1)(b), Local preference; (c), Distribution of affordable units; (d), Appearance; (e), Minimum and maximum floor area; (f), Period of affordability; (g), Limitations on change in affordability; (h), Staging of affordable and market-rate units.

[c] The affordable housing shall consist of either single-family dwellings or single-family zero-lot-line dwellings, as defined in this chapter. For the purpose of this section, single-family zero-lot-line dwellings shall not be attached to more than one other unit. No multifamily dwelling units shall be permitted. Single-family zero-lot-line dwellings shall be permitted in an open space development solely for the purpose of providing affordable units and shall be designed to appear as attached single-family dwellings when viewed from the street, shall fit into the overall design, and shall be reasonably mixed with the single-family dwellings.

(3) Intensity regulation. The Planning Board may grant a reduction of all intensity and yard regulations applicable to the underlying zoning districts for all portions of an open space development, provided the Planning Board finds that the reduction will result in better design, improved protection of natural and scenic resources, and will otherwise comply with these regulations, and also provided that in no instance shall a lot deviate from the following table of requirements: see table for information on lot area nd yard requirements.

Application and review procedure.
(1) Preapplication review. Prior to filing an application, the applicant shall meet with the Planning Department in order to promote better communication and avoid misunderstanding. The Planning Department shall arrange for a preapplication review with the Conservation and Engineering Departments.

(2) Streamlined submission. The Planning Board approval of a special permit hereunder shall not substitute for compliance with the Subdivision Control Act nor oblige the Planning Board to approve a related definitive plan for subdivision, nor reduce any time periods for Planning Board consideration under that law. However, in order to facilitate processing, the following procedures allow for streamlined submission of an application for special permit and Subdivision Plan approval. The Planning Board may adopt further regulations if necessary, insofar as practical under law, to satisfy the Planning Board's regulations under the Subdivision Control Act.

(3) Summary of two-step process.
(a) Step one: submission of concept plan to the Planning Board for special permit. In the first step, the applicant shall submit a concept plan for the open space development together with a conventional subdivision plan showing the number of lots determined in accordance with Subsection E(2). A public hearing shall be held on the special permit, followed within 90 days by a decision of the Planning Board to grant or deny a special permit for the open space development in accordance with MGL Chapter 40A.

(b) Step two: submission of definitive subdivision plan. If a special permit has been granted, the applicant must submit a definitive subdivision plan for the open space development, based upon the concept plan. If the special permit has been denied, the applicant may submit a definitive subdivision plan for a conventional layout. The Planning Board shall hold a public hearing for the definitive subdivision plan and render a decision within 90 days in accordance with MGL Chapter 41.

(4) Special permit application.
(a) Special permit rules and regulations. The Planning Board may adopt rules and regulations for the issuance of special permits applicable to this section, in accordance with MGL Chapter 40A.

(b) Submission. The application shall be filed in accordance with MGL Chapter 40A.

(c) Application materials. The application or petition for special permit shall be made in writing by the applicant or his duly authorized agent, who shall file the following number of sets of application materials at the offices set forth below: see table for details.

(d) Special permit review fees. At the time of application, the applicant shall pay a filing fee at the office of the City Clerk in the amount calculated to be the same as the preliminary plan design review fees specified in the Marlborough Subdivision Rules and Regulations. The Planning Board may waive the fees.

(e) Conventional subdivision plan. The conventional subdivision plan required to determine the number of lots allowable shall be drawn to the same scale as the concept plan and shall contain the following: see § 650-28H(4)(e) for details.
(f) Preparation. The concept plan shall be prepared by a professional landscape architect and a professional engineer, both registered in Massachusetts.

(g) Concept plan. The concept plan shall contain the following information, in addition to all requirements of a preliminary plan as specified in the Subdivision Rules and Regulations: see § 650-28H(4)(g)

(5) Conservation Commission review. The Conservation Commission shall review the special permit application and shall submit in writing to the Planning Board its report and recommendations upon the degree to which the open space development enhances the protection of the environment, including at least:
(a) Compatibility with the requirements of the Massachusetts Wetlands Protection Act.
(b) Evaluation of the location and configuration of open space parcels as to their value to recreation, wildlife habitats and environmental protection.

(6) Public hearing, notice and decision. The procedure for public hearing, notice and decision shall be held in conformance with MGL Chapter 40A.

(7) Decision.
(a) Evaluation of plan. The Planning Board shall approve or approve with conditions a special permit for an open space development, provided that the Planning Board determines that the open space development is at least as beneficial to the City as a conventional plan. In evaluating the plan or plans, the following criteria shall be considered by the Planning Board:
(b) Design guidelines and evaluation criteria.
[1] Protection of scenic views and vistas.
[2] Protection of valuable or sensitive environments, with wetlands located away from roads or behind lots.
[3] Buffer areas are provided which minimize conflict between residential and agricultural or other uses or between adjacent residential subdivisions and lots of reduced size in an open space development.
[4] Proximity of the maximum number of lots (especially smaller lots) close to the common open space.
[5] Consolidation of open space as large, contiguous units, wherever possible.
[6] Continuity of open space of adequate width within the development, connecting to adjacent open space areas, whether existing or in future potential developments adjoining the site. (Narrow strips of common open space should be used only when necessary for access or buffers.)
[7] The elements of the site plan (lots, buildings, circulation, common open space, landscaping, etc.) shall be arranged favorably with existing natural features so as to minimize soil removal, tree cutting and general disturbance to the site.
[8] Protection of major street capacity by avoiding driveways egressing onto such streets.
[9] The pedestrian circulation system shall be designed to assure that pedestrians can move safely and easily on the site and between properties and activities within the site and neighborhood.
[10] The street system shall not only provide for the safe and convenient movement of vehicles on and off the site but also be designed to contribute to the overall aesthetic quality of the development.
(8) Findings. The Planning Board may grant a special permit only if the Planning Board finds that:
(a) The development meets the objectives of an open space development listed in Subsection B.
(b) The development meets the design criteria of an open space development listed in Subsection H(7)(b).
(c) The development will not have a substantial or undue adverse effect upon adjacent property or the character of the neighborhood.

(9) Definitive plan.
(a) Submission and general procedure. If the open space development special permit is granted by the Planning Board, then the applicant shall submit to the Planning Board a plan in conformity with the requirements and procedures for definitive plan submission and review under the Subdivision Rules and Regulations of the Planning Board.
(b) Limitation on subdivision. No open space development for which approval has been granted under this section may be further subdivided and a notation to this effect shall be made on the definitive plan.
(c) Waivers. In accordance with MGL c. 41, § 81R, the applicant may request a waiver from the Subdivision Rules and Regulations. It is the intent of this section that the comparative impact analysis should be waived.
(d) Review and public hearing. The Planning Board then shall review the aspects of the open space development with regard to its compliance to the Subdivision Control Law, and shall hold a public hearing as required by MGL c. 41, § 81T.
(e) Variations from concept plan. The overall concept shall only be reconsidered if there is substantial variation between the definitive plan and the concept plan.  See § 650-28H(9)(e) for details.

See § 650-28: Open space developments for complete, detailed information.
See Permitting for information on permits.