Section 44 Open Space Community
Section 44. Open Space Community
44.1 Applicability. The Planning Board may grant Site Plan Approval for the construction and occupancy of an Open Space Community in a Residential I, Residential II, Residential III, Suburban I, Suburban II, Suburban III, and Suburban IV District, provided that the community contains at least ten (10) contiguous acres. The tract may be a subdivision or a division of land pursuant to Massachusetts General Laws Chapter 41, Section 81P, provided, however, that an Open Space Community may also be permitted where intended as a condominium on land not so divided or subdivided.
44.2 Purpose and Intent. Primary purposes for Open Space Community, hereafter OSC, are to advance the goals and policies of the Town of Millbury Master Plan and open space and recreation plan (both as most recently updated); to allow for greater flexibility and creativity in the design of resident developments; to facilitate the permanent protection of open space and natural, historic, and scenic resources; and to encourage a more economical and efficient form of development that is less sprawling, consumes less open land, does not tax community services unduly, respects a site’s physical characteristics, and minimizes the total amount of disturbance to the site.
44.3 Use Requirements. Uses to be permitted or permitted by Special Permit shall be as specified in Section 2. However, the Planning Board may, upon issuance of a site plan review special permit in accordance with Section 12.4, permit retail sales and services establishments and offices deemed by the Planning Board to primarily service the residents of the OSC in an OSC that contains at least seventy-five (75) dwelling units. Not more than five percent (5%) of the overall non-business zoned land area of the OSC tract shall be allocated to such use, and at no time shall the gross floor area of all structures occupied for such uses exceed five percent (5%) of the gross floor area of all structures occupied within the non-business zoned portions of
the development tract.
44.4 Multiple Dwellings on Any placeLot. The Planning Board may permit the erection of multiple single, two family and three family buildings designed or available for use for dwelling purposes on a lot within an OSC upon submission and approval of a plan in full conformance with this Bylaw and Section 5.3 of the Millbury Rules and Regulations Governing the Subdivision of Land.
44.5 Professional and Technical Review. The Board may hire professional and technical consultants to assist the Board in analyzing an OSC to ensure compliance with all relevant laws, bylaws and regulations. Such assistance may include, but not be limited to, analyzing an application, monitoring or inspecting a project or site for compliance with the Board’s decision or regulation, or inspecting a project during construction or implementation. The expenses for engaging professional and technical assistance and review in connection with an OSC shall be borne by the Applicant.
44.6 Application Procedure.
44.6.1 Pre-Application Review. The applicant shall request a pre-application review with the Technical Review Committee and a second pre-application review with the Planning Board. The Technical Review Committee consists of the Town Planner, Director of Public Works, Building Inspector, Fire Chief, Police Chief, Sewer Superintendent, and a representative from the Planning Board and the water company overseeing the municipal system. The Planning Board will invite the Board of Health, the Conservation Commission and other interested persons, commissions and boards to attend the second pre-application meeting with the Planning Board and provide feedback to
the applicant. The purpose of a pre-application review is to minimize the applicant’s costs of engineering and to commence negotiations with the Planning Board and other departments, boards and commissions at the earliest possible stage in the development. In order to facilitate pre-application review, the applicant shall submit the pre-application materials specified in the Rules and Regulations Governing an Open Space Community. The applicant shall also request a site visit by the Technical Review Committee and Planning Board. The Planning Board shall notify the Board of Health, Conservation Commission, and other interested persons, commissions and boards about the site visit and invite them to attend.
44.6.2 Open Space Community Site Plan. Any person seeking approval for an OSC site plan shall file with the Planning Board an application meeting all the requirements of this section and the requirements of the Rules and Regulations Governing an Open Space Community. In accordance with the Millbury Planning Board Fee Schedule, a non-refundable filing fee and technical review fee shall be paid to the Town of placeCityMillbury. The technical review fee shall be paid to the Town of Millbury for deposit into a special account established by the Town Treasurer under M.G.L. Chapter 44, Section 53G. The balance of this account shall at no time be less than
one-half (1/2) the initial deposit, and the applicant shall deposit with the Treasurer such additional funds as are required to restore the account to the amount of the initial deposit upon notice from the Board, by first class mail, that the amount on deposit has been decreased by the expenditures described herein to an amount at or below one-half (1/2) of the initial deposit. If the applicant fails to restore the account balance and the balance is insufficient to pay incurred professional and technical review fees, the Board shall send the invoice directly to the applicant. The Board shall not authorize additional professional or technical work until outstanding invoices are paid. Ninety (90) days following the Board’s issuance of a denial or Certificate of Completion, any excess amount in
the account attributable to that project, including any interest accrued, shall be repaid to the applicant or the applicant’s successor in interest.
The application shall contain an OSC Site Plan consisting of a Sketch Plan and a Yield Plan. Incomplete plans shall not be considered submittals and shall not be considered the start of any time limits within which the Board is required to act.
Within seven (7) days of submission of a completed application, the Planning Board shall refer the application to the Conservation Commission, Fire Department, Building Department, Highway Department, Sewer Department, Police Department, and other applicable boards, committees or departments for review and comments. The parties receiving copies of the application shall submit written recommendations to the Planning Board within forty-five (45) days of receipt of the application. Failure to report to the Planning Board within forty-five (45) days shall be deemed a lack of opposition thereto.
1. Sketch Plan
The Sketch Plan shall be prepared by an interdisciplinary team that shall include a certified landscape architect, registered professional engineer, and registered land surveyor, and may also include a traffic engineer, architect, hydrologist, hydrogeologist, biologist, and other environmental professionals. The Sketch Plan shall address the general features of the land as specified in the Planning Board’s Rules and Regulations Governing an Open Space Community. The Sketch Plan shall incorporate the Four-Step Design Process, in accordance with Section 44.8, and the Design Standards in accordance with Section 44.9.
2. Yield Plan
The basic maximum number of units shall be derived from a Yield Plan. The Yield Plan shall show the maximum number of dwelling units that could be placed upon the site in a conventional subdivision in full conformance with zoning, subdivision regulations, health codes, wetlands bylaws and other applicable requirements. The Yield Plan shall contain the information required in Rules and Regulations Regarding an Open Space Community. The proponent shall have the burden of proof with regard to the basic maximum number of dwelling units resulting from the design and engineering specifications shown on the Yield Plan.
44.7 Density Bonus. The number of dwelling units permitted on the site may exceed the basic maximum number derived from the Yield Plan specified in Section 44.6.2.2 by twenty percent (20%), in the aggregate, given the following circumstances (computations shall be rounded to the lowest number):
1. For every four (4) dwelling units permanently restricted to occupancy by persons or families who qualify as low or moderate income, as those terms are defined for the area by the Commonwealth's Department of Housing and Community Development, one (1) dwelling unit may be added as a density bonus; provided, however, that this density bonus shall not exceed ten percent (10%) of the basic maximum number.
2. For every four (4) age-restricted dwelling units, one (1) dwelling unit may be added as a density bonus; provided that this density bonus shall not exceed five percent (5%) of the basic maximum number.
3. For the construction of passive and/or active recreation facilities that are available for public use, one (1) dwelling unit may be added per two (2) acres of recreation land or per two thousand five hundred (2,500) feet of trail; however, this density bonus shall not exceed five percent (5%) of the basic maximum number.
4. For each additional five percent (5%) of the site (over and above the required fifty percent (50%)) set aside as open space), one dwelling unit may be added as a density bonus; provided that this density bonus shall not exceed five percent (5%) of the basic maximum number.
5. For every five (5) acres of prime agricultural soils or active farmland preserved at the site, one dwelling unit may be added as a density bonus; provided that this density bonus shall not exceed five percent (5%) of the basic maximum number.
6. For every four dwelling units in which alternative renewable energy (i.e. solar power, wind power, hydroelectric power, and other sources deemed acceptable by the Planning Board) supplies at least fifty percent (50%) of the total annual energy requirements for heating and hot water for that dwelling unit, one dwelling unit may be added as a density bonus; provided that this density bonus shall not exceed five percent (5%) of the basic maximum number.
44.8 Design Process. At the time of application for an OSC, applicants are required to demonstrate to the Planning Board that the following Design Process was performed by a certified Landscape Architect and Professional Engineer and used to determine the layout of proposed streets, house lots and open space.
Identifying Conservation Areas. Identify and delineate Primary Conservation Areas (such as wetlands, riverfront areas and floodplains regulated by state or federal law) first, Secondary Conservation Areas (unregulated elements of the natural landscape such as agriculturally significant soils or farms, aquifers, unique or sensitive wildlife habitats, unusual geologic formations, steep slopes, mature forests, meadows, scenic views, and cultural features such as historic and archeological sites) second, and the Potentially Developable Area last. To the maximum extent possible, the Potentially Developable Area shall consist of land outside identified Primary and Secondary Conservation Areas.
Locating House Sites. Locate the approximate sites of individual houses within the Potentially Developable Area as well as private yards and shared amenities so as to reflect an integrated community. The number of homes enjoying the amenities of the development (including conservation areas) should be maximized.
Aligning the Streets and Trails. Align the streets in order to access the house lots. Trails shall be laid out to create internal and external connections to existing and/or potential streets, sidewalks and trails.
Draw in the lot lines. The Planning Board has the right to waive this require-
ment in an OSC that utilizes condominium ownership.
44.9 Design Standards. In addition to the Design Standards set forth in Section 6 of the Millbury Rules and Regulations Regarding the Subdivision of Land, the following Generic and Site Specific Design Standards shall apply to all OSCs and shall govern the development and design process:
1. Generic Design Standards
(a) The orientation of individual building sites shall be such as to maintain maximum natural topography and cover. To the maximum extent possible, topography, tree cover and natural drainage ways shall be treated as fixed determinants of road and lot configuration rather than as malleable elements that can be changed to follow a preferred development scheme.
(b) Streets shall be designed and located in such a manner as to maintain and preserve natural topography, significant landmarks, and trees; to minimize cut and fill; and to preserve and enhance views and vistas on or off the subject parcel.
(c) Proposed buildings and associated development shall be compatible with surroundings, terrain, and the scale and architecture of existing buildings that share a functional or visual relationship to the proposed buildings.
(d) The removal or disruption of historic or significant uses, structures, or architectural elements shall be minimized insofar as practicable, whether these exist on the site or on adjacent properties.
(e) All open space that is not set aside for wildlife habitat and resource protection shall be designed to add to the visual amenities of the area by maximizing its visibility for persons passing the site or overlooking it from nearby properties.
2. Site Specific Design Standards
(a) Mix of Housing Types – The OSC may consist of any combination of single-family, two-family and three-family residential structures.
(b) Additional Criteria for Multi-family Development
The design and location of the structure on the site shall be consistent with the visual scale and character of single family development.
No more than two (2) bedrooms shall be permitted per multi-family dwelling unit.
(c) Orientation of Residential Structures - Residential structures shall be oriented toward the street providing lot frontage or, in the case of a condominium development, toward the street serving the premises.
(d) Buffer Areas – A buffer area of one hundred (100) feet shall be provided at the following locations: (a) perimeter of the property where it abuts residentially zoned and occupied properties; (b) certain resource areas on or adjacent to the tract including lakes, ponds, wetlands, streams, rivers, agricultural or recreational ball fields; and (c) existing public ways. No vegetation in this buffer area will be disturbed, destroyed or removed, except for normal maintenance of structures and landscapes approved as part of the project. The Planning Board may waive, reduce or increase the buffer requirement where it determines that a larger or
smaller buffer (or no buffer) is necessary, or will suffice, to accomplish the objectives set forth herein.
(e) Drainage – There shall be no adverse impacts to abutting properties from any increase in volume of stormwater runoff including erosion, silting, flooding, sedimentation or impacts to wetlands, ground water levels or wells. Insofar as possible, low impact development best management practices shall be utilized such that the site’s natural features and environmentally sensitive areas, such as wetlands, native vegetation, mature trees, slopes, natural drainage courses, permeable soils, floodplains, woodlands and soils are preserved. Use of stormwater management components that provide filtration, treatment and infiltration such as vegetated
areas that slow down runoff, maximize infiltration and reduce contact with pave surfaces are strongly encouraged.
(f) Groundwater Recharge and Quality Preservation – Ground water recharge shall be maximized and ground water quality shall be protected. Various techniques may be required to maximize recharge and create a hydrologically functional lot or site, including the following: vegetated open channel systems along roads; rain gardens; buffer strips; use of amended soils that will store, filter and infiltrate runoff; bioretention areas; use of permeable pavement. In addition, reduction of impervious surfaces where possible, reduction of heat island effects, and use of water quality units such as grease traps or gas/oil separators will be encouraged.
g. .Landscaping – The applicant shall submit a conceptual landscape plan for
all structural surface stormwater management facilities, parking areas with
more than ten (10) spaces, dumpsters and storage areas.
h. Parking – Parking areas with more than ten (10) spaces shall be screened
from public view.
i.. On-site Pedestrian and Bicycle Circulation – Walkways and bicycle paths shall be provided to link residences with parking areas, recreation facilities (including parkland and open space) and adjacent land uses where appropriate.
44.10 Common Open Space Requirements. Common open space shall comprise a minimum of fifty percent (50%) of the tract. The Planning Board may require that at least half of the common open space be left in a natural state. Any proposed common open space, unless conveyed to the Conservation Commission, shall be subject to a recorded restriction enforceable by the Town, providing that such land shall be perpetually kept in an open state, that it shall be preserved exclusively for the purposes set forth herein, and that it shall be maintained in a manner to ensure that it is suitable for its intended purposes.
1. Not less than fifty percent (50%) of the land preserved for common open space shall contain buildable land as defined in Section 44.11.
2. The common open space shall be of a shape, dimension, character, and location suitable for use by all residents of the OSC.
3. The common open space shall be large and contiguous. Contiguous open space may be separated by a roadway or accessory amenity. The Planning Board may waive this requirement for all or part of the required open space where it is determined that allowing non-contiguous open space will promote the goals of this bylaw and/or protect identified primary and secondary conservation areas.
4. The common open space shall be used for the following purposes or a combination thereof: conservation, forestry, horticulture, agriculture, historic preservation, outdoor education, and active and passive recreation. The common open space shall have at least forty (40) feet of frontage to permit suitable access for such purposes. The Planning Board may permit up to five percent (5%) of the open space to be paved or built upon for structures accessory to the dedicated use or uses of such open space. Subsurface wastewater and stormwater management systems serving the OSC may be located within the open space provided that the Board finds that
such uses will not be detrimental to the character, quality or use of the open space. Surface stormwater management systems, such as retention and detention ponds, shall not count towards the minimum required common open space.
5. Common open space shall not include driveways, roads or ways necessary for access and egress to the site.
6. The common open space shall be conveyed to:
(a) The Conservation Commission;
(b) A nonprofit organization, the principal purpose of which is the conservation of open space and any of the purposes for such open space set forth above;
(c) A homeowner’s association owned jointly or in common by the owners of lots within the OSC. If such homeowner’s association is utilized, ownership thereof shall pass with conveyance of the lots in perpetuity. Maintenance of such open space and facilities shall be permanently guaranteed by such homeowner’s association which shall provide for mandatory assessments for maintenance expenses to each dwelling unit. Such homeowner’s association shall be deemed to have assented to allow the Town to perform maintenance of such open space and facilities, if the homeowner’s association fails to provide adequate maintenance, and
shall grant the Town an easement for this purpose. In such event, the Town shall first provide fourteen (14) days written notice to the homeowner’s association as to the inadequate maintenance, and, if the homeowner’s association fails to complete such maintenance, the Town may perform it. If the Town performs maintenance, the owners of lots within the OSC shall pay the cost thereof and the cost shall constitute a lien upon their properties until said cost has been paid. Each individual deed, and the deed or trust or articles of incorporation, shall include provisions designed to effect these provisions. Documents creating such homeowner’s association shall be submitted to the Planning Board for approval, and shall thereafter be recorded at the Worcester Registry of Deeds.
44.11 Buildable Land Area. The “buildable land area” shall be calculated by a registered land surveyor or professional engineer and shall be equal to the total area encompassed by the overall development plan, minus:
1. Land within a floodplain as defined by Section 36.1.
2. Fresh water wetlands, as defined by Section 40, Chapter 131, Massachusetts General Laws.
3. Land having slopes in excess of twenty-five percent (25%).
4. Land previously prohibited from development under a conservation restriction held by the Conservation Commission or a conservation land trust.
5. Land otherwise prohibited from development by local or state bylaw, regulation, or statute.
Not more than five percent (5%) of the land designated for roads or lots for dwellings or other development within the Open Space Community shall fall outside the boundaries of the “Buildable Land Area”.
44.12 Dimensional Requirements. Applicants are encouraged to modify the lot size, shape and other dimensional requirements specified in Article 2, Section 23, for lots in an OSC. The following limitations apply:
1. No lot for a single family or two family structure shall contain less than five thousand (5,000) square feet of land area. No lot for a three family structure shall contain less than seven thousand five hundred (7,500) square feet of land area.
2. No lot for a single family or two family structure shall contain less than sixty (60) feet of frontage, and no lot for a three-family structure shall contain less than one hundred (100) feet of frontage.
3. No lot for housing structures shall have frontage on a way other than one created within an OSC.
4. The minimum frontage for the overall site subject to OSC shall be fifty (50) feet.
5. Housing structures shall be at least twenty (20) feet apart.
6. Maximum building height shall be thirty (30) feet.
44.13 Decision of the Planning Board. The Planning Board shall, within sixty-five (65) days from receipt of a complete OSC site plan application, hold a public hearing and issue a written site plan decision within ninety (90) days from the close of the public hearing. The Board may impose conditions to ensure that the site plan complies with generic and detailed design standards and requirements of the Planning Board’s Rules and Regulations Governing an Open Space Community. The decision shall be upon a majority of the Board. The appeal of any decision of the Board shall be made in accordance with the provisions of MGL Chapter 41, Section 81BB. A copy of the decision shall be filed with the Town Clerk and shall be
forwarded to the applicant by certified mail.
Site plan approval shall lapse one (1) year from the date the Board votes to endorse a site plan unless the applicant has submitted an OSC definitive plan application, or within three (3) years unless building permits have been issued. Prior to the lapse of this period, an applicant may make a written application requesting a time extension for the site plan, by providing a rationale for said request for a time extension. For good cause, such approval may be granted by the Board by issuing a written extension following a public hearing.
44.14 Relationship Between the OSC Site Plan and OSC Definitive Subdivision Plan. The issuance of OSC Site Plan approval allows the applicant to submit a definitive subdivision plan, in conformity with Section 5.2 of the Millbury Rules and Regulations Governing the Subdivision of Land. In accordance with Section 32.6 of the Town of placeCityMillbury Zoning Bylaws, any OSC Site Plan approval issued by the Planning Board shall specifically state that the Definitive Subdivision Plan shall substantially comply with the Site Plan.
The Planning Board may find that a substantial variation exists between the OSC Site Plan and the Definitive Subdivision Plan. A substantial variation shall be any of the following:
an increase in the number of building lots;
a significant decrease in the open space acreage;
a significant change in the lot layout;
a significant change in the general development pattern which adversely affects natural landscape features and open space preservation;
significant changes to the stormwater management facilities; and/or
significant changes in the wastewater management systems if such changes affect the quality or quantity of open space or the designed layout.
If the Planning Board determines that the Definitive Subdivision Plan does not substantially comply with the OSC Site Plan, the Board may disapprove the Definitive Subdivision Plan for failure to comply with the site plan provision requiring that the Definitive Subdivision Plan substantially comply with the OSC Site Plan.
The Planning Board may conditionally approve an OSC Definitive Subdivision Plan that does not substantially comply with the OSC Site Plan. Such conditional approval must identify where the plan does not substantially comply with the OSC Site Plan and shall require that the OSC Site Plan be amended to be in compliance with the significant changes identified by the Planning Board. A public hearing shall be held on the modifications to the OSC Site Plan. The public hearing on the application to amend the OSC Site Plan shall only discuss the significant changes identified by the Planning Board in their conditional approval of the OSC Definitive Subdivision Plan. These are the only considerations that the Planning Board may take into account in deciding whether to amend the OSC Site Plan.
(By-laws of 5-2-2006, Art. 49)
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