BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF MARLBOROUGH, THAT THE Code of the City of Marlborough, as amended, CHAPTER 200 "ZONING" be further amended as follows:
I. In Article VI, add a new Section 200-25.3, as follows:
200-25.3 Open Space Developments.
A. General Description. An "Open Space Development" shall mean a development of residential lots in which the houses are in one or more groups on the site, separated from each other and from adjacent properties by permanently protected open space.
B. Purpose and Objectives. The purpose of this Section is to:
(1) Encourage a less sprawling form of development that has consumed excessive open space, caused land erosion, and destroyed attractive natural features of the land.
(2) Allow for greater flexibility and creativity in the design of residential subdivisions.
(3) Encourage the permanent preservation of natural resources and open space.
(4) Protect scenic vistas.
(5) Allow for more economical construction and maintenance of streets and utilities.
(6) Encourage the production of more affordable and diverse housing types.
(7) Allow for more economical construction and maintenance of recreational amenities through common ownership.
C. Applicability.
(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, that the cost of constructing roads, utilities, and other infrastructure items may be reduced.
(c) Application fees may be waived by the Planning Board.
D. General Requirements.
(1) Uses. Uses in an Open Space Development shall be limited to those uses permitted within the applicable zoning districts as specified in Article V.
(2) Site Ownership. The development may consist of a single parcel of land, or contiguous parcels provided they are in common ownership or are submitted with the binding consent of different owners.
(3) Access. Each lot shall have adequate access on a public or private way. Common driveways are permitted in accordance with requirements appearing elsewhere in this Chapter.
(4) Ways, Interior Drives, and Utilities. The construction of all ways, interior drives and utilities shall be in accordance with the standards specified in the Planning Board's Rules and Regulations Governing the Subdivision of Land unless the Planning Board waives said Rules and Regulations based on its determination that adequate access will be provided to all lots in the development by ways that will be safe and convenient for travel.
(5) Lot Layout. Each lot shall be of a size and shape to provide a building site which shall be in harmony with the natural terrain and other features of the land.
(6) Internal Circulation. There shall be an adequate, safe, and convenient arrangement of pedestrian circulation, roadways, driveways, and parking.
E. 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.
(a) 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, subdivision regulations, health codes, and wetlands protection regulations. The number of lots allowable without bonuses shall be determined as follows:
(i) 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 50% (fifty percent) coverage by wetlands or by slopes of 25% (twenty-five percent) or greater. The requirements for the conventional plan are further detailed under Sub-Section H.
(ii) 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.
(b) Reserved.
(c)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% (fifteen percent) above the number otherwise permitted in this Section as specified in the preceding paragraphs (a) and (b), based on the following criteria unless the Planning Board explains in its decision why unusual circumstances cause them to act otherwise:
(i) 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 Section 200-2.
[b] All affordable housing units shall meet the requirements of Section 200-20.C(1), paragraphs:
(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 dwellings shall not be attached to more than one other unit. No multi-family 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.
(ii)Reserved.
(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:
TABLE OF LOT AREA AND YARD REQUIREMENTS
OPEN SPACE DEVELOPMENT
Minimum Zoning Districts
Requirements RR A-1 A-2 A-3
Lot Area 20,000 15,000 12,000 10,000
(sq. ft.)
Lot Frontage (1) 70 60 50 50
(ft.)
Lot Width at 90 80 70 70
front bldg. line
(ft.)
Front Yard Setback 25 20 20 20
(ft.)
Side Yard Setback (2) 15 15 10 10
(ft.)
Rear Yard Setback 25 25 20 20
(ft.) (3)
Maximum Lot (4) 25 30 30 30
Coverage (%)
Footnotes:
1. Lots located on the turnaround of a dead-end street shall have a minimum of fifty feet (50') of street frontage, provided the minimum lot width at the front building line is maintained as required in this table.
2. A side yard setback on one side need be provided for a single family zero lot line dwelling.
3. Rear yard dimensions may be increased where perimeter buffers are required. See paragraph F(7) below.
4. Lot coverage shall be defined to include buildings, driveways, and parking areas.
F. Common Open Space Requirements
(1) General. All land not devoted to dwellings, yards, accessory uses, roads, or other development shall be set aside as common open space.
(2) Use. The use of common open space shall be restricted to the following:
(a) Active and passive recreation, conservation, forestry, agriculture, natural buffers.
(b) Access ways, parking, underground utilities and structures necessary for and accessory to the uses in paragraph (a) above.
(3) Number of parcels. Common open space may be in more than one parcel provided that the size, shape and location of such parcels are suitable for the designated uses.
(4) Access. The common open space shall be provided with adequate access from a public or private way.
(5) Minimum Area. The total area of common open space shall equal or exceed the area by which all residential lots are reduced below the basic minimum lot area normally required in the zoning district. In no case shall said total area be less than 40% (forty percent) of a total site in a RR District, 30% (thirty percent) in an A-1 or A-2 District, or 20% (twenty percent) in an A-3 District, even if density bonuses are included as provided for under paragraph E(2)(c).
(6) Land Characteristics. The following lands may be used to meet the minimum requirements for common open space only in the proportions specified in the table below. However, if more than the minimum area of open space is provided, then these lands may be included within the excess common open space.
TABLE OF COMMON OPEN SPACE DIMENSIONAL REQUIREMENTS
OPEN SPACE DEVELOPMENTS
Maximum Area
LandPermitted within
CharacteristicRequired Common Open Space
Steep slopes, defined
as slopes, greater than
25%. 50%
Wetland and floodplain not greater than percentage
resource areas as defined by of wetlands found in the
M.G.L. Ch. 131, s.40. overall parcel.
Roads and parking
areas serving dwelling
units. 0%
Roads, parking areas and
structures serving common open
space. 10%
Footnotes.
1. Roads and parking areas serving dwelling shall always be paved. Roads and parking areas serving common open space shall be paved if so required by the Planning Board.
(End of footnotes)
(7) Perimeter buffers. Perimeter buffers are required where abutting property has already been developed with single family homes on lots in full conformity with the requirements of this Chapter as of date January 1, 1992, and where residential structures within the Open Space Development are located on lots of reduced size allowed by this Section. Where buffers are required, said structures shall be set back from the boundaries of the development by a distance no less than double the minimum yard dimension in the underlying zoning district. Within said setback shall be a buffer strip which shall be kept in a natural landscaped condition. The Planning Board may require the planting of trees if none exist naturally. Said buffer strip may be located either within a
privately owned residential lot having a buffer easement, or alternatively within the common open space, as the Planning Board shall determine.
(8) Design Guidelines. The design of the common open space shall, to the extent practical, follow the design guidelines to be used by the Planning Board in making a decision on the Special Permit, as described in Section H(8)(b).
G. Ownership and Management of Open Space.
(1) City, Trust or Association. Common open space in any Open Space Development approved under this Section shall be conveyed to:
(a) The City, and may be accepted by it for conservation and/or recreational use; and/or
(b) An open space land trust, or any other nonprofit corporation, approved by the Planning Board, the principal purpose of which is land conservation and preservation of open space; and/or
(c) A corporation, trust or association owned or to be owned by the owners of lots in the development, here-after referred to as the "Homeowners Association", subject to covenants, enforceable by the City, to keep the common space open or in a natural state as approved by the Planning Board. If a corporation of trust owned by the owners of lots is utilized, ownership thereof shall pass with the conveyances of the lots in perpetuity. A Homeowners Association agreement shall be submitted with the special permit application guaranteeing continuing maintenance of such common utilities, land and facilities, and assessing each lot a share of maintenance expenses. Such agreement shall be subject to the review and approval of the City Solicitor and Planning Board.
(2) Entity other than the City. If the common open space is not to be conveyed to the City, then the applicant shall provide all of the following to the Planning Board for approval prior to commencement of construction:
(a) A provision in the covenant that the common open space will be deeded as approved by the Planning Board. In addition, the covenant shall not be released by the Planning Board until proof of ownership has been provided by the applicant to the Planning Board.
(b) A perpetual conservation restriction of the type described in M.G.L. Ch. 184, s.31 (including future amendments thereto and corresponding provisions of future laws) enforceable by the City which shall be recorded by the applicant and shall provide that such land shall be kept in an open or natural state and not be built upon for residential use or developed for accessory uses such as parking or roadways except as previously approved by the Planning Board.
(c) A maintenance program describing how the common open space will be maintained in perpetuity to standards satisfactory to the Planning Board.
(d) An agreement empowering the City to perform maintenance of the common open space in the event of failure to comply with the maintenance program included in the application pursuant to the preceding paragraph providing that, if the City is required to perform any maintenance work, the owners of the lots included in the Open Space Development shall pay the cost thereof and that the cost shall constitute a lien upon their properties until said cost has been paid.
(3) Time of Dedication. All open space shall have been dedicated before any building permits are issued.
H. Application and Review Procedure
(1) Pre-Application 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 pre-application 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 Sub-section 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 M.G.L. Ch. 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 ninety (90) days in accordance with M.G.L. Ch. 41.
(4) Reserved.
(5) 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 M.G.L. Ch. 40A.
(b) Submission. The application shall be filed in accordance with M.G.L. Ch. 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:
1 set - Office of City Clerk
1 set - Police Chief
1 set - Fire Chief
1 set - City Engineer
1 set - City Planner
1 set - Conservation Officer
2 sets - Planning Board
1 set - Conservation Commission
(d) Special Permit Review Fees: At the time of application, the applicant shall pay a filing fee at the office of the Planning Board 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:
(i) The names, approximate location and widths of adjacent streets.
(ii) The existing and proposed lines of streets, ways and easements and any public areas within the subdivision.
(iii) The approximate boundary lines of proposed lots with approximate areas and dimensions.
(iv) The topography of the land at the same contour interval as the Concept Plan.
(v) The boundaries of wetlands and floodplains in the same form as required for the Concept Plan under paragraphs (g)(v)(vi) and (vii) below.
(vi) Where the property would be served by sub-surface sewage disposal, in cases where public sewer is not reasonably available, percolation tests shall be conducted for all lots shown on the conventional subdivision plan. Said tests shall be under the supervision of the Board of Health and in conformity with Title V and Board of Health regulations. Those lots which are determined to be not suitable for sub-surface sewage disposal shall not be counted as allowable lots under Sub-Section E.
(vii) The Planning Board may require any additional information necessary to make the determination and assessments required by this Section.
(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:
(i) Existing landscape features in such detail appropriate to the site, including differentiation of wooded versus open areas, and a further differentiation between coniferous and deciduous trees.
(ii) Existing and potential open spaces and trails within 500 ft. of the site.
(iii) Archeological and historic features on site.
(iv) Major long views within the site and within 500 feet of the site.
(v) The boundaries of all resource areas protected by the Massachusetts Wetlands Protection Act, G.L. Ch. 131, s.40 as established through a Determination of Applicability.
(vi) Floodplain and Wetland Protection Districts defined by Section 19 of Zoning Ordinance.
(vii) Inland Restricted Wetlands protected by the Inland Wetlands Restriction Act, G.L. Ch. 131, s.40A.
(viii) Any additional information necessary to make the determinations and assessments required by this Section.
(6) 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.
(7) Public Hearing, Notice and Decision. The procedure for public hearing, notice and decision shall be held in conformance with M.G.L. Ch. 40A.
(8) 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.
(i) Protection of scenic views and vistas.
(ii) Protection of valuable or sensitive environments, with wetlands located away from roads or behind lots.
(iii) 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.
(iv) Proximity of the maximum number of lots (especially smaller lots) close to the common open space.
(v) Consolidation of open space as large, contiguous units wherever possible.
(vi) 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).
(vii) 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.
(viii) Protection of major street capacity by avoiding driveways egressing onto such streets.
(ix) 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.
(x) 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.
(9) 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 Sub-section B.
(b) The development meets the design criteria of an Open Space Development listed in Sub-section H(8)(b).
(c) The development will not have a substantial or undue adverse effect upon adjacent property or the character of the neighborhood.
(10) 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 M.G.L. Ch. 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 M.G.L. Ch. 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.
(i) Definition of Substantial Variation. A substantial variation shall be defined as any increase in the number of lots, a decrease in the open space acreage by more than ten percent 10%, a significant change in the character of the open space or amenities, a change in the layout which causes dwellings or roadways to be placed significantly closer to a dwelling located outside the development and which adversely and significantly affects natural landscape features and open space. The relocation of lot lines shall not be considered a substantial variation. The determination that a variation is substantial shall require a vote of the Planning Board by two thirds majority of those present, following consideration of recommendations from the City Engineer, Conservation
Officer, Planner and Solicitor.
(ii) New Public Hearing. If the Planning Board finds before the hearing on the definitive plan that a substantial variation exists, or alternatively, if the Planning Board finds the substantial variation subsequent to the hearing on the definitive plan, then the Board shall notify the applicant that a new public hearing shall be required to amend the special permit and that said hearing shall relate solely to the acceptability of the substantial variations. The acceptability of said substantial variations must be determined by the Planning
Board after public hearing prior to final approval by the Planning Board of the definitive plan. If appropriate, a second hearing on the concept plan variations may be held on the same day as the hearing on the definitive plan.
II. In Article V, Section 200-4, Definitions:
1. Add the following new definitions in the proper alphabetical order:
"OPEN SPACE DEVELOPMENT - A development permitted under the Section of the Zoning Ordinance entitled Open Space Development, and consisting of residential lots in which the houses are in one or more groups on the site, separated from each other and from adjacent properties by permanently protected open space.
SINGLE FAMILY ZERO LOT LINE DWELLING - A single family dwelling where a side yard need not be provided on that side of the dwelling that shares a party wall or double wall with an adjacent dwelling."
2. Delete the definition of "Affordable Prices".
3. Amend the definition of "Affordable Housing" by inserting immediately after the word "Development" the word "(EOCD)", and by adding the following words at the end of the definition of Affordable Housing:
", consistent with the requirements of the particular EOCD program used in conjunction with the applicable project. In no case shall the price of the affordable units be more than eighty percent (80%) of the market sales or rental price of comparable units located within the same project."
III. In Article V, Section 200-11B, add a new paragraph (12) as follows:
"(12) Single family zero lot line dwellings, provided:
(a) they are located within an Open Space Development in accordance with the requirements of Section 200-25.3;
(b) they have the appearance and character of single family dwellings;
(c) they are affordable as defined in Section 200-4."
IV. In Article V, Section 200-12B, delete the words "and (5)" and replace with the words ", (5), (9) and (12)".
V. In Article V, Section 200-12C, delete the number "(9)" where it appears in the sentence.
VI. In Article VI, "Provisions Applicable to All Districts", add a new Section 200-19.1 as follows:
"200-19.1 Applicability.
A. All provisions contained in Article VI shall be applicable to all districts unless specifically provided otherwise in this Chapter."
VII. In Section 200-29, replace the first paragraph as follows:
"200-29. Powers and Procedures of Special Permit Granting Authorities.
A. Powers and Duties. As provided for under M.G.L. Ch. 40A, certain classes of special permits shall be issued by one special permit granting authority and others by another Special Permit Granting Authority as specified in this Chapter for those uses and activities designated in Article V, Permitted Uses, and in other Articles and Sections of this Chapter. Said special permit granting authorities shall each have all the powers and perform all the duties conferred or imposed upon them under M.G.L. Ch. 40A, and shall act separately upon each application for a special permit submitted to them as follows:"
VIII. In Section 200-29 in all paragraphs after the first paragraph, and in Section 200-31, replace the words "City Council" and "Council", where they exist, with the words "Special Permit Granting Authority".
IX. In Section 200-29, Section B(1), replace the words "the Planning Board and other" with the words "agencies sent copies".
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