Model Open Space Residential Development (Cluster) Bylaw
Source: Cape Cod Commission Model Bylaws and Regulations
Most of the Cape's 15 communities have adopted some form of "cluster," "open space," or "flexible" development bylaws. These bylaws are provided for in G.L. c. 40A, §9. During 1996, the Cape Cod Commission surveyed Cape towns and asked a variety of questions relating to the frequency of use and effectiveness of these bylaws, and solicited general opinions regarding how "cluster" development compares with conventional developments. Towns were also asked what provisions in their bylaws are important and what issues a model bylaw should address.
The results of the survey indicated that with a few exceptions (notably Harwich and Sandwich) cluster developments are the exception rather than the norm. Most planners indicated that cluster developments are superior to conventional subdivisions so long as they are well-designed. A well thought out bylaw plays an important role in shaping such developments. The most frequent request was for a model bylaw that provided guidance on the design and layout of open space as well as open space ownership issues. Planners also indicated the need for a model bylaw that provides a simple method for calculating the number of lots permissible under the bylaw and streamlines the subdivision/special permit process. Some towns expressed a desire for a model that provides the same overall density as conventional subdivision, while others desire the ability to provide for density bonuses (presumably to make open space residential development more attractive to developers).
Because the time and uncertainty of the special permit process often discourages developers from pursuing cluster development, some towns have expressed a desire to allow cluster "by-right" without need for a special permit. This is not an option under current Massachusetts law. For several years, the Legislature has had pending a bill that would allow cluster by-right; as yet it has not been enacted. In the meanwhile, towns may adopt bylaws that require a special permit for all subdivisions that meet a specified size threshold and use this to "level the playing field" and encourage or require cluster development. Several towns in Massachusetts have adopted this approach including West Tisbury, West Stockbridge and Grafton.
The goals of this model bylaw are: 1) to remove impediments to cluster style residential development (such as requiring a large parcel of land); 2) to provide incentives to cluster through reduced lot size, frontage and setback requirements; 3) to require the provision of open space that enhances the overall development; and 4) to integrate the subdivision and special permit review process to reduce permitting timeframes.
01.0 Purpose and Intent:
01.1 To allow for greater flexibility and creativity in the design of residential developments.
01.2 To encourage the permanent preservation of open space, agricultural and forestry land, other natural resources including waterbodies and wetlands, and historical and archeological resources.
01.3 To maintain the Town's traditional character and land use pattern in which small villages contrast with open land.
01.4 To protect scenic vistas from the Town's roadways and other places.
01.5 To facilitate the construction and maintenance of streets, utilities and public services in a more economical and efficient manner.
01.6 To protect existing and potential municipal water supplies.
01.7 To encourage a less sprawling and more efficient form of development that consumes less open land and conforms to existing topography and natural features better than a conventional or grid subdivision.
01.8 To minimize the total amount of disturbance on the site.
01.9 To preserve open space areas for active and passive recreational use, including the provision of neighborhood parks and trails.
01.10 To encourage the provision of diverse housing opportunities and the integration of a variety of housing types.
01.11 To further the goals and policies of the local comprehensive plans and regional plans.
Commentary: This list of purposes is intended as a menu. Towns may wish to choose those that are most applicable to their community.
02.0 Definitions : In this Bylaw, the following words have the meanings indicated:
02.1 Open Space Residential Development: A residential development in which the buildings are clustered together with reduced lot sizes and frontage. The land not included in the building lots is permanently preserved as open space. Open Space Residential Development is the preferred form of residential development and/or redevelopment in the Town of ______ for residential developments of 5 or more acres and/or 5 or more lots.
Commentary: Some towns prefer to identify a number of lots; others the number of acres. In addition, some towns may wish to allow two-family or multi-family dwellings in this bylaw, but to do so where these uses are not otherwise permitted may hinder public acceptability of the "cluster" concept.
03.0 Applicability: The Planning Board may grant a special permit for an Open Space Residential Development for any parcel or contiguous parcels of at least 5 acres in any district permitting single family residences subject to the regulations and conditions herein.
Commentary: Although the Zoning Act allows Planning Boards, Boards of Appeals and/or Boards of Selectmen to act as Special Permit Granting Authorities, it is strongly recommended that special permits for open space residential developments be issued by the Planning Board due to the interrelationship between the special permit and subdivision approval that must be granted for these projects.
04.0 Procedural Requirements:
04.1 Rules and Regulations: The Planning Board shall adopt Rules and Regulations consistent with the provisions of this bylaw and shall file a copy of said Rules and Regulations with the Town Clerk. Such rules shall address the size, form, contents, and number of copies of plans and other submittals and the procedure for the review of special permits.
04.2 Pre-Application Meeting: A pre-application meeting between the Planning Board/Department and the applicant is strongly encouraged.
04.3 Preliminary Plan/Cluster Sketch Plan: Applicants considering Open Space Residential Development are strongly encouraged to submit a Cluster Sketch Plan along with a Preliminary Subdivision Plan for review by the Planning Board. One of the purposes of this review is to determine the number of lots possible in the Open Space Residential Development. For this reason, it is strongly recommended that a copy of the existing conditions plan required in Section 04.4 below be submitted at this stage. Approval of a preliminary plan pursuant to G.L. c. 41, §81-S will also shorten the period of review for the Definitive Subdivision and Open Space Residential Development Plan.
Commentary: Although submittal of a preliminary plan is optional under the Subdivision Control Law, applicants may be required to submit a Preliminary Plan under the Open Space Residential Development bylaw. The purpose of the pre-application meeting is to scope the important issues posed by the development. It should be understood by all parties that this is only a preliminary review and that other issues may be raised and need to be addressed in the public hearing process.
04.4 Definitive Subdivision and Open Space Residential Development Plan: The Definitive Open Space Residential Development Subdivision Plan shall show: location and boundaries of the site, proposed land and building uses, lot lines, location of open space, proposed grading, location and width of streets and ways, parking, landscaping, existing vegetation to be retained, water supply or approximate location of wells, drainage, proposed easements and methods of sewage disposal. The plan shall be prepared by a team including a Registered Civil Engineer, Registered Land Surveyor, and a Registered Landscape Architect. An accompanying Existing Conditions Plan shall depict existing topography, wetlands, waterbodies and the 100 year floodplain, all existing rights of way, easements, and existing structures, the location of significant features such as woodlands, treelines, open fields or meadows, scenic views, watershed divides and drainage ways, fences and stone walls, roads, driveways, and cart paths. The Site Analysis shall also show locations of soil test pits and percolation tests, with supporting documentation on test results. Applicants shall also include a statement indicating the proposed use and ownership of the open space as permitted by this bylaw. Applicants should refer to the Subdivision Rules and Regulations for provisions regarding preparation and submittal of plans.
Commentary: Although the requirement for a Landscape Architect to participate in the development of the Plan may impose an additional cost upon the applicant, experience has shown that there will be a likely benefit with regard to overall site design. Towns may want to consider whether this provision should be a requirement or a recommendation. Planning Boards are encouraged to place the plan submittal requirements contained above in their Subdivision Rules and Regulations in order that inclusion of a specific item may be waived at the discretion of the Planning Board under the provisions of G.L. c. 41 §81-R.
04.5 Density/Number of Dwelling Units: The number of dwelling units permitted shall generally not exceed that which would be permitted under a conventional ("grid") subdivision that complies with the Town Zoning Bylaw and the Subdivision Rules and Regulations of the Planning Board and any other applicable laws and regulations of the Town or the state. The total number of dwelling units shall be determined by the following formula:
04.5.1 [Total area of land subject to the application] - [Area of wetlands and waterbodies] = Applicable Land Area
[ [Applicable Land Area] x [.90] ] Divided by Minimum Lot Area Established by Zoning = Total number of dwelling units
A preliminary subdivision plan may be submitted to assist in demonstrating the allowable number of units. If the parcel lies in more than one zoning district, the total for each district should be calculated separately.
Commentary: The .90 multiplier was used to account for the area occupied by subdivision roadways.
04.6 Review and Decision: Upon receipt of the application and the required plans, the Planning Board shall transmit one copy each to the Board of Health and Conservation Commission. Within 45 days of their receipt of the application/plans, these agencies shall submit any recommendations to the Planning Board. The Planning Board shall act on applications according to the procedure specified in G.L. c. 40A, §9. Notice shall be provided of hearings in accordance with Chapter 40A, §11 and Chapter 41, Section 81T. Public hearings for the subdivision application and the special permit application shall be conducted concurrently.
Commentary: The statutory time frames for subdivision and special permit reviews are different. The Planning Board needs to be careful to ensure that its decisions are made in compliance with the requirements of Chapter 40A and Chapter 41 in order to prevent constructive grants.
04.7 Criteria for Special Permit Decision:
04.7.1 Findings: The Planning Board may approve the development upon finding that it complies with the purposes and standards of the Open Space Residential Development bylaw and is superior in design to a conventional subdivision with regard to protection of natural features and scenic resources of the site. The Planning Board shall consider the following criteria in making its decision:
a). Upland open space as required by this bylaw has been provided and generally conforms to the Design Requirements in Section 08.0 of this Bylaw.
b). Approximate building sites have been identified and are not located closer than 100' to wetlands and waterbodies.
c). Proposed streets have been aligned to provide vehicular access to each house in a reasonable and economical manner. Lots and streets have been located to avoid or minimize adverse impacts on open space areas and to provide views of and access to the open space for the lots.
d). All lots meet the applicable dimensional requirements of Section 05.0 of the Open Space Residential Development Bylaw and the _______ Zoning Bylaw.
The Planning Board's findings, including the basis of such findings, shall be stated in the written decision of approval, conditional approval or denial of the application for special permit.
04.7.2 Conditions: The Planning Board shall impose conditions in its decision as necessary to ensure compliance with the purposes of this Bylaw. Approval of an Open Space Residential Development shall be conditioned upon Definitive Subdivision approval and shall be conditioned to provide that no further division of land which increases the number of lots or results in an alteration to the area to be set aside as open space may occur without a modification of the special permit. Any alteration of lot lines or layout of ways shall require approval of the Planning Board and shall be in compliance with the requirements of the Open Space Residential Development Bylaw and the Subdivision Rules and Regulations.
04.7.3 Time Limit: A special permit is granted for a period of two years and shall lapse if substantial use or construction has not commenced by such date, except for good cause shown. The Planning Board is encouraged to grant extensions to allow construction of subdivisions within the grandfathering limits set forth in G.L. c. 40A, §6, except where such extension would derogate from the intent and purpose of this bylaw.
04.7.4 Relationship to Subdivision Control Law: Nothing contained herein shall exempt a proposed subdivision from compliance with other applicable provisions of these bylaws or the Subdivision Rules and Regulations of the Planning Board, nor shall it affect the right of the Board of Health and of the Planning Board to approve, condition or disapprove a subdivision plan in accordance with the provision of such Rules and Regulations and of the Subdivision Control Law.
05.0. Standards and Dimensional Requirements: Where the requirements of this section differ from or conflict with the requirements in the Table of Density and Dimensional Standards found elsewhere in this bylaw, the requirements of this section shall prevail.
05.1 Minimum Lot Size: The minimum lot size shall be 1/2 the square footage otherwise required by the Zoning District in which the project is located or 15,000 square feet, whichever is less.
05.2 Minimum Frontage: The minimum frontage may be reduced from the frontage otherwise required in the Zoning District, provided, however, that no lot shall have less than 50' of frontage and provided further that such frontage reduction shall apply only to lots fronting on proposed internal roadways. The sharing of driveways to reduce curb cuts is encouraged.
05.3 Lot Shape: All building lots must be able to contain a circle of a minimum diameter of 50' from the front lot line to the rear building line.
05.4 Setbacks: The Planning Board may reduce by up to one-half the setbacks otherwise listed in the Table of Dimensional Regulations in this bylaw, if the Board finds that such reduction will result in better design, improved protection of natural and scenic resources, and will otherwise comply with this Bylaw. Notwithstanding this provision or the requirements of the Zoning Bylaw, every dwelling fronting on the proposed roadways shall be set back a minimum of 15' from the roadway right-of-way, and a minimum of 50' from the outer perimeter of the land subject to the application. This 50' setback shall be maintained in a naturally vegetated state to screen and buffer the development and may be included within the open space. This setback may be eliminated where the proposed development abuts existing permanent open space. Wherever feasible, construction of the dwelling at the front setback line is encouraged.
05.5 Required Open Space: All land area not utilized for lots, roads, and drainage shall be set aside as open space. A minimum of 60% of the upland area of the parcel ("applicable land area") shall be provided as open space. As an exception, where the open space is proposed to be deeded to the Town or a qualified land trust pursuant to 07.1(a) of this bylaw, and in fact, such a transfer occurs, a minimum of 50% of the upland area of the parcel shall be provided as open space. Applicants are encouraged to include wetlands and waterbodies within the open space, however they do not count toward the open space requirement. Roadway rights of way shall not count toward the area to be provided as open space.
Commentary: These are recommended guidelines for Cape Cod towns. The requirements in this section can be adjusted to suit individual community preferences.
06.0. Permissible Uses of Open Space:
06.1 Purposes: Open space shall be used solely for recreation, conservation, agriculture or forestry purposes by residents and/or the public. Where appropriate, multiple use of open space is encouraged. At least half of the required open space may be required by the Planning Board to be left in a natural state. The proposed use of the open space shall be specified in the application. If several uses are proposed, the plans shall specify what uses will occur in what areas. The Planning Board shall have the authority to approve or disapprove particular uses proposed for the open space.
06.2 Recreation Lands: Where appropriate to the topography and natural features of the site, the Planning Board may require that at least 10% of the open space or two acres (whichever is less) shall be of a shape, slope, location and condition to provide an informal field for group recreation or community gardens for the residents of the subdivision.
06.3 Leaching Facilities: Subject to the approval of the Board of Health, as otherwise required by law, the Planning Board may permit a portion of the open space to be used for components of sewage disposal systems serving the subdivision, where the Planning Board finds that such use will not be detrimental to the character, quality, or use of the open space, wetlands or waterbodies, and enhances the site plan. The Planning Board shall require adequate legal safeguards and covenants that such facilities shall be adequately maintained by the lot owners within the development.
06.4 Accessory Structures: Up to 5% of the open space may be set aside and designated to allow for the construction of structures and facilities accessory to the proposed use of the open space including parking.
07.0. Ownership of Open Space:
07.1 Ownership Options: At the developer's option and subject to approval by the Planning Board, all areas to be protected as open space shall be:
07.1.1 Conveyed to the Town to be placed under the care, custody and control of the Conservation Commission, and be accepted by it for a park or open space use. Land conveyed to the Town should be open for public use; and/or
07.1.2 Conveyed to a non-profit organization, the principal purpose of which is the conservation or preservation of open space, with a conservation restriction as specified in §07.2 below. Such organization shall be acceptable to the Town as a bona fide conservation organization; and/or
07.1.3 Conveyed to a corporation or trust owned or to be owned by the owners of lots or residential units within the development (i.e. "homeowners association") and placed under conservation restriction. If such a corporation or trust is utilized, as indicated herein, ownership thereof shall pass with conveyance of the lots or residential units. The developer is responsible for the maintenance of the open space and other facilities to be held in common until such time as the homeowners association is capable of assuming such responsibility. Thereafter, the members of the association shall share the cost of maintaining the open space. The Planning Board shall require the applicant to provide documentation that the homeowner's association is an automatic (mandatory) association that has been established prior to the conveyance of any lots within the subdivision.
07.2 Permanent Restriction: In any case where open space is not conveyed to the Town, a permanent conservation or agricultural preservation restriction in accordance with G.L. c. 184 §31, approved by the Planning Board and Board of Selectmen/Town Council and enforceable by the Town, conforming to the standards of the Massachusetts Executive Office of Environmental Affairs, Division of Conservation Services, shall be recorded to ensure that such land shall be kept in an open or natural state and not be built for residential use or developed for accessory uses such as parking or roadways except as permitted by this bylaw and approved by the Planning Board. Restrictions shall provide for periodic inspection of the open space by the Town. Such restriction shall be submitted to the Planning Board prior to approval of the project and recorded at the Registry of Deeds/Land Court simultaneously with recording of the definitive subdivision plan. A management plan may be required by the Planning Board which describes how existing woods, fields, meadows or other natural areas shall be maintained in accordance with good conservation practices.
07.3 Encumbrances: All areas to be set aside as open space shall be conveyed free of any mortgage interest, security interest, liens or other encumbrances.
07.4 Maintenance of Open Space: In any case where open space is not conveyed to the Town, the Town shall be granted an easement over such land sufficient to ensure its perpetual maintenance as conservation or recreation land. Such easement shall provide that in the event the trust or other owner fails to maintain the open space in reasonable condition, the Town may, after notice to the lot owners and public hearing, enter upon such land to maintain it in order to prevent or abate a nuisance. The cost of such maintenance by the Town shall be assessed against the properties within the development and/or to the owner of the open space. The Town may file a lien against the lot or lots to ensure payment of such maintenance expenses.
07.5 Monumentation: Where the boundaries of the open space are not readily observable in the field, the Planning Board may require placement of surveyed bounds sufficient to identify the location of the open space.
08.0 Design Requirements: The location of open space provided through this bylaw shall be consistent with the policies contained in the Local Comprehensive Plan and the Open Space and Recreation Plan of the Town. The following design requirements shall apply to open space and lots provided through this bylaw:
08.1 Open space shall be planned as large, contiguous areas whenever possible. Long thin strips or narrow areas of open space (less than 100' wide) shall occur only when necessary for access, as vegetated buffers along wetlands or the perimeter of the site, or as connections between open space areas.
08.2 Open space shall be arranged to protect valuable natural and cultural environments such as stream valleys, wetland buffers, unfragmented forestland and significant trees, wildlife habitat, open fields, scenic views, trails, and archeological sites and to avoid development in hazardous areas such as floodplains and steep slopes. The development plan shall take advantage of the natural topography of the parcel and cuts and fills shall be minimized.
08.3 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. Where feasible, these parcels shall be linked by trails.
08.4 Where the proposed development abuts or includes a body of water or a wetland, these areas and the 100' buffer to such areas shall be incorporated into the open space. Where appropriate, reasonable access shall be provided to shorelines.
08.5 The maximum number of house lots compatible with good design shall abut the open space and all house lots shall have reasonable physical and visual access to the open space through internal roads, sidewalks or paths. An exception may be made for resource areas vulnerable to trampling or other disturbance.
08.6 Open space shall be provided with adequate access, by a strip of land at least 20 feet wide, suitable for a footpath, from one or more streets in the development.
08.7 Development along existing scenic roads and creation of new driveway openings on existing regional roadways shall be minimized.
08.8 Where a proposed development abuts land held for conservation purposes, the development shall be configured to minimize adverse impacts to abutting conservation land. Trail connections should be provided where appropriate.
0.13.1 If any provision of this bylaw is held invalid by a court of competent jurisdiction, the remainder of the bylaw shall not be affected thereby. The invalidity of any section or sections or parts of any section or sections of this bylaw shall not affect the validity of the remainder of the [town]'s zoning bylaw.
Commentary: This Section is a generic severability clause. Severability clauses are intended to allow a court to strike or delete portions of a regulation that it determines to violate state or federal law. In addition, the severability clause provides limited insurance that a court will not strike down the entire bylaw should it find one or two offending sections.
10.0 Optional Incentive Provisions: (Note that this section contains a number of optional provisions that may make open space residential development a more attractive alternative for the town and/or applicant).
10.1 Density Bonuses: The Planning Board may approve density bonuses pursuant to one or both of the following provisions, provided, however, that in no case shall the density bonus permit greater than a 15% increase in the number of lots permitted in the subdivision.
a). A density bonus may be permitted when the proposed subdivision provides on-site or off-site affordable housing opportunities consistent with the Barnstable County Regional Policy Plan and the local comprehensive plan. For each affordable housing unit provided under this section, one additional building lot may be permitted, up to a maximum 15% increase in number of building lots. Affordable units shall be developed concurrently with the market rate units in the subdivision.
b). A density bonus may be permitted when the proposed subdivision provides for public access to open space areas within the subdivision or when they are deeded to the municipality. For every 5 acres of land that is donated to the municipality or open to public use, one additional building lot may be permitted, up to a maximum 15% increase in the number of building lots. Open space that is open to public use shall be accessible from a public way and adequate parking shall be provided to meet anticipated demand.
10.2 Modification of Subdivision Roadway Standards [Amendment to Subdivision Rules and Regulations]: The Planning Board may reduce applicable subdivision road construction standards (roadways width, centerline radii, curbing, cul-de-sac radius, drainage requirements, etc.) in exchange for the provision of greater than 60% open space within the Open Space Residential Development, where, in the opinion of the Planning Board, such reductions will result in enhanced overall site design and provide adequate and safe access for the development.
10.3 Mandatory Open Space Residential Development Provision:
Commentary: A number of towns in Massachusetts have adopted mandatory cluster/open space residential development bylaws which require special permits for all major residential developments (Typical definition: Major Residential Development: The creation of 5 or more lots, by subdivision or otherwise, within a 5 year period, on land in common ownership as of January 1, 1998.) These bylaws generally establish a development size threshold (typically 5 or 6 lots) above which an open space residential development plan is required to be submitted (generally both an open space and conventional plan are submitted). Some such bylaws include Approval Not Required (ANR) lots. The bylaw specifies who has the responsibility of selecting which plan will be developed -- the developer or the Planning Board. Examples of these bylaws can be found in Brewster, West Tisbury, Grafton, West Stockbridge and other communities. The Cape Cod Commission has copies of these examples for communities interested in pursuing this approach.