[Added 10-19-2009 FYTM, Art. 17[1]]
The primary purpose of this article is to protect water resources
and preserve the open space of Brewster as identified on the map submitted
with the application for the designation of the District of Critical
Planning Concern (DCPC). This article, therefore, is intended to foster
compact development patterns using flexible regulations for density
and lot dimensions and to promote and encourage creativity in neighborhood
design. The Town wishes to encourage the use of natural resource protection
design ("NRPD") because NRPD results in the protection of water resources
and the preservation of contiguous open space and important environmental
resources, while allowing design flexibility. NRPD reduces development
impacts on surface water and groundwater, forests, farmland, wildlife
habitats, large tracts of contiguous open space, environmentally sensitive
areas, steep slopes, scenic views and historically and culturally
significant areas. NRPD also helps to reduce areas of impervious surface
when compared to traditional grid subdivisions. To encourage this
type of development, NRPD is allowed by right, subject only to the
requirements of the regulations governing the subdivision of land.[1] NRPD that does not require approval as a subdivision is
allowed by right subject to endorsement by the Planning Board.
A.
A NRPD may be proposed anywhere in the area known as the "DCPC" in
Brewster, as designated on July 16, 2008, when that area has an underlying
residential designation.
B.
Subsection A above applies only to subdivisions of land as defined in MGL c. 41, § 81L, and not to construction of homes or businesses on individual lots that existed prior to the effective date of this bylaw. If subdivision approval is not required and an approval not required (ANR) plan is filed because a new roadway is not proposed, an applicant may apply for a NRPD under this article. If the proposed NRPD also involves one or more common driveways, density bonuses, and/or any other use that requires a special permit, the proceedings for all such special permits shall occur in one consolidated special permit proceeding before the Planning Board. It should be noted that a special permit will be required for any other type of subdivision or for any plan for a NRPD that does not conform to the requirements herein. Maximum density allowances for all non-NRPD projects requiring a special permit shall be consistent with the allowable residential densities calculated for NRPD projects in § 179-72.2.
In order to enable the Planning Board to determine whether or not a proposed NRPD (or development by special permit that deviates from the requirements for NRPD) satisfies the purposes and standards of this article, an applicant must present sufficient information on the environmental and open space resources for the Board to make such determination. The required information shall be provided in the form of a development impact statement, including a "natural resource analysis" as described in Subsection B(3) of § 290-10 of the Subdivision Rules and Regulations. In the case of a NRPD that is not a subdivision (i.e., an ANR), the applicant shall not be required to submit a full development impact statement. However, the Planning Board may require the submission of all or part of a natural resource analysis as described in the subdivision regulations.
A.
Prior to filing an application, an applicant is encouraged to meet with the Planning Board to discuss the natural resources on the site. At such a meeting, the Planning Board shall indicate to the applicant which land is likely to have the most conservation value and be most important to preserve based on the statement of purpose in § 179-69 and where development may be most appropriately located. The Planning Board shall consult with the Conservation Administrator to determine the land areas with the most conservation value.
B.
In the case of a proposed plan that deviates from the requirements
of this article, and if the Planning Board determines that the land
with the greatest conservation value cannot be protected except by
the use of a NRPD plan, the Planning Board shall deny the special
permit for the deviation and require that the applicant submit a plan
that complies with the requirements for a NRPD.
C.
The Planning Board, in consultation with the Conservation Commission
and Open Space Committee, shall study the natural resource analysis,
may conduct field visits, and shall recommend which land should be
preserved and where development may be located. The Planning Board
shall make written findings supporting this determination (the "natural
resource findings"). The Planning Board shall deny any application
that does not include sufficient information to make natural resource
findings or that does not preserve land that the Planning Board determines
should be preserved from development as a result of the natural resource
analysis and findings.
D.
The Planning Board's natural resource findings shall be incorporated
into its decision to approve, approve with conditions, or deny an
application. The natural resource findings shall show land to be permanently
preserved by a conservation restriction, as well as recommended uses,
ownership, and management guidelines for such land. The natural resource
findings shall also indicate preferred locations for development if
the plan is denied based upon such findings.
The plan shall show that at least the percentages of the total
acreage listed below will be preserved by conservation restriction,
based upon the natural resource findings.
The maximum number of residential units in a NRPD is calculated
by a formula based upon the net acreage of the property. This formula
is intended to take into account site-specific development limitations
that make some land less developable than other land. This calculation
involves two steps, calculating the net acreage and dividing by the
base allowed density, or number of acres required per dwelling unit.
The factors named below are included in this section for net
acreage calculation purposes only and do not convey or imply any regulatory
constraints on development siting that are not contained in other
applicable provisions of law, including this zoning bylaw. To determine
net acreage, subtract the following from the total (gross) acreage
of the site:
A.
Half of the acreage of land with slopes of 20% or greater (2,000
square feet or more of contiguous sloped area at least 10 feet in
width);
B.
The total acreage of lakes, ponds, FEMA one-hundred-year floodplains,
and all coastal and/or freshwater wetlands as defined in MGL c. 131,
§ 40, as delineated by an accredited wetlands specialist
and approved by the Brewster Conservation Commission through an abbreviated
notice of resource area delineation (ANRAD); and
C.
Land subject to easements or restrictions prohibiting development.
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Applicants shall use the Field Data Form found in Appendix G
of the Massachusetts DEP Handbook "Delineating Bordering Vegetated
Wetlands Under the Massachusetts Wetlands Protection Act" (1995) (the
"Handbook"). The complete form shall be submitted, including all methods
of determination, i.e., vegetation, soil, and any other indicators,
as provided for on the form. If detailed vegetative assessments are
not required by the Handbook for a particular site, the reasons must
be noted on the Field Data Form. At the Planning Board's discretion,
any of the information described above may be taken from current geographic
information systems data available from the Massachusetts Department
of Environmental Protection, MassGIS, and other credible sources,
including delineations registered by the use of global positioning
systems. The Conservation Commission may request more detailed information
for potentially more sensitive areas.
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To determine the base maximum number of allowable residential
dwelling units on the site, divide the net acreage by five in the
RR District, or by three in the RL and RM Districts. Fractional units
of less than .5 shall be rounded down and .5 or more shall be rounded
up.
The unit count determined in § 179-72.2 above may be increased through density bonuses designed to advance important goals of the DCPC. Density bonuses are given by special permit at the discretion of the Planning Board based upon the expected public benefit. Bonus amounts refer to percentages of a unit, unless otherwise stated. Resulting fractional units, if any, shall be rounded up or down as in § 179-72.2.
A.
If the applicant provides shared, on-site wastewater denitrification
treatment: one unit.
B.
For every unit outside the proposed project, currently using a Title
5 system or cesspool, that is connected to the project's wastewater
treatment facility: bonus of 25%.
C.
If the applicant provides a minimum of three low impact development
components, including but not limited to: bioretention, rain gardens,
xeriscapes, vegetated swales, pervious pavement, green roofs: a maximum
bonus of 25%.
D.
If the applicant preserves as permanent open space more than the
minimum required percentage: a maximum bonus of 10% per additional
5% of the parcel preserved as open space.
E.
If the applicant provides an area of three acres or more for agricultural
use, including community gardens: a maximum bonus of 10%. Up to 1/2
of the area provided may be contained within the required open space.
For a community garden, the applicant will also install Town water.
F.
Solar panel or wind turbine installation: a maximum of 10% per installation.
G.
If the applicant allows deeded public access to the open space portion
of the property and the Planning Board finds that such public access
provides a significant recreational benefit to the Town (such as access
to an important natural area or a trail system): a maximum bonus of
10%. Any bonus granted for public access to open space land shall
not compromise the conservation value of such open space land, based
upon the natural resource findings of the Planning Board.
The density bonuses allowed in § 179-72.3 above may result in a total unit count increase not exceeding the number of units permitted under any other type of subdivision in residential districts outside the DCPC area. Density bonuses may only be used if the resulting development complies with Title 5 of the State Environmental Code as determined by the Board of Health.
For lots in more than one zoning district, the allowable unit
count (excluding bonuses) and required open space for each district
shall be computed separately first. These totals shall be added together
and the allowable maximum bonus for the entire development shall be
calculated based upon this combined total number of units. The permitted
location of the units and protected open space shall be wherever the
Planning Board determines best fits the characteristics of the land,
based upon the natural resource analysis and findings.
The allowable residential units may be developed as single-family or two-family dwellings, provided that applicable special permit review requirements for the zoning district are satisfied and that the number of dwelling units does not exceed the allowable unit count in §§ 179-72.2 and 179-72.3 above. The subdivision approval and special permit requirements shall be fulfilled concurrently in one proceeding to the extent practical. Any NRPD application involving two-family dwellings shall include a site plan that shows the location, layout, height, and setbacks of such dwellings.
The limiting factor on lot size in NRPDs is the need for adequate
water supply and sewage disposal. Therefore, there is no required
minimum lot size for zoning purposes. This does not affect the powers
of the Board of Health to require minimum lot area for the disposal
of sewage and the protection of water supply.
The minimum setback shall be 10 feet from any property line
except that, when the lot line is the exterior line of the subdivision,
the setback shall be 25 feet. There shall be no numerical requirements
for road frontage in NRPD, provided that each lot has legal and adequate
vehicular access to a public way or a way approved under the Subdivision
Rules and Regulations[1] across its own frontage or via a shared driveway. All dwellings must comply with applicable Board of Health requirements. The Planning Board may modify the applicable road construction requirements for new roads within NRPD as provided in the regulations governing the subdivision of land, if it finds that such modifications will be consistent with the purposes of Article XIII and the DCPC purposes and goals.
A.
Lots shall be located and arranged in a manner that protects:
(1)
Ponds and other surface waters;
(2)
Access to ponds and other surface waters;
(3)
Groundwater;
(4)
Views from designated scenic roads;
(5)
Wildlife habitat and corridors;
(6)
Farmland;
(7)
Open fields;
(8)
Large intact forest areas;
(9)
Contiguous undeveloped land;
(10)
Existing protected open space areas;
(11)
Steep slopes;
(12)
Other sensitive environmental resources, while facilitating
pedestrian circulation. Generally, residential lots shall be located
the minimum feasible distance from existing public roadways. The Planning
Board shall take into consideration the natural resource analysis
and findings in approving the arrangement of lots.
Open space set aside in a NRPD or as a condition of any special permit approval shall be permanently preserved from development as required by this section. The Planning Board shall not require such open space land to be accessible to the public, unless a density bonus is allowed under § 179-72.3. Any development permitted in connection with the setting aside of open space land shall not compromise the conservation value of such open space land, based upon the natural resource findings of the Planning Board. Such open space shall remain in a natural and undisturbed state unless otherwise stated by the Planning Board.
All land required to be set aside as open space in connection
with any NRPD shall be so noted on any approved plans as a separate
lot(s) and shall be protected by a permanent conservation restriction,
to be held by the Town of Brewster Conservation Commission, the Commonwealth
of Massachusetts, or a nonprofit conservation organization qualified
to hold conservation restrictions under MGL c. 184, § 31,
and also qualified to hold tax-deductible conservation easements under
Section 170(h) of the Internal Revenue Code. The restriction shall
specify the permitted uses of the restricted land which may otherwise
constitute development. The restriction may permit, but the Planning
Board may not require, public access or access by residents of the
development to the protected open space land. In addition, the boundaries
between the permanent open space and the developed parcels shall be
clearly marked with concrete bounds and appropriately distinguished
iron pipes no shorter than three feet to prevent encroachment into
or disturbance of the open space area.
A.
Ownership of open space land.
(1)
At the developer's option and subject to approval by the Planning
Board, all areas to be protected as permanent open space shall be:
(a)
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 will be open for
public use;
(b)
Conveyed to a nonprofit organization, the principal purpose
of which is the conservation or preservation of open space, with a
conservation restriction as specified in 4.6.2 below. Such organization
shall be acceptable to the Board as a bona fide conservation organization;
or
(c)
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"). The documents which form said association
are subject to approval by the Planning Board. 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 homeowners' association is an automatic (mandatory) association
that has been established prior to the conveyance of any lots within
the subdivision.
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Ongoing maintenance standards shall be established as a condition
of development approval to ensure that the open space land is not
used for storage or dumping of refuse, junk, or other offensive or
hazardous materials.
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B.
Permanent restriction. In any case where open space is not conveyed
to the Town, a permanent conservation or agricultural preservation
restriction approved by the Conservation Commission, and Select Board,
conforming to the standards of and approved by the Massachusetts Executive
Office of Energy and Environmental Affairs (EOEEA), Division of Conservation
Services and enforceable by the Town or holder of the conservation
restriction, 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 in the conservation restriction. Restrictions shall provide
for periodic inspection of the open space by the Town. Such restriction
shall be submitted to the Planning Board prior to endorsement of the
plan and covenant for the project and recorded at the Registry of
Deeds/Land Court prior to endorsement of the definitive subdivision
plan. The Planning Board may require a management plan that describes
how existing woods, fields, meadows or other natural areas shall be
maintained in accordance with good conservation practices.
[Amended 11-13-2017 FYTM, Art. 13]
C.
Encumbrances. All areas to be set aside as open space shall be conveyed
free of any mortgage interest, security interest, liens or other encumbrances.
Certification of said condition by a qualified title examiner shall
be provided to the Planning Board at the time of conveyance.
