In all subdivisions or resubdivisions the Commission shall require
an open space dedication. For a conventional subdivision 20% of the
total area of the subdivision shall be so reserved. For an O.S.C.A.R.
subdivision not less than 40% of the site shall be preserved as open
space. The Commission may modify any application so as to designate
open space in locations other than those proposed by the applicant.
Open space land areas shall be preserved in their natural state,
and their use should be limited to appropriate conservation and recreation
purposes. The Commission may permit open space to be reserved and
designated for active recreation purposes, provided that the size,
shape, access, and location of such areas are approved by the Commission.
The following standards shall be considered in developing the open
space area for any application:
A. Open space areas shall abut and/or have access to a public street
or abut existing open space with access to a public street. There
shall be at least one access to a public street not be less than 25
feet wide, and, at the discretion of the Commission, a driveway shall
be constructed in a manner suitable for foot and truck traffic with
a maximum grade of 10%. The Commission can waive or reduce the frontage
requirement when the open space abuts open space land with existing
access.
B. The location of the open space areas should be primarily in areas
which are contiguous to existing open space areas, areas designated
as desirable in the Plan of Conservation and Development; areas of
the site with the highest probability of connecting with future open
space areas; areas adjacent to Town streets with features such as
large trees and stone walls which retain the rural character of the
Town; areas with significant tree cover, water-related resources;
areas of significant environmental value, or, contains habitat or
rare or endangered species of wildlife or vegetation, or, possesses
unique physical characteristics, scenic vistas, archeologic or historic
value, conserves agricultural soils, or, is part of a sensitive watercourse
or wetland system, or, can be utilized for active recreational purposes.
For example, when a property line of a subdivision abuts an existing
playground and/or park or open space, the Commission may require the
new playground lines to be a continuation of the existing playground
so as to form a single, large unified area.
C. The Commission may allow active or passive recreational uses, or outdoor commercial recreational uses as permitted by §
415-6.6B of these regulations and the Marlborough Zoning Regulations, and/or agricultural use of the open space areas. Further,
the Commission may require any such land dedicated to the Town for
public playgrounds or parks to be improved by the applicant for recreational
purposes, including grading to properly dispose of surface water and
landscaping consistent with the intended use. If the Commission does
require such improvements, the open space dedication shall be reduced
by 5%. All brush and debris shall be removed and the land left in
condition for the purpose intended. The Commission shall only credit
up to 45% of any land designated to be utilized for outdoor commercial
recreation toward meeting the open space requirement of these regulations.
However, all the land used for outdoor commercial recreation shall
have a development restriction placed upon it satisfactory to the
Commission and Town Counsel.
D. Open space land need not necessarily be contiguous with the parcel
being subdivided. Other property may be suggested by the developer
and accepted by the Commission if it finds the community need and
the open space goals and objectives of the Plan of Conservation and
Development are served. Such land must be in the ownership of the
developer. In the alternative, when the required open space may be
properly and more advantageously located in a future section of a
subdivision, the developer shall provide preliminary plans and enter
into an agreement to dedicate an area of land in said future section
for open space. Any open space area proposed to be deeded by the applicant
in a future application shall have a conservation easement placed
upon it with the filing of the final subdivision plan for the current
application until such time said land is deeded to the Town or any
other approved owner. The Commission shall require a deed to be executed
for the land prior to final approval of the subdivision plan.
Ownership of the open space shall be acceptable to the Commission
and may be in one of the following forms:
A. Town of Marlborough: deeded fee simple to the Town by warrantee deed
acceptable to the Board of Selectmen, the Commission, and Town Counsel
to be prepared prior to the filing of the final subdivision plan.
B. Homeowners' association: held in common by a homeowners'
association incorporated as a nonprofit organization dedicated to
the conservation of open space. Said homeowners' association
shall be organized by the applicant prior to filing of the final subdivision
plan in a form satisfactory to the Commission and Town Counsel. Membership
in the association must be mandatory for each property owner within
the subdivision and for any successive lot owners. Only property owners
within the subdivision shall be members of the homeowners' association
and restrict the use to members and their social guests only. The
applicant's deed of said open space land to said association
shall provide that if said homeowners' association is dissolved,
the open space land reverts in ownership to the Town. Additionally,
the applicant's deed shall include all the proper development
restrictions to assure the protection of the open space area. Also,
the homeowners' association bylaws shall provide for assessments
against members for all expenses, including, but not limited to, maintenance
of said open space land, including any improvements thereon, taxes,
and insurance, and provide that each lot shall have one vote regardless
of the numbers of owners of a lot.
C. Nonprofit land trusts/corporation: deeded to a nonprofit land conservation
trust or corporation, established for the purpose of conserving land
in open space with such conveyance to be approved by the Commission
and Town Counsel, and provided that said conveyance shall restrict
subsequent sale or other disposition to a similar trust or corporation
to be approved by the Commission and Town Counsel prior to any such
transfer.
D. Undivided interest: held by each lot owner having an undivided interest
in said open space land, provided that proper provision to conserve
and preserve land are included, and such open space land shall remain
undivided and no lot owner shall bring action for partition or division
of any part thereof, and provided that the use of such open space
land shall be limited to property owners in the subdivision or their
social guests.
E. Applicant ownership: held in ownership by the applicant subject to
a legally binding arrangement that will permit use of the open space
land for agricultural or recreational uses with the appropriate restrictions
approved by the Commission or subject to a conservation and preservation
restrictions as provided for by C.G.S. § 47-42a, as amended,
from time to time, in terms and conditions which are acceptable to
the Commission and Town Counsel.
F. Other: any other method which accomplishes permanent preservation
in accordance with the requirements of these regulations and satisfactory
to the Commission and Town Counsel.
In determining the proper ownership of the open space land,
the following shall be considered;
A. Open space parcels to be dedicated to the Town shall be parcels that are unique or significant and possess the natural features outlined in §
415-5.2I of these regulations or which offers opportunity for active or passive recreation for Town residents. In such cases access to the open space shall be provided and designed so that the use of the open space does not interfere with reasonable use by residents of the subdivision. The Town may also consider dedication of open space when the parcel provides a needed link in a stream belt system or connects with other greenbelt areas.
B. Open space parcels may be conveyed to a homeowners' association
or undivided interest of lot owners when the parcel is largely internal
to the subdivision or located at the entrance to the development.
C. Open space parcels may be conveyed to a nonprofit land conservation
trust where the parcel contains significant areas of wildlife habitats,
or is adjacent to the land owned by a nonprofit land trust or corporation
and/or where the addition of the parcel may enhance existing lands
owned by such a trust. Additionally, when such land abuts open space
land of the state, Town or other entity and the Town does not desire
such dedication.
D. The ownership of any existing open space on adjoining properties,
or the proximity to nonadjacent open space, which might reasonably
interconnect, with the proposed open space in the future;
E. The proposed use of open space for active or passive uses, and the
extent of maintenance, supervision, or management required;
F. The potential benefits which the open space might provide to residents
of the Town or the state if it were accessible to them;
G. The size, shape, topography and character of the open space and the
recommendations of the Plan of Conservation and Development.
All dedications of open space shall accompany the application
for subdivision and shall be executed upon final approval of the application.
Dedications of land to the Town shall be by warrantee deed. Any land
dedicated for open space purposes and not to be dedicated to the Town
in fee simple shall contain appropriate covenants and deed restrictions
satisfactory to and approved by the Commission and the Town Attorney
and filed with the Office of the Town Clerk with the final Mylar to
ensure that:
A. The open space will not be further subdivided in the future.
B. The use of the open space will continue in perpetuity for the purpose
specified.
C. Appropriate provisions are made for the maintenance of the open space.
D. Open space areas shall not be used for agricultural and/or outdoor
commercial recreational uses other than approved by the Commission
as designated on the record subdivision plan.
The boundary lines of all open space areas shall be identified
and marked by monuments or pins at all lot lines, corners and points
of deflection and by markers supplied by the Commission every 200
feet, at the developer's expense, to ensure the proper identification
of the open space.
If the developer proposes and the Commission agrees, the applicant
may pay a fee to the Town or pay a fee to the Town and transfer land
to the Town in lieu of providing the required amount of open space.
Such payment, or combination of payment and the fair market value
of land transferred, shall be equal to not more than 10% of the fair
market value of the land to be subdivided prior to the approval of
the subdivision. An appraiser jointly selected by the Commission and
the applicant shall determine the fair market value. A fraction of
such payment, the numerator of which is one and the denominator of
which is the number of approved parcels in the subdivision, shall
be made at the time of the sale of each approved parcel of land in
the subdivision and placed in a fund which shall be used for the purpose
of preserving open space or for recreational or agricultural purposes.
The open space requirements of this section shall not apply if the
transfer of all land in a subdivision of less than five parcels is
to a parent, child, brother, sister, grandparent, grandchild, aunt,
uncle, or first cousin for no consideration, or if the subdivision
is to contain affordable housing as defined in Section 8-39a of the
C.G.S., equal to 25% or more of the total housing to be constructed
in such subdivision.