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,[1] 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.
[1]
Editor's Note: See Ch. 340, Zoning.
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.
A. 
Open space land may be preserved in its natural state or the use of such land shall be limited to appropriate agricultural, conservation, open space, and recreational purposes as determined by the Commission. The use of the open space will continue in perpetuity for the purpose specified except that a change in a permitted use of open space (e.g., from recreational to agricultural) may be permitted by the Planning Commission after a duly called public hearing, Open space land may be used only for the following operations and uses:
(1) 
The conservation of soil, vegetation, water, fish, shellfish, and wildlife. Such operations and uses may include, but are not limited to, minor work to control erosion, and activities to encourage proper fish, wildlife, and silviculture management practices.
(2) 
Outdoor recreation, including the construction and use of playgrounds, athletic areas, golf courses, and field trails and nature study centers, horseback riding, swimming, camping, trapping, hunting and fishing where otherwise permitted and regulated.
(3) 
Structures and buildings accessory to agricultural, recreational, and conservation uses may be erected on the common land.
B. 
Open space land shall not be used for the storage of equipment or the deposition of debris and shall not be excavated, filled or regraded, and trees shall not be removed therefrom, except in accordance with the approved final subdivision plan.
C. 
If a permitted outdoor commercial recreation use is discontinued and no substitute use is sought, the land shall stay as open space and all structures removed within six months of such discontinuance.
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.