[Massplanners] Holding Open Space

Wed Nov 1 12:26:42 EDT 2023

Hi Alison,
A few quick thoughts: I agree that towns and HOAs are often not the best steward of open space. It's great if you can get a local or regional land trust involved very early on. Then, a Planning Board, during its permitting negotiations, can strive to achieve an open space area that actually has high resource and/or recreational public value, and meets the land trust's criteria for being valuable open space. Ideally, if this is successful, the land trust will agree to be the holder and long-term steward of the open space (in fee or a CR). They are set up to be great stewards with regular monitoring, endowments for enforcement if needed, etc. Newbury has had some great success with OSRDs working with our regional land trust in this way.

Kristen C. Grubbs (she/her)
Newbury Assistant Planner
Newbury Municipal Offices
12 Kent Way, Byfield MA 01922
assist.planner at townofnewbury.org<mailto:assist.planner at townofnewbury.org>
978-465-0862, ext. 336
M, W, Th 8-4; Tues 8-7

From: MassPlanners <massplanners-bounces at masscptc.org> On Behalf Of Alison Manugian via MassPlanners
Sent: Wednesday, November 1, 2023 11:59 AM
To: Nate Kelly via MassPlanners <massplanners at masscptc.org>
Subject: [Massplanners] Holding Open Space

Our Open Space Residential Subdivision requirements are below.  Our ongoing frustration is the holding of the open space.  We are effectively ending up with horseshoe shaped open space with significant wetlands around every new development in Town.  When the Town owns this we have no use for these parcels and any maintenance is difficult.  When a HOA holds the space we end up being the caretaker regardless after protracted fighting with an HOA.

What do other communities do that works well?

Thank you,
Alison

Alison Manugian
Community Development Director
amanugian at dracutma.gov<mailto:amanugian at dracutma.gov>
978-453-4557

7.1.4   Common Land.
Any development submitted pursuant to this section shall provide common land in area not less than the sum of the areas by which the building lots are reduced below the minimum lot area required for conventional development of the tract as per Section 4 of this By-law. All common land must have access to a roadway within the subdivision.
All common land required herein shall be exclusive of land classified as wetland and shown on a map entitled "Wetland and Water Conservancy District, Town of Dracut 1977" consisting of twenty-five sheets and on file with the Town Clerk. Said land may be counted pursuant to the provisions of Section 4.1.2 of this By-law for the purposes of calculating "Minimum Land Area" and may be added to the "Common Land" only following the satisfaction of the basic requirements of this Section.
The common land within the Open Space Residential Development may be conveyed by the owner/developer to one or more of the following entities, as appropriate:

  1.  Conveyance to the town for the sole purpose of passive or active recreational open space, agricultural land or other open space purpose, should the town be willing to accept and manage the property. The property is to be kept in an open and natural state, and may be subject to a conservation restriction prepared in accordance with the provisions of Section 31 and 33, inclusive, of Chapter 184 of the General Laws of the Commonwealth of Massachusetts.
  2.  Conveyance to the Commonwealth of Massachusetts as part of a state forest, park, or wildlife management area.
  3.  Conveyance to a non-profit corporation, the principal purpose of which is the conservation of open space and made subject to a conservation restriction prepared in accordance with the provisions of Sections 31 and 33, inclusive, of Chapter 184 of the General Laws of the Commonwealth of Massachusetts.
  4.  Conveyance to a corporation or trust owned or to be owned by the owners of lots or residential units within the plot and made subject to a conservation restriction prepared in accordance with the provisions of Section 31 and 33, inclusive, of Chapter 184 of the General Laws of the Commonwealth of Massachusetts.
  5.  Conveyance to a private owner for agricultural, horticultural, forestry or any other purpose and made subject to a conservation restriction prepared in accordance with the provisions of Section 31 and 33, inclusive, of Chapter 184 of the General Laws of the Commonwealth of Massachusetts.

7.1.5   Legal Requirements for Common Land Ownership and Maintenance.
In the event that the common land and other facilities which may be held in common, are conveyed to a homeowners' association, whose membership includes the owners of all lots or units contained in the tract or if the development is a cooperative, with owners holding shares in the cooperative association, then the following shall apply:

  1.  The owner/developer shall include in the deed to the owners of individual lots beneficial rights in said common land and shall grant a conservation restriction to the Town of Dracut and/or an appropriate entity noted in 7.1.3 above, over such land pursuant to Massachusetts General Laws Chapter 184 Sections 31-33, to insure that such land 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;
  2.  This restriction shall be enforceable by the Town through its Conservation Commission in any proceeding authorized by Massachusetts General Laws Chapter 184, Section 33;
  3.  The developer shall be responsible for the maintenance of the common land until such time as the homeowners' association is capable of assuming said responsibility or in the case of a trust, for the benefit of the tenant upon the execution of the trust. Prior to conveyance of the land to the homeowner's association, the Planning Board, upon advice of the Conservation Commission, Open Space Committee and other applicable board or commission, shall review and approve a maintenance and operations plan for the upkeep of the open space parcels within the subdivision.
  4.  The homeowners' association shall be responsible for the maintenance of the open space in accordance with the approved operation and maintenance schedule.
  5.  In order to ensure that the homeowners' association will properly maintain the land deeded to it under this section, the developer shall prepare a Declaration of Covenants and Restrictions, which shall at a minimum provide for the following:

     *   Mandatory membership in an established homes association as a requirement of residence or ownership of any lot in the tract.
     *   Provisions for maintenance and tax assessment of all lots in order to ensure that the common land is maintained in a condition suitable for the uses approved by the homeowners' association. Failure to pay such assessment shall create a lien on the property assessed, enforceable by either the homeowners' association or the owner of any lot.
     *   Provisions which, so far as possible under the existing law, will ensure that the restrictions placed on the use of the common land will not terminate by operation of law. This Declaration of Covenants and Restrictions shall be reviewed and approved by the Planning Board and their legal counsel and then shall be recorded with the Middlesex Registry of Deeds. A copy of said Declaration or trust shall also be filed with the Town Clerk. Prior to the Building Inspector's issuance of a building permit for any lot, the developer shall provide satisfactory assurance of the conveyance and recording as required above in the form of copies of the recorded instruments bearing the recording stamps.

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