[Massplanners] [**EXT**] Re: Holding Open Space
Wayne Feiden
wayne at feiden.org
Thu Nov 2 11:55:20 EDT 2023
Other approaches I have worked on include having HOA hold the land but the
municipality hold a conservation restriction and public right of way, and
building a municipal endowment or private endowment with the municipality
as the beneficiary for new open space holdings.
*Wayne Feiden FAICP*
On Thu, Nov 2, 2023 at 11:37 AM Eric Salerno via MassPlanners <
massplanners at masscptc.org> wrote:
> Hi Alison,
> Our Conservation Director essentially echoed what Kristen said, but also
> mentioned that locally, Dunstable has a long-standing trust that you could
> get some pointers from (Tyngsborough's is in its very early stages but
> doesn't have any stewards yet). Chelmsford's Land Conservation Trust
> <https://www.clct.org/> works closely with COSS (Chelmsford Open Space
> Stewardship <https://www.facebook.com/ChelmsfordOSS/>), which is an
> active group that maintains many large and small areas around town, and
> could also be helpful to look to for guidance.
> -Eric
>
>
> <http://tyngsboroughma.gov/>
> Eric Salerno
> Town Planner / Eco. Dev. Dir.
> Town of Tyngsborough
>
> 978-743-5361 | tyngsboroughma.gov
>
> esalerno at tyngsboroughma.gov
>
> 25 Bryant Lane, Tyngsborough MA 01879
> <http://facebook.com/tyngsboroughma>
> <https://www.linkedin.com/company/town-of-tyngsborough/>
> <http://twitter.com/TyngsboroughMA>
>
>
> In Massachusetts, the term “public record” is broadly defined to include
> all documentary materials or data created or received by any officer or
> employee of any governmental unit, regardless of physical form or
> characteristics, unless it falls under one of the statutory exemptions to
> the Public Records Law. G.L.c. 4, 7(26). Consequently, email is subject to
> the disclosure, retention, and maintenance provisions as required by law.
> G.L.c. 66
>
>
> On Wed, Nov 1, 2023 at 12:28 PM Kristen Grubbs via MassPlanners <
> massplanners at masscptc.org> wrote:
>
>> 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
>>
>> 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
>>
>> 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:
>>
>>
>> 1. Mandatory membership in an established homes association as a
>> requirement of residence or ownership of any lot in the tract.
>> 2. 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.
>> 3. 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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>>
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