[1]
Editor's Note: The provisions of the Protective Bylaw authorizing
flexible plan subdivision were repealed by Art. 12 of the 11-16-1987
Special Town Meeting. References in this article to certain sections
of the Protective Bylaw are to the Bylaw as it existed prior to the
1987 amendment and are no longer accurate.
This article is intended to implement the provisions of Section
4.6h of the Protective Bylaw, which provides that: "The Planning Board's
Rules and Regulations Relative to Subdivision Control shall provide
for plans, procedures, coordination of siting of water supply and
sewage disposal and of COS, both within and beyond the FPS, and other
aspects of FPS design and administration for carrying out the Bylaw.
The Planning Board shall approve a plan containing lots of FPS type
only if the Board finds that the proposed development is in harmony
with the intent and purposes of the Bylaw."
A.
The statement of intent at the beginning of Section 4.6 (FPS) of
the Protective Bylaw reads in part: "It is the intent to provide,
as an optional alternative to conventional lot-by-lot development,
for the development of residential tracts on an overall basis, for
the purposes of conservation and protection of water and other natural
resources, improved land use and allocation." FPS is a form of cluster
development adopted, as amended, to deal with two common developmental
situations in Harvard, where a tract is deep compared to its width
or compared to its frontage on a street.
(1)
The tract is partly easily developed land, partly land that is not
readily developed, and partly wetlands and floodplain.
(2)
The tract was set aside in the hope that it might be developable
as a cluster of hammerhead or backland lots but there is inadequate
access to intended home sites except as lots in a mini-subdivision
served by a mini-subdivision way, and where the lateral dimensions
of the mini-subdivision lots may be reduced in exchange for dedicated
common open space.
B.
Entire tract included in FPS. According to the statement of intent
in the Protective Bylaw, FPS is intended as "an optional alternative
to lot-by-lot development." All of the lots in the tract being developed
are therefore considered to be part of the flexible plan subdivision,
whether or not dimensional reductions are applied to a specific lot,
if FPS lot size reductions are applied to any lot in the tract.
C.
Status under approval procedure. The fact that lots may have been
shown on a plan not requiring approval under the Subdivision Control
Law shall not affect the determination whether they are part of an
FPS (even if the plan has been recorded), unless such lots have been
actually created by conveyance (or otherwise) in an arms-length transaction.
D.
Computation of COS area. The requirement of Section 4.6d of the Protective Bylaw that common open space (COS) include at least 30% of the FPS shall be interpreted as meaning that no more that 70% of the land area of the tract being divided shall be in individual lots. The requirement may be moot if it is waived by the Board, acting under Protective Bylaw Section 4.8k. (However, see Subsection E, Limitation of waivers to be made in conjunction with mini-subdivision, below.)
E.
Limitation of waivers to be made in conjunction with mini-subdivision. The mini-subdivision section of the Protective Bylaw was modified in 1982 by the addition of a Subparagraph 4.8h which contains a provision that the special permit granting authority "may waive" certain COS requirements of FPS. The report of the Planning Board concerning Section 4.8h, made to the Town Meeting prior to adoption, and reported to the Attorney General following adoption, indicated the intent to facilitate the use of mini-subdivision for isolated tracts that might otherwise have been slated for development as two or three lots served by a shared driveway and for which COS area and playground use requirements of the FPS section of the Bylaw would be inappropriate. (See also § 130-30B of this chapter.)
(1)
The Planning Board will utilize Section 4.8h of the Bylaw to waive
the provisions of Bylaw Sections 4.6d and 4.6e only to the extent
necessary to achieve the above legislative intent and then only if
the mini-subdivision is on a tract whose dimensions are restricted
and the development is otherwise in all respects in harmony with the
intent and purpose of the Bylaw.
(2)
The Planning Board will not use Bylaw Section 4.8h to waive the requirement
of Bylaw Section 4.6d that "All area in the FPS not part of a street
layout and not part of a building lot shall be part of the common
open space (COS) of the FPS."
A.
Sewage systems. The sewage disposal system which serves an individual
lot in an FPS, including the entire leaching field and area for future
revision required by the Board of Health, shall be entirely within
the main portion of such a lot.
B.
Use of COS to isolate sewage disposal systems. The Planning Board
may require that all or part of the COS be located in such a way as
to spread out the leaching areas (or other parts of the sewage disposal
system) serving individual lots in the FPS or to isolate a concentration
of such areas from wells, wetlands, water table recharge paths, sources
of possible inundation and erosion, or paths of possible discharge
of pollution onto adjoining lands.
It is the intent to provide procedures for the creation of common
open space and for qualified homeowners' associations as required
by the Protective Bylaw and by this chapter. The provisions of this
section may also be applied to qualified homeowners' associations
in mini-subdivisions.
A.
Creation of common open space. Prior to the creation (by conveyance or otherwise) of any lot which is part of the FPS, all of the land which is part of COS shall be transferred by recorded deed to a qualified homeowners' association, or to the Town of Harvard through its Conservation Commission, or to a tax-exempt conservation trust or corporation as provided in § 125-2, Definitions, of the Protective Bylaw, Paragraph (3) under the definition of "common open space."[1] The provisions of the deed of transfer shall be subject
to prior approval by the Planning Board and shall not reserve to the
grantor rights or privileges other than those which the Planning Board
deems necessary and proper to expedite the orderly completion of the
amenities of the subdivision, nor shall such deed impose on the grantee
obligations beyond those contemplated by Section 9 of the Zoning Act,
the FPS and COS provisions of the Protective (Zoning) Bylaw, and the
provisions of this chapter.
B.
Qualified homeowners' association. A qualified homeowners' association
shall be created prior to the conveyance of any lot in the subdivision
or FPS for which such an association is required, either by the Protective
Bylaw or by the terms of a special permit. A failure to enforce this
requirement on any particular lot or lots, whether by oversight or
otherwise, shall not be deemed a waiver of the requirement.
(1)
Articles of formation of homes association. The articles of formation
of the qualified homeowners' association shall be prepared by a licensed
attorney. They shall be submitted to the Planning Board for its review
and approval on a time scale which allows for comments by counsel
of its choice. The Board may make available an optional pre-approved
set of such articles; proposed changes in such articles must be reviewed
by counsel for the Board.
(a)
Such articles shall include:
[1]
Voting membership by each and every lot owner in the tract and
no others.
[2]
Responsibility by the association and also by the individual
lot owners themselves, jointly and severally, for repair, maintenance,
and snow removal on the way or ways and for payment of any real estate
taxes on the way(s) and other common open space.
[3]
Non-unanimous voting (except where there are only two lots).
[4]
Responsibility by the association and also the individual lot
owners jointly and severally for management and upkeep of the common
open space.
[5]
No purposes or powers unrelated to the requirements of the Protective
Bylaw, or to the terms of a special permit, or to the requirements
inscribed by the Planning Board on a definitive plan of subdivision
as a part thereof.
[6]
A provision requiring that all proposed amendments to the articles
of formation of the association must be submitted in writing to, and
be subsequently approved in writing by, the Planning Board prior to
adoption. If the articles of formation of the homes association provide
for the adoption of bylaws for the association, then this provision
shall extend also to the adoption and amendment of such bylaws.
(b)
If the formation of a qualified homeowners' association would
result in an association which would have permanently only one member,
the Planning Board may substitute a recorded enforceable agreement
between itself (or the Town) and the lot owner which has the same
net effect as if there were such an association.
(2)
Creation of homeowners' association.
(a)
The qualified homeowners' association shall be created by:
[1]
The approval of the articles of formation by the Planning Board;
and
[2]
The execution and recording of an agreement, to run with the
land, between (all of) the current owner(s) of the property affected
and the Planning Board that membership in the homeowners' association
approved by the Board shall be binding on the present owner(s) and
his (their) successors and assigns, and a provision that ownership
of a lot automatically results in membership shall be a part of the
deed to each lot conveyed.
(b)
Compliance with these provisions shall be deemed complete only
when copies of the recorded deeds or agreements, with marginal references,
certified by the Register of Deeds or by the Recorder of the Land
Court, have been delivered to the Planning Board.
