City of Old Town, ME Article XII Open Space Subdivisions

§ 18-131 Policy.

[Ord. of 8-4-2008]

(a) It is the policy of the City of Old Town to allow the use of open space subdivisions in order to preserve a sense of space, provide for sustainable agriculture and forestry as well as recreational land, preserve other resources identified in the City of Old Town Comprehensive Plan, and harmonize new development with the traditional open, wooded, agricultural, rural and village landscapes of the City.

(b) This performance standard is intended to implement that policy by providing incentives that afford flexibility to landowners in road and lot layout and design and road frontage requirements and by allowing the Planning Board to expedite procedure and to waive or reduce certain otherwise applicable standards and provisions of this chapter if such landowners commit to the permanent preservation of important open space resources. These incentives are designed to encourage greater flexibility and more-innovative approaches to housing and environmental design for the development of single-family and multifamily residential areas that will promote the most-appropriate use of land and will preserve, as permanent open space, agricultural or forestry land, important natural features, wildlife habitats, water resources, ecological systems, and historic and scenic areas for the benefit of present and future residents.

§ 18-132 Purposes.

[Ord. of 8-4-2008]

To qualify as an open space subdivision, the Planning Board must find that the subdivision will achieve all of the following purposes that are applicable to its specific circumstances:

(a) Long-term protection and conservation of existing natural and other resources and landscapes identified in the Comprehensive Plan, including, but not limited to:

(1) State-defined critical areas, and unique natural features located on the parcel to be subdivided.

(2) Historic land use patterns and historic structures.

(3) Points of visual access to or from water bodies, scenic vistas, and points of access to water bodies.

(4) Contiguous stands of mature trees.

(b) Maintenance or establishment of compatibility with surrounding land uses and the overall rural character of the City as defined by the Comprehensive Plan;

(c) Provision of adequate buffers for adjoining properties where needed;

(d) Contribution to City-wide open space planning by creating a system of permanently preserved open space, both within large parcels of land and among such parcels throughout the City, and by encouraging linkages between open space areas;

(e) Conservation of land suitable or actively used for agriculture and forestry uses, particularly where the open space subdivision borders active agricultural or forestry land or land suitable for the same;

(f) Conservation of traditional land uses;

(g) Creation of choices in the type of environment (business or residential) and type of housing available that will be a long-term asset to Old Town;

(h) Construction of affordable housing;

(i) Provision of recreation facilities, including active and passive recreational space, in the most-suitable locations for use consistent with the other purposes of this performance standard; and

(j) Attainment of planned variety and coordination in the location of structures, architectural styles, and building forms and relationships.

§ 18-133 Grouping contiguous parcels.

[Ord. of 8-4-2008]

In order to increase design flexibility, two or more contiguous parcels of land under the same or different ownership, including parcels separated by a public or private road, may be grouped together as one open space subdivision, if the Planning Board finds that such grouping will benefit the City and that it helps achieve the purposes set forth in § 18-132.

§ 18-134 Planning Board review.

[Ord. of 8-4-2008]

(a) Preapplication. An individual may apply for approval of an open space subdivision as part of the preapplication conference described in Article IV.

(b) Application procedure.

(1) Required plans. The submissions for an open space subdivision shall include, as appropriate, unless any of the same are waived, all plans and materials required for a conventional subdivision.

(2) Waiver of submission and review requirements. The Planning Board may grant appropriate waivers of submission requirements for an open space subdivision in order to expedite and make the review process more-efficient where the number of lots proposed for development in a parcel is five or fewer within any five-year period.

(c) General requirements.

(1) Use and district requirements. All open space subdivisions shall meet the use standards of the zoning districts in which they are located, and the Planning Board may further limit the uses on the lots created.

(2) Allowable density.

a. The allowable density for a proposed development of no more than three lots within any five-year period of a parcel of land under one ownership or a grouping of contiguous parcels as described in § 18-133 shall be determined by the gross lot area of the portion of each parcel proposed for development without reference to net residential acreage, divided by the minimum lot size of the applicable district without reference to net residential acreage.

b. The allowable density for all other developments shall be based on net residential density and shall be calculated in the following manner:

1. Determine the buildable area of the parcel according to the definition of "net residential area" contained in Article III and reduce it by 20%; then

2. Divide the reduced net residential area by the minimum lot size required in the Zoning Ordinance to obtain the net residential density allowable.

c. A lot for a dwelling unit created as part of an open space subdivision shall not be further subdivided.

d. A lot for a principal structure created as part of an open space subdivision where such lot shall have within its bounds designated open space shall not be further subdivided unless the original approved plan shall have reserved future development of such lot, but any such further subdivision shall only be made in accordance with this performance standard.

e. Any affordable housing density bonus provision provided for in the Land Use Ordinance shall also apply within clustered residential projects.

(3) Layout and siting standards.

a. In planning the location and siting of residential or business structures in an open space subdivision, lot dimension and frontage should not be the primary considerations. Priority should be given to the preservation of the open space for its natural resource value, with human habitation and business activity located and sited on the lower-valued natural resource portion of a parcel, taking into account the contours of the land and the reasonableness of slopes.

b. The building lots on a parcel shall be laid out and the residences and business structures shall be sited so as to maximize the following principles. The Board, in its discretion, shall resolve conflicts between these principles as applied to a particular site.

1. In the least-suitable agricultural soils and in a manner which maximizes the usable area remaining for the designated open space use, where agricultural, forestry, or recreational existing or future uses are particularly sought to be preserved.

2. In locations least likely to block or interrupt scenic, historic, and traditional land use views, as seen from public roadways and great ponds.

3. Within woodlands, or along the far edges of open agricultural fields adjacent to any woodland, to reduce encroachment upon agricultural soils, to provide shade in the summer, and shelter as well as solar gain in the winter, and to enable new residential development to be visually absorbed by natural landscape features.

4. In such manner that the boundaries between residential or business lots and active agricultural or forestry land are well-buffered by vegetation, topography, roads, or other barriers to minimize potential conflict between residential or business and agricultural or forestry uses.

5. In locations where buildings may be oriented with respect to scenic vistas, natural landscape features, topography, and natural drainage areas, in accordance with an overall plan for site development.

6. In locations that provide compatibility in terms of physical size, visual impact, intensity of use, proximity to other structures, and density of development with other permitted uses within the land use district.

7. In locations such that diversity and originality in lot layout and individual building, street, and parking layout is encouraged.

8. So that individual lots, buildings, streets and parking areas shall be designed and situated to minimize alterations of the natural site, to avoid the adverse effects of shadows, noise and traffic on the residents of the site, to conserve energy and natural resources, and to relate to surrounding properties, to improve the view from and of buildings.

(4) Space standards.

a. Shore frontage and shore setback requirements shall not be reduced below the minimum shore frontage or shore setback required in the land use district.

b. Distances between residential structures in multifamily open space subdivisions shall be a minimum of the height of the tallest structure.

c. In areas outside of the Shoreland Zone, the required minimum lot size or minimum land area per dwelling unit for the building envelope may be reduced in open space subdivisions to no less than 1/2 acre. If the lot area is reduced, the total open space in the development shall equal or exceed the sum of the areas by which the building lots are reduced below the minimum lot area normally required in the Zoning Ordinance as modified, if any, by § 19-134(c)(2).

d. Minimum road frontage requirements of the Zoning Ordinance may be waived or modified by the Planning Board, provided that:

1. Any applicable provisions regarding roads in Chapter 17, Article II (Street Acceptance), are satisfied.

2. Adequate access and turnaround to and from all parcels by fire trucks, ambulances, police cars and other emergency vehicles can be ensured by private roads and/or common driveways.

3. No common driveway shall provide access to more than three lots.

e. Yard requirements for each lot shall be the same as required for the land use district which it lies.

f. The designated open space shall represent at least 50% of the total parcel area.

(5) Utilities. At the discretion of the Planning Board, in order to achieve the most-appropriate design and layout of lots and open space, utilities, including individual wells and septic systems, may be located on designated portions of the open space, if necessary, provided the same shall not unreasonably interfere with the open space purposes to be achieved under this performance standard and for the particular parcel(s) that is(are) the subject of the application for open space subdivision.

a. The Planning Board may waive or modify hydrogeological reviews or studies if the applicant demonstrates that, due to the specific placement of wells and septic systems:

1. Adequate groundwater is available at all locations proposed for individual water systems; and that

2. There is no reasonable likelihood that the domestic water supply for any proposed lot will exceed 10 mg/l of nitrates.

b. If a private collection septic system is proposed for a single-family or multifamily open space subdivision, the applicant must show either that at least one designated site for each lot, in the open space or on the lot, has adequate soils and land area suitable for subsurface waste disposal for each lot in accordance with the minimum standards set forth in the Maine State Plumbing Code, and that a second designated site on the parcel has the size, location and soil characteristics to accommodate a system similar to the one originally proposed.

c. If a private central collection system is proposed, the system shall be maintained by a homeowners' association or under an agreement of the lot or unit owners in the same fashion required for maintenance of the open space by a homeowners' association or the lot or unit owners in common, and written evidence of said maintenance agreement shall be submitted to the Planning Board.

(d) Open space requirements.

(1) In Planning Board review and approval of an open space subdivision, the following requirements shall apply and shall supersede any inconsistent or more-restrictive provisions of this chapter or the Building Code Ordinance.

(2) Open space set aside in an open space subdivision shall be permanently preserved as required by this performance standard, except as allowed under this provision for flexible open space and the substitution for and/or the addition to the same, or where open space is dedicated by a landowner under contract with the City for a term of years as set forth below. Land set aside as permanent open space may, but need not, be a separate tax parcel. Such land may be included as a portion of one or more large parcels on which dwellings are permitted, provided that a conservation easement or a declaration of covenants and restrictions is placed on such land pursuant to § 18-134(d)(2)c, and provided that the Planning Board approves such configuration of the open space.

a. Open space uses. On all parcels, open space uses shall be appropriate to the site. Open space shall include natural features located on the parcel(s), such as, but not limited to, stream beds, significant stands of trees, individual trees of significant size, agricultural land, forested acreage, wildlife habitats, rock outcroppings and historic features and sites. Open space shall be preserved and maintained subject to the following, as applicable:

1. On parcels that contain significant portions of land suited to agricultural production, open space shall be conserved for agriculture or other consistent open space uses such as forestry, recreation (active or passive), and resource conservation.

2. When the principal purpose of conserving portions of the open space is the protection of natural resources such as wetlands, aquifers, steep slopes, wildlife and plant habitats, and stream corridors, open space uses in those portions may be limited to those which are no more intensive than passive recreation.

3. Open space areas shall be contiguous, where possible, to allow linking of open space areas throughout the City.

4. If the open space is to be devoted, at least in part, to a productive land use, such as agriculture or forestry, the developer shall submit to the Planning Board a plan of how such use is to be fostered in the future. Such plan may include, for example, a long-term timber management plan.

5. The Planning Board may limit the use of any open space at the time of final plan approval where the Board deems it necessary to protect adjacent properties or uses or to protect sensitive natural features or resources. A proposed change in use of open space land, other than that specified at the time of plan approval, shall be reviewed by the Planning Board as an amendment to the approved plan.

6. Further subdivision of open space or its use for other than agriculture, forestry, recreation or conservation, except for easements for underground utilities, shall be prohibited and shall be so stated by deed restrictions, except as provided in § 18-134(d)(2)c. Structures and buildings accessory to agriculture, recreation or conservation uses may be erected on open space, subject to Planning Board approval and these provisions for open space subdivisions.

b. Notations on plan. Open space must be clearly labeled on the final plan as to its use or uses with respect to the portions of the open space that such use or uses apply, ownership, management, method of preservation, and the rights, if any, of the owners in the subdivision to such land or portions thereof. The plan shall clearly show that the open space land is permanently reserved for open space purposes and is subject to a reservation for future development and shall contain a notation indicating the book and page of any conservation easements or deed restrictions required to be recorded to implement such reservations or restrictions.

c. Preservation in perpetuity. An owner of a parcel of land may designate all or a portion of the parcel for open space use in perpetuity if the purposes set forth in § 18-132 are achieved and all other requirements of this performance standard are met, subject to the following conditions:

1. A perpetual conservation easement, or declaration of covenants and restrictions, restricting development of the open space land must be incorporated in the open space plan.

2. The conservation easement may be granted to or the declarations may be for the benefit of a private party, third party or other entity, the City, with the approval of the City Council, or to a qualified not-for-profit conservation organization acceptable to the Planning Board.

3. Such conservation easement or declaration of covenants and restrictions shall be reviewed and approved by the Planning Board and be required as a condition of plan approval hereunder.

4. The Planning Board may require that such conservation easement, or declaration of covenants and restrictions, be enforceable by the City of Old Town if the City is not the holder of the conservation easement or beneficiary of the declarations.

5. The conservation easement or declarations shall prohibit residential, industrial, or commercial use of such open space land (except in connection with agriculture, forestry, and recreation) and shall not be amendable to permit such use.

6. The conservation easement or declarations shall be recorded in the Penobscot County Registry of Deeds prior to or simultaneously with the filing of the open space subdivision final plan in the Penobscot County Registry of Deeds.

7. Notwithstanding the foregoing, the conservation easement, or the declaration of covenants and restrictions, may allow dwellings to be constructed on portions of parcels that include protected open space land, provided that:

i. The total number of dwellings permitted by the conservation easement, or declaration of covenants and restrictions, in the entire subdivision does not exceed the allowable density established in this performance standard above;

ii. The Planning Board grants approval for such lots; and

iii. The applicant has reserved the right to apply for approval for such additional lots.

d. Ownership of open space land.

1. Open space land may be held in private ownership (which is to be preferred), including an appropriate third party and including the applicant; or owned in common by a homeowners' association (HOA); dedicated to the City, county or state governments or agencies; transferred to a nonprofit organization, such as a conservation trust, or association, acceptable to the Planning Board; or held in such other form of ownership as the Planning Board finds adequate to achieve the purposes set forth in § 18-132 and under the other requirements of this chapter.

2. The appropriate form of ownership shall be determined based upon the purpose of the open space reservation as stated pursuant to § 18-134(d)(2)a above. Unless so determined, or unless deeded to the City of Old Town and accepted by the Old Town City Council, common open space shall be owned in common by the owners of the lots or units in the development. Covenants for mandatory membership in the association setting forth the owners' rights, interest, and privileges in the association and the common land shall be approved by the Planning Board and included in the deed for each lot.

e. Maintenance standards. Maintenance standards for open space land, where appropriate, shall be in accordance with other requirements of this Land Use Ordinance.