Land Preservation—

P&Z Expands

Open Space Requirements

By Andrew Gorosko

The Planning and Zoning Commission (P&Z) has expanded its regulations for open space preservation in new subdivisions, requiring a proportionally greater amount of property to be preserved as protected, undeveloped land, which may be used for passive or for active forms of public recreation.

P&Z members unanimously approved the expanded open space regulations following a public hearing on April 15. The new rules take effect April 26. P&Z members have been discussing such open space rule changes for about a year.

(See related story on open space regulations).

P&Z Chairman William O’Neil said that the rule revisions, which include a provision requiring that a minimum 15 percent of the land area of a subdivision be set aside as open space, are consistent with the recently approved 2004 Town Plan of Conservation and Development. Until now, the P&Z had required a minimum ten percent of a subdivision to be designated as open space.

Also, the revised regulations require that old, unused railroad rights-of-way within subdivisions be designated as open space areas, and not be included as portions of private building lots. Such rights-of-way often are used as trails by walkers and hikers.

Additionally, the revised rules would require that accessways that lead to open space trails within subdivisions be designated as open space, instead of being designated as right-of-passage easements on private building lots.

In the past, hikers’ use of such easement areas on private property to gain access to open space trails has occasionally caused conflicts between those hikers and the owners of the properties which contain those right-of-passage easements.

At the April 15 public hearing that preceded the P&Z’s action, resident Robert Hall raised concerns about the revised open space rules. Mr Hall said he was speaking as a private citizen even though he is a land use lawyer who often represents developers before local land use agencies.

Mr Hall asked whether a requirement for a minimum 15 percent open space set-aside in subdivisions has been legally tested.

Mr O’Neil responded that he believes the 15 percent requirement has been supported by the actions of state courts.

Mr Hall urged that the P&Z not revise its open space rules without first having a firm legal precedent to do so. There must be sound legal reasons for a land use agency requiring that as much as 15 percent of a subdivision be designated as open space land, such as specific plans to create a public park on that property, Mr Hall said.

Mr Hall also urged P&Z members to clarify certain wording in other P&Z open space regulations to more explicitly describe the required physical character of such property.

P&Z member Lilla Dean said the agency has long discussed increasing its open space requirements for subdivisions. Expanding the regulations would help the P&Z achieve the stated goals of the town plan, she said.

A long-term P&Z planning goal is to preserve 21 percent of the town’s area as protected open space.

In the revised open space regulations, the P&Z is requiring that at least 15 percent of the total area of a subdivision be reserved for open space, parks, and playgrounds. Under the rules, an applicant may initially propose the location and size of the open space, but the P&Z may reject that proposal and designate different areas as open space.

The P&Z would generally require that the accessways to open space land and to open space trails also be designated as public open space. Trail easements over private land are discouraged by the revised rules.

When determining the location, appropriateness, configuration, and size of open space areas, parks and playgrounds, the P&Z would be guided by the open space and recreation goals stated in the town plan.

The P&Z is requiring that open space areas within subdivisions be contiguous and have direct access to a public street, existing park, public land, trail, or greenway.

“Typically, abandoned railroad beds and certain trails within a subdivision shall be set aside for open space, rather than as an access easement over private land,” according to the revised rules.