The completely ineffective “open space” requirement, updated 7/12/2018

Posted on July 11, 2018

In theory, MAC zoning is a privilege that the developers must pay for in some fashion.  The main way they are supposed to do that is by setting aside 15 percent of the lot as “open space”.

That all sounds nice, right?  It sounds like the Town should get a sizeable plaza or park out of every redeveloped building.  For example, the minimum open space for the Tequila Grande/444 Maple West site is over 18,000 square feet.

For Tequila Grande/444 Maple West, the required open space would amount to a square about 130′ on a side, or a circle 150′ across.   Clearly, this is precisely what the writers of the Maple Avenue Vision intended.  A large, contiguous area for public enjoyment.

What did we actually get?  See for yourself.  This is the map of the “open space” as provided by the builder.  The shaded area is the open space.   It’s little strips and dribs and drabs, placed willy-nilly.  Parts of it are inaccessible to the public, e.g., you can’t get there on a public sidewalk.  Parts of it are spaces that nobody would visit for pleasure, e.g., you wouldn’t have a picnic on the buffer strip at the back of a parking lot.


Here’s why the “open space” looks like that.   The way MAC was written, you get to double-count anything that’s already required to be open space under the rest of the zoning as satisfying the open space requirements.  You don’t have to provide 15% ADDITIONAL open space.  You don’t have to provide 15% of the lot as CONTIGUOUS open space.

So what counts as open space?  The law requires setbacks — the building has to be 20′ from the front curb, and 15′ from the side curb.  Any of that required setback that is not literally located on the Town’s right-of-way counts as count as “open space.”   The law requires a planting strip at the back.  That counts as open space.  The law requires landscaping — individual trees scattered here and there.  Those areas count as open space.  And if the builder needs a walkway to get to the entrance to the building, that counts as open space as well.

The only things that don’t count as open space are the building itself, the parking lot and service roads, and land that is literally in the public right-of-way on Maple and Nutley.  If you black those out on the diagram, pretty much anything left over counts as open space.  The circle of mulch around a tree counts as open space.

And then, if and only if all of those already-necessary “open spaces” don’t add up to 15% — only then must the builder provide something extra.

So, how did that actually work out, in practice, for 444 West Maple?  Here’s my calculation, based on measuring the drawings.

As you can see, the builder was required to provide just 0.8% of the lot as ADDITIONAL open space, above and beyond the five uses listed.  Four of those are literally required by the zoning, and one is necessary to use the building.

In fact, if you study the diagram closely, a small green area at the Nutley Street entrance was not even claimed as open space.  Assuming the developer wanted that there, but didn’t claim it as open space, the 15% requirement did literally nothing.  The developer could have met it entirely with mandatory setbacks, buffer areas, the necessary sidewalk to get into the building, and the small green space located at the Nutley Street parking lot entrance but not claimed as green space.

Ask this simple question:  What would this 444 Maple West proposal have looked like if there were no “open space” requirement under MAC?  And the answer is, it would look exactly the way it looks now.   Adding the open space requirement to the rest of MAC zoning did literally nothing.

So if it looks to you like the Town is getting next-to-nothing out of the “15% open space” requirement — well, that’s because that’s true.  The Town IS getting next to nothing.

This could easily be fixed in any number of ways.  The town could (e.g.) exclude any space already mandated by elements of MAC other than the 15%.  So, open space IN ADDITION TO the amounts covered by the basic zoning law.  It could exclude (e.g.) sidewalks required for ingress and egress from the building.  It could require that the open space by provided in one single piece.  It could mandate the a minimum dimension for what areas could be counted as open space.  It could do any and all of the above.

Just for contrast, let me show you what the 130′ square would look like, on that same map.  Not that putting the open space adjacent to the road is my idea of what to do, but this illustrates the size of what the open space notion was intended to do.

After further study, I now realize that MAC would literally prohibit an open space of this shape.  The law requires that the building face be within 64 feet of the curb.  While I think it’s foolish to expect the space directly adjacent to Maple to be viewed as pleasant, MAC apparently wants any front-of-the-building open space to be right on the road.  And, in the diagram above, I covered up part of the required setbacks.

So, here’s what 15% of the lot looks like as a MAC-legal open space, not double-counting any of the required setback.  Here, the setback is in YELLOW, and the “true additional open space” is in GREEN.  All of that would, in theory, be available to the public.