Town of Athens, NY Article VI Cluster and Conservation Development

§ 180-63 Purpose.

A. The purpose of this article is to permit variation in lot size and housing type in suitable areas in order to encourage flexibility of design, to enable land to be developed in such a manner as to promote its most appropriate use, to facilitate the adequate and economical provision of streets and utilities and to preserve the natural and scenic qualities of open space, in accordance with § 278 of the New York State Town Law.

B. This purpose is achieved by permitting lot sizes to be reduced in a subdivision tract. However, the overall density allowed in a clustered/conservation subdivision shall not exceed that which is otherwise permitted in the applicable zoning district. There shall be a minimum of 50% of the land preserved as permanent open space for the use and enjoyment of the residents of the area. However, if the Town of Athens grants a density bonus as an incentive to encourage use of cluster and conservation subdivisions, the density may be increased pursuant to § 180-13, Modification of density or dimensions. Density bonus units have to conform to the same layout requirements as all other units within the clustered subdivision.

§ 180-64 Applicability, general conditions and requirements.

A. Applicability. If a subdivider makes written application to the Planning Board for use of this procedure, the Planning Board is hereby empowered to implement these provisions at its discretion if in the Board's judgment its application at the particular location is desirable and would contribute to the general well-being of the neighborhood and community and would benefit the Town. The Planning Board is authorized to require adherence to the regulations of Article VI (clustered and conservation subdivision) for any subdivision applications in the Ru, Ag and OS Districts where, in the opinion of the Planning Board during SEQRA review, the purposes of this chapter cannot be met using conventional subdivision methods. The following conditions may warrant requirement of a clustered or conservation subdivision layout:

(1) State and/or federal freshwater wetlands occupy 25% or more of the site.

(2) Slopes of greater than 20% occupy 25% or more of the site.

(3) Open water occupies 25% or more of the site.

(4) The site contains a floodplain or flood hazard area as mapped by the Federal Emergency Management Agency's Flood Insurance Rate Maps.

(5) The site contains a critical environmental area as determined by the Town, Greene County or the Department of Environmental Conservation.

(6) The site contains a scenic view or scenic vista, as may be identified in the Comprehensive Plan, a scenic inventory or other adopted Town planning document.

(7) The lot or parcel contains an identified critical habitat or a known endangered species as determined by the Department of Environmental Conservation Natural Heritage Program or through a field study.

B. When an applicant includes only a portion of a landowner's entire tract, a sketch layout according to this section shall be included showing future potential subdivision of all the contiguous lands belonging to the landowner to ensure that subdivision may be accomplished in accordance with this section. Subdivision and review of the sketch plan of those locations at this stage shall not constitute approval of the future subdivision shown thereon.

C. Permitted, accessory and special permit uses. Permitted, accessory and special permit uses within a cluster/conservation subdivision shall be the same as those otherwise allowed in the zoning district in which the development is located.

D. Dimensional standards. Within the framework of limitations set forth in this section, the Planning Board shall review all proposed modifications of lot, bulk and other requirements which it has determined are necessary or appropriate to properly accomplish the purposes of this chapter. Lots shall be arranged in a way that preserves open space as conservation as described in this section.

(1) In all zoning districts, a cluster/conservation subdivision must preserve at least 50% of the tract's acreage as open space land. Parking areas and roads shall not be included in the calculation of the minimum required open space. All conserved lands shall be permanently restricted from future subdivision and development.

(2) The builder or developer shall include variations in the principal building position and orientation, but shall observe, as practical, the following minimum standards: front yard setback of 25 feet; rear yard setback of 40 feet; side yard setback of 20 feet of separation for principal buildings; building height of 35 feet.

(3) Maximum impervious coverage. No more than 30% of any given acre may be covered with impervious surface in the form of access drives, parking areas or structures unless such coverage meets the overall planning goals of this chapter.

(4) Minimum lot size. Individual lot sizes for developments requiring individual wells and septic systems shall be the minimum size necessary to meet the requirements of water and septic systems as determined by the Town Engineer, the Planning Board Engineer or any other agency with regulatory authority, such as a County Health Department or the New York State Department of Health, if applicable. The average lot size, calculated by including only new buildable acres and not any preserved open spaces for developments with central water and sewer, shall be 1/2 acre.

E. Unit mix. The clustered or conservation subdivision design may include a mix of single-family and multifamily dwellings as a means of achieving housing diversity and preserving open space if such multifamily dwellings are allowed in the district. The number of multifamily units shall be limited to not more than 1/3 of the total number of dwelling units. Multifamily structures shall not exceed five units each. Single-wide mobile homes shall not be permitted within any residential cluster development as governed by this section.

F. Uses for open space. The Planning Board may approve uses for open space within a clustered/conservation subdivision, and these uses will be clearly indicated on the final map. The following are permitted uses for preserved open space areas:

(1) The Planning Board may approve recreational uses such as wooded park areas, bridle paths, hiking trails, etc. Areas for active recreation which are to contain substantial improvements, impervious surfaces and other alteration from their natural state shall not constitute open space hereunder.

(2) The Planning Board may approve conservation uses such as open woodland, wetlands, slopes or escarpments.

(3) The Planning Board may approve cultural aspects, such as historic places and buildings, archaeological sites, parks and such open spaces which will assure that each of the above cultural aspects are adequately protected in the public interest.

(4) Where active agriculture or horticultural uses (as allowed and defined in this chapter) are taking place or could take place, structures shall be placed on the least productive portions of that land in order to preserve the ability to utilize prime farmland soils and soils of statewide importance that are best suited for agriculture.

(5) Water supply and sewage disposal systems and stormwater detention areas designed, landscaped and available for uses as part of the conservation lands.

(6) Rights-of-way, easements for drainage, access, sewer or water lines or other public purposes.

G. A mechanism for the long-term ownership and maintenance of common open space shall be provided, subject to the approval of the Town Planning Board during the subdivision review process. Similar provision shall be made for the long-term ownership and maintenance of roadways, drainageways, utilities and other improvements within the cluster development.

H. Building design variation. The developer shall prevent monotonous streetscapes by adding variations in the principal building architecture.

I. There shall be only one principal building per building lot.

J. The minimum area required to qualify for this procedure shall be six contiguous acres of land.

K. In addition to the foregoing, a cluster development subdivision plot may be approved only if the Planning Board determines that:

(1) Such development will not be detrimental to the health, safety or general welfare of persons residing in the vicinity or injurious to property or improvements within its proximity;

(2) The proposed development is in conformity with the objectives of the Comprehensive Plan; and

(3) The gross density will be no greater than if the tract were developed in accordance with the existing zoning requirements unless a density bonus has been granted by the Town.

L. Design process for cluster/conservation subdivisions.

(1) Determine lot count pursuant to § 180-12.

(2) Step 1: delineation of open space lands. Proposed open space lands shall be designated as follows:

(a) Primary conservation areas shall be considered constrained lands and shall be delineated comprising open water, streams, floodplains and wetlands, and slopes over 20%, and shall be designated on a map. Primary conservation areas shall be excluded from acreage used for the lot count calculations.

(b) Secondary conservation areas shall be delineated and designated on a map and shall be considered as open space lands. Secondary conservation areas include special features of the property that would ordinarily be overlooked or ignored during the design process such as agricultural lands, woodlands, significant natural areas and features, stone walls, hedgerows, meadows, historic structures and sites, historic rural corridors, scenic viewsheds, and trails. In delineating secondary conservation areas, the applicant shall prioritize natural and cultural resources on the tract in terms of their highest to least suitability for inclusion in the proposed open space, in consultation with the Planning Board to create a prioritized list of resources to be conserved. On the basis of those priorities and practical considerations given to the tract's configuration, its context in relation to resource areas on adjoining and neighboring properties and the applicant's subdivision objectives, secondary conservation areas shall be delineated to meet at least the minimum percentage requirement of 50% for open space lands. These features shall be clearly noted, as well as the types of resources included within them, on the map. Calculations shall be provided indicating the applicant's compliance with the acreage requirements for open space areas on the tract.

(c) The primary and secondary conservation areas, together, constitute open space areas to be preserved, and the remaining land is the potential development areas.

(3) Location of house sites. Building envelopes shall be tentatively located within the potential development areas. House sites should generally be located not closer than 100 feet from primary conservation areas and 50 feet from secondary conservation areas, taking into consideration the potential negative impacts of residential development on such areas.

(4) Align streets and trails. After designating the building envelopes, a street plan shall be designed to provide vehicular access to each house, complying with the standards identified herein and bearing a logical relationship to topographic conditions. Impacts of the street plan on proposed open space lands shall be minimized, particularly with respect to crossing environmentally sensitive areas such as wetlands and traversing slopes exceeding 20%. Existing and future street connections are encouraged to eliminate the number of new culs-de-sac to be developed and maintained and to facilitate access to and from homes in different parts of the tract and adjoining parcels. Culs-de-sac are appropriate only when they support greater open space conservation or provide extensive pedestrian linkages.

(5) Draw lot lines. Upon completion of the preceding three steps, lot lines are drawn as required to delineate the boundaries of individual residential lots.

M. Site design criteria.

(1) Residential structures in a clustered or conservation subdivision should be located according to the following guidelines, which are listed in order of significance (some of which may conflict with each other on a particular site, in which case the Planning Board may use its discretion to resolve such conflicts):

(a) On the least fertile agricultural soils and in a manner which maximizes the usable area remaining for agricultural use.

(b) Away from the boundaries of any preserved farm, to reduce conflicting uses in areas where farmers have made long-term commitments to continue to farm.

(c) In such a manner that the boundaries between house lots and active farmland are well buffered by vegetation, topography, roads or other barriers to minimize potential conflict between residential and agricultural uses.

(d) To avoid disturbance to the existing environmental, cultural and scenic features noted above.

(e) To be as visually inconspicuous as practical when seen from state, county and local roads, and particularly from designated scenic routes.

(f) Next to other residences or building lots on adjacent properties.

(g) To minimize the perimeter of the built area by encouraging compact development and discouraging strip development along roads.

(h) On suitable soils for subsurface sewage disposal (where applicable).

(i) In a manner that allows new structures to be visually absorbed by the natural landscape.

(2) Open space standards.

(a) The required open space land consists of a combination of primary conservation areas and secondary conservation areas. The proposed subdivision design shall strictly minimize disturbance of these environmentally sensitive areas. The applicant shall also demonstrate that such features will be protected by the proposed subdivision plan.

(b) Open space lands shall be laid out in general accordance with the Town's Comprehensive Plan to better enable an interconnected network of open space and wildlife corridors. Open space lands shall also be laid out in such a manner that preserves ecological systems that may be present on the site, including, but not limited to, preserving wetlands and their associated upland habitats.

(c) Active agricultural land with farm buildings may be used to meet the minimum required open space land. Access to open space land used for agriculture may be appropriately restricted for public safety and to prevent interference with agricultural operations. Land used for agricultural purposes shall be buffered from residential uses, either bordering or within the tract, by a setback as per § 180-25.

(d) Open space land shall be contiguous to create a critical mass of land available for agriculture or left in a natural state. Open space lands shall be designated as a conservation lot owned in common, or designated and included as part of one or more lots. No individual parcel of common open space shall be less than one acre except as to roadway median strips, traffic islands, walkways, trails, courtyards, play areas, recreation facilities, drainageways leading directly to streams, historic sites or unique natural features requiring common ownership protection.

(e) Any house lot or lands on house lots over five acres in size may be used for meeting the minimum required open space land, provided that there is a permanent restriction enforceable by the Town that states the future use, such as undisturbed wildlife habitat, managed field or managed forest, and prevents destruction, inappropriate use or development of that portion of the open space. Any house lot of less than five acres does not qualify as open space. No land within front or side yards shall be considered as qualifying as open space.

(f) The required open space may be used for community septic systems.

(g) Stormwater management ponds or basins may be included as part of the minimum required open space, as may land within the rights-of-way for underground utilities.

(h) Active recreation lands or uses such as golf courses, ball fields, parks, pool areas, etc., shall not be considered part of the required open space area. Such recreational lands with access only to residents shall not be counted towards the open space requirements, but shall be counted towards any recreation land requirement as per the Town of Athens Subdivision Law.[1]

[1] Editor's Note: See Ch. 154, Subdivision of Land.

(3) Other layout criteria.

(a) The building area of lots shall not encroach upon primary conservation areas.

(b) Views of house lots from exterior roads and abutting properties shall be minimized by the use of changes in topography, existing vegetation or additional landscaping.

(c) House lots shall generally be accessed from interior streets, rather than from roads bordering the tract. New intersections with existing public roads shall be minimized. Although two accessways into and out of subdivisions containing 20 or more dwellings are generally required for safety, proposals for more than two entrances onto public roads shall be discouraged if they would unnecessarily disrupt traffic flow or unduly impact the environment.

(d) Open space shall be directly accessible or viewable from as many home sites as possible.

(e) The layout shall leave scenic views and vistas unblocked or uninterrupted, particularly as seen from public thoroughfares. A deep no-build, no-plant buffer is recommended along the road where those views or vistas are prominent or locally significant.

(f) The layout shall maintain or create a buffer of natural native species vegetation of at least 100 feet in depth adjacent to wetlands and surface waters, including creeks, streams, wetlands, springs and ponds.

(g) Design around and preserve sites of historic, archeological or cultural value insofar as needed to safeguard the character of the feature.

(h) Provide open space that is contiguous.

(i) Protect wildlife habitat areas of species listed as endangered, threatened or of special concern by the New York State Department of Environmental Conservation.

N. Streets and driveways.

(1) Common driveway access may be provided. A pedestrian circulation and/or trail system shall be installed sufficient for the needs of residents, unless waived by the Planning Board.

(2) Cluster/conservation subdivision streets shall meet any Town highway specifications. Where appropriate, the Planning Board shall work with the Highway Department to ensure that new roads do not impact or detract from the rural and environmental character of a cluster/conservation subdivision.

(3) From an aesthetic and speed control perspective, curving roads are preferred in an informal rural cluster to avoid long straight segments. Shorter straight segments connected by bends of 90° and 135° are preferred in a more formal or traditional arrangement such as in a hamlet.

(4) Whenever appropriate, street systems should produce terminal vistas of open space in accordance with the conservation emphasis of the subdivision design and to positively contribute to the Town's open space goals.

(5) The use of reverse curves should be considered for local access streets in cluster subdivisions in conjunction with long horizontal curve radii (at least 250 feet) and where traffic speeds will not exceed 30 miles per hour.

(6) Single-loaded streets are encouraged alongside conservation areas to provide views of the conservation lands for residents and visitors.

(7) Landscape common areas and both sides of new streets with native species of shade trees.

O. Permanent protection of open space.

(1) All required open space shall be restricted from further subdivision through one of the following:

(a) A conservation easement, in a form acceptable to the Town and recorded at the County Clerk's office.

(b) A declaration of covenants or deed restriction, in a form acceptable to the Town and recorded in the County Clerk's office, where a conservation easement has been shown not to be practicable.

(c) All conservation easements shall be noted on the subdivision map that is filed in the Greene County Clerk's office.

(2) Open space land may be held in any form of ownership that protects its conservation values, such as where the open space is owned in common by a homeowners' association (HOA). Open space may also be dedicated to the Town, county or state governments, transferred to a nonprofit organization or held in private ownership. The applicant shall provide proof that the receiving body agrees to accept the dedication. Any development permitted in connection with the setting aside of open space land shall not compromise the conservation or agricultural value of such open space land.

(a) If the open space is to be owned by a HOA, the HOA must be incorporated before the final subdivision plat is signed. The applicant shall provide the Town with a description of the organization of the proposed association, including its bylaws and all documents governing ownership, maintenance and use restrictions for common facilities.

(b) The open space restrictions must be in perpetuity.

(c) The Planning Board shall find that the HOA documents satisfy the conditions above.

(d) Membership in the HOA must be mandatory for each property owner within the subdivision and for any successive property owners in title.

(e) The proposed association shall be established by the owner or applicant and shall be operating before the sale of any dwelling units in the development.

(f) The association shall be responsible for liability insurance, local taxes and maintenance of open space land, recreational facilities and other commonly held facilities.

(g) The association shall have adequate resources to administer, maintain and operate such common facilities.

(3) The conservation easement, declaration of covenants or deed restriction shall permanently restrict development of the open space and shall specify the use of such space only for agriculture, forestry, recreation or similar purposes. The Planning Board shall approve the form and content of any easement, declaration or restriction. The restriction shall be made a condition of the final plat approval. A conservation easement will be acceptable if:

(a) The conservation organization is acceptable to the Town and is a bona fide conservation organization as defined in Article 49 of the New York State Environmental Conservation Law.

(b) The conveyance contains appropriate provisions for proper reverter or retransfer in the event that the conservation organization becomes unwilling or unable to continue carrying out its functions.

(c) A maintenance agreement acceptable to the Town is established between the owner and the conservation organization to insure perpetual maintenance of the open space.

(d) The conservation easement or other legally binding instrument shall permanently restrict the open space from future subdivision, shall define the range of permitted activities and, if held by a conservation organization, shall give the Town the ability to enforce these restrictions.

P. Maintenance standards.

(1) The owner of the open space shall be responsible for raising all monies required for operations or maintenance of, or physical improvements to, the open space.

(2) Failure to adequately maintain any improvements located on the undivided open space in reasonable condition is a violation of the Zoning Law. Upon appropriate authority or process, the Town may enter the premises for necessary maintenance/restoration, and the cost of such maintenance by the Town shall be assessed ratably against the landowner, or, in the case of a HOA, the owners of properties within the development, and shall, if unpaid, become a tax lien on such property.

Q. Sewage treatment systems. Sanitary sewage disposal systems of either an individual or community nature may be located within or extend into required open space areas, provided that subsurface sewage disposal methods are employed, all required separation distances are observed, and the ownership and maintenance responsibilities associated therewith are clearly defined in agreements submitted for approval as part of the subdivision application. No application shall be approved that does not provide lot buyers with both the legal authority and the responsibility, individually or collectively, to maintain all sewer facilities on a continuing basis. This may include the creation of a special district under Articles 12 and 12-a of New York State Town Law.

R. Reasonable and necessary costs incurred by the Planning Board for professional review of an application shall be charged to the applicant pursuant to Chapter 153 of the Athens Town Code.