This chapter of the Town of Warwick Town Code shall be known and may
be cited as the "Community Preservation Fund Law."
This chapter is adopted for the purpose of protecting and preserving
open and undeveloped lands in the Town of Warwick, including wetlands, woodlands,
agricultural lands, shorelands, and the other natural resources of the Town;
for the purpose of protecting historic places and properties within the Town;
and for the purpose of providing the Town's visitors and residents with
outdoor recreational opportunities, all in accordance with the provisions
of § 64-g of the New York Town Law and as more fully set forth within.
As used in this article, the following words and terms shall have meanings
indicated:
ADVISORY BOARD
The Town of Warwick Community Fund Advisory Board established and
created by this chapter.
COMMUNITY PRESERVATION
Shall mean and include all of the following:
A.
Establishment of parks, nature preserves, or recreational areas;
B.
Preservation of open space, including agricultural lands;
C.
Preservation of lands of exceptional scenic value;
D.
Preservation of fresh and saltwater or other wetlands;
E.
Preservation of aquifer recharge areas;
F.
Preservation of undeveloped beach lands or shorelands;
G.
Establishment of wildlife refuges for the purpose of maintaining native
animal species diversity, including the protection of habitat essential to
the recovery of rare, threatened, or endangered species;
H.
Preservation of pine barrens consisting of such biota as pitch pine
and scrub oak;
I.
Preservation of unique or threatened ecological areas;
J.
Preservation of brooks or streams and riverine areas in natural, free-flowing
condition;
K.
Preservation of forested lands;
L.
Preservation of public access to lands for public use, including stream
rights and waterways;
M.
Preservation of historic places and properties listed on the New York
Register of Historic Places and/or protected under a local historic preservation
ordinance or local law; and
N.
Undertaking any of the aforementioned in furtherance of the establishment
of a greenbelt.
FUND
The Town of Warwick Community Preservation Fund established and created
by this chapter.
[Added 8-31-2006 by L.L. No. 6-2006;
approved at referendum 11-7-2006]
As used in this article, the following words and terms shall have the
meanings indicated:
CONSIDERATION
The price actually paid or required to be paid for the real property
or interest therein, including payment for an option or contract to purchase
real property, whether or not expressed in the deed and whether paid or required
to be paid by money, property, or any other thing of value. It shall also
include the cancellation or discharge of an indebtedness or obligation. It
shall also include the amount of any mortgage, purchase money mortgage, lien,
or other encumbrance, whether or not the underlying indebtedness is assumed
or taken subject to.
A.
In the case of the creation of a leasehold interest or the granting
of an option with use and occupancy of real property, consideration shall
include, but not be limited to, the value of the rental and other payments
attributable to the use and occupancy of the real property or interest therein,
the value of any amount paid for an option to purchase or renew, and the value
of rental or other payments attributable to the exercise of any option to
renew.
B.
In the case of the creation of a subleasehold interest, consideration
shall include, but not be limited to, the value of the sublease rental payments
attributable to the use and occupancy of the real property, the value of any
amount paid for an option to renew, and the value of rental or other payments
attributable to the exercise of any option to renew, less the value of the
remaining prime lease rental payments required to be made.
C.
In the case of a controlling interest in any entity that owns real property,
consideration shall mean the fair market value of the real property or interest
therein, apportioned based on the percentage of the ownership interest transferred
or acquired in the entity.
D.
In the case of an assignment or surrender of a leasehold interest or
the assignment or surrender of an option or contract to purchase real property,
consideration shall not include the value of the remaining rental payments
required to be made pursuant to the terms of such lease or the amount to be
paid for the real property pursuant to the terms of the option or contract
being assigned or surrendered.
E.
In the case of (i.) the original conveyance of shares of stock in a
cooperative housing corporation in connection with the grant or transfer of
a proprietary leasehold by the cooperative corporation or cooperative plan
sponsor and (ii.) the subsequent conveyance by the owner thereof of such stock
in a cooperative housing corporation in connection with the grant or transfer
of a proprietary leasehold for a cooperative unit other than an individual
residential unit, consideration shall include a proportionate share of the
unpaid principal of any mortgage on the real property of the cooperative housing
corporation comprising the cooperative dwelling or dwellings. Such share shall
be determined by multiplying the total unpaid principal of the mortgage by
a fraction, the numerator of which shall be the number of shares of stock
being conveyed in the cooperative housing corporation in connection with the
grant or transfer of a proprietary leasehold and the denominator of which
shall be the total number of shares of stock in the cooperative housing corporation.
CONTROLLING INTEREST
A.
In the case of a corporation, either 50% or more of the total combined
voting power of all classes of stock of such corporation, or 50% or more of
the capital, profits, or beneficial interest in such voting stock of such
corporation; and
B.
In the case of a partnership, association, trust, or other entity, 50%
or more of the capital, profits, or beneficial interest in such partnership,
association, trust or other entity.
CONVEYANCE
The transfer or transfers of any interest in real property by any
method, including but not limited to sale, exchange, assignment, surrender,
mortgage foreclosure, transfer in lieu of foreclosure, option, trust indenture,
taking by eminent domain, conveyance upon liquidation or by a receiver, or
transfer or acquisition of a controlling interest in any entity with an interest
in real property. Transfer of an interest in real property shall include the
creation of a leasehold or sublease only where (i.) the sum of the term of
the lease or sublease and any options for renewal exceeds 49 years, (ii.)
substantial capital improvements are or may be made by or for the benefit
of the lessee or sublessee, and (iii.) the lease or sublease is for substantially
all of the premises constituting the real property. Notwithstanding the foregoing,
conveyance of real property shall not include the creation, modification,
extension, spreading, severance, consolidation, assignment, transfer, release
or satisfaction of a mortgage; a mortgage subordination agreement, a mortgage
severance agreement, or an instrument given to perfect or correct a recorded
mortgage; or a release of lien of tax pursuant to this article or the Internal
Revenue Code.
FUND
The Town of Warwick Community Preservation Fund created and established pursuant to § 64-g of the New York Town Law and Article
I of this chapter.
GRANTEE
The person who obtains real property or an interest therein as a
result of a conveyance.
GRANTOR
The person making the conveyance of real property or interest therein.
Where the conveyance consists of a transfer or an acquisition of a controlling
interest in an entity with an interest in real property, "grantor" shall mean
the entity with an interest in real property or a shareholder or partner transferring
stock or partnership interest.
INTEREST IN REAL PROPERTY
Includes title in fee, a leasehold interest, a beneficial interest,
an encumbrance, development rights, air space and air rights, or any other
interest with the right to use or occupancy of real property or the right
to receive rents, profits or other income derived from real property. It shall
also include an option or contract to purchase real property. It shall not
include a right of first refusal to purchase real property.
PERSON
An individual, partnership, society, association, joint-stock company,
corporation, estate, receiver, trustee, assignee, referee, or any other person
acting in a fiduciary or representative capacity, whether appointed by a court
or otherwise, any combination of individuals, and any other form of unincorporated
enterprise owned or conducted by two or more persons.
REAL PROPERTY
Every estate or right, legal or equitable, present or future, vested
or contingent, in lands, tenements or hereditaments, including buildings,
structures and other improvements thereon, which are located in whole or in
part within the Town. It shall not include rights to sepulture.
TOWN
The Town of Warwick.
There is hereby imposed in the Town of Warwick a tax on each conveyance of real property or interest therein where the consideration exceeds $500, as authorized by Article 31-F of New York Tax Law, the rate of such tax to be 0.75% of the consideration for the conveyance. Revenues from such tax shall be deposited in the Town of Warwick Community Preservation Fund established pursuant to Article
I of this chapter and may be used solely for the purpose of said fund. Such tax shall apply to any conveyance occurring on or after April 1, 2007, but shall not apply to conveyances made on or after such date pursuant to building written contracts entered into prior to such date, provided that the date of execution of such contract is confirmed by independent evidence such as the recording of the contract, payment of a deposit, or other facts and circumstances as determined by the County Treasurer.
A grantor shall be allowed a credit against the tax due on a conveyance
of real property to the extent that tax was paid by such grantor on a prior
creation of a leasehold of all or a portion of the same real property or on
the granting of an option or contract to purchase all or a portion of the
same real property by such grantor. Such credit shall be computed by multiplying
the tax paid on the creation of the leasehold or on the granting of the option
or contract by a fraction, the numerator of which is the value of the consideration
used to compute such tax paid which is not yet due to such grantor on the
date of the subsequent conveyance (and which such grantor will not be entitled
to receive after such date) and the denominator of which is the total value
of the consideration used to compute such tax paid.
The County Treasurer is authorized by law to designate the Recording Officer to act as his agent for the purpose of collecting the tax imposed by this article. The Treasurer shall provide for the manner in which such person may be designated as his agent subject to such terms and conditions as he shall prescribe. The real estate transfer tax shall be paid to such agent as provided in §
7-22 hereof.
A Recording Officer shall not be liable for any inaccuracy in the amount
of tax imposed pursuant to this article that he shall collect so long as he
shall compute and collect such tax on the amount of consideration or the value
of the interest conveyed as such amounts are provided to him by the person
paying the tax.
Whenever the Treasurer shall determine that any moneys received under
the provisions of this article were paid in error, he may cause such money
to be refunded pursuant to such rules and regulations as he may prescribe,
provided that any application for such refund is filed with the Treasurer
within two years from the date the erroneous payment was made.
Any grantor or grantee failing to file a return or to pay any tax within
the time required by this article shall be subject to a penalty of 10% of
the amount of the tax due plus an interest penalty of 2% of such amount, for
each month of delay or fraction thereof after the expiration of the first
month after such return was required to be filed or such tax became due; such
interest penalty shall not exceed 25% in the aggregate. If the Treasurer determines
that such failure or delay was due to reasonable cause and not due to willful
neglect, the Treasurer shall remit, abate or waive all of such penalty and
such interest penalty.