A. 
Purpose. The purpose of open space development is to preserve large tracts of intact open space land in order to maintain the rural appearance and environmental resources of the Town of Dover. There are three types of open space development permitted in the Town of Dover: flexible subdivision, conservation density subdivision, and rear (flag) lots. Conventional subdivisions are subdivisions that comply with the minimum lot size requirements shown on the Dimensional Table and do not set aside land as permanently protected open space. The Town wishes to discourage this type of subdivision where it may detract from the Town's rural landscape and natural resources.
B. 
Flexible subdivisions. The Town wishes to encourage the use of flexible subdivisions as an alternative to conventional subdivisions. Flexible subdivisions allow units to be clustered on those portions of a property most suitable for development, while leaving substantial portions as undeveloped open space. Flexible subdivisions also may include a variety of lot sizes, ranging from large farm or estate lots to small hamlet-size lots. Flexible subdivision results in the preservation of contiguous open space and important environmental resources, while allowing compact development, more walkable neighborhoods, and more flexibility than conventional subdivisions. Flexible subdivisions must satisfy the standards in §§ 145-19 and 145-20. In cases where the Planning Board finds that a proposed conventional subdivision may adversely affect the Town's rural landscape or natural resources, the Planning Board may require an applicant to submit a plan for a flexible subdivision and may require that such a plan be implemented as an alternative to a conventional subdivision.
C. 
Conservation density subdivisions. Conservation density subdivisions are very-low-density subdivisions in which the average lot size is 15 acres or more. These help to preserve open space by keeping large amounts of land undeveloped. As an incentive to creating such subdivisions, Town road construction requirements and frontage requirements may be waived, as provided in § 145-21.
D. 
Rear (flag) lots. Rear lots are lots where most of the land is set back from the road and access is gained through a narrow access strip. Where carefully planned, rear lots can enable landowners to develop interior portions of parcels at low density and low cost, preserving roadside open space, and avoiding the construction of expensive new Town roads (see § T45-22).
Flexible subdivisions are permitted in the RU, RC, and SR Districts and are intended to allow design flexibility while preserving important natural attributes of the land. The provisions in this § 145-19 apply only in the RU, RC, and SR Districts.
A. 
Density calculation. The maximum density allowed for residential units is calculated either by a formula based upon the net acreage of the property or by preparing a conventional subdivision plan. An applicant may elect to use either method to determine allowable density.
(1) 
Net acreage method.
(a) 
To determine net acreage, subtract from the total (gross) acreage of the site the total acreage of all wetlands, floodplains, and slopes over 30% (5,000 square feet or more of contiguous sloped area), as well as 50% of the acreage of fifteen-percent to thirty-percent slopes.
(b) 
To determine the number of allowable residential units on the site, multiply this net acreage by 0.9 and then divide by the allowable flexible subdivision density shown on the Dimensional Table (one in the RU, two in the RC, and one in the SR Districts).
(2) 
Conventional subdivision method. To enable the Planning Board to determine the number of allowable residential units on a parcel using a conventional subdivision plan, the applicant shall submit a sketch plan or preliminary plat of the parcel showing a conventional subdivision with the minimum lot area of one acre in the RU District, two acres in the RC District, and one acre in the SR District, and minimum road frontages of 200 feet in the RU District, 250 feet in the RC District, and 100 feet in the SR District. This plan shall comply with all applicable requirements of this chapter, the Town of Dover Subdivision Regulations,[1] the County Department of Health, and all state and federal agencies with jurisdiction over such a subdivision. The Planning Board shall evaluate the conventional plan to determine its probable compliance with all applicable regulations, taking account of soils, slopes, wetlands, and other environmental constraints, as well as the physical and economic feasibility of constructing roads that satisfy maximum grade requirements and of siting wells and septic systems on each lot (unless public water and/or sewers are available). The Planning Board may disallow any roads or lots which, in its judgment, would not be buildable under applicable regulations. After reviewing the conventional subdivision plan, the Planning Board shall adopt a resolution establishing the permissible maximum density under this conventional subdivision method.
[1]
Editor's Note: See Ch. 125, Subdivision of Land.
(3) 
Applicant's election. The applicant may submit density calculations under Subsection A(1) or (2) above, or both, provided that if the applicant elects to use the conventional subdivision method, the applicant shall reimburse to the Planning Board the costs of consultant review of the conventional subdivision plan pursuant to § 145-58. The applicant may elect to proceed using the density calculated and approved by the Planning Board under either method.
(4) 
Parcels in more than one district. For parcels that are located within more than one residential district, calculations shall be made separately for the portion of the parcel in each district. This density may then be combined and distributed anywhere within the parcel, provided that the plan protects open space with conservation value.
B. 
Types of residential development. The allowable residential units may be developed as single-family, two-family, or multifamily residences, provided that applicable special permit requirements are satisfied. The subdivision and special permit/site plan reviews shall occur concurrently in one proceeding to the extent practical.
C. 
Minimum lot sizes and road frontage in flexible subdivisions.
(1) 
The minimum lot size in a flexible subdivision shall be one acre for lots with individual wells and septic systems. For lots that are connected to municipal or other common water and/or sewage disposal facilities (which may include individual septic tanks with common leach fields), minimum lot sizes shall be as provided in § 145-11D(2) for the HR and HM Districts.
(2) 
The minimum lot sizes in Subsection C(1) above may be increased by the Planning Board where on-site wells are used and documented groundwater shortages have occurred in the vicinity and/or where on-site septic facilities are used and the Planning Board or County Health Department determines that larger lots are necessary due to soil conditions or the presence of an aquifer resource.
(3) 
The minimum average road frontage per lot in a flexible subdivision shall be 70 feet, and the minimum individual lot frontage shall be 50 feet, except for rear lots that comply with § 145-22.
D. 
Front, side and rear setbacks. Appropriate minimum setbacks in a flexible subdivision will depend upon the lot sizes, the type of road frontage (state, county, town, or private) and the character of the subdivision (hamlet, suburban, or rural). Accordingly, setback requirements shall be established at the time of plat approval and shall be shown in a chart on the plat.
E. 
Impermeable surface coverage. The amount of pavement and building area is a major factor in determining the impact of a development. Therefore, limiting impermeable surface coverage (including all roofed areas and areas covered with impermeable pavement) is critical in maintaining environmental integrity. The limitation on impermeable surface coverage shown on the Dimensional Table applies to the entire area to be subdivided, including open space areas. Individual lots may be allowed higher coverage allotments, as long as the total coverage is within the limits prescribed. Flexible subdivision plats shall show on a table the impermeable surface coverage limit for each building lot in order to establish compliance with this Subsection E.
F. 
Minimum preserved open space. Since one of the major purposes of a flexible subdivision is to preserve open space, all flexible subdivisions shall preserve at least 50% of the parcel(s) as open space. The requirements for preserving such open space are described in § 145-20 below.
G. 
Partial flexible subdivision. Flexible subdivision does not require planning for full-scale development of land. In order to encourage small subdivisions to follow flexible subdivision principles, there is no minimum tract size or number of lots required for a flexible subdivision. In approving a subdivision of fewer than 20 lots on a parcel of land which may be further subdivided in the future, the Planning Board shall require the applicant to execute a conservation easement that sets aside as open space an amount of land equal to or greater than the acreage being subdivided. Such open space land must be in a configuration that will preserve land of conservation value and allow for subsequent extension of the flexible subdivision. It therefore does not need to be contiguous with the building lots. The Planning Board may require a conservation easement to limit future development of the parcel to the lot count permitted by § 145-19A above. The Planning Board may waive submission of documentation of the full lot count where, in the Planning Board's judgment, the number of lots proposed is substantially less than the total allowable lot count.
H. 
Open space land. Preserved open space may be included as a portion of one or more large lots or may be contained in a separate open space lot. Such open space may be owned by a homeowners' association, private landowner(s), a nonprofit organization, or the town or another governmental entity, as provided in § 145-20, as long as it is protected from development by a conservation easement. The required open space land may not include private yards within 50 feet of a principal structure.
I. 
Mixed uses.
(1) 
Residential and nonresidential uses may be combined in a flexible subdivision provided that all required special permits are obtained and that the applicant complies with all residential density, impermeable surface, and open space requirements.
(2) 
For every 5,000 square feet of industrial or warehouse floor space, or 2,000 square feet of other commercial floor space, the number of allowable residential units shall be reduced by one dwelling unit. Lot sizes and setbacks for nonresidential development shall be established at the time of plan approval based upon the type of use proposed, its space needs, and its size, scale, and impact (see special permit criteria, § 145-63).
(3) 
An applicant for a mixed-use flexible subdivision may submit one application for both subdivision and special permit/site plan approval, which shall be reviewed as a comprehensive development plan by the Planning Board.
J. 
Arrangement of lots. Lots shall be arranged in a manner that protects land of conservation value and facilitates pedestrian and bicycle circulation. Lots gaining access from an existing state or county highway shall comply with the minimum road frontage requirements for a conventional lot in the district as shown on the Dimensional Table. The lot layout shall generally follow applicable portions of the Rural Design Guidelines and Hamlet Design Guidelines referred to in § 145-5. Such Guidelines shall be adapted to conform to the requirements of this chapter.
Open space set aside in a flexible subdivision or as a condition of any special permit or site plan approval [see §§ 145-62G(2) and 145-66F(2)] shall be permanently preserved as required by this section. 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 and other structures are permitted, provided that a conservation easement is placed on such land pursuant to § 145-20C below, and provided that the Planning Board approves such configuration of the open space as part of its subdivision, special permit, or site plan approval. Any development permitted in connection with the setting aside of open space land shall not compromise the conservation value of such open space land.
A. 
Conservation value of open space. The open space protected pursuant to this § 145-20 must have conservation value, which may include recreational, historic, ecological, agricultural, water resource, scenic or other natural resource value. Examples of lands with conservation value include active agricultural land, large areas of contiguous mature forest, wetlands, water bodies, golf courses, stream corridors, and scenic areas, including important vistas or viewsheds seen from public places. Land in a critical environmental area (CEA), in the FP or SC Overlay District, in the Principal Aquifer Zone of the Aquifer Overlay District, or identified as open space worthy of preservation in the town's Master Plan or Open Space Plan shall be deemed to be land of conservation value. Land of conservation value shall be included for purposes of calculating density in § 145-19A, unless it is discounted in that section as wetland, floodplain, or steep slopes. Whenever the Planning Board approves a plan with protected open space, it shall make written findings identifying the specific conservation values protected and the reasons for protecting such land.
B. 
Notations on plat or site plan. Preserved open space land shall be clearly delineated and labeled on the final subdivision plat or site plan as to its use, ownership, management, method of preservation and the rights, if any, of the owners of other lots in the subdivision to such land. The plat or site plan shall clearly show that the open space land is permanently reserved for open space purposes and shall contain a notation indicating the liber and page of any conservation easements or restrictive covenants required to be filed to implement such restrictions.
C. 
Permanent preservation by conservation easement.
(1) 
A perpetual conservation easement restricting development of the open space land and allowing use only for agriculture, forestry, recreation, protection of natural resources, or similar conservation purposes, pursuant to § 247 of the General Municipal Law and/or §§ 49-0301 through 49-0311 of the Environmental Conservation Law, shall be granted to the town, with the approval of the Town Board, or to a qualified not-for-profit conservation organization acceptable to the Planning Board. Such conservation easement shall be approved by the Planning Board and shall be required as a condition of subdivision plat approval. The Planning Board may require that the conservation easement be enforceable by the town if the town is not the holder of the conservation easement. The conservation easement shall be recorded in the County Clerk's office prior to or simultaneously with the filing of the final subdivision plat in the County Clerk's office. In the case of subdivisions of fewer than five lots and minor projects, a restrictive covenant enforceable by the town may be substituted for a conservation easement.
(2) 
The conservation easement or restrictive covenant shall prohibit residential, industrial, or commercial use of open space land (except in connection with agriculture, forestry, and recreation) and shall not be amendable to permit such use. Access roads, driveways, local utility distribution lines, trails, temporary structures for outdoor recreation, and agricultural structures shall be permitted on preserved open space land, provided that they do not impair the conservation value of the land. The conservation easement may allow dwellings to be constructed on portions of parcels that include preserved open space land, provided that the total number of dwellings permitted by the conservation easement in the entire subdivision is consistent with applicable density limitations of this chapter.
D. 
Ownership of open space land.
(1) 
Open space land may be owned in common by a homeowners' association (HOA), dedicated to town, county, or state government, transferred to a nonprofit organization acceptable to the Planning Board, held in private ownership, or held in such other form of ownership as the Planning Board finds adequate to properly manage the open space land and to protect its conservation value.
(2) 
If the land is owned in common by an HOA, such HOA shall be established in accordance with the following:
(a) 
The HOA must be set up before the final subdivision plat is approved and must comply with all applicable provisions of the General Business Law.
(b) 
Membership must be mandatory for each lot owner, who must be required by recorded covenants and restrictions to pay fees to the HOA for taxes, insurance, and maintenance of common open space, private roads, and other common facilities.
(c) 
The open space restrictions must be in perpetuity.
(d) 
The HOA must be responsible for liability insurance, property taxes, and the maintenance of recreational and other facilities and private roads.
(e) 
Property owners must pay their pro rata share of the costs in Subsection D(2)(d) above, and the assessment levied by the HOA must be able to become a lien on the property.
(f) 
The HOA must be able to adjust the assessment to meet changed needs.
(g) 
The applicant shall make a conditional offer of dedication to the town, binding upon the HOA, for all open space to be conveyed to the HOA. Such offer may be accepted by the town, at the discretion of the Town Board, upon the failure of the HOA to take title to the open space from the applicant or other current owner, upon dissolution of the association at any future time, or upon failure of the HOA to fulfill its maintenance obligations hereunder or to pay its real property taxes.
(h) 
Ownership shall be structured in such a manner that real property taxing authorities may satisfy property tax claims against the open space lands by proceeding against individual owners in the HOA and the dwelling units they each own.
(i) 
The attorney for the reviewing board shall find that the HOA documents presented satisfy the conditions in Subsection D(2)(a) through (h) above and such other conditions as the Planning Board shall deem necessary.
E. 
Maintenance standards.
(1) 
Ongoing maintenance standards shall be established, enforceable by the town against an owner of open space land as a condition of subdivision approval, to ensure that the open space land is not used for storage or dumping of refuse, junk, or other offensive or hazardous materials.
(2) 
If the Town Board finds that the provisions of Subsection E(1) above are being violated such that the condition of the land constitutes a public nuisance, it may, upon 30 days' written notice to the owner, enter the premises for necessary maintenance, and the cost of such maintenance by the town shall be assessed ratably against the landowner or, in the case of an HOA, the owners of properties within the development and shall, if unpaid, become a tax lien on such property or properties.
Within the RU, RC, and SR Districts, the Planning Board may encourage the preservation of large tracts of open space by affording flexibility to landowners in road layout and design (including the use of unpaved private roads) and road frontage requirements, provided that such landowners permanently preserve significant open space resources. The following standards shall be applied by the Planning Board in reviewing applications for a conservation density subdivision.
A. 
Modification of road frontage and construction requirements. Minimum road frontage requirements and otherwise applicable road construction requirements may be modified by the Planning Board pursuant to § 145-21B, provided that all of the following requirements are met:
(1) 
The average lot size in the proposed subdivision is the greater of 15 acres or five times the minimum lot size required for a conventional subdivision by the Dimensional Table. In the RC District the average lot size shall be at least 25 acres.
(2) 
A perpetual conservation easement is placed on the land to be subdivided, to maintain its natural and scenic qualities, to restrict building in locations deemed by the Planning Board to be environmentally or visually sensitive, and to ensure that the land will not be subdivided to a density higher than that permitted in Subsection A(1) above.
(3) 
Adequate access to all parcels by fire trucks, ambulances, police cars and other emergency vehicles can be ensured by private roads and/or common driveways. No common driveway shall provide access to more than four lots, except as provided in § 145-21B(9) below. Private roads serving more than four lots shall comply with applicable private road standards in the town's highway specifications.[1]
[1]
Editor's Note: See Ch. 93, Highway Standards.
B. 
Private road requirements. The Planning Board may approve unpaved private roads to provide access to lots in conservation density subdivisions, provided that the Planning Board finds that the proposed subdivision will protect the rural, scenic, and natural character of the town.
(1) 
The maximum number of lots gaining access through any portion of a private road shall be 20.
(2) 
Written approval from the Town Superintendent of Highways and the town's Engineer shall be secured before approval of any private roads.
(3) 
A homeowners' association (HOA) must be created to own and provide for the perpetual care and maintenance of the private road. Such HOA shall meet all requirements for an open space HOA set forth in § 145-20D(2) above. The HOA must have the power to assess the subdivision lot owners for their share of the maintenance costs of the private road. The HOA shall contract with a qualified road contractor to ensure that the road will always be maintained and kept open to permit emergency vehicle access. In the event that a private road contractor does not properly maintain the road, the Town of Dover may assume maintenance responsibilities and charge the HOA for all reasonable costs thereof. Such costs, if unpaid for more than 60 days, shall, along with attorneys' fees for their collection, become a lien on the property and enforceable in the same manner as a property tax lien. The Planning Board shall have discretion to determine whether the applicant should be required to establish a maintenance fund at the time of approval and, if so, how much of a deposit should be required. The Planning Board shall also have discretion to determine whether a performance bond must be posted by the applicant to ensure the proper completion of the private road and, if so, how much the performance bond shall be and what form it shall take.
(4) 
The HOA shall provide at regular intervals (not to exceed five years) a written certification from a licensed professional engineer that the physical integrity of the private road is adequate to meet its present needs and the needs which can reasonably be anticipated in the future.
(5) 
The private road may never be offered for dedication to the Town of Dover unless it conforms to town highway specifications for rural streets in effect on the date of the offer of dedication. However, the Town Board shall be under no obligation to accept such an offer of dedication, even if the road conforms to town highway specifications. In the event such dedication becomes necessary to ensure public safety, the cost of bringing the road up to town highway specifications shall be borne by the HOA.
(6) 
The lots in the conservation density subdivision shall be restricted by conservation easement so that they may never be subdivided beyond the number of lots permitted in § 145-21A, regardless of whether the private road remains a private road.
(7) 
The subdivision plat shall show the road clearly labeled "Private Road."
(8) 
Road design shall comply with the standards for private roads in the Subdivision Law.[2]
[2]
Editor's Note: See Ch. 125, Subdivision of Land.
(9) 
The Planning Board may waive the requirement of a private road maintained by a HOA if it finds, after consulting with the attorney for the Planning Board or the Town Attorney, that a common drive maintained pursuant to a recorded maintenance agreement, executed by the applicant as a condition of subdivision approval, will provide the same protections to lot owners and the town as would a private road owned by a HOA, and that all of the requirements and HOA functions described in Subsection B(3) through (5) above and § 145-20D of this chapter will be properly fulfilled by such a common drive and maintenance agreement.
C. 
Allowable density. No conservation density subdivision shall contain more lots than would be allowed in a conventional subdivision of the same parcel or parcels. The Planning Board may require an applicant for a conservation density subdivision to submit a conventional subdivision plan if the Planning Board has reason to believe that the proposed conservation density subdivision plan may contain more lots than would be permitted in the case of a conventional subdivision of the same property.
It is the policy of the Town of Dover to encourage flexibility for development which is screened from public view. Accordingly, it is desirable to locate development on rear lots without requiring compliance with otherwise applicable road frontage requirements in the Dimensional Table. All land use districts are hereby declared an open development area under § 280-a, Subdivision 4, of the Town Law. Building permits may be issued for structures on lots that have no public or private road frontage and gain access by right-of-way easement over other lands, under the conditions contained in this section. Rear lots with or without access strips running to public or private roads may be created where they will not endanger public health and safety and will help preserve natural, historic, and scenic resources. The following requirements apply to rear lots:
A. 
Each rear lot must have either a minimum frontage of 25 feet on an improved public or private road and an access strip as defined in this chapter, or a deeded right-of-way easement over other lands, providing legally adequate and physically practical access to a public or private road. In the HR District, rear lots must have a minimum road frontage of 15 feet or a deeded right-of-way easement at least 15 feet wide.
B. 
Minimum lot sizes for rear lots shall be twice the minimum lot size for a conventional subdivision in the district. The area of the access strip shall not be counted in the calculation of minimum lot size. This Subsection B shall not apply to flexible subdivision.
C. 
Except as indicated in Subsections A and B above, rear lots must meet all other requirements for a lot in the applicable land use district. Minimum lot width shall be the same dimension as the minimum road frontage otherwise required in the land use district. For purposes of determining front yard setbacks, the front yard shall be the yard area lying between the principal building and the public or private road from which access is obtained.
D. 
There shall be no more than four adjoining access strips, which must share one common driveway. No more than four lots may be served by a common driveway. Subdivisions of five or more rear lots must satisfy the requirements for conservation density subdivisions in § 145-21.
E. 
All rear lots must have safe access for fire, police, and emergency vehicles.
F. 
The proposed rear lots must not result in degradation of important natural resource and landscape features, including but not limited to ponds, streams, steep slopes, ridgelines, and wetlands.
G. 
When necessary to satisfy the criteria in Subsection F above, the Planning Board may require the applicant to grant a conservation easement or restrictive covenant enforceable by the town that limits the area within which the house and driveway may be constructed on the rear lot.