[HISTORY: Adopted by the Town Board of the
Town of Grand Island 5-18-1998 by L.L. No. 4-1998 (Ch. 9A of the 1963
Code). Amendments noted where applicable.]
This chapter shall hereinafter be known and
cited as the "Conservation Easement Law of the Town of Grand Island."
It is the purpose of this chapter to provide for the acquisition of permanent interests or rights in real property by the Town of Grand Island for the preservation of open space or open areas as defined in § 121-5 of this chapter. Such interests or rights may be acquired by purchase, gift, grant, bequest, devise, lease or otherwise and shall constitute a public purpose for which public funds may be expended or advanced after due notice and public hearing.
The Conservation Easement Law of the Town of
Grand Island is authorized and has been enacted by the Town Board
of the Town of Grand Island pursuant to § 49-0301 et seq.
of the Environmental Conservation Law of the State of New York, § 247
of the General Municipal Law of the State of New York and §§ 277
and 278 of the Town Law of the State of New York.
This chapter shall apply to the entire area
of the Town of Grand Island.
As used in this chapter, the following terms
shall have the meanings indicated:
The Town of Grand Island Conservation Advisory Board.
[Amended 1-21-2014 by L.L. No. 5-2014]
An easement, covenant, restriction or other interest in real
property, which limits or restricts development, management or use
of such real property for the purpose of preserving or maintaining
the ecological, scenic, open space, historic, architectural or other
natural or physical condition of the real property.
[Amended 10-15-2012 by L.L. No. 6-2012]
The ecological, scenic, open space, historic, architectural
or other natural or physical conditions protected by a conservation
easement.
[Amended 10-15-2012 by L.L. No. 6-2012]
Any space or area characterized by natural scenic beauty
or whose current or potential ecological value, natural condition
or present state of use, if retained, would enhance the present or
potential value of abutting or surrounding urban development or would
maintain or enhance the conservation of natural or scenic resources.
[Amended 10-15-2012 by L.L. No. 6-2012]
The Town of Grand Island Planning Board.
Any property subject to a conservation easement granted to
the Town of Grand Island pursuant to this chapter.
The Town of Grand Island Parks and Recreation Advisory Board.
The State Environmental Quality Review Act, Article 8 of
the Environmental Conservation Law of the State of New York, and any
other applicable laws, rules or regulations.
[Amended 10-15-2012 by L.L. No. 6-2012]
A.
Upon application by the owner of property.
[Amended 10-15-2012 by L.L. No. 6-2012]
(1)
Proposal to the Town Board. Any owner or owners of
open space may submit a proposal to the Town Board for the granting
of a conservation easement to the Town. Such proposals shall be submitted
in such manner and form as may be prescribed by the Town Board and
shall include a real property Tax Map, a concise description of the
areas proposed for the conservation easement and the environmental
basis for establishing such an easement. If the real property proposed
for the conservation easement is subject to a mortgage, the owner
applying for the conservation easement shall secure written notification
from the mortgagee of the property agreeing to subordinate mortgage
to the conservation easement. The Town Board shall notify the Grand
Island Central School District of the receipt of any application of
any proposal of a conservation easement within 30 days of the receipt.
(2)
Evaluation by the Conservation Advisory Board. The
Town Board shall forward any proposal for a conservation easement,
upon receipt, to the Conservation Advisory Board. In accordance with
its powers and duties as outlined in the Code of the Town of Grand
Island, the Conservation Advisory Board shall review the proposal
to determine the benefit to the people of Grand Island and may make
recommendations, as appropriate. In conducting its review, the Conservation
Advisory Board shall consider the resource inventory and recommendations
included in the Town of Grand Island Comprehensive Plan and other
factors deemed relevant.
[Amended 1-21-2014 by L.L. No. 5-2014]
B.
As an element of subdivision/cluster development review.
[Amended 10-15-2012 by L.L. No. 6-2012; 1-21-2014 by L.L. No. 5-2014]
(1)
Subdivision review. If, in undertaking its review
of a proposed subdivision, the Planning Board, pursuant to § 277
of the Town Law, finds that a proper case exists for requiring that
a park or parks be suitably located for playgrounds or other recreational
purposes on the subdivided premises, the party proposing the subdivision
may request that the Town accept a conservation easement on a portion
of the subdivided premises for the fulfillment of its obligation to
provide the recreational space pursuant to § 277 of the
Town Law. The Planning Board shall be responsible for negotiating
the content and area of the proposed conservation easement with the
party proposing the subdivision. The proposed conservation easement
shall take into account the Grand Island Comprehensive Plan, relevant
plans and studies and neighborhood design principles and shall include
documentation of the environmental values to be conveyed by this easement.
The Planning Board may request, but may not require, that the protected
property be open to the public. The Planning Board shall consider
the location of monumentation in connection with subdivision review
and the location and description of monumentation shall be included
on the site plan. The proposed conservation easement shall be transmitted
to the Town Board, along with the recommendations for final action
on the subdivision application. The Town Board shall solicit and take
into account comments from the Conservation Advisory Board and the
Parks and Recreation Advisory Board.
(2)
Cluster development review. In conjunction with the review process for a cluster development pursuant to § 407-126 of Chapter 407, Zoning, the party proposing the cluster development may request that the Town accept a conservation easement on any open space resulting from the modification of conventional zoning requirements, such as minimum lot area, minimum lot frontage or minimum lot depth. The Planning Board shall be responsible for negotiating the content and area of the proposed conservation easement with the party proposing the cluster development during the cluster development review process. In addition to meeting the requirements of § 278 of the Town Law, the proposed conservation easement shall take into account the Grand Island Comprehensive Plan, relevant plans and studies and neighborhood design principles and shall include documentation of the environmental values to be conveyed by this easement. The Planning Board may request, but not require, that the protected property be open to the public. The proposed conservation easement shall be transmitted to the Town Board, along with the recommendation for final action on the cluster development application. The Planning Board may request that the Town accept a conservation easement for fulfillment of its obligation to provide recreational space pursuant to § 277 of the Town Law. The Town Board shall solicit and take into account comments from the Conservation Advisory Board and the Parks and Recreation Advisory Board.
C.
Review by the Town Board.
(1)
SEQR review. The Town Board shall, within 30 days
of receipt of a recommendation from the Conservation Advisory Board
or the Planning Board regarding a conservation easement, reject the
offer for a conservation easement or perform an initial review of
the proposed Conservation Easement for purposes of SEQR pursuant to
6 NYCRR 617.6(a). If the Town Board determines that accepting the
conservation easement is a Type I or unlisted action pursuant to SEQR,
the conservation easement may not be accepted until SEQR has been
fully complied with.
[Amended 1-21-2014 by L.L. No. 5-2014]
(2)
Public hearing. No less than 15 days nor more than
60 days after SEQR review has been completed, the Town Board shall
hold a public hearing concerning the proposed conservation easement.
At least 10 days' notice of the time and place of any public hearing
shall be published in a paper of general circulation in the Town of
Grand Island, at the expense of the property owner, and a written
notice of the time and place of such hearing shall be given to all
property owners within 500 feet of the boundaries of said proposed
area, to Erie County and to the Grand Island Central School District.
For purposes of this provision, SEQR review is completed after the
Town Board issues any of the following pursuant to SEQR: a negative
declaration, a conditioned negative declaration or a finding statement
issued after a final environmental impact statement has been prepared.
Notwithstanding any of the above, this public hearing may be held
concurrently with any public hearing pursuant to SEQR.
[Amended 10-15-2012 by L.L. No. 6-2012]
(3)
Determination. The Town Board, after such public hearing,
may adopt the proposal or any modification thereof or may reject it
in its entirety. In making its determination, the Town Board shall
comply fully with SEQR. Additionally, the Town Board shall consider
any recommendations of the Conservation Advisory Board, the Planning
Board, the Parks and Recreation Advisory Board, the Grand Island Central
School District or Erie County regarding the proposed conservation
easement.
[Amended 10-15-2012 by L.L. No. 6-2012; 1-21-2014 by L.L. No. 5-2014]
D.
Recording agreement. If a conservation easement is
accepted by the Town Board, it shall be executed by the owner or owners
in written form and in a form suitable for recording in the Erie County
Clerk's office. Such recording shall be at the owner's expense and
shall include agreements subordinating, to the conservation easement,
any mortgages or other liens which, if not subordinated, could result
in the elimination of such conservation easement.
E.
Documentation of conservation values. As part of its initial assessment of an application pursuant to Subsection A(2) of this section or, after the Planning Board forwards a recommendation regarding a conservation easement to the Town Board pursuant to Subsection B of this section, the Conservation Advisory Board shall prepare a report that either concurs with or adds to the identified conservation values of the area proposed for the conservation easement. This report shall be forwarded to the Town Board within 20 days of any determination by the Town Board pursuant to Subsection C(1) of this section (SEQR review).
[Amended 10-15-2012 by L.L. No. 6-2012; 1-21-2014 by L.L. No. 5-2014]
A.
Reduced assessment. After acquisition of a conservation
easement pursuant to this chapter, the valuation placed upon the protected
property for the purpose of real estate taxation shall take into account
and be influenced by the limitation placed upon the future use of
the land by the conservation easement pursuant to and consistent with
§ 247 of the General Municipal Law.
B.
Advance notice. The Town Assessor shall notify any party offering a conservation easement to the Town pursuant to § 121-6A or B of the valuation that will be placed upon the protected property, for the purpose of real estate taxation, within 30 days of receiving a written request for such notification. However, the thirty-day period shall not begin to run until either the Conservation Advisory Board or the Planning Board has made a recommendation to the Town Board with respect to the conservation easement.
[Amended 1-21-2014 by L.L. No. 5-2014]
C.
Return to full valuation. Upon cancellation of a conservation easement pursuant to § 121-10 of this chapter, the valuation placed upon the protected property for the purpose of real estate taxation shall be revised to reflect the removal of any limitations that had been imposed upon the future use of the protected property by the conservation easement pursuant to and consistent with the Real Property Tax Law of the State of New York.
[Amended 10-15-2012 by L.L. No. 6-2012; 1-21-2014 by L.L. No. 5-2014]
Protected property shall be monitored by the
Zoning Inspector of the Town of Grand Island to ensure that the use
of the protected property is consistent with the terms of the conservation
easement. Assistance in the form of technical support from the Conservation
Advisory Board may be provided during such inspections. The Zoning
Inspector shall report substantial violations of the terms and conditions
of any conservation easement to the Town Board.
Every conservation easement accepted by the
Town shall contain the following violation provisions:
A.
Notice. If there is a substantial violation of the
terms and conditions of any conservation easement or a substantial
violation is threatened, the Town Board shall give written notice
to the owner of the protected property of such violation and demand
corrective action sufficient to cure the violation and, where the
violation involves injury to the protected property, to restore the
protected property so injured.
B.
Failure of owner to correct violation. If the owner
of protected property fails to cure the violation within 30 days after
receipt of notice thereof from the Town Board, or within such other
reasonable period as the Town Board may specifically permit, the Town
Board may bring an action at law or in equity in a court of competent
jurisdiction to:
(1)
Enforce the terms of the conservation easement.
(2)
Enjoin the violation, by temporary or permanent injunction.
(3)
Recover any damages to which it may be entitled for
violation of the terms of the conservation easement or injury to any
conservation values protected by the conservation easement, including
damages for the loss of scenic, aesthetic or environmental values.
(4)
Require the restoration of the protected property
to the condition that existed prior to any such injury. Additionally,
in any such action where the Town prevails, the Town shall be entitled
to recover its reasonable costs, including attorneys' fees, incurred.
C.
Immediate action required. If the Town Board, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the conservation values of the protected property, the Town Board may pursue its remedies under Subsection B above without prior notice to the owner of the protected property or without waiting for the period provided for cure to expire.
Every conservation easement accepted by the
Town shall contain the following duration and termination provisions:
B.
Acquisition of fee simple interest by the Town. In the event that the Town acquires a fee simple interest in the property subject to the conservation easement, by eminent domain or otherwise, the conservation easement is terminated. Such termination shall not be subject to any cancellation payments under Subsection C below.
C.
Cancellation payments. The owner or owners of protected property for which a conservation easement has been granted pursuant to § 121-6A of this chapter may petition the Town Board for cancellation of the conservation easement. Such cancellation, if approved by the Town Board, shall be granted upon payments as specified below:
(1)
Reimbursement component. All taxes saved and abatements granted pursuant to § 121-7A of this chapter, including any state, county, Town, school district or any special improvement district or other taxing unit to which the property is subject, must be repaid to the Town. Said taxes and abatements shall be computed by determining the difference between the amount of taxes paid on the protected property during the first year after a reduced assessment was granted pursuant to § 121-7A of this chapter and the amount of taxes paid the year prior to that and multiplying said difference by three times the number of complete years a reduced assessment has been granted. The Town shall reimburse the other taxing units in proportion to their appropriate abatement.
(2)
Penalty component. An amount equal to the reimbursement
component shall be paid to the Town.
D.
Discretion of the Town Board. Notwithstanding Subsection C above, if a reduced valuation assessment has been granted pursuant to § 121-7A of this chapter for a period in excess of 25 years, the Town Board shall have sole discretion to deny the petition for cancellation or impose an alternate penalty which shall not be less than any amount that would be due under Subsection C(1) and (2) above.
