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Town of Smithtown, NY
Suffolk County
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Table of Contents
Table of Contents
[HISTORY: Adopted by the Town Board of the Town of Smithtown 5-7-2013.[1] Amendments noted where applicable.]
GENERAL REFERENCES
Environmental and coastal quality review — See Ch. 151.
Zoning — See Ch. 322.
ATTACHMENTS
323a Map
[1]
Editor's Note: This ordinance also repealed former Ch. 323, Transfer of Density Flow Rights, adopted 2-9-2010, as amended.
This chapter shall be known as the "Transfer of Density Flow Rights Ordinance."
The intent of this chapter is to regulate the transfer of density flow rights and encourage the transfer of density flow rights from certain open spaces to the historic downtowns in order to facilitate the:
A. 
Preservation of open space and environmentally sensitive land;
B. 
Protection of the groundwater from contamination; and
C. 
Preservation and enhancement of the Town's three historic central business districts.
For the purposes of this chapter, the following terms shall have the meanings indicated:
DENSITY FLOW RIGHT
The right to discharge to the groundwater 300 gallons of wastewater per day pursuant to the Suffolk County Sanitary Code.
DENSITY FLOW RIGHTS BANK
A depository comprised of:
A. 
A database maintained by the Planning Department that catalogs density flow rights acquired or redeemed by the Town of Smithtown; and
B. 
A separate cash account and accounting of the density flow rights in a fund that combines into the general fund for financial statement presentation as a restricted reserve which deposits are made upon sale of publicly held flow rights and from which withdrawals are made to purchase interests to acquire and conserve open space.
[Amended 3-23-2017 by L.L. No. 3-2017]
PASSIVE OPEN SPACE
Undeveloped land that is preserved in its natural state as forest or as a meadow and that is not used for residential, commercial, industrial, institutional, agricultural or active recreational purposes such as golf courses, athletic fields, or playgrounds, but may include minor incidental appurtenances such as fences, benches, and signs.
PRIVATE PARTY TRANSFER
A conveyance of density flow rights between two parties, neither of which is the Town.
PUBLIC PARTY TRANSFER
A conveyance of density flow rights between the Town of Smithtown and another party.
PURCHASE PRICE
The price paid by the Town for the purchase of a development flow right.
RECEIVING DISTRICT
An area of the Town that is desirable to be developed more intensively than areas outside the district as depicted on the Transfer of Density Flow Rights Map in § 323-4 of this chapter of the Town Code.
RECEIVING PARCEL
Land to which density flow rights generated from one or more sending parcels are transferred.
SALE PRICE
The price paid to the Town for the sale of density flow rights from the Density Flow Rights Bank.
SENDING DISTRICT
An area of the Town that is desirable to be preserved as open space as depicted on the Transfer of Density Flow Rights Map in § 323-4 of this chapter of the Town Code.
SENDING PARCEL
Land from which density flow rights are severed for use in one or more receiving areas in the Town of Smithtown.
TRANSFER OF DENSITY FLOW RIGHTS (TDFR)
The process by which such rights are transferred from one sending parcel to one or more receiving parcels in the Town of Smithtown.
TRANSFER OF DENSITY FLOW RIGHTS (TDFR) CERTIFICATE
A paper or digital certificate, issued by the Town, that documents the transfer of density flow rights from a particular sending parcel to a particular receiving parcel.
The boundaries of the sending and receiving districts are hereby established as shown upon the Transfer of Density Flow Rights Map of the Town of Smithtown, which accompanies this chapter and which, with all notations, references and other matter shown thereon, is hereby declared to be part of this chapter.[1]
[1]
Editor's Note: The Transfer of Density Flow Rights Map is included as an attachment to this chapter.
The Town Board is authorized to:
A. 
Determine, subject to a concurring determination by the Suffolk County Department of Health Services, the number of density flow rights that may be severed from or added to a parcel of land.
B. 
Approve, subject to a concurring determination by the Suffolk County Department of Health Services, and deny applications for private party transfers.
C. 
Purchase and sell density flow rights in compliance with the Suffolk County Sanitary Code and the provisions of this chapter.
D. 
Impose reasonable conditions the Board deems necessary or desirable, provided that the conditions do not undermine a determination by the Suffolk County Department of Health Services.
A. 
No density flow rights shall be transferred in the Town of Smithtown except in accordance with the requirements of the Suffolk County Sanitary Code, the transfer of development rights standards as promulgated by the Suffolk County Department of Health Services, and the provisions of this chapter.
B. 
No density flow rights shall be transferred from:
(1) 
Land in a receiving district, unless the right is transferred to a receiving district.
(2) 
Land in another municipality except in an incorporated village located wholly in the Town of Smithtown.
(3) 
Land in an incorporated village if the village board of trustees objects to the transfer.
(4) 
Wetlands or underwater lands.
(5) 
Land in a subdivision that was approved by the Planning Board as a cluster subdivision or where the Planning Board modified the density.
(6) 
Land required to be left as a natural buffer or open space as a condition of any Town, county, state, or federal approval to develop or use real property.
(7) 
Land within an easement area, or within a right-of-way, or land restricted by some other condition, covenant or encumbrance of record, to the extent that any of these prevent development thereon.
(8) 
Any lot used for a single-family residence unless a distinct open space area can be defined on the site, and the severance of that area would not result in a substandard lot.
C. 
No density flow rights shall be transferred to:
(1) 
Land in a sending district.
(2) 
Land required to be left as a natural buffer or open space as a condition of any Town, county, state, or federal approval to develop or use real property.
(3) 
Land listed on the Smithtown Historic Sites Inventory, unless the historic resource is preserved.
(4) 
Land located within a sewer district or approved for connection to a sewage treatment facility.
(5) 
Land not served by public water.
(6) 
A parcel that would not be in compliance with the land use or dimensional requirements of Chapter 322, Zoning, of the Town Code unless an appropriate variance has been granted by the Board of Zoning Appeals.
D. 
Except for cases where density flow rights have been transferred from a parcel developed for a commercial or institutional use or for more than one dwelling unit, sending parcels from which density flow rights have been transferred shall be used only for passive open space and shall be kept in perpetuity as natural open space. The use of fertilizers, pesticides, or irrigation is prohibited. Plants that are poisonous, hazardous, or not native to Long Island, as determined by the Planning Department, may be removed and replaced with native plants that are not poisonous or hazardous.
E. 
No transfer of density flow rights shall be approved without written consent from the Suffolk County Department of Health Services.
F. 
The designation of sending and receiving districts does not imply that all land within the districts has density flow rights that can be sent or received.
G. 
Approval of a transfer of density flow rights shall not imply that applications for development on the sending or receiving parcels will receive preferential treatment.
H. 
A separate deed or deed restriction, as appropriate, must be filed for the affected sending parcel. All deed restrictions shall allow perpetual oversight and access for monitoring by the Town. This document shall be in a form acceptable to the Town Attorney.
I. 
If the receiving parcel is located in the Local Waterfront Area as defined by Chapter 151 of the Town Code, the transfer shall not be approved unless the Town Board determines that the transfer is consistent with the Local Waterfront Revitalization Program.
J. 
If the receiving parcel is located in a wild, scenic, or recreational river corridor, the transfer shall not be approved unless the applicant obtains a permit or a letter of nonjurisdiction from the New York State Department of Environmental Conservation.
A. 
Except as provided for in § 323-6D and E, a density flow right shall correspond to a parcel having 20,000 square feet of area or the minimum lot area required by Chapter 322, Zoning, of the Town Code, whichever is greater. In cases where the calculation results in a number that is not a whole number, the number shall be rounded down to the nearest tenth of a density flow right.
B. 
As an incentive to encourage the transfer of density flow rights, the following environmentally sensitive lands, provided that these lands are not underwater lands or wetlands, shall be included in the calculations of lot area:
(1) 
Land with slopes in excess of 15%.
(2) 
Land within 100 feet of surface water or wetlands.
(3) 
Land where groundwater is less than 10 feet below grade.
(4) 
Land in a Special Flood Hazard Area indicated on the Flood Insurance Rate Map.
C. 
The number of density flow rights for a single parcel or contiguous parcels having a total of at least 20,000 square feet of land area shall be based on a yield plan.
(1) 
The yield plan shall comply with the following:
(a) 
Chapter 248, Subdivision Regulations, of the Town Code, except as modified pursuant to Subsection C(3)
(b) 
Chapter 322, Zoning, of the Town Code, except as otherwise stated in Subsection B and as modified pursuant to Subsection C(3)
(c) 
All lots shall be at least 20,000 square feet or the minimum required by Chapter 322, Zoning, of the Town Code, whichever is greater, including certain environmentally sensitive land, pursuant to Subsection B.
(d) 
The yield plan shall show all streets and drainage land that would normally be required if the land were being subdivided.
(e) 
All other applicable laws and regulations.
(2) 
The yield plan used for the calculation of density flow rights may not necessarily be acceptable for applications pursuant to any other chapters of the Town Code.
(3) 
As an incentive to encourage the transfer of density flow rights, the Town Board shall have the authority to modify highway design standards and frontage, setback, parking, and buffer requirements if the Board determines that the modification would not adversely impact the public health, safety, or welfare.
D. 
The number of density flow rights for a parcel that has an area of less than 20,000 square feet and is exempt from Article 6 of the Suffolk County Sanitary Code pursuant to § 760-609 of the Suffolk County Sanitary Code shall be one if:
(1) 
The parcel meets the minimum lot area and frontage required by Chapter 322, Zoning; or
(2) 
The parcel is buildable as evidenced by the Board of Zoning Appeals granting an area variance for the parcel and/or, if necessary, the adjoining lot.
E. 
If a parcel is lawfully developed for a commercial or institutional use, or for more than one dwelling unit, the number of density flow rights shall be equal to Suffolk County Department of Health Services' approved sanitary flow divided by 300 gallons per day (gpd).
F. 
The number of density flow rights for a parcel having an area of less than 20,000 square feet that does not meet the requirements listed in Subsection D shall be determined by dividing the lot area by 20,000 square feet or by the minimum lot area required by Chapter 322, Zoning, whichever results in a smaller number of rights.
A. 
Nondiscretionary private party transfers; procedure.
(1) 
Transfers involving a sending parcel which appeared as separately assessed on the Suffolk County Tax Map as of January 1, 1981, and meets at least one of the following criteria shall be processed as a nondiscretionary private party transfer which shall be approved upon compliance with the requirements of this chapter:
(a) 
The parcel is lawfully developed for a commercial or institutional use, or for more than one dwelling unit;
(b) 
A vacant parcel that meets the minimum lot area and frontage required by Chapter 322, Zoning;
(c) 
A sufficient area variance has been granted by the Board of Zoning Appeals for the parcel and/or, if necessary, the adjoining lot; or
(d) 
The application includes a yield plan that complies with § 323-7C and does not require the discretionary modification by the Town Board of any of those standards identified in § 323-7C(3).
(2) 
Applications for nondiscretionary private party transfers shall be filed in the Planning Department. The following documents and fees shall be filed together:
(a) 
Two copies of a completed TDFR application form to be supplied by the Planning Department.
(b) 
A written determination of yield from the Suffolk County Department of Health Services if the parcel is in an incorporated village or is lawfully developed for a commercial or institutional use, or for more than one dwelling unit.
(c) 
Two copies of current surveys, site plans, and floor plans of the sending and receiving parcels showing all existing and proposed boundaries, structures, easements, etc.
(d) 
Two copies of the latest deeds and current title searches of the sending and receiving parcels, including searches for any and all restrictions, including liens, covenants, and easements.
(e) 
The proposed deed of conveyance, conservation easement or covenant.
(f) 
A fee of $250 per density flow right requested.
(3) 
The Planning Department shall send written notification to the Suffolk County Department of Health Services and other involved agencies, if any, within five days of the filing of all of the above-listed documents and fees.
(4) 
The Planning Department shall act on the application within 15 days of receiving comments from the Suffolk County Department of Health Services. The time period may be extended upon mutual consent of the applicant and the Planning Department. The application shall be approved if it is acceptable to the Suffolk County Department of Health Services and the proposal is in compliance with this chapter.
(5) 
Approval shall expire within 180 days unless, within that period, a deed of conveyance, conservation easement or covenant acceptable to the Town Attorney is filed in the Office of the Suffolk County Clerk. For a fee of $50, the Planning Department shall extend this time period 180 days if the Planning Department determines in writing that the relevant regulations and circumstances have not changed.
(6) 
The Planning Department shall issue the TDFR certificate upon receipt of a copy of the filed deed of conveyance, conservation easement or covenant. The certificate shall indicate the date of the approval, the date the deed, easement or covenant was filed, the number of density flow rights transferred, the location of the sending parcel, and the location of the receiving parcel.
(7) 
The Planning Department shall notify the Sole Assessor when the transfer of density flow rights has been completed and shall keep a record of all transfers.
(8) 
Density flow rights are only useable pursuant to the conditions under which the transfer was approved. They are site-specific to the project reviewed by the Planning Department.
(9) 
After the disposition of an application, the Planning Department shall not accept a new application for a nondiscretionary private party transfer for substantially the same request.
B. 
Discretionary private party transfers; procedure.
(1) 
Proposed transfers that require modification(s) of any of those standards identified in § 323-7C(3) shall be processed as discretionary private party transfers and shall be subject to the procedure in this subsection.
(2) 
Applications for discretionary private party transfers shall be filed in the Planning Department. The following documents and fees shall be filed together:
(a) 
Three copies of a completed TDFR application form to be supplied by the Planning Department.
(b) 
Two copies of a completed environmental assessment form as well as the environmental quality review fee required by Chapter 151 of the Code of the Town of Smithtown.
(c) 
For applications where the sending parcel is greater than 20,000 square feet, three copies of a yield plan, or a written determination of yield from the Suffolk County Department of Health Services if the parcel is in an incorporated village or is lawfully developed for a commercial or institutional use, or for more than one dwelling unit.
(d) 
Three copies of current surveys of the sending and receiving parcels showing all boundaries, structures, easements, etc.
(e) 
Three copies of the latest deeds and current title searches of the sending and receiving parcels, including searches for any and all restrictions, including liens, covenants, and easements.
(f) 
The proposed deed of conveyance, conservation easement or covenant.
(g) 
A fee of $500 per density flow right requested.
(3) 
The Planning Department shall send written notification to the Suffolk County Department of Health Services and other involved agencies, if any, within five days of the filing of all of the above-listed documents and fees.
(4) 
Within 15 days of receiving comments from the Suffolk County Department of Health Services, the Planning Department shall make a written recommendation to the Town Board. Within 62 days of receipt of a complete application, the Town Board shall act on the application. The time period may be extended upon mutual consent of the applicant and the Town Board. The application shall not be approved unless the Town Board determines that it is consistent with the purposes of a comprehensive plan as described in § 263 of the Town Law, complies with this chapter, is acceptable to the Suffolk County Department of Health Services, and would not otherwise hinder the public health, safety, or general welfare.
(5) 
Approval shall expire within 180 days unless, within that period, a deed of conveyance, conservation easement or covenant acceptable to the Town Attorney is filed in the Office of the Suffolk County Clerk. For a fee of $50, the Town Board may extend this time period 180 days if it finds that such extension would not hinder the public interest.
(6) 
The Planning Department shall issue the TDFR certificate upon receipt of a copy of the filed deed of conveyance, conservation easement or covenant. The certificate shall indicate the date of the approval, the date the deed, easement or covenant was filed, the number of density flow rights transferred, the location of the sending parcel, and the location of the receiving parcel.
(7) 
The Planning Department shall notify the Sole Assessor when the transfer of density flow rights has been completed and shall keep a record of all transfers.
(8) 
Density flow rights are only useable pursuant to the terms and conditions under which the transfer was approved. They are site-specific to the project reviewed by the Town Board.
(9) 
A unanimous vote of all of the members of the Board then present is necessary for the Board to:
(a) 
Reopen a matter, after an earlier decision; and
(b) 
Modify an earlier decision; or
(c) 
Accept a second application after an earlier denial of substantially the same request.
A. 
Purchase of density flow rights by the Town; procedure.
(1) 
The Town may acquire the land fee simple in order to retain or resell the density flow rights, or the Town may acquire merely the density flow rights to retain or resell.
(2) 
A property owner or contract vendee may request the Town Board to purchase density flow rights by filing an application at the Planning Department. The following documents shall be filed together:
(a) 
Three copies of a completed public party transfer application form to be supplied by the Planning Department.
(b) 
Two copies of a completed environmental assessment form as well as the environmental quality review fee required by Chapter 151 of the Code of the Town of Smithtown.
(c) 
Three copies of a current property survey showing all boundaries, structures, easements, etc.
(d) 
Three copies of a yield plan, or a written determination of yield from the Suffolk County Department of Health Services if the parcel is in an incorporated village or is lawfully developed for a commercial or institutional use, or for more than one dwelling unit.
(e) 
Three copies of a current title search, including a search for any and all encumbrances, including all easements, liens, covenants, and restrictions on the property.
(f) 
The proposed deed of conveyance, conservation easement or covenant.
(g) 
Any other documentation deemed necessary by the Town Board to conduct a thorough review.
(3) 
The Planning Department shall send written notification to the Suffolk County Department of Health Services and other involved agencies, if any, within five days of the filing of all of the above-listed documents and fees.
(4) 
Within 15 days of receiving comments from the Suffolk County Department of Health Services, the Planning Department shall make a written recommendation to the Town Board. If the Town Board wishes to consider the application further, the Board shall obtain an appraisal of the density flow rights.
(5) 
The Town Board shall notify the seller of the results of the appraisal and offer the seller an opportunity to obtain his own appraisal.
(6) 
The Town Board may establish the fair market value of the rights based on the Town's appraisal and seller's appraisal, if applicable.
(7) 
If the Town Board wishes to proceed, it shall authorize the Town Attorney to negotiate the purchase of the parcel or rights for an amount up to, but not exceeding, 0.9 multiplied by the fair market value.
(8) 
Upon approval of the purchase, the property owner or contract vendee of the sending parcel shall receive the agreed payment upon delivery to the Town of the deed of conveyance, conservation easement, or covenant in a form acceptable to the Town Attorney and acceptable for filing in the office of the Suffolk County Clerk.
(9) 
If at any point the Town Board does not wish to proceed, the Board shall notify the owner in writing, stating its reasons therefor.
(10) 
The Planning Department shall notify the Sole Assessor when the transfer of density flow rights has been completed and shall keep a record of all transfers.
B. 
Sale of density flow rights from the Density Flow Rights Bank; procedure.
(1) 
Application to Town Board. A property owner may request to purchase density flow rights from the Density Flow Rights Bank by filing an application at the Planning Department. The following documents shall be filed together:
(a) 
Three copies of a completed public party transfer application form to be supplied by the Planning Department.
(b) 
Two copies of a completed environmental assessment form as well as the environmental quality review fee required by Chapter 151 of the Code of the Town of Smithtown.
(c) 
Three copies of a current property survey showing all boundaries, structures, easements, etc.
(d) 
Three copies of a full title search, including a search for any and all encumbrances, including all easements, liens, covenants, and restrictions on the property.
(e) 
Three copies of a site plan showing proposed improvements to the property.
(f) 
Three copies of architectural plans.
(g) 
The proposed deed of conveyance.
(h) 
Any other documentation requested by the Town Board or the Planning Department.
(i) 
A fee of $500 per density flow right requested.
(2) 
The Planning Department shall notify the Suffolk County Department of Health Services within five days of the filing of all of the above-listed documents and fees. A TDFR certificate shall not be issued without written consent from the Suffolk County Department of Health Services.
(3) 
If two or more applications are pending at the same time before the Town Board, the Board shall award the density flow rights to the projects that the Board determines best further the intent of this chapter as described in § 323-2.
(4) 
In cases where the Town wishes to sell density flow rights from land it has acquired in fee simple, it shall, by resolution, transfer the associated density flow rights into the Density Flow Rights Bank prior to selling those rights. The value of those rights shall be equal to the average fair market value, as determined pursuant to Subsection A(6), of the rights in the Density Flow Rights Bank. If there are no rights in the bank at the time of transfer, the value shall be equal to the fair market value of the right most recently purchased from the bank.
(5) 
The sale price of a density flow right shall be negotiated by the Town Attorney and shall be no less than 1.1 multiplied by the average fair market value, as determined pursuant to Subsection A(6), of the density flow rights in the Density Flow Rights Bank.
(6) 
The density flow rights shall be deemed transferred from the Density Flow Rights Bank at such time as the deed of conveyance is filed in the Office of the Suffolk County Clerk.
(7) 
The Planning Department shall issue the TDFR certificate upon receipt of a copy of the filed deed of conveyance. The certificate shall indicate the date of the approval, the date the deed was filed, the number of density flow rights transferred from the Density Flow Rights Bank, and the location of the receiving parcel.
(8) 
The Planning Department shall notify the Sole Assessor when a transfer of density flow rights has been authorized.
The Planning Department shall:
A. 
Maintain all records pertaining to TDFR applications.
B. 
Maintain a database of all TDFR certificates, sending parcels, receiving parcels, dates of transfer, and other information deemed necessary or desirable by the Town Board or the Planning Director.
C. 
Send an annual report to the Town Board providing statistics on TDFR program activity, and send a copy to the Suffolk County Department of Health Services.
Any covenant, restriction, easement or other such limitation or condition placed upon property pursuant to this chapter shall become part of the zoning requirements for such property pursuant to § 322-8 of the Town Code. Any violation of any such covenant, restriction, easement or other such limitation or condition shall constitute a violation of Chapter 322, Zoning, of the Town Code.
If any section, clause, phrase or provision of this chapter is held invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not be so construed as to render invalid or unconstitutional the remaining provisions of this chapter.