[HISTORY: Adopted by the Town Board of the Town of Smithtown 5-7-2013.[1] Amendments noted where applicable.]
[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Editor's Note: This ordinance also repealed former Ch. 323,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:
For the purposes of this chapter, the following terms shall
have the meanings indicated:
The right to discharge to the groundwater 300 gallons of
wastewater per day pursuant to the Suffolk County Sanitary Code.
A depository comprised of:
A database maintained by the Planning Department that catalogs
density flow rights acquired or redeemed by the Town of Smithtown;
and
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]
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.
A conveyance of density flow rights between two parties,
neither of which is the Town.
A conveyance of density flow rights between the Town of Smithtown
and another party.
The price paid by the Town for the purchase of a development
flow right.
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.
Land to which density flow rights generated from one or more
sending parcels are transferred.
The price paid to the Town for the sale of density flow rights
from the Density Flow Rights Bank.
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.
Land from which density flow rights are severed for use in
one or more receiving areas in the Town of Smithtown.
The process by which such rights are transferred from one
sending parcel to one or more receiving parcels in the Town of Smithtown.
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, unless the property does not
have the ability to connect to the existing sewer district, nor the
ability to effect arrangements for the connection of the project to
the existing sewer district, as confirmed by Suffolk County Department
of Health Services.
[Amended 10-4-2022 by Res. No. 2022-902]
(5)
Land not served by public water.
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:
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)
(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:
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:
(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 application.
[Amended 10-4-2022 by Res. No. 2022-902]
(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 application.
[Amended 10-4-2022 by Res. No. 2022-902]
(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.
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 application.
[Amended 10-4-2022 by Res. No. 2022-902]
(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.
