It is the purpose of this section to enable, where appropriate,
flexibility of design and development of land in such a manner as
to preserve its natural and scenic qualities, protect areas of meaningful
ecological value, reduce flood hazards, facilitate the adequate and
economical provision of streets and utilities, minimize negative environmental
impacts, improve the aesthetic quality of new residential developments,
encourage the conservation of energy, increase recreational opportunities,
and otherwise promote the planned and environmentally desirable use
of land by permitting the Board of Trustees to authorize the Planning
Board, simultaneously with the approval of subdivision plats, to modify
otherwise applicable provisions of this chapter in accordance with
the standards, conditions and limitations as set forth herein and
in § 7-738 of the Village Law.
The use of this average density procedure shall be limited to
lands within the R-50 and R-35 One-Family Residence Districts only.
The Board of Trustees, by resolution, may authorize the Planning
Board to use this procedure on specific properties, either at the
request of a property owner or upon a mandate by the Planning Board
pursuant to § 7-738 of the Village Law and rules and regulations
adopted by the Planning Board for determining the selection of such
properties.
Except as modified by the Planning Board pursuant to the authority
hereby conferred, all regulations normally applicable to residential
uses in the zoning district in which the property is located shall
continue to apply. In addition, the following requirements are hereby
established specifically for average density developments:
A.
Permitted uses. The permitted uses within an average density development
shall be the same as permitted in the zoning district in which the
property is located.
B.
Density. The number of dwelling units permitted in an average density development shall in no case exceed the number which could be subdivided into lots conforming to all normally applicable requirements of this chapter, Chapter 193, Subdivision of Land, and other related land use and development controls. The basis for this determination by the Planning Board shall be a sketch layout of a conventional subdivision prepared and submitted by the applicant, which layout shall include topographic information and such other data as may be required by the Planning Board to assist in making its determination.
Average density developments shall result in the permanent preservation
of open space lands having meaningful scenic, ecological, environmental,
flood-control, recreational or similar characteristics and shall be
at such location and with such access as may be determined appropriate
by the Planning Board for the purpose of satisfying the objectives
of this section.
A.
Conserved land areas, and any common facilities located thereon,
shall be owned and maintained by the property owner or, in the case
of multiple owners, by a property owners' association established
in accordance with the following requirements:
(1)
The property owners' association shall be a legal entity (including
but not limited to a not-for-profit membership corporation) created
by a trust agreement or certificate of incorporation, approved as
to form and sufficiency by the Village Attorney, and designed to assure
the permanent preservation and protection of the common lands and
any improvements thereon for their intended purpose.
(2)
The property owners' association shall be made responsible for the
continued future maintenance, ownership and use of all such common
lands and facilities. The association must annually provide the Village
Clerk with the names and addresses of all officers and directors and
must notify the Village Clerk of any changes within 30 days.
(3)
The property owners' association shall not be permitted to be dissolved
and shall not dispose of any common land or any improvements thereon
or thereunder, by sale or otherwise, except to an organization established
to own and maintain such common land and improvements as hereinabove
referred to and subject to the same restrictions on maintenance and
use as the first such legal entity, as well as to approval by the
Planning Board as set forth above.
(4)
The property owners' association shall be subject to an agreement
with the Village of Wesley Hills providing that in the event it, or
any successor organization, shall at any time after approval of the
development fail to maintain the common land or any improvements thereon
in reasonable order or condition in accordance with the approved plan,
the Village of Wesley Hills may serve written notice upon such legal
entity or successor organization, or upon the property owners within
the development, setting forth the manner in which the association
has failed to maintain the common land or any improvements thereon
and said notice shall include a demand that such deficiencies be corrected
within a designated time frame. If the deficiencies are not corrected
within the designated time frame, the Village of Wesley Hills, in
order to preserve the taxable values of the property within the development
and to prevent the common land and improvements thereon from becoming
a public nuisance, may enter upon and take possession of said common
land and improvements and maintain the same until such time as the
Village Board shall determine that the property owners' association
is ready and able to maintain the common land and improvements in
proper condition. Said entry and maintenance shall not vest in the
public any rights to use the common land or improvements except when
the same is voluntarily dedicated to the public by the property owners'
association and the offer of dedication is accepted by the Board of
Trustees. The decision of the Village with respect to the action described
in this subsection shall constitute a final administrative decision
subject to review in accordance with the provisions of Article 78
of the Civil Practice Law and Rules. The cost to the Village of any
such maintenance shall be assessed against the properties within the
average density development, and in the event of the failure or refusal
of any property owner to pay any such charges when due, the unpaid
amount thereof shall become a lien against that person's property
and, together with interest from the due date thereof, shall be included
in the annual tax levy of the Village upon such property for each
such fiscal year, and the amount so levied shall be collected in the
same manner as other Village taxes.
(5)
The property owners' association agreement shall require that every property owner within the average density development shall automatically be and become a member of the association and shall be subject to a charge for a proportionate share of expenses of the association's activities, including but not limited to the maintenance and operation of the common land and improvements thereon. The charge shall be a lien upon the residential property in the event it remains unpaid by the property owner for a period of more than 60 days after the assessment thereof by the governing body of the property owners' association. The obligation of each property owner to pay a proportionate share of the association's expenses may be enforced by an action in the name of the association or by the Village as provided in Subsection A(4) of this section, or in the name of both.
(6)
The property owners' association must annually provide the Village
Clerk with the names and addresses of all officers and directors of
the association and shall notify the Village Clerk of any changes
within 30 days.
B.
In general, common open space land areas shall be preserved in their
natural state and their use shall be limited to appropriate conservation
and passive recreation purposes. A portion of such common open space,
not to exceed 10% of the gross land area of the average density development,
may be reserved and designated for active recreation purposes, provided
the size, shape, access and location of such area(s) is approved by
the Planning Board. Within a designated active recreation area, there
may be located swimming pools, ball fields, facilities for court games,
clubhouses, playground equipment, and so forth, provided the use of
all such facilities shall be limited to the residents of the average
density development and their guests, and further provided that such
facilities shall be subject to site plan approval by the Planning
Board.
C.
The permanent preservation of common open space lands and facilities
for their intended purpose shall further be legally assured to the
satisfaction of the Board of Trustees and the Village Attorney by
the filing of appropriate covenants, deed restrictions, easements,
or other forms of agreements. The permitted uses within such areas
shall be limited to those specifically approved by the Planning Board
and shown on the subdivision plat, plus uses customarily incidental
and accessory thereto. Subsequent to the approval of the subdivision
plat, the uses permitted within privately owned common land areas
may be modified only upon approval by the Planning Board, and only
upon application by the entity owning such common land area. In each
such case, a public hearing shall be held with the same notice as
required by law for final subdivision plats. Such modification may
permit a use in the same general category of uses previously approved
or may allow a change in the location of a particular use from one
portion of the common land area to another.
D.
Dedication of the common land areas, including any common facilities
or improvements thereon, to the common use of all property owners
within an average density development shall be recorded directly on
the subdivision plat or by reference on the subdivision plat to a
declaration of covenants, conditions and restrictions in a separate
document recorded or to be recorded at or about the time of the filing
of the approved subdivision plat. Such declaration of covenants, conditions
and restrictions shall permanently grant to each property owner in
common with all other property owners within such average density
development an easement in and to the common land areas and the common
facilities thereon and of the use thereof.
E.
As an alternative to the ownership of the conserved land areas by
the property owner(s), and subject to approval by the Board of Trustees,
such areas may be conveyed to a recognized conservation organization
dedicated to the preservation and maintenance of open space, provided
such organization has indicated in writing its agreement to permanently
maintain such lands for the purposes intended, provided such organization
has shown the ability and resources to maintain such lands, and further
provided such organization is acceptable to the Board of Trustees.
F.
As another alternative, all or a portion of the conserved land areas
may be dedicated to the Village of Wesley Hills, provided the Board
of Trustees has voted to accept such offer.
Board of Trustees authorization. The Planning Board shall refer
any proposal for the use of average density to the Board of Trustees
for authorization to use this procedure. The Board of Trustees shall
report its approval or disapproval of such authorization to the Planning
Board within 45 days of the receipt of such referral.
