A. 
Chapter 260, Subdivision of Land, of the Code of the Town of Fallsburg provides for the clustering of proposed developments as authorized under § 278 of the Town Law of the State of New York. The Planning Board may approve cluster developments in all residential zoning districts according to the procedures and requirements specified below. The purpose of this provision is to allow an alternative permitted method for the layout, configuration and design of lots, buildings and structures, roads, utility lines and other infrastructure, parks, and landscaping in order to preserve the natural and scenic qualities of open lands as described further below.
B. 
The provisions of this section shall apply throughout the Town of Fallsburg.
C. 
In order to increase design flexibility, two or more contiguous parcels of land, including parcels separated by a town, county, state, or private road, may be grouped together as one cluster, provided the parcels are in common ownership and are merged into one parent parcel.
D. 
The application of these provisions shall be guided by the important physical, cultural and natural features of the particular property under review as follows:
(1) 
Steep slopes.
(2) 
Freshwater wetlands under the regulatory jurisdiction of the New York State Department of Environmental Conservation (DEC) and/or the United States Army Corps of Engineers.
(3) 
One-hundred-year floodplains as identified on Federal Emergency Management Agency (FEMA) maps.
(4) 
Properties listed on the National and/or State Registers of Historic Places or eligible for listing by the New York State Office of Parks, Recreation and Historic Preservation for inclusion on such registers.
(5) 
Lands containing a farm operation within a New York State Agricultural District or within 500 feet of lands containing a farm operation within a New York State Agricultural District.
(6) 
Significant viewsheds as determined by the application of the State Environmental Quality Review Act.[1]
[1]
Editor's Note: See NY Envir Conser § 8-0101 et seq.
(7) 
Recreational resources, including lakes, ponds, streams, or other potentially significant recreational resources.
(8) 
Known habitats containing endangered, threatened, or special concern wildlife species, protected native plants, endangered, threatened, or rare plants, or state-identified significant habitats.
(9) 
Unique or unusual land forms or geological formations.
(10) 
Existing or potential trails including bikeways, hiking trails or multiuse, nonmotorized routes of local, county, state or national significance.
A. 
Submission of a cluster development. An applicant, at its discretion, may submit a cluster subdivision application. The applicant shall submit to the Planning Board a conservation plan, a conventional subdivision plan, and a conceptual cluster plan with the filing of the application for preliminary subdivision application.
B. 
The Planning Board shall review the conservation, cluster and conventional plans and shall require such other and further details for each plan that it reasonably believes necessary to evaluate same. Until all reasonably requested information is submitted, the application for preliminary subdivision approval shall be deemed incomplete.
C. 
Conservation value analysis and plan.
(1) 
In order to determine the conservation value of open space on a specific parcel of land, the applicant shall prepare and the Planning Board shall review a conservation plan of such parcel. The open space protected pursuant to this section shall have conservation value which may include historic, ecological, agricultural, water resource, scenic, or other natural resource value. Lands with conservation value include scenic view corridors, agricultural land, including land with prime farmland soils or soils of statewide importance, aquifers and their recharge areas, ecological habitat for sensitive species, historic buildings or landscapes, large areas or contiguous forest, ridgelines and hillsides visible from public roads or other public areas, state or federal wetlands, lakes, water bodies, and stream corridors. These areas shall be mapped on a separate conservation plan which clearly demarcates these areas.
(2) 
The Planning Board shall review the conservation plan, and determine which resources are to be protected as open space. The open space is separate and in addition to any land which the Planning Board deems must be set aside for active recreation pursuant to § 260-4F of the Town of Fallsburg subdivision regulations. A minimum of 50% of the gross area of the parcel shall be set aside for conservation as part of a cluster layout. The Planning Board may waive the amount of open space to be set aside for conservation depending on the unique attributes of the parcel; however, in no event shall the amount of open space be reduced to an amount less than 35% of the parcel's gross acreage. Open space shall not be spaces in between buildings, but shall be large contiguous expanses protected by conservation easement. Open space shall not be located on more than three lots unless the Planning Board finds that the open space areas can be adequately protected where located on a larger number of lots.
D. 
Review of conventional subdivision plan to determine residential yield.
(1) 
The conventional subdivision plan shall be submitted to establish the maximum number of dwellings or lots that shall be permitted on the subject property, referred to as the "residential yield." The permitted number of dwelling units in a cluster subdivision shall in no case exceed the number of units that, in the Planning Board's judgment, would be permitted if the land were subdivided into lots conforming to the minimum lot size and density requirements of this chapter, the Town Subdivision Regulations, Sullivan County and New York State Department of Health regulations, and all other applicable local, state and federal laws, regulations and standards. The basis for this determination will be a conventional subdivision plat for the subject parcel showing all environmental constraints as per § 310-5.4 of this Zoning Chapter, as well as roads (including road grades), stormwater basins, required setbacks for individual wells and septic systems, and other information as may be required by the Planning Board. The Planning Board shall, by resolution, establish the maximum residential yield upon a review of the conventional plan layout. The Planning Board may waive submission of documentation of the full residential yield where, in the Planning Board's judgment, the number of lots proposed is substantially less than the total allowable residential yield, provided that the plat contains a notation clearly indicating the reduction in the total lot count for the remaining unsubdivided parcel.
E. 
Cluster layout. If the developer chooses a cluster layout, using the conservation plan as a basis for determining areas to be protected as open space, the applicant shall design a cluster plan layout which preserves the natural attributes and resources that have been prioritized by the Planning Board as areas which shall remain as open space.
F. 
Ten percent of the result in Subsection D above may be added to the unit total allowable units permitted as a density bonus if a cluster development plan is utilized rather than a conventional subdivision plan.
G. 
For purposes of SEQRA, said resolution shall not be deemed to be an action subject to SEQRA review.
A. 
Allowable uses. The residential uses allowed within a zoning district shall be the same as the uses otherwise permitted by right in the district, except that a duplex development and a manufactured home development are not permitted in connection with a cluster subdivision as they are regulated under separate standards. Nothing herein shall require the Planning Board to approve a cluster development where the dwelling units are located on common land and are held on condominium ownership unless the applicable zoning district permits residential uses on common lands or in HOA ownership. The total number of dwellings shall not exceed the maximum residential density determined in § 310-14.2.
B. 
Subdivision of clustered lots. No further subdivision of any lots in the cluster subdivision shall be permitted. A map note specifying this restriction shall be included on the final subdivision plan.
C. 
A building envelope shall be established on each residential lot and delineated on the final cluster plat. No paved areas or other impervious areas may be created beyond the building envelope. No buildings may be constructed beyond said building envelopes, except that the Planning Board, in its discretion, may allow outbuildings such as barns or sheds associated with agricultural operations to be located in an open space area which is preserved for agricultural uses.
D. 
Utilities. A cluster development may be served by private individual wells, private individual septic systems, or by public or private water and sewer facilities, each approved by the appropriate agency or other entity having jurisdiction. All water, sewer and gas lines, power, telephone, cable and other communication services shall be installed underground in compliance with state and local regulations.
E. 
Arrangement of lots and dwelling units. The following guidelines shall apply:
(1) 
Retain and reuse existing old farm roads and lanes rather than constructing new roads or driveways. This minimizes clearing and disruption of the landscape and takes advantage of the attractive way that old lanes are often lined with trees and stone walls. (This is not appropriate where reuse of a road would require widening in a manner that destroys trees or stone walls.)
(2) 
Preserve stone walls and hedgerows. These traditional landscape features define outdoor areas in a natural way and create corridors useful for wildlife. Using these features as property lines is often appropriate, as long as setback requirements do not result in constructing buildings in the middle of fields.
(3) 
Avoid placing buildings in the middle of open fields. Place buildings either at the edge of fields or in the ecologically least significant parts of wooded areas where they will be less intrusive to views from adjacent roads, trails or high viewpoints.
(4) 
Use existing vegetation and topography to buffer and screen new buildings if possible, unless they are designed and located close to the road in the manner historically found in the Town. Site buildings in groups or tuck them behind tree lines or knolls rather than spreading them out across the landscape in a sprawl pattern.
(5) 
Minimize clearing of vegetation at the edge of the road, clearing only as much as is necessary to create a driveway entrance with adequate sight distance. Create curves in driveways, with due regard to safety issues, to increase the screening of buildings.
(6) 
Situate buildings so that they do not protrude above ridgelines as seen from public places and roads. Use vegetation as a backdrop to reduce the prominence of the structure. Wherever creating vistas is intended, open up views by selective cutting such as removal of understory vegetation and pruning lower branches of large trees, rather than by clearing large areas or removing large trees.
(7) 
Minimize crossing of steep slopes with roads and driveways.
(8) 
Buildings are not permitted on environmentally constrained land as set forth in § 310-5.4.
(9) 
The required open space land may not include private yards located within 75 feet of a principal building.
F. 
Parcels in more than one district. Density calculations shall be made separately for the portion of the parent parcel in each district. This density may then be combined and distributed anywhere within the parent parcel, provided that the layout and design are consistent with the purposes of each district, the dwelling unit is permitted in the applicable zoning district, and that dwelling units are clustered at higher densities in the higher density district.
G. 
Minimum lot area and yard requirements: one-family dwellings. In the AG and REC Zoning Districts, the minimum lot size shall be one acre. In the R District, the minimum lot area shall be 10,000 square feet. In the HR District, the minimum lot area shall be 7,500 square feet. One-family dwellings shall be located on individual lots. Larger lot areas shall be required, where necessary, to meet applicable health department standards for on-site water and wastewater facilities. The minimum yard requirements for one-family dwellings on an individual lot shall be established by the Planning Board, but shall not be less than 1/2 the yard dimensions required for a one-family dwelling within the applicable zoning district.
H. 
Minimum lot area and yard requirements: townhouse and multifamily dwellings.
(1) 
Separation between units. A townhouse dwelling shall be located on an individual lot that shall coincide with the footprint of each dwelling. Garages shall be attached to the dwelling. Townhouse developments shall comply with the requirements set forth in Article XVIII, except that the density shall be determined in accordance with these provisions. A special use permit shall not be required. Multifamily dwellings may be located on a single lot and shall require a minimum separation distance of 31 feet of green space between buildings. The only items permitted within this separation distance are walkways, and landings or decks of less than five feet in width. No porch or similar structure shall protrude or be installed into this required separation. If fire flow calculations can be met, then the required separation distance between buildings can be reduced to a minimum of 25 feet. Any parking areas serving multifamily dwellings shall be located no closer than 50 feet to any building it serves.
(2) 
Buffer requirements. A townhouse development and multifamily development shall have a minimum front yard setback of 175 feet from an external public right-of-way, and any existing vegetation shall remain undisturbed within 100 feet of the road giving access to the development. This vegetative buffer shall provide year-round screening of the development from the public right-of-way. The Planning Board, in its discretion, may require the vegetative buffer to be supplemented with earthen berms, trees, shrubs, and additional landscaping to achieve the objective of a year-round vegetative buffer in a quantity and type to be determined by the Planning Board. The access driveway is the only permitted installation within the one-hundred-seventy-five-foot setback.
(3) 
Any recreational area, clubhouse, or other accessory structures associated with a townhouse or multifamily development shall be shown on the subdivision and/or site plan, or areas on the plan shall be reserved for such purposes, and shall be subject to Planning Board site plan approval at such time a building permit is submitted for their construction. Nothing herein shall be construed to allow the deferral of any accessory improvements that the Planning Board shall require for the operation and maintenance of the development.
I. 
Building height. The Planning Board is not authorized to vary the applicable height limitation for any buildings or structures within a cluster development.
J. 
Permanent open space in cluster developments.
(1) 
Open space land. Protected open space may be included as a portion of one or more large building lots, or may be contained in a separate open space lot. Such open space may be owned by a homeowners' association, one or more private landowners, a nonprofit organization, the Town or another governmental entity, or any other appropriate entity. The open space area, when located on individual lots to remain in private ownership, shall be demarcated by survey markers in a form to be approved by the Planning Board. A management plan for the open space land shall be prepared by the applicant and submitted to the Planning Department for filing prior to signing the final cluster plan. The open space management plan is for purposes of documenting the location of the open space or conservation area, and ensuring no encroachment occurs to same except to allow those activities permitted within the easement, e.g., agricultural operations. The following documentation shall be included in the report:
(a) 
Location map. Property shown on the Town Zoning Map or other parcel-based map with area shown within 1,500 feet of the project site, with the property highlighted.
(b) 
Metes and bounds description.
(c) 
An eleven-inch-by-seventeen-inch map or larger of the PB approved site plan or subdivision plan illustrating clearly the conservation easement area. The map shall show parcel boundaries, topography, wetlands, and existing structures, if any.
(d) 
An up-to-date aerial map of the property.
(e) 
Photo key map, using map described in Subsection J(1)(d) above as base, with photos as per Subsection J(1)(g) below.
(f) 
Photographs of the conservation easement area, keyed to the features shown on the approved plan, shall be submitted after conservation easement markers are installed. The baseline report shall include compass direction and description of the photo subject. All existing structures and the existing condition (wetland, forest, etc.) within the open space or conservation area shall be described in a narrative, referencing photos taken. Use of GPS for purposes of accurately identifying locations from which photos are taken is recommended, especially where there are few reference points, e.g., middle of woods. It is preferable for baseline photos to be taken when snow cover is not present.
(g) 
The applicant shall certify (through signature) the report as being accurate.
(2) 
Open space set aside in a cluster development shall be permanently protected as required by this subsection. Such land may be included as a portion of one or more large parcels on which dwellings and other structures are permitted, provided that the Planning Board approves such configuration of the open space as part of its 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.
(3) 
Notations on plat or site plan. Protected open space land shall be clearly delineated and labeled on any final 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 easements required to be filed prior to the filing of the map to implement such restrictions.
(4) 
Permanent protection by conservation easement. A perpetual conservation easement restricting development of the open space land and allowing use only for agriculture, passive recreation, protection of natural resources, or similar conservation purposes, may be utilized to ensure its preservation, pursuant to § 247 of the General Municipal Law and/or §§ 49-0301 through 49-0311 of the Environmental Conservation Law. If utilized, said easement may 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. If employed, 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 or a site plan in the Planning Department.
(5) 
Ownership of Open Space Land: Homeowners' Association (HOA).
(a) 
If the land is owned in common by an HOA, such HOA shall be established in accordance with the following:
[1] 
The HOA documentation must be submitted to the Planning Board before the final subdivision plat is approved, and must comply with all applicable provisions of the General Business Law.[1]
[1]
Editor's Note: See NY Gen Bus § 1 et seq.
[2] 
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, common driveways, and other common facilities.
[3] 
The open space restrictions must be in perpetuity.
[4] 
The HOA must be responsible for liability insurance, property taxes, and the maintenance of recreational and other facilities and common driveways.
[5] 
Property owners must pay their pro rata share of the costs in Subsection J(5)(a)[4] above, and the assessment levied by the HOA must be able to become a lien on the property.
[6] 
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.
[7] 
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.
[8] 
The attorney for the Planning Board shall find that the HOA documents presented satisfy the conditions above, and such other conditions as the Planning Board shall deem necessary.
(6) 
Maintenance standards.
(a) 
Ongoing maintenance standards shall be established, enforceable by the Town against an owner of open space land as a condition of approval, to ensure that open space land is not used for storage or dumping of refuse, junk, or other offensive or hazardous materials, or in any manner not approved by the Planning Board.
(b) 
In the event that the maintenance, preservation, and/or use of the open space area(s) ceases to be in compliance with any of the requirements of the Zoning Chapter or any other requirements specified by the Planning Board when approving the cluster subdivision plat, the Town shall be granted the right to perform such maintenance as may be necessary or to otherwise assure compliance and to charge the cost to the responsible property owner or owners. Such charge, if unpaid for more than 60 days, shall become a lien on the open space area and on the lots of any lot owners who share ownership of the open space area. Notwithstanding, the Town is under no obligation to maintain such open space areas.
A. 
Where a cluster subdivision has been designed with multiple dwellings, a site plan shall be submitted to and approved by the Planning Board prior to the issuance of a building permit in a cluster development. No building permit shall be issued for any structures, uses or construction activities other than those depicted on the approved site plan.
B. 
The site plan shall include all elements required by Article VII of this chapter.
C. 
Nothing contained in this article shall relieve the owner or his or her agent or the developer of a proposed cluster development from receiving subdivision plat approval in accordance with Chapter 260, Subdivision of Land. In approving the final plat for a cluster development, the Planning Board may modify the acreage requirement for recreation areas required by Chapter 260, Subdivision of Land, provided that the common area dedicated meets all other requirements of Chapter 260, Subdivision of Land.
D. 
Prior to site plan approval, the developer shall file with the Planning Board a performance bond to ensure the proper installation of all park and recreation improvements shown on the site plan and a maintenance bond to ensure proper maintenance of all common lands until the homeowners' association is established. The amount and period of said bonds shall be determined by the Town Board upon the recommendation of the Planning Board, and the form, sufficiency, manner of execution and surety shall be approved by the Town Attorney and the Town Board.