Village of Valatie, NY Article VII Open Space Subdivisions

[Added 12-14-1993]

§ 304-28 General.

A. Purpose and objectives. The purpose of this article is to encourage flexibility in the design and development of land in order to preserve agricultural land, important natural features, wildlife habitat, water resources, ecological systems, land valuable for recreation, the nature of the Village as a hamlet and scenic areas as permanent open space for the benefit of present and future residents and to facilitate development that is in keeping with the traditional rural hamlet pattern and scale of the Village of Valatie. An open space subdivision shall achieve the following specific objectives:

(1) Long-term protection of natural, ecological, historical, agricultural, recreational or scenic resources identified through the environmental review process and in the Comprehensive Plan and Chapter 345, Zoning, of the Code of the Village of Valatie;

(2) Contribution to Village-wide open space planning by creating a system of permanently preserved open spaces, both within large parcels of land and among such parcels throughout the Village, providing linkages, where possible, between existing open space areas;

(3) Preservation of land suitable for agriculture, particularly where the open space subdivision borders active agricultural land or land suitable for agriculture; and

(4) Perpetuation of a traditional, compact development pattern, with a variety of housing types architecturally compatible with residences in the surrounding areas and similar in scale and layout to hamlets/villages to the extent it was built before 1900.

B. Implementation. An open space subdivision accomplishes the above objectives by reducing the lot size and bulk requirements contained in Chapter 345, Zoning, of the Code of the Village of Valatie, clustering homes where they will have the least impact on identified environmental resources. These resources are then permanently preserved through the use of conservation easements. The cluster principle can be applied not only to major subdivisions but also to minor subdivisions ("miniclusters"), enabling the subdivided lots to be smaller than the zoning would normally require, provided that compensating buildable land is placed under open space conservation easement to maintain the overall density at or below the level permitted by Chapter 345, Zoning, of the Code of the Village of Valatie.

C. Applicability. This article shall be applicable to all land zoned for residential uses.

§ 304-29 Procedures.

A. Voluntary application. An applicant for subdivision approval may voluntarily submit a sketch plan for an open space subdivision. The Planning Board, in its discretion, may approve such an open space subdivision if, in the Planning Board's judgment, such an open space subdivision will benefit the Village, achieve the objectives listed in § 304-28A above and fulfill all requirements for open space subdivisions prescribed by this article. The Planning Board may require that the applicant submit some or all of the land inventory information listed in § 304-30A(2) below as part of its sketch plan review to assist in making such a judgment. If the Planning Board grants sketch plan approval, the proposed open space subdivision shall be reviewed under the normal procedures for subdivision review established by Chapter 304, Subdivision of Land, of the Code of the Village of Valatie. Once the plat has been filed in the office of the County Clerk, a copy shall be filed with the Village Clerk, who shall make appropriate notations and references thereto on the Zoning Map.

B. Planning Board's option to require an open space subdivision plan.

(1) If a sketch plan application for a subdivision that is not an open space subdivision (hereinafter a "conventional subdivision") meets any two of the open space preference criteria in Subsection B(2) below, the Planning Board may require the applicant to submit an open space subdivision plan if, in the opinion of the Planning Board, such a plan would benefit the Village and would better accomplish the objectives in § 304-28A of this article than would the applicant's proposed conventional subdivision sketch plan.

(2) Criteria for open space preference shall be as follows:

(a) Total number of lots is five or more.

(b) Average building lot size is under 20 acres.

(c) The property includes one or more of the following features:

[1] Freshwater wetlands or watercourses regulated by the New York State Department of Environmental Conservation or the United States Army Corps of Engineers.

[2] Flood hazard area as mapped on the Federal Emergency Management Agency's Flood Insurance Rate Maps.

[3] Critical environmental area.

[4] Slopes in excess of 20% on more than 20% of the property.

[5] Location within, partially within or contiguous to a certified agricultural district established pursuant to Article 25AA of the Agriculture and Markets Law.

[6] The property is in an area deemed to be of scenic, ecological or historic importance by the Planning Board.

[7] The property is in an area where the character of the surrounding properties is of a nature where conventional subdivision would not be in harmony therewith.

(3) Upon receipt of a sketch plan for a conventional subdivision that meets two or more of the open space preference criteria in Subsection B(2) above, the Planning Board may consider requiring an open space subdivision, in which case it shall direct the applicant to submit the land inventory information listed in § 304-30A(2) below. Upon receipt of that information, the Planning Board shall consider the adequacy of the proposed sketch plan to fulfill the objectives of § 304-28A above. The Planning Board may hold a public hearing to assist in its consideration of the sketch plan. If the Planning Board decides not to require an open space subdivision for a sketch plan that meets two or more of the open space preference criteria, it shall pass a resolution so stating, giving reasons for its decision.

(4) If the Planning Board determines, under the State Environmental Quality Review Act (SEQRA),[1] that the proposed conventional subdivision may have a significant effect on the environment, it shall issue a positive declaration and request a Draft Environmental Impact Statement (DEIS) that includes, among other requirements, a detailed study of open space subdivision options. If a DEIS is required, the sketch plan application shall not be considered complete until the DEIS is accepted as complete by the Planning Board.

[1] Editor's Note: See Art. 8 of the Environmental Conservation Law.

(5) As part of its review of the sketch plan under Chapter 304, Subdivision of Land, of the Code of the Village of Valatie, the Planning Board shall determine whether the conventional subdivision as proposed adequately accomplishes the objectives in § 304-28A of this article, or whether the applicant shall be required to apply for an open space subdivision. In making its determination, the Planning Board shall consider the sketch plan and supporting materials presented, the DEIS (if one is prepared) and public comments at any hearing that has been held.

(6) Following this determination, the Planning Board shall advise the applicant, in writing, of its decision whether to require an open space subdivision plan. If the Planning Board's decision is to require such a plan, it shall reject the submitted sketch plan and state in its written decision the reasons for requiring an open space subdivision plan, specifically identifying on a copy of the land inventory map those portions of the property proposed for development which should be set aside as protected open space. The applicant shall then prepare an open space subdivision plan and proceed pursuant to § 304-29A above.

§ 304-30 Open space subdivision plan requirements.

A. Required plans. An applicant for an open space subdivision under this article shall submit the following plans and information:

(1) All plans, information and materials required for a conventional subdivision under Chapter 304, Subdivision of Land, of the Code of the Village of Valatie.

(2) A land inventory showing the following features, if present, on and within 500 feet of the property proposed for subdivision:

(a) Wetlands including all Department of Environmental Conservation (DEC) mapped wetlands and soils classified as very poorly drained or permanently wet by the United States Department of Agriculture, Natural Resources Conservation Service; wetlands as defined or mapped in any local law; and wetlands as defined by the criteria established by the United States Army Corps of Engineers.

(b) Lakes, ponds, streams, drainage channels and other watercourses indicating, where applicable, any DEC water quality classifications.

(c) One-hundred-year floodplain as mapped on the Federal Emergency Management Agency's Flood Insurance Rate Maps (and Floodway Maps).

(d) Slopes in excess of 20%.

(e) Agricultural soils defined as "prime" or "statewide important" by the Natural Resources Conservation Service.

(f) Soils with three feet or less depth to bedrock or seasonally high water table.

(g) Forested areas with general description of species type.

(h) Tree lines and hedge rows.

(i) Open fields and meadows.

(j) Trees greater than eight inches in diameter at breast height that are not within forests or tree lines.

(k) Scenic vistas from public roads.

(l) Critical environmental areas.

(m) Agricultural districts established pursuant to Article 25AA of the Agriculture and Markets Law.

(3) A preliminary plat of a conventional subdivision of the property conforming to all applicable minimum lot size, density and bulk requirements and all other normally applicable requirements of the district, overlaid on the land inventory, to assist the Planning Board in determining allowable density.

(4) A proposed site plan of the open space subdivision, overlaid on the land inventory, including areas within which structures may be located, the height and spacing of buildings, elevations of buildings (as necessary to evaluate their architectural suitability), open spaces and their landscaping, off-street open and enclosed parking spaces, streets, driveways and other physical features, accompanied by a statement setting forth the nature of any modifications, changes or supplementation of existing zoning provisions which are not shown on the site plan.

(5) A brief description of the open space subdivision, explaining how it fulfills the purpose and objectives in § 304-28A of this article.

B. Allowable density. The Planning Board shall review the conventional subdivision plan required in Subsection A(3) above and shall determine the number of building lots that could be practically created pursuant to it, considering the requirements of the Chapter 304, Subdivision of Land, and Chapter 345, Zoning, of the Code of the Village of Valatie, the requirements of the Columbia County Departments of Health and Public Works, the New York State Departments of Environmental Conservation and Transportation and the limitations of soils, topography, wetlands and other environmental features. The number of building lots or dwelling units permitted in the open space subdivision shall not exceed this number of lots.

C. Types of dwelling units. An open space subdivision may, at the discretion of the Planning Board, contain one-family or two-family dwelling structures and/or townhouses, provided that such structures satisfy the objectives contained in § 304-28A of this article.

D. Architectural and site plan review. The Planning Board shall not approve an open space subdivision unless it finds that it is designed in a manner that accomplishes the objectives described in § 304-28A and is compatible with the surrounding area. The Planning Board may retain an architectural consultant, with expertise in traditional Village layout and architecture, to assist in the review of an open space subdivision. The Planning Board shall require that the applicant reimburse the Village for the reasonable cost of such architectural consultation.

E. Open space. All lands identified as having special resource value shall be set aside as open space pursuant to § 304-31 below.

§ 304-31 Permanent open space.

Open space set aside in an open space subdivision shall be permanently preserved as specified in this article. Land set aside as permanent open space may, but need not be, a separate tax parcel. Such land may be included as a portion of one or more large parcels on which dwellings are permitted, provided that a conservation easement is placed on such land pursuant to Subsection C of this section.

A. Open space uses. Open space shall be preserved and maintained for one or more of the following uses, which shall be noted on the final plat for each open space subdivision: agriculture, forestry, active or passive recreation and protection of natural resources. When the principal purpose of preserving the open space is the protection of natural resources such as wetlands, aquifers, steep slopes, mature forests, wildlife habitats and stream corridors, open space uses shall be limited to those which are no more intensive than passive recreation.

B. Notations on plat. Open space created by the use of this section must be clearly labeled on the final plat as to its use, ownership, management, method of preservation and the rights, if any, of the owners in the subdivision to such land. The final plat shall clearly show that the open space land is permanently reserved for open space purposes and shall not be subdivided for building lots. The final plat shall not be valid unless it contains a notation indicating the liber and page of any conservation easements or deed restrictions required to be filed to implement this section.

C. Preservation in perpetuity. A perpetual conservation easement restricting development of the open space land and allowing use only for agriculture, forestry, active or passive recreation or protection of natural resources, pursuant to § 247 of the General Municipal Law and/or §§ 49-0301 through 49-0311 of the Environmental Conservation Law, shall be granted to the Village, with the approval of the Village Board, or to a qualified not-for-profit conservation organization acceptable to the Planning Board. Such conservation easement shall be reviewed and approved by the Planning Board and be required as a condition of plat approval hereunder. The conservation easement shall prohibit residential, industrial or commercial use (except in connection with agriculture, forestry and recreation) of such open space land and shall not be amendable to permit such use. The conservation easement shall be recorded in the Columbia County Clerk's office prior to the filing of the open space subdivision final plat in the Columbia County Clerk's office. Notwithstanding the foregoing, the conservation easement may allow dwellings to be constructed on portions of parcels that include protected open space land, provided that the total number of dwellings permitted by the conservation easement in the entire subdivision does not exceed the allowable density established under § 304-30B above.

D. Ownership of open space land.

(1) Open space land may be owned in common by a homeowner's association (HOA), dedicated to the Village, county or state governments, transferred to a nonprofit organization acceptable to the Planning Board, held in private ownership or held in such other form of ownership as the Planning Board finds appropriate to fulfill the objectives of this article.

(2) If the land is owned in common by an HOA, such HOA shall be established in accordance with the following:

(a) The HOA must set up before the lots are sold and must comply with all applicable provisions of the General Business Law;

(b) 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, private roads and other common facilities;

(c) The open space restrictions must be in perpetuity;

(d) The HOA must be responsible for liability insurance, local taxes and the maintenance of recreational and other facilities and private roads;

(e) Property owners must pay their pro rata share of the costs in Subsection D(2)(d) above, and the assessment levied by the HOA must be able to become a lien on the property;

(f) The HOA must be able to adjust the assessment to meet changed needs;

(g) The applicant shall make a conditional offer of dedication to the Village, binding upon the HOA, for all open space to be conveyed to the HOA. Such offer may be accepted by the Village, at the discretion of the Village Board, upon the failure of the property owners' association 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;

(h) 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; and

(i) The attorney for the Planning Board shall find that the HOA documents presented satisfy conditions D(2)(a) through (h) above and such other conditions as the Planning Board shall deem necessary.

E. Maintenance standards for open space land.

(1) Ongoing maintenance standards shall be prescribed by the Planning Board, enforceable by the Village against an owner of open space land as a condition of subdivision approval, to assure that the open space land does not detract from the character of the neighborhood. Such maintenance standards may be reviewed and amended by the Planning Board as it deems appropriate and may include the obligation to mow open fields annually to maintain their scenic character.

(2) If the Village Board finds that the open space set aside is being maintained in such a manner as to constitute a public nuisance, it may, upon 30 days' written notice to the owner, enter the premises to perform necessary maintenance, and the cost of such maintenance by the Village shall be assessed ratably against the owner or, in the case of an HOA, the owners of properties within the development and shall, if unpaid, become a tax lien on said properties.