[HISTORY: Adopted by the Town Board of the
Town of Chautauqua 3-10-2008 by L.L. No. 2-2008. Amendments noted where
applicable.]
This chapter shall hereinafter be known and
cited as the "Conservation Easement Law of the Town of Chautauqua."
It is the purpose of this chapter to provide for the acquisition of permanent interests or rights in real property by the Town of Chautauqua for the preservation of open space or open areas as defined in § 140-5 of this chapter. Such interests or rights may be acquired by purchase, gift, grant, bequest, devise, lease or otherwise and shall constitute a public purpose for which public funds may be expended or advanced after due notice and public hearing.
The Conservation Easement Law of the Town of
Chautauqua is authorized and has been enacted by the Town Board of
the Town of Chautauqua pursuant to § 49-0301 et seq. of
the Environmental Conservation Law of the State of New York and § 247
of the General Municipal Law of the State of New York.
This chapter shall apply to the entire area
of the Town of Chautauqua.
As used in this chapter, the following terms
shall have the meanings indicated:
An easement, covenant, restriction or other interest in real
property which limits or restricts development, management or use
of such real property for the purpose of preserving or maintaining
the scenic, open, historic, architectural or other natural or physical
condition of the real property.
The scenic, open, historic, architectural or other natural
or physical conditions protected by a conservation easement.
Any space or area characterized by natural scenic beauty
or whose existing openness, natural condition or present state of
use, if retained, would enhance the present or potential value of
abutting or surrounding urban development or would maintain or enhance
the conservation of natural or scenic resources. For purposes of this
section, natural resources shall include but not be limited to "agricultural
lands" defined as open lands actually used in bona fide agricultural
production.
Any property subject to a conservation easement granted to
the Town of Chautauqua pursuant to this chapter.
A.
Upon application by owner of property.
(1)
Proposal to the Town Board. Any owner or owners of
open space may submit a proposal to the Town Board for the granting
of a conservation easement to the Town. Such proposals shall be submitted
in such manner and form as may be prescribed by the Town Board and
shall include a real property tax map and a concise description of
the areas proposed for the conservation easement and the conservation
values of the proposed easement area. If the real property proposed
for the conservation easement is subject to a mortgage, the owner
applying for the conservation easement shall secure written notification
from the mortgagee of the property agreeing to subordinate the mortgage
to the conservation easement.
(2)
Preliminary evaluation by the Town Board. The Town
Board, or any ad hoc committee appointed thereby, shall investigate
and assess the conservation values of the proposed easement area and
whether the proposal would benefit the people of the Town of Chautauqua
and may negotiate the terms and conditions of the conservation easement.
If the Town Board, either by its own investigation or following the
report of any ad hoc committee appointed for that purpose, determines
that it is in the public interest to accept the conservation easement,
as negotiated, the Town Board shall hold public hearing for the purpose
of determining whether or not the Town should accept the conservation
easement. If the Town Board determines that it is not in the public
interest to accept the conservation easement, it shall take no further
action on the application.
(3)
Public hearing. Upon a preliminary determination that
the acceptance of the conservation easement would be in the public
interest, the Town Board shall hold a public hearing concerning the
proposed conservation easement. At least 10 days' notice of the time
and place of any public hearing shall be published in the official
newspaper of the Town, at the expense of the property owner, and a
written notice of the time and place of such hearing shall be given
to all property owners within 500 feet of the boundaries of the proposed
easement area.
(4)
Determination. The Town Board, after such public hearing,
may adopt the proposal or any modification thereof or may reject it
in its entirety. In making its determination, the Town Board shall
comply fully with the State Environmental Quality Review Act.[1]
[1]
Editor's Note: See Article 8 of the Environmental
Conservation Law.
B.
Recording agreement. If a conservation easement is
accepted by the Town Board, it shall be executed by the owner or owners
in written form and in a form suitable for recording in the office
of the Chautauqua County Clerk. Such recording shall be at the owner's
expense and shall include agreements subordinating to the conservation
easement any mortgages or other liens which, if not subordinated,
could result in the elimination of such conservation easement.
A.
Reduced assessment. After acquisition of a conservation
easement pursuant to this chapter, the valuation placed upon the protected
property for the purpose of real estate taxation shall take into account
and be influenced by the limitation placed upon the future use of
the land by the conservation easement pursuant to and consistent with
§ 247 of the General Municipal Law.
B.
Advance notice. The Town Assessor shall notify any party offering a conservation easement to the Town pursuant to § 140-6 of the valuation that will be placed upon the protected property, for the purpose of real estate taxation, within 30 days of receiving a written request for such notification. However, the thirty-day period shall not begin to run until the Town Board has determined that the acceptance of the easement would be in the public interest.
C.
Return to full valuation. Upon cancellation of a conservation easement pursuant to § 140-10 of this chapter, the valuation placed upon the protected property for the purpose of real estate taxation shall be revised to reflect the removal of any limitations that had been imposed upon the future use of the protected property by the conservation easement pursuant to and consistent with the Real Property Tax Law of the State of New York.
Protected property shall be monitored by the
Code Enforcement Officer of the Town of Chautauqua to ensure that
the use of the protected property is consistent with the terms of
the conservation easement. The Code Enforcement Officer shall report
substantial violations of the terms and conditions of any conservation
easement to the Town Board.
Every conservation easement accepted by the
Town shall contain the following violation provisions:
A.
Notice. If there is a substantial violation of the
terms and conditions of any conservation easement or a substantial
violation is threatened, the Town Board shall give written notice
to the owner of the protected property of such violation and demand
corrective action sufficient to cure the violation and, where the
violation involves injury to the protected property, to restore the
protected property so injured.
B.
Failure of owner to correct violation. If the owner
of protected property fails to cure the violation within 30 days after
receipt of notice thereof from the Town Board, or within such other
reasonable period as the Town Board may specifically permit, the Town
Board may bring an action at law or in equity in a court of competent
jurisdiction to:
(1)
Enforce the terms of the conservation easement.
(2)
Enjoin the violation, by temporary or permanent injunction.
(3)
Recover any damages to which it may be entitled for
violation of the terms of the conservation easement or injury to any
conservation values protected by the conservation easement, including
damages for the loss of scenic, aesthetic or environmental values.
(4)
Require the restoration of the protected property
to the condition that existed prior to any such injury. Additionally,
in any such action where the Town prevails, the Town shall be entitled
to recover its reasonable costs, including attorneys' fees, incurred.
C.
Immediate action required. If the Town Board, in its sole discretion, determines that circumstances require immediate action to prevent or mitigate significant damage to the conservation values of the protected property, the Town Board may pursue its remedies under Subsection B above without prior notice to the owner of the protected property or without waiting for the period provided for cure to expire.
Every conservation easement accepted by the
Town shall contain the following duration and termination provisions:
B.
Acquisition of fee simple interest by the Town. In the event that the Town acquires a fee simple interest in the property subject to the conservation easement, by eminent domain or otherwise, the conservation easement is terminated. Such termination shall not be subject to any cancellation payments under Subsection C below.
C.
Cancellation payments. The owner or owners of protected property for which a conservation easement has been granted pursuant to § 140-6A of this chapter may petition the Town Board for cancellation of the conservation easement. Such cancellation, if approved by the Town Board, shall be granted upon payments as specified below:
(1)
Reimbursement component. All taxes saved and abatements granted pursuant to § 140-7A of this chapter, including any state, county, Town, school district or any special improvement district or other taxing unit to which the property is subject, must be repaid to the Town. Said taxes and abatements shall be computed by determining the difference between the amount of taxes paid on the protected property during the first year after a reduced assessment was granted pursuant to § 140-7A of this chapter and the amount of taxes paid the year prior thereto and multiplying said difference by three times the number of complete years a reduced assessment has been granted. The Town shall reimburse the other taxing units in proportion to their appropriate abatement.
(2)
Penalty component. An amount equal to the reimbursement
component shall be paid to the Town.
D.
Discretion of the Town Board. Notwithstanding Subsection C above, if a reduced valuation assessment has been granted pursuant to § 140-7A of this chapter for a period in excess of 25 years, the Town Board shall have sole discretion to deny the petition for cancellation or impose an alternate penalty which shall not be less than any amount that would be due under Subsection C(1) and (2) above.