Pursuant to New York State Town Law § 278, the Planning
Board is empowered to modify the minimum lot area, lot width and setback
requirements of the Zoning Law[1] in order to enable and encourage flexibility of design and development of land in such a manner as to create conservation subdivisions; however, in no case shall any minimum shoreline setbacks be altered by the Planning Board. The requirements, procedures and standards set forth below shall apply and be adhered to. Note also that Article 3 of Chapter 179 requires conservation subdivisions in certain zoning districts and does not allow them in other districts, and specifies the minimum land area required for clustering in each zoning district. As such, Article 3 of Chapter 179 should be referred to in order to determine if a conservation subdivision is required, allowed or prohibited. In addition, the Development Objectives for Conservation Subdivisions set forth in § A183-56 shall be followed.
The purpose of a conservation subdivision is to preserve large
areas of open space along with the natural and scenic resources within
them. Well-designed conservation subdivisions also lower building
costs by minimizing infrastructure, increase home values for residents
and protect the overall Town environment by, among other things, reducing
stormwater runoff.
In order to realize the purpose of this article, a conservation
design shall achieve the following objectives:
A.
A development pattern which preserves outstanding natural topography
and geological features, scenic vistas, fields, and trees and prevents
the disruption of natural drainage patterns, including wetlands.
B.
An efficient use of land resulting in smaller networks of utilities
and streets, while creating a network of open space, recreation areas
and paths for pedestrian and bicycle use.
C.
A development pattern in harmony with the land use intensity, transportation
facilities and community facilities objectives of the Comprehensive
Land Use Plan.
A.
No such modification by the Planning Board shall result in a greater
overall density of lots or dwelling units than is permitted in the
zoning district wherein such lands lie except as follows:
(1)
Density bonuses. The Planning Board may award a density bonus to increase the number of dwelling units beyond the base residential density permitted in a zoning district. The density bonuses shall not allow the total number of dwelling units to exceed a maximum of a twenty-percent increase above the calculation of maximum buildable lots as described below in Subsection E. Computations shall be rounded to the lowest whole number. Density bonuses are not applicable within the Adirondack Park.
B.
If any part of this section is found to be inconsistent with New
York State Town Law § 278(3)(b) (formerly § 281,
L.1963, c. 963, § 1; amending L.1969, c. 880, §§ 1,
2; L.1982, c. 412, § 1; L.1992, c. 230, § 2; renumber
and amended L.1992, c. 727, §§ 3, 4; L.1995, c. 417,
§ 2; L.1996, c. 235, § 9) or any other sections,
the Town of Queensbury hereby declares its intention to supersede
New York State Town Law under its home rule powers.
C.
The provisions of this article shall not be deemed to authorize a
change in the permissible use of such lands as provided in this chapter.
D.
Open space requirements and ownership.
(1)
Amount of open space required. The size of the open space shall
be determined on a case-by-case basis with the final determination
to be made by the Planning Board at its discretion upon review of
the subdivision application. The portion of the subdivision tract
to be set aside for open space conservation shall be of such minimum
dimensions and size as to be functional for its intended purpose,
taking into consideration environmental, density and other site-specific
factors. There shall be a minimum of 50% of the parcel preserved as
open space.
(2)
Location. Open space areas shall be convenient to the dwelling
units they are intended to serve and shall be sited with sensitivity
to surrounding land features and development. Open space areas shall
be integrated, wherever possible, into a connected open space system
within the development as well as outside the development. Open space
areas should form a contiguous system with other open space areas
in the vicinity of the subdivision development to the maximum extent
practicable.
(3)
Use of open space areas; open space areas may include features
and improvements for active and/or passive recreation, provided that
such features do not materially detract from the purpose for preservation
of the open space. As a general principle, open space areas should
be left in their natural state. Accepted conservation management techniques
may be employed to maintain their natural state and allow for passive
(nonmotorized) recreational opportunities such as, but not limited
to, hiking trails, cross-country skiing or snow shoeing trails, picnic
areas, etc. Where appropriate, active recreational facilities may
be included in the open space areas. In addition, farming activities
may be allowed to continue on open space areas pursuant to an agricultural
easement or other suitable arrangements. Where active agricultural
lands are set aside in a conservation design subdivision, such lands
may remain in active agricultural use. The Planning Board may consider
public access to open space areas where it may be appropriate.
(4)
Deed restrictions. Any lands set aside for open space purposes
shall contain appropriate easements, deed covenants, conditions and
restrictions approved by the Planning Board and/or the Town Counsel
ensuring that:
(a)
The open space area or areas will not be further subdivided
or developed in the future.
(b)
The designation of the open space will continue in perpetuity
for the purposes specified.
(c)
Appropriate provisions are made for the continual maintenance,
management and use of the open space with the purpose of preserving
the open space.
(d)
The delegation of authority for management of the open space
area is appropriately placed in the owner or owners of the open space
area.
(e)
The open space area will not be able to be converted or used
for any enterprise except for agricultural uses.
(f)
Deed restrictions shall be noted on the approved final subdivision
plat.
(g)
The easements, deed covenants, conditions and restrictions related
to the open space shall be recorded against the parcel with reference
to such recording made in each deed of conveyance of each lot and
shall be enforceable by the Town.
(h)
The Town of Queensbury is deemed to be a beneficiary of the
provision(s) creating and reserving the open space, and the Town shall
be accorded party status for the purpose of initiating and/or participating
in any litigation regarding the open space.
(5)
Open space ownership. The type of ownership of the land set
aside for open space shall be selected by the applicant subject to
the approval of the Planning Board and shall be indicated on all plats
submitted beginning with sketch through final. An acceptable type
of ownership may include, but is not necessarily limited to, the following:
(a)
Land preservation or conservation organizations or trusts.
(b)
Public agencies or governmental bodies.
(c)
The Town, subject to acceptance by the Town Board. The Town
Board shall not relinquish any ownership of such dedicated open space
without the affirmative vote of a supermajority of the Board.
(d)
The owner or owners of an individual lot or lots in the subdivision.
(e)
Homeowners' associations with the following requirements:
[1]
The homeowners' association must be established prior to the
conveyance of any lot or parcel within the proposed subdivision;
[2]
Membership must be mandatory for each lot owner, and each lot
owner must have an equal voting right within the association;
[3]
The association organizational documents must be submitted to,
and approved by, the Planning Board and/or its attorney, as part of
the subdivision approval process and must also be approved by the
Office of the Attorney General of New York State if required by applicable
laws, rules or regulations;
[4]
An estimate of the association's annual budget must take into
account insurance, property taxes, and maintenance of the open space
areas as well as other shared common areas or facilities such as access
roads, and recreational areas;
[5]
The association must be able to adjust the homeowners' fees
or assessments on an annual basis and be able to collect and enforce
the payment of annual fees or assessments;
[6]
The association cannot be dissolved without a vote of the association
membership and without the conveyance of the open space and common
facilities to an entity acceptable to the Planning Board; and
[7]
The deed conveying title to each individual lot in the subdivision
must include reference to the fact that conveyance is subject to and
includes membership in a homeowners' association pursuant to deed
covenants either set forth in each deed or recorded against the entire
subdivision. Both grantors and grantees should sign deeds of conveyance
to ensure purchasers or grantees are aware of the homeowners' association
requirements, obligations and fees, if any.
(6)
View preservation. Where vistas and open field areas are to
be preserved, lots shall be clustered at the edges of the open field
areas or behind topographic features which block views from the existing
public way, whenever possible. Building lots shall be set back away
from ridges or military crests in order to protect the natural silhouette
of Queensbury's mountain ranges.
(7)
The lands designated as open space cannot be converted to any
other use without approval of the Queensbury Town Board.
(8)
No more than 1/2 of land areas to be subtracted from the calculation of maximum buildable lots under Subsection E of this section may be included in the lands used to meet the open space requirement.
(a)
For example, if the zoning allows one unit per acre and the
parcel is 100 acres in size and:
[1]
There are no natural resource constraints as described in Subsection E then 100 units are allowed and 50 acres must be left as open space. The result is 100 homes on 50 acres.
[2]
Twenty acres are wetlands, then 80 units are allowed and 50
acres must be left as open space with up to 10 acres of wetlands allowed
to count towards that total. The result is 80 homes on 40 acres.
[3]
Fifty acres of wetlands, then 50 units are allowed and 50 acres
must be left as open space with up to 25 acres of wetlands allowed
to count towards that total. The result is 50 units on 25 acres of
land.
(b)
Nothing in this article shall supersede the Town Board's right
and responsibility to determine land to be acquired for Town parks
after consulting with the Recreation Commission and Planning Board.
E.
Calculation of maximum buildable lots. The maximum number of buildable
lots for a conservation design subdivision shall be calculated as
follows:
(1)
From the total area of the property to be subdivided subtract
any unbuildable areas such as:
(a)
Local, state, or federally regulated wetlands, including wetlands
within the Adirondack Park identified and regulated by the Adirondack
Park Agency.
(b)
Water bodies, including but not limited to ponds, streams, rivers,
etc.
(c)
Rock outcrops.
(d)
Slopes in excess of 20%, to include both natural and man-made
slopes.
(e)
The area to be occupied by the proposed streets or rights-of-way.
(f)
The area occupied by other public easements or rights-of-way
across the property such as major power or telephone lines.
(2)
Then divide the resulting figure (the remaining acreage) by
the lot size allowed in the zone in which the lots will be located.
B.
Determining design. In order to effectively create a conservation
design subdivision, the applicant, in consultation with the Planning
Board, should:
C.
Criteria for preservation. In determining the areas to be conserved as open space, in § A183-40, the design of the subdivision and location of the open space should integrate and enable the conservation or preservation of such characteristics or features to the maximum extent practicable:
(1)
Lands designated as lands of conservation interest by the Town,
if mapping is completed; if not, then if it is a site located in a
scenic vista or viewshed identified on the Scenic Views-Vistas Map.
(2)
Lands along waterways, water bodies and wetlands.
(3)
Significant wildlife or plant habitats.
(4)
Slopes greater than 15%.
(5)
Soils with depth to seasonal high water table of 40 inches or
fewer occupy over 25% of the site.
(6)
Sites exposed to views from the waters of Lake George.
(7)
Sites adjacent to or which incorporate areas, buildings or structures
of historic significance.
(8)
Areas adjacent to other open spaces, either public or private,
especially those that have been designated as remaining preserved.
(9)
Critical environmental areas.
(10)
Areas that are particularly amenable to active or passive recreation.
D.
Exception to or waiver of requirements or standards. The Planning
Board may permit minor deviations to, or waive, certain open space
requirements or standards when it determines that:
(1)
The objectives underlying the open space standards and requirements
can still be met with such deviations or waivers; and/or
(2)
Because of peculiarities in the tract of land proposed for subdivision
or the development proposed, it would be unreasonable to require strict
adherence to such requirements or standards.
E.
Request by subdivider. A subdivider may request the use of this article simultaneously with or subsequent to the submission of the sketch plan for any proposed subdivision in the zoning districts set forth in Subsections D and E of § A183-38. Any submission subsequent to preliminary approval of a plat shall require a resubmission of the sketch plan.
F.
Alternate sketch plan. The Zoning Administrator or the Planning Board may request that a subdivider present, along with a proposal utilizing the provisions of this article, an alternate sketch plan with lots meeting the minimum lot area, minimum lot width and minimum shoreline lot width requirements of Article 3 of Chapter 179 of the Town Code.
G.
Plat submission. Upon determination by the Planning Board that the
sketch plan utilizing the provisions of this article is suitable,
the procedures attendant to and subsequent to the sketch plan submission
shall be followed in regular order.
The dwelling units shall be of the same type permitted in the
zoning district to which the procedures of this article are applied.
The procedure for the review of subdivision plats or plans shall
be the same as for any subdivision as per this chapter of Town law.
