[HISTORY: Adopted by the Town Board of the Town of Busti 11-3-2008 by L.L. No. 3-2008. Amendments noted where applicable.]
Zoning — See Ch. 405.
This chapter shall hereinafter be known and cited as the "Conservation Easement Law of the Town of Busti."
It is the purpose of this chapter to provide for the acquisition of permanent interests or rights in real property by the Town of Busti for the preservation of open space or open areas, as defined in § 209-5 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 Busti is authorized and has been enacted by the Town Board of the Town of Busti 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 Busti.
As used in this chapter, the following terms shall have the meanings indicated:
- CONSERVATION EASEMENT
- 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.
- CONSERVATION VALUES
- The scenic, open, historic, architectural or other natural or physical conditions protected by a conservation easement.
- OPEN SPACE or OPEN AREA
- 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.
- PROTECTED PROPERTY
- Any property subject to a conservation easement granted to the Town of Busti pursuant to this chapter.
Upon application by the owner of property.
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 mortgage to the conservation easement.
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 Busti 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 committed appointed for that purpose, determines that it is in the public interest to accept the conservation easement, as negotiated, the Town Board shall hold a 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.
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. Notice of the time and place of any public hearing shall be published in the official newspaper of the Town at least 10 days in advance thereof 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.
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.
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.
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.
Advance notice. The Town Assessor shall notify any party offering a conservation easement to the Town pursuant to § 209-6 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.
Return to full valuation. Upon cancellation of a conservation easement pursuant to § 209-10 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 Busti 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:
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.
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:
Enforce the terms of the conservation easement.
Enjoin the violation, by temporary or permanent injunction.
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.
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.
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:
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.
Cancellation payments. The owner or owners of protected property for which a conservation easement has been granted pursuant to § 209-6 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:
Reimbursement component. All taxes saved and abatements granted pursuant to § 209-7A 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 § 209-7A 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.
Penalty component. An amount equal to the reimbursement component shall be paid to the Town.
Discretion of the Town Board. Notwithstanding Subsection C above, if a reduced valuation assessment has been granted pursuant to § 209-7A 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.