Town of Philipstown, NY Article V Open Space Development

§ 175-19 Open space development options.

A. Purpose and applicability; requirement of conservation analysis.

(1) The purpose of the open space development options in this article is to preserve large tracts of open space land in order to maintain the rural appearance and environmental resources of the Town of Philipstown. These options are intended to offer development alternatives to landowners that avoid the uniform pattern of conventional subdivision (see definition in § 175-74), sometimes referred to as "suburban sprawl." To avoid this pattern, which conflicts with the goals of the Philipstown Comprehensive Plan, the Town of Philipstown encourages the following three options: conservation subdivision, open development area (ODA) subdivision, and flag lots. The Town wishes to discourage conventional subdivisions where they would detract from the Town's rural landscape and natural resources.

(2) Any applicant for a conventional subdivision creating four or more new building lots in the RC, RR, IC, or SR Districts shall submit to the Planning Board a conservation analysis as described in § 175-20A below. If the Planning Board determines, based upon the conservation analysis, that a proposed conventional subdivision may adversely affect the Town's rural landscape or natural resources or that a conservation subdivision would produce a better result, the Planning Board may require the applicant to submit a plan for a conservation or ODA subdivision (see Subsections B and C below) and may require that such a plan be approved as an alternative to a conventional subdivision.

(3) The Planning Board may, in its discretion, require a conservation analysis for a subdivision creating fewer than four new building lots.

B. Conservation subdivision. The Town encourages conservation subdivisions as an alternative to conventional subdivisions. In conservation subdivisions, units are clustered or sited on those portions of a property most suitable for development, while leaving substantial portions as undeveloped open space. Conservation subdivisions may include a variety of lot sizes, ranging from large farm or estate lots to small hamlet-size lots. Conservation subdivision results in the preservation of contiguous open space and important environmental resources, while allowing compact development, more walkable neighborhoods, and more flexibility than conventional subdivisions. Conservation subdivisions must satisfy the standards in § 175-20.

C. Open development area subdivision. An open development area (ODA) subdivision is a low-density subdivision with a private right-of-way serving no more than four lots without frontage on an existing road. Rules for ODA subdivisions are in Part 2 of the Land Development Regulations.[1]

[1] Editor's Note: See Ch. 112, Land Development, Part 2, Open Development Area General Regulations.

D. Flag (rear) lots. Flag lots are lots where most of the land is set back from the road and access is gained through a narrow access strip. Where carefully planned, flag lots can enable landowners to develop interior portions of parcels at low density and low cost, preserving roadside open space, and avoiding the construction of expensive new Town roads. For regulations on flag lots, see § 175-22. Flag lots may be included as a component of a conventional, conservation, or ODA subdivision.

§ 175-20 Standards for conservation subdivisions.

In order to approve a conservation subdivision, the Planning Board must find that the proposed subdivision meets the standards in this section. Conservation subdivisions are permitted in the RC, RR, IC, and SR Districts and are intended to allow design flexibility while preserving important natural attributes of the land.

A. Conservation analysis.

(1) As part of any sketch plan submission for a conservation subdivision (or as required for a conventional subdivision in § 175-19A above), an applicant shall submit a conservation analysis, consisting of inventory maps, description of the land, and an analysis of the conservation value of various site features. The conservation analysis shall follow applicable criteria and recommendations in the Philipstown Natural Resources and Open Space Plan. Applicants are encouraged to consult with the Town's Natural Resources Review Officer, Philipstown Conservation Board, the Putnam County Soil and Water Conservation District, and Hudson Highlands Land Trust when preparing a conservation analysis. The Planning Board may waive some of the requirements below for portions of a property where no development will occur or where the collection of information listed below would be unreasonably burdensome to the property owner. The Planning Board may also waive any requirements that, in its sole discretion, it deems unnecessary for a complete conservation analysis. The conservation analysis shall show lands with conservation value on the parcel and within 200 feet of the boundaries of the parcel, including but not limited to the following:

(a) Wetlands, watercourses, slopes of 20% to 35% and slopes greater than 35%, measured as described in § 175-36B(6).

(b) Farmland, trail corridors, scenic viewsheds, public water supply wellheads, park and recreation land, unfragmented forestland, and historic and archaeological sites, if such areas are specifically identified in the Comprehensive Plan or the Town's Natural Resources and Open Space Plan.

(c) Designated overlay zones for scenic protection, stream corridors, aquifers, and floodplains.

(d) Buffer areas necessary for screening new development from adjoining parcels.

(e) Stone walls and individual trees or forested areas containing trees that are 18 inches diameter at breast height (dbh) or larger.

(f) If identified by the Planning Board or the Town's planning consultant in the course of preapplication discussions, other land exhibiting present or potential future recreational, historic, ecological, agricultural, water resource, scenic, or other natural resource value.

(2) The conservation analysis shall describe the importance and the current and potential conservation value of all land on the site identified in Subsection A(1) above. It shall also take into account land that has been disturbed, developed, or altered in the past and which may therefore be more suitable for development. In the course of preapplication conferences and initial sketch plan review, the Planning Board shall indicate to the applicant which of the lands identified as being of conservation value are most important to preserve.

(3) The outcome of the conservation analysis and the Planning Board's determination shall be incorporated into the sketch plan showing land to be permanently preserved by a conservation easement, as well as recommended conservation uses, ownership, and management guidelines for such land. The sketch plan shall also show preferred locations for intensive development as well as acceptable locations for less dense development.

(4) The final determination as to which land has the most conservation value and should be protected from development by conservation easement shall be made by the Planning Board, which shall make written findings supporting its decision (the "conservation findings"). The Planning Board shall not endorse any application that does not include a complete conservation analysis sufficient for the Board to make its conservation findings.

B. Density calculation. The maximum number of dwelling units in a conservation subdivision is based upon either a yield plan or a density formula that subtracts constrained land from the parcel's acreage and divides the net acreage by the minimum lot size in the district. This density formula method is intended to simulate, in a more efficient manner, the lot count that would result from preparing a conventional subdivision yield plan for the same property. An applicant may elect either to prepare a yield plan pursuant to Subsection B(2) or to use the density formula pursuant to Subsection B(1).

(1) To calculate the permitted number of dwelling units using the "density formula" method:

(a) Determine the unconstrained acreage by subtracting from the total (gross) acreage of the proposed development parcel 75% of the acreage of constrained land. Constrained land consists of wetlands as defined in § 175-74, watercourses, floodplains, cemeteries, and slopes of 20% or greater.

(b) Multiply the unconstrained acreage as established in Subsection B(1)(a) above by a development loss factor of 0.85 (to account for roads and lot shape irregularities).

(c) Divide the resultant area by the maximum density for a conservation subdivision in the district. Fractional units of any size shall be rounded up.

(2) To calculate permitted number of dwelling units using the "yield plan" method:

(a) The applicant shall prepare and submit an application that satisfies all of the requirements for a preliminary plat in the Land Development Regulations,[1] complying with all applicable bulk requirements and other requirements of this Zoning Law, as well as with all standards and requirements of the Land Development Regulations, other chapters in the Town Code, and all applicable requirements of the Putnam County Health Department (including all required soil tests), New York State Department of Environmental Conservation, United States Army Corps of Engineers, and any other agency with jurisdiction over the project as shown on the yield plan. The minimum lot size in the yield plan shall be the maximum density figure for a conservation subdivision shown on the Dimensional Table.[2]

[1] Editor's Note: See Ch. 112, Land Development.

[2] Editor's Note: The Dimensional Table is included at the end of this chapter.

(b) The applicant shall be required to show compliance with the requirements listed in Subsection B(2)(a) by submitting road profiles, soil and percolation test results, well test results, and any other information the Planning Board deems necessary to conduct an adequate review of an application as if it were being proposed for approval as a conventional subdivision.

(c) Based upon its review and analysis of this information, which shall be conducted at the applicant's expense, the Planning Board shall make a determination as to how many lots it could approve as buildable lots if such application were submitted for approval as a conventional subdivision. In making this determination, the Planning Board shall take into consideration the economic feasibility of construction of roads and driveways shown on the yield plan. The number of lots determined to be allowable and feasible by the Planning Board shall be the maximum number of units permitted in the conservation subdivision using the yield plan method.

(3) The density calculation may be submitted at either the sketch plan or preliminary plat stage of the application, at the applicant's election.

(4) An applicant may increase the permitted number of dwelling units (using either method) by the use of density bonuses granted at the discretion of the Planning Board. The following density bonuses may be permitted:

(a) If the applicant increases the percentage of open space preserved by conservation easement beyond the required minimum, the Planning Board may grant the applicant an increase in the permitted number of dwelling units of up to 5% for every 10% of additional open space protected beyond the minimum required for the entire parcel.

(b) If the applicant allows public access to the protected open space on the property and the Planning Board finds that such public access provides a significant recreational benefit to the Town (such as a trail connector or access to an important natural area), the Planning Board may grant an increase in the permitted number of dwelling units of up to 15%.

(5) The maximum number of units as determined by this § 175-20B, whether derived from the density formula or the yield plan, and the density bonuses described in Subsection B(4) shall not be considered an entitlement. The applicant must also demonstrate compliance with all applicable criteria and standards of the Zoning Law, Land Development Regulations,[3] and other applicable laws and regulations. These requirements may result in an actual approvable unit count that is less than the maximum allowed by Subsections B(1), (2) or (4) above. If the Planning Board has a reasonable basis to believe that the number of units that would result from a yield plan would be substantially less than the number allowed by the density formula, it may require the submission of a yield plan which shall be the basis for determining the allowable unit count.

[3] Editor's Note: See Ch. 112, Land Development.

(6) For purposes of applying the density calculations in this section, a studio dwelling unit shall be counted as 0.5 dwelling unit, a one-bedroom dwelling unit shall be counted as 0.67 dwelling unit, a two-bedroom unit shall be counted as 0.75 dwelling unit, and a three-bedroom or larger dwelling unit shall be counted as one dwelling unit. All dwelling units which are treated as less than one full dwelling unit under this section shall be required to have permanent deed restrictions, in a form acceptable to the Planning Board, limiting them to the approved number of bedrooms. This shall not prevent an applicant from building a dwelling unit of less than three bedrooms and counting it as a full dwelling unit for density purposes, in which case no deed restriction shall be required and future expansion of the dwelling or dwelling unit shall be permitted.

C. Minimum lot size. The limiting factor on lot size in conservation subdivisions is the availability of water and sewer infrastructure and the impacts of nitrate loading on well water supplies. Therefore, minimum lot sizes are based upon the availability of such infrastructure, including consideration of nitrate loading concerns and the use of preserved open space for individual or common leach fields, and are the same as indicated for the hamlet districts in § 175-11D.

D. Arrangement of lots. Lots shall be arranged in a manner that protects land of conservation value and facilitates pedestrian and bicycle circulation. The lot layout shall be designed with consideration of applicable portions of the Rural Design Guidelines and Hamlet Design Guidelines published by the New York Planning Federation (1994), or such other guidelines as may be adopted by the Planning Board. Lots shall also be arranged to maximize protection of wells from nitrate loading problems (see Subsection I).

E. Front, side, and rear yards and road frontage. Appropriate minimum yard setbacks in a conservation subdivision will depend upon the lot sizes, the type of road frontage (state, county, Town, or private) and the character of the subdivision (hamlet, suburban, or rural). Accordingly, yard requirements shall be established at the time of plat approval and shall be shown in a chart on the plat. Minimum yard and road frontage requirements for all lots in a conservation subdivision shall be no less than those specified in the Dimensional Table[4] for the HM District for lots fronting on Town roads.

[4] Editor's Note: The Dimensional Table is included at the end of this chapter.

F. Impervious surface coverage. The amount of pavement and building area is a major factor in determining the impact of a development. Therefore, limiting impervious surface coverage, as defined in § 175-74, is critical in maintaining environmental integrity. The limitation on impervious surface coverage for each district shown on the Dimensional Table in § 175-11B[5] applies to the entire area to be subdivided, including all open space areas. Thus, individual lots may be allowed higher impervious surface coverage allotments, as long as the total coverage is within the limits prescribed. Conservation subdivision plats shall show on a table the impervious surface coverage limit for each building lot in order to establish compliance with this subsection. Driveways, roads, and parking areas that are unpaved or surfaced with porous pavement shall be considered impervious surfaces, unless the Planning Board determines, upon the recommendation of the Town's Engineer, that such surfaces are only partially impervious. In such cases the permitted coverage by such materials may be adjusted upward based upon the Engineer's recommendation, provided that a note is placed on any approved plat indicating requirements for maintaining the permeability of such surfaces.

[5] Editor's Note: The Dimensional Table is included at the end of this chapter.

G. Accessory uses. Residential and nonresidential accessory uses may be combined in a conservation subdivision, provided that the applicant complies with all residential density, impervious surface, and open space requirements. Permitted nonresidential uses that may be included in a conservation subdivision include:

(1) Common buildings for meetings, dining, recreation, and for entertaining and lodging guests of the residents.

(2) Child-care facilities for residents of the development as well as those outside the development.

(3) Office space for use by administrators of the development as well as for use by residents of the development in the conduct of their own businesses, provided that such offices do not occupy more than 10% of the total floor area of the development.

(4) Storage facilities, which may be used for the needs of the development and its residents.

(5) Recreational facilities for use by residents and their guests.

(6) Convenience store not exceeding 5,000 square feet in floor space, providing goods for use primarily by residents of the development and the immediate neighborhood.

H. Minimum area and configuration of open space.

(1) Since one of the major purposes of a conservation subdivision is to preserve open space, conservation subdivisions shall preserve at least 60% of the land as open space. Within the OSO District, the minimum shall be 80%. The requirements for preserving such open space are described in § 175-21.

(2) Preserved open space may be included as a portion of one or more large lots or may be contained in a separate open space lot. Such open space may be owned by a homeowners' association, private landowner(s), a nonprofit organization, or the Town or another governmental entity, as long as it is protected from development by a conservation easement and does not result in fragmentation of the open space land in a manner that compromises its conservation value. The required open space land may not include private yards located within 100 feet of a principal structure.

I. Prevention of excess nitrate loading. In any conservation subdivision containing 10 or more dwelling units which is not served by a common or municipal sewage disposal facility, the applicant shall provide an analysis of the impact of nitrate loading on groundwater and surface water and shall take all necessary measures to prevent any adverse impacts on water resources. Such measures may include grouping the development into smaller clusters of eight or fewer units, requiring lots larger than the minimums otherwise required, arranging lots along the contours of a hillside rather than up and down the hillside to prevent septic leachate from flowing downhill into wells, and/or the use of enhanced on-lot wastewater treatment systems, common wastewater treatment systems, or community water systems.

J. Recreation land or fee. In applying the provisions of § 112-43 of the Town Code pertaining to parks and open space, the Planning Board shall apply the standards in § 277(4) of the Town Law to determine whether or not the preserved open space land in a conservation subdivision qualifies as the parkland required under Section 277(4) for playgrounds or other recreational purposes within the Town. In the event that the Planning Board finds that the proposed development will generate demand for playgrounds or other recreational facilities which will not be satisfied by the preserved open space in the proposed development plan, the Planning Board shall require the payment of money in lieu of land pursuant to § 112-43A of the Town Code.

§ 175-21 Preservation of open space by conservation easement.

A. Conservation easement requirement. Open space set aside in a conservation subdivision, or as a condition of any special permit or site plan approval, shall be permanently preserved by a conservation easement. Such land 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 and other structures are permitted, provided that a conservation easement is placed on such land pursuant to Subsection A(3) below, and 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 as established in the conservation analysis required by § 175-20A above.

(1) Conservation value of open space. The open space protected must include all the land determined pursuant to § 175-20A(4) to have the most conservation value and, subject to § 175-20H, as much other land having conservation value as possible (as established by the conservation analysis and conservation findings). Examples of lands with conservation value include view corridors along scenic roads, agricultural land, ridgelines, steep slopes, designated critical environmental areas, large areas of contiguous mature forest, wetlands, watercourses, and stream corridors. Prime and statewide important agricultural land, even if suitable for development, shall be considered land of conservation value.

(2) Notations on plat or site plan. Preserved open space land shall be clearly delineated and labeled on the final subdivision plat or 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 deed reference of any conservation easements or deed restrictions required to be filed to implement such restrictions.

(3) Requirements for conservation easements.

(a) A perpetual conservation easement restricting development of the open space land and allowing use only for agriculture, forestry, recreation, protection of natural resources, or similar conservation purposes, 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 Town, with the approval of the Town Board, or to a qualified not-for-profit conservation organization or other governmental body acceptable to the Planning Board. The conservation easement shall provide that it will be automatically extinguished upon conveyance of the land it protects to the State of New York as parkland. Such conservation easement shall be approved by the Planning Board and shall be required as a condition of approval. The Planning Board may require that the conservation easement be enforceable by the Town if the Town is not the holder of the conservation easement. 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. In the case of subdivisions of less than five lots and minor projects, a deed covenant enforceable by the Town may be substituted for a conservation easement. Applicants are encouraged to consult with a qualified conservation organization in preparing a conservation easement.

(b) The conservation easement shall protect the conservation values identified in the conservation analysis. It shall prohibit residential, industrial, or commercial use of open space land (except in connection with agriculture, forestry and recreation) and shall not be amendable to permit such use. Access roads, driveways, local utility distribution lines, subsurface wastewater disposal systems, trails, temporary structures for outdoor recreation and agricultural structures shall be permitted on preserved open space land, provided that they do not impair the conservation value of the land. Dwellings may be constructed on parcels that include protected open space land, provided that the dwellings are not constructed on the portion of the parcel that is protected by the conservation easement. The configuration of the open space land and dwellings shall not result in fragmentation of the open space land in a manner that interferes with its proper management and protection of its conservation values. (See the Rural Development Guidelines referred to in § 175-5 for a fuller explanation of this.)

(4) Ownership of open space land.

(a) Open space land may be owned by a homeowners' association (HOA), dedicated to Town, 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 adequate to properly manage the open space land and to protect its conservation value, based upon the conservation analysis.

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

[1] The HOA must be set up before the final subdivision plat is approved and must comply with all applicable provisions of the General Business Law.

[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, private roads 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 private roads.

[5] Property owners must pay their pro rata share of the costs in Subsection A(4)(b)[4] above, and the assessment levied by the HOA must be able to become a lien on the property.

[6] The HOA must be able to adjust the assessment to meet changed needs.

[7] 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.

[8] 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.

[9] The attorney for the Planning Board shall find that the HOA documents presented satisfy the conditions in Subsection A(4)(b)[1] through [8] above and such other conditions as the Planning Board shall deem necessary.

B. Maintenance standards.

(1) Ongoing maintenance standards shall be established, enforceable by the Town against an owner of open space land as a condition of subdivision approval, to ensure that the open space land is not used for storage or dumping of refuse, junk, or other offensive or hazardous materials.

(2) If the Town Board finds that the provisions of Subsection B(1) above are being violated such that the condition of the land constitutes a public nuisance, it may, upon 30 days' written notice to the owner, enter the premises for necessary maintenance, and the cost of such maintenance by the Town shall be assessed ratably against the landowner or, in the case of an HOA, the owners of properties within the development and shall, if unpaid, become a tax lien on such property or properties.

§ 175-22 Flag (rear) lots.

Flag lots, also known as rear lots, are lots where most of the land is set back from the road and access is gained through a narrow access strip. Where carefully planned, such lots can enable landowners to develop interior portions of parcels at low density and low cost, preserving roadside open space, and avoiding the construction of expensive new Town roads. Flag lots with or without access strips running to public or private roads may be created within the RC, RR, and SR Districts, provided that they will not endanger public health and safety and will help preserve natural, historic, and scenic resources. The following requirements apply to flag lots:

A. Each flag lot shall have a minimum frontage of 35 feet on an improved public or private road and an access strip or a deeded right-of-way easement over other lands providing legally adequate and physically practical access to a public or private road. Such access strip or deeded right-of-way easement shall be at least 35 feet wide for its entire length from the road frontage to the portion of the lot where building is permitted.

B. Minimum lot sizes for flag lots shall be three times the size required for conventional subdivision lots in the Dimensional Table in Section 175-11.[1] The area of the access strip shall not be counted in the calculation of minimum lot size.

[1] Editor's Note: The Dimensional Table is included at the end of this chapter.

C. Except as indicated in Subsection B above, flag lots shall meet all other dimensional requirements for a conventional subdivision lot in the applicable district. Minimum lot width shall be the same dimension as the minimum required road frontage. The minimum setbacks shall be 50 feet from all property lines.

D. There shall be no more than two adjoining access strips, which shall share one common driveway. The common driveway shall be subject to a recorded maintenance agreement approved by the Planning Board. No more than three lots may be served by a common driveway.

E. All flag lots shall have safe access for fire, police, and emergency vehicles.

F. The proposed flag lots shall not result in degradation of important natural resource and landscape features, including but not limited to ponds, streams, steep slopes, ridgelines, and wetlands.

G. When necessary to satisfy the criteria in Subsection F above, the Planning Board may require the applicant to grant a conservation easement or restrictive covenant enforceable by the Town that designates where the house, driveway, and utilities may be constructed on the flag lot, and requires preservation of the remainder of the lot as open space.