PART I: COMMUNITY PRESERVATION Stewardship and Maintenance

1
PART ICOMMUNITY PRESERVATION Stewardship and
Maintenance

• Christine M. Chale, Esq.
• Rodenhausen Chale LLP
• cchale_at_rodenhausenchale.com

2
2 Transfer Tax and CPF

• Authorized by special enabling acts and local
  laws.
• Enactment subject to local referendum.
• Purposes are closely limited by enabling acts and
  local laws.
• Modification of enabling acts and local laws
  requires legislative action local referendum.

3
Local Tax Requires State Legislation

• Transfer taxes are only permitted by special
  state legislation.
• Proposed Sen. Breslin bill S. 806 would allow any
  municipality to enact a 2 Transfer Tax and
  Community Preservation program.
• Modeled on the Long Island programs.

4
CPA Purposes

• Special laws authorized purposes differ e.g. Red
  Hook special law permits
• preservation of open space
• establishment of parks, nature preserves, or
  recreation areas
• preservation of land which is predominantly
  viable agricultural land,
• preservation of lands of exceptional scenic
  value
• preservation of fresh and saltwater marshes or
  other wetlands
• preservation of aquifer recharge areas
• preservation of undeveloped beach-lands or
  shoreline

5
CPA Purposes Limited, cont.

• establishment of wildlife refuges for the purpose
  of maintaining native animal species diversity,
  including the protection of habitat essential to
  the recovery of rare, threatened or endangered
  species
• preservation of unique or threatened ecological
  areas
• preservation of rivers and river areas in a
  natural, free-flowing condition
• preservation of forested land
• preservation of public access to lands for public
  use including stream rights and waterways
• preservation of historic places and properties
  listed on the New York State Register of Historic
  Places and/or protected under a municipal
  historic preservation ordinance or law and
• undertaking any of the purposes of Subd. 5 of the
  Special Law in furtherance of the establishment
  of a greenbelt.

6
CPF Plan Statutory Requirements

• The plan must list every project.
• The plan must include every parcel necessary to
  be acquired.
• The plan must provide a detailed evaluation of
  all available land.
• An advisory committee and public hearing process
  are required for approval.

7
Use of CPF for Management and Stewardship

• Most special laws permit up to 10 of funds to be
  used for management and stewardship.
• Management and stewardship expenditures are for
  interests or rights acquired pursuant to the
  communitys CPF program and plan.

8
CPF Management and Stewardship

• Peconic Bay region legislation provides for
  adoption of a management and stewardship plan to
  guide expenditure of the 10.
• Town of Southholds 2015 plan indicates other
  sources are used for easement monitoring.
• CPF 10 funds are allocated to costs such as
  trails management and invasive species removal on
  publicly accessible lands.

9
Part 2 DEVELOPMENT FEES FOR PARKS

• Christine M. Chale
• Rodenhausen Chale LLP
• cchale_at_rodenhausenchale.com

10
Planning Board Review

• Planning Board reviews development plans and may
  require the developer to set aside land, suitably
  located, for park, playground or other
  recreational purposes.
• Rough proportionality between projected demand
  created by the new residents and the amount of
  recreational space to serve their needs and those
  of municipal residents.
• The Planning Boards determination must be
  supported by findings based on a study of
  recreational needs.

11
Dedication Versus Payment

• Developer can provide parkland dedication or
  private parkland for the benefit of the
  subdivision inhabitants.
• A planning board may require rec fees in lieu of
  it finds that the proposed subdivision presents
  a proper case for requiring a park or parks
  suitably located for playgrounds or other
  recreational purposes but it also finds that a
  park, of adequate size cannot be properly located
  in the subdivision.

12
Parks Funds

• Towns must establish special escrow for deposits
  of fees in lieu.
• Purposes of recreation funds are exclusively for
  park, playground or other recreational purposes,
  including the acquisition of property.
• Park land trust moneys may be expended only to
  acquire additional park land or to construct,
  rehabilitate or expand existing park or
  recreational facilities to meet the needs
  generated by new subdivisions.

13
Developers Construction of Recreation Facilities

• Recreational needs determined by the Planning
  Board may be met by recreational facilities and
  open spaces included within the development.
• HOA may own and maintain recreation lands kept in
  private ownership within a subdivision.
• No recreation fee in lieu in such cases.

14
Developer Construction of Recreational Facilities

• Question whether Towns can/should request
  developer to construct and/or maintain off site
  recreational facilities for the public instead of
  paying in lieu recreational fee.
• Planning board may require improvements onsite
  for subdivision improvements off site would be
  only at developer option
• Maintenance is not required after dedication.

15
Compare Other Required Improvements

• Developers often required to construct e.g. roads
  and other internal improvements.
• Road standards are provided by local law or
  regulation and subject to Town acceptance.
• Query whether recreation improvements can be
  generic so as to be objectively enforceable
• Query whether public interest would be best
  served.

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Other Required Improvements cont.

• Construction is pursuant to standard specs plans
  and construction are reviewed by Town Engineer.
• Town specs require guarantees and surety bonds,
  indemnity, and insurance in order to assure
  proper completion.
• Roads and other improvements are maintained by
  developer unless and until all standards are met
  no building permits and/or no C/O until required
  improvements are made.
• Construction requirements must be objectively
  enforceable.

17

• Questions