Conservation Restrictions in Conservation Restrictions in Conservation Subdivisions Conservation Subdivisions

Joel Russell and Robert LeviteJoel Russell and Robert LeviteMarch 2012March 2012

Conservation SubdivisionsConservation Subdivisions

•• Purpose: to preserve important open space while Purpose: to preserve important open space while allowing compatible development; also called Clustering, allowing compatible development; also called Clustering, OSRD, NRPZ, flexible development, etc.OSRD, NRPZ, flexible development, etc.

•• Statutory framework: Ch 40A, Sec. 9; Home Rule Statutory framework: Ch 40A, Sec. 9; Home Rule Amendment; Ch. 184, Sec. 31-33; Subdivision Control Amendment; Ch. 184, Sec. 31-33; Subdivision Control Law (Ch. 41)Law (Ch. 41)

•• Why a CR? Why not note on plan or deed restriction?Why a CR? Why not note on plan or deed restriction?

•• Relationship to OSRP, trail networks, town master plan, Relationship to OSRP, trail networks, town master plan, CPA, APR program, self-help grants, etc. CPA, APR program, self-help grants, etc.

•• Importance of Conservation Analysis Importance of Conservation Analysis

- Conservation analysis ensures - Conservation analysis ensures that a mandated conservation that a mandated conservation restriction achieves its purpose. restriction achieves its purpose. - It should be done in cooperation - It should be done in cooperation with the land trust that will be the with the land trust that will be the prospective grantee of the prospective grantee of the restriction.restriction.

Example - Step 1: Map Existing Example - Step 1: Map Existing ConditionsConditions

Step 2: Identify Site Constraints Step 2: Identify Site Constraints (primary conservation areas)(primary conservation areas)

Step 3: Identify Natural and Cultural Step 3: Identify Natural and Cultural Features (secondary conservation areas)Features (secondary conservation areas)

MATURE BEECH STANDMATURE BEECH STAND

- Need to protect trees and - Need to protect trees and root systems from damageroot systems from damage

WOOD LOTWOOD LOT

- Provides visual buffer - Provides visual buffer from adjacent offsite from adjacent offsite developmentdevelopment

PRIME AGRICULTURAL SOILSPRIME AGRICULTURAL SOILS

- Preserve for agricultural - Preserve for agricultural useuse

STONE WALLSTONE WALL

- Visual and cultural - Visual and cultural resource resource

ROLLING LANDFORMROLLING LANDFORM

-Contrasts with flat agricultural fields and -Contrasts with flat agricultural fields and wetlandswetlands

-Grading should reflect rolling character-Grading should reflect rolling character

STREAM CORRIDORSTREAM CORRIDOR

-Provides visual interest and ecological -Provides visual interest and ecological benefitsbenefits

-Protect riparian buffer-Protect riparian buffer

HISTORIC MILL RUINSHISTORIC MILL RUINS

-Has educational value as a point of -Has educational value as a point of interest along public trail and road.interest along public trail and road.

ROAD VIEWSHEDROAD VIEWSHED

-Preserve rural road edge (i.e. landform, -Preserve rural road edge (i.e. landform, vegetation, shoulder)vegetation, shoulder)

-Opportunity for natural screening -Opportunity for natural screening (existing/new) of new structures from road(existing/new) of new structures from road

Look at Context of Town Open Space Planning and LinkagesLook at Context of Town Open Space Planning and Linkages

Step 4: Conservation Findings Step 4: Conservation Findings (before doing a development plan)(before doing a development plan)

•• Preserve prime agricultural Preserve prime agricultural

land and beech standland and beech stand

•• Preserve stone wallsPreserve stone walls

•• Preserve historic mill ruinsPreserve historic mill ruins

•• Preserve “UnbuildablePreserve “Unbuildable Land” Land” (10.5 acres of (10.5 acres of floodplain, wetlands, stream, floodplain, wetlands, stream, steep slopes)steep slopes)

•• Provide visual buffer from Provide visual buffer from roadroad

Potential Conservation Restriction PlanPotential Conservation Restriction Plan

Without conservation analysis: fragmented Without conservation analysis: fragmented open space serves no conservation purposeopen space serves no conservation purpose

Same plan showing wetlands and buffersSame plan showing wetlands and buffers

““Leftover” open spaceLeftover” open space

Case example: 100-acre Site in Case example: 100-acre Site in Dutchess County, New YorkDutchess County, New York

Conservation Analysis: SlopesConservation Analysis: Slopes

Conservation Analysis: SoilsConservation Analysis: Soils

Conservation Analysis: Water ResourcesConservation Analysis: Water Resources

Natural Features and Conservation FindingsNatural Features and Conservation Findings•• Do not develop on Do not develop on

steep slopessteep slopes

•• Protect views of Protect views of hillsidehillside

•• Minimize disturbance Minimize disturbance of water resourcesof water resources

•• Protect the best Protect the best farmlandfarmland

•• Maintain intact tract of Maintain intact tract of wildlife habitatwildlife habitat

•• Provide visual buffer Provide visual buffer from roadfrom road

Acceptable PlanAcceptable Plan

Unacceptable PlanUnacceptable Plan

Conservation Analysis – Summing UpConservation Analysis – Summing Up•• Conservation Analysis puts the community in the driver’s seat to Conservation Analysis puts the community in the driver’s seat to

ensure that preserved land has conservation value and is not just ensure that preserved land has conservation value and is not just “leftover land.”“leftover land.”

•• Should be done Should be done before before any subdivision design occurs and before any subdivision design occurs and before the formal approval process begins.the formal approval process begins.

•• Ties in the community’s comprehensive plan and open space and Ties in the community’s comprehensive plan and open space and recreation planrecreation plan

•• Informs decisions on uses, management, and ownership of open Informs decisions on uses, management, and ownership of open space land , establishing the basic terms of the conservation space land , establishing the basic terms of the conservation restrictionrestriction

•• Should not be confused with minimum open space or density Should not be confused with minimum open space or density calculation.calculation.

GETTING BOARDS GETTING BOARDS TOGETHERTOGETHER

Townwide discussion on communication between Townwide discussion on communication between boardsboards

Required: Plg., ConsComm; Should include Required: Plg., ConsComm; Should include Open Space, BoH, CPA; Ag Comm.Open Space, BoH, CPA; Ag Comm.

Key: local and/or regional land trustKey: local and/or regional land trust Consider town bylaw for active cooperation on Consider town bylaw for active cooperation on

how and under what circumstances open space how and under what circumstances open space connected to OSRD/NRPZ to be preserved; Joint connected to OSRD/NRPZ to be preserved; Joint board discussionsboard discussions

Ensure Plg. Bd. has ability to standardize all Ensure Plg. Bd. has ability to standardize all conditions and standardsconditions and standards

Issues to be AddressedIssues to be Addressed - - Adequate Plg Bd. Record – Historical; useful to other Adequate Plg Bd. Record – Historical; useful to other boards (ConsComm; Assessors; BoH); written recordboards (ConsComm; Assessors; BoH); written record - Plg. Bd. hiring of experts to ensure quality of- Plg. Bd. hiring of experts to ensure quality of conservation analysis and relationship to other protected landsconservation analysis and relationship to other protected lands within the townwithin the town - Complete survey of property and land to be protected; - Complete survey of property and land to be protected; markers at all angles;markers at all angles; - CR Devp. (Plg. Bd., ConsComm, Open Space, local- CR Devp. (Plg. Bd., ConsComm, Open Space, local land trust; Ag Comm.; use state model CR/APR);land trust; Ag Comm.; use state model CR/APR); - Who holds the CR / fee: town, land trust; homeowners- Who holds the CR / fee: town, land trust; homeowners assoc.; other non-profit); CR condition of approval; CRassoc.; other non-profit); CR condition of approval; CR recorded and referenced on definitive planrecorded and referenced on definitive plan - CR provision for back-up CR holder; - CR provision for back-up CR holder;

ISSUES TO BE ADDRESSEDISSUES TO BE ADDRESSED

- - Resolve public access issues early onResolve public access issues early on-Funding from developer to cover initial Funding from developer to cover initial monitoring/stewardshipmonitoring/stewardship- Deadline for recording CR; sooner, not later- Deadline for recording CR; sooner, not later-Respons. of each party: process for funding toRespons. of each party: process for funding to cover annual stewardship, monitoring, repair; cover annual stewardship, monitoring, repair; -Required membership for homeowners assn; yearly fee Required membership for homeowners assn; yearly fee for maintenance; automatic lien provisionsfor maintenance; automatic lien provisions- Consider town ordinance that preserves the continuity Consider town ordinance that preserves the continuity of homeowners assn.of homeowners assn.

ISSUES TO BE ADDRESSEDISSUES TO BE ADDRESSED

Plg. Bd. to ensure that what is supposed to happen, Plg. Bd. to ensure that what is supposed to happen, happens: bond, road hold back, other conditionshappens: bond, road hold back, other conditions

Plg. Bd. order that open space area/buffer not be part Plg. Bd. order that open space area/buffer not be part of staging area during constr.of staging area during constr.

Include periodic review and final walkthru of devp. Include periodic review and final walkthru of devp. before releasing bond, road hold back, etc.before releasing bond, road hold back, etc.

Signage issues for public, abuttersSignage issues for public, abutters Baseline documentation report (BDR) for open Baseline documentation report (BDR) for open

space; use photos and GPS coordinatesspace; use photos and GPS coordinates

ISSUES TO BE ADDRESSEDISSUES TO BE ADDRESSED

Plg. Bd. determination on detention and Plg. Bd. determination on detention and retention ponds, swales re: maintenance, retention ponds, swales re: maintenance, repair, replacement (POTW)repair, replacement (POTW)

Memorialize decisions on permanent signage Memorialize decisions on permanent signage for access; usage; banned activitiesfor access; usage; banned activities

Consider town bylaws/regulations involving Consider town bylaws/regulations involving protected property – allows for better protected property – allows for better commun. between entity doing enforcement commun. between entity doing enforcement and local policeand local police