Conservation Restrictions in Conservation Subdivisions

Joel Russell and Robert Levite

March 2012

Conservation Subdivisions • Purpose: to preserve important open space while

allowing compatible development; also called Clustering, OSRD, NRPZ, flexible development, etc.

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

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

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

• Importance of Conservation Analysis

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

Example - Step 1: Map Existing Conditions

Step 2: Identify Site Constraints (primary conservation areas)

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

MATURE BEECH STAND

- Need to protect trees and root systems from damage

WOOD LOT

- Provides visual buffer from adjacent offsite development

PRIME AGRICULTURAL SOILS

- Preserve for agricultural use

STONE WALL

- Visual and cultural resource

ROLLING LANDFORM

-Contrasts with flat agricultural fields and wetlands

-Grading should reflect rolling character

STREAM CORRIDOR

-Provides visual interest and ecological benefits

-Protect riparian buffer

HISTORIC MILL RUINS

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

ROAD VIEWSHED

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

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

Look at Context of Town Open Space Planning and Linkages

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

• Preserve prime agricultural land and beech stand

• Preserve stone walls

• Preserve historic mill ruins

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

• Provide visual buffer from road

Potential Conservation Restriction Plan

Without conservation analysis: fragmented open space serves no conservation purpose

Same plan showing wetlands and buffers

“Leftover” open space

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

Conservation Analysis: Slopes

Conservation Analysis: Soils

Conservation Analysis: Water Resources

Natural Features and Conservation Findings • Do not develop on

steep slopes

• Protect views of hillside

• Minimize disturbance of water resources

• Protect the best farmland

• Maintain intact tract of wildlife habitat

• Provide visual buffer from road

Acceptable Plan

Unacceptable Plan

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

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

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

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

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

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

GETTING BOARDS TOGETHER

Townwide discussion on communication between boards

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

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

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

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

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

ISSUES TO BE ADDRESSED - Resolve public access issues early on - Funding from developer to cover initial

monitoring/stewardship - Deadline for recording CR; sooner, not later - Respons. of each party: process for funding to cover annual stewardship, monitoring, repair; - Required membership for homeowners assn; yearly

fee for maintenance; automatic lien provisions - Consider town ordinance that preserves the

continuity of homeowners assn.

ISSUES TO BE ADDRESSED

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

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

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

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

space; use photos and GPS coordinates

ISSUES TO BE ADDRESSED

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

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

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