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This entry was published on 2019-11-22
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Transfer of development rights; definitions; conditions; procedures
§ 261-a. Transfer of development rights; definitions; conditions;
procedures. 1. As used in this section:

a. "Development rights" shall mean the rights permitted to a lot,
parcel, or area of land under a zoning ordinance or local law respecting
permissible use, area, density, bulk or height of improvements executed
thereon. Development rights may be calculated and allocated in
accordance with such factors as area, floor area, floor area ratios,
density, height limitations, or any other criteria that will effectively
quantify a value for the development right in a reasonable and uniform
manner that will carry out the objectives of this section.

b. "Receiving district" shall mean one or more designated districts or
areas of land to which development rights generated from one or more
sending districts may be transferred and in which increased development
is permitted to occur by reason of such transfer.

c. "Sending district" shall mean one or more designated districts or
areas of land in which development rights are designated for use in one
or more receiving districts.

d. "Transfer of development rights" shall mean the process by which
development rights are transferred from one lot, parcel, or area of land
in any sending district to another lot, parcel, or area of land in one
or more receiving districts.

2. In addition to existing powers and authorities to regulate by
planning or zoning, including authorization to provide for transfer of
development rights pursuant to other enabling law, a town board is
hereby empowered to provide for transfer of development rights subject
to the conditions hereinafter set forth and such other conditions as the
town board deems necessary and appropriate that are consistent with the
purposes of this section. The purpose of providing for transfer of
development rights shall be to protect the natural, scenic or
agricultural qualities of open lands, to enhance sites and areas of
special character or special historical, cultural, aesthetic or economic
interest or value, to protect lands at risk from sea level rise, storm
surge or flooding and to enable and encourage flexibility of design and
careful management of land in recognition of land as a basic and
valuable natural resource. The conditions hereinabove referred to are as

a. That transfer of development rights, and the sending and receiving
districts, shall be established in accordance with a comprehensive plan
within the meaning of section two hundred sixty-three of this article.
The sending district from which transfer of development rights may be
authorized shall consist of natural, scenic, recreational, agricultural,
forest, or open land or sites of special historical, cultural, aesthetic
or economic values sought to be protected or lands at risk from sea
level rise, storm surge or flooding. Every receiving district to which
transfer of development rights may be authorized, shall have been found
by the town board, after evaluating the effects of potential increased
development which is possible under the transfer of development rights
provisions, to contain adequate resources, environmental quality and
public facilities, including adequate transportation, water supply,
waste disposal and fire protection, and that there will be no
significant environmentally damaging consequences and such increased
development is compatible with the development otherwise permitted by
the town and by the federal, state, and county agencies having
jurisdiction to approve permissible development within the district. A
generic environmental impact statement pursuant to the provisions of
article eight of the environmental conservation law shall be prepared by
the town board for the receiving district before any such district, or
any sending district, is designated, and such statement shall be amended
from time to time by the town board if there are material changes in
circumstances. Where a transfer of development rights affects districts
in two or more school, special assessment or tax districts, it may not
unreasonably transfer the tax burden between the taxpayers of such
districts. The receiving and sending districts need not be coterminous
with zoning districts.

b. That sending and receiving districts be designated and mapped with
specificity and the procedure for transfer of development rights be
specified. Notwithstanding any other provision of law to the contrary,
environmental quality review pursuant to article eight of the
environmental conservation law for any action in a receiving district
that utilizes development rights shall only require information specific
to the project and site where the action will occur and shall be limited
to review of the environmental impacts of the action, if any, not
adequately reviewed in the generic environmental impact statement.

c. That the burden upon land within a sending district from which
development rights have been transferred shall be documented by an
instrument duly executed by the grantor in the form of a conservation
easement, as defined in title three of article forty-nine of the
environmental conservation law, which burden upon such land shall be
enforceable by the appropriate town in addition to any other person or
entity granted enforcement rights by the terms of the instrument. All
provisions of law applicable to such conservation easements pursuant to
such title shall apply with respect to conservation easements hereunder,
except that the town board may adopt standards pertaining to the
duration of such easements that are more stringent than such standards
promulgated by the department of environmental conservation pursuant to
such title. Upon the designation of any sending district, the town board
shall adopt regulations establishing uniform minimum standards for
instruments creating such easements within the district. No such
modification or extinguishment of an easement shall diminish or impair
development rights within any receiving district. Any development right
which has been transferred by conservation easement shall be evidenced
by a certificate of development right which shall be issued by the town
to the transferee in a form suitable for recording in the registry of
deeds for the county where the receiving district is situated in the
manner of other conveyances of interests in land affecting its title.

d. That within one year after a development right is transferred, the
assessed valuation placed on the affected properties for real property
tax purposes shall be adjusted to reflect the transfer. A development
right which is transferred shall be deemed to be an interest in real
property and the rights evidenced thereby shall inure to the benefit of
the transferee, and his heirs, successors and assigns.

e. That development rights shall be transferred reflecting the normal
market in land, including sales between owners of property in sending
and receiving districts, a town may establish a development rights bank
or such other account in which development rights may be retained and
sold in the best interest of the town. Towns shall be authorized to
accept for deposit within the bank gifts, donations, bequests or other
development rights. All receipts and proceeds from sales of development
rights sold by the town shall be deposited in a special municipal
account to be applied against expenditures necessitated by the municipal
development rights program.

f. That prior to designation of sending or receiving districts, the
legislative body of the town shall evaluate the impact of transfer of
development rights upon the potential development of low or moderate
income housing lost in sending districts and gained in receiving
districts and shall find either there is approximate equivalence between
potential low and moderate housing units lost in the sending district
and gained in the receiving districts or that the town has or will take
reasonable action to compensate for any negative impact upon the
availability or potential development of low or moderate income housing
caused by the transfer of development rights.

3. The town board adopting or amending procedures for transfer of
development rights pursuant to this section shall follow the procedure
for adopting and amending its zoning ordinance or local law, as the case
may be, including all provisions for notice applicable for changes or
amendments to a zoning ordinance or local law.

Nothing in this section shall be construed to invalidate any provision
for transfer of development rights heretofore or hereafter adopted by
any local legislative body.