N.Y. Town Law § 261-a: 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

follows:

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.