N.Y. Town Law § 64-e: Peconic Bay region community preservation funds

§ 64-e. Peconic Bay region community preservation funds. 1. As used

in this section, the following words and terms shall have the following

meanings:

(a) "Peconic Bay region" means the towns of East Hampton, Riverhead,

Shelter Island, Southampton and Southold.

(b) "Community preservation" shall mean and include any of the

purposes outlined in subdivision four of this section.

(c) "Board" means the advisory board required pursuant to subdivision

five of this section.

(d) "Fund" means the community preservation fund created pursuant to

subdivision two of this section.

(e) "Water quality improvement project" means projects designed to

improve the quality of drinking and surface waters and projects,

including operational expenses, related to the operation of the Peconic

Bay National Estuary Program, as designated by the United States

Environmental Protection Agency.

(f) "Disadvantaged communities" shall mean a community that is

identified pursuant to section 75-0111 of the environmental conservation

law.

2. The town board of any town in the Peconic Bay region is authorized

to establish by local law a community preservation fund pursuant to the

provisions of this section. Deposits into the fund may include revenues

of the local government from whatever source and shall include, at a

minimum, all revenues from a tax imposed upon the transfer of real

property interests in such town pursuant to article thirty-one-D of the

tax law. The fund shall also be authorized to accept gifts of any such

interests in land or of funds. Interest accrued by monies deposited into

the fund shall be credited to the fund. In no event shall monies

deposited in the fund be transferred to any other account. Nothing

contained in this section shall be construed to prevent the financing in

whole or in part, pursuant to the local finance law, of any acquisition

or water quality improvement project authorized pursuant to this

section. Monies from the fund may be utilized to repay any indebtedness

or obligations incurred pursuant to the local finance law consistent

with effectuating the purposes of this section. Where a town finances an

acquisition or water quality improvement project, in whole, or in part,

pursuant to the local finance law, the resolution authorizing such

indebtedness shall be accompanied by a report from the town supervisor

demonstrating how said indebtedness will be repaid by the fund. Said

report shall include an estimate of projected revenues of the fund

during the period of indebtedness. The report shall also provide an

accounting of all other indebtedness incurred against the fund to be

repaid for the same period. The town board shall make findings by

resolution that there will be sufficient revenue to repay such

indebtedness in its entirety from the fund before authorizing such

indebtedness.

3. The purposes of the fund shall be exclusively, (a) to implement a

plan for the preservation of community character as required by this

section, (b) to acquire interests or rights in real property for the

preservation of community character within the town including villages

therein in accordance with such plan and in cooperation with willing

sellers, (c) to establish a bank pursuant to a transfer of development

rights program consistent with section two hundred sixty-one-a of this

chapter, (d) to provide a management and stewardship program for such

interests and rights consistent with subdivisions nine and nine-a of

this section and in accordance with such plan designed to preserve

community character; provided that not more than ten percent of the fund

shall be utilized for the management and stewardship program, and (e) to

implement water quality improvement projects in accordance with a plan

to preserve community character. A maximum of twenty (20) percent of the

fund may be utilized for the implementation of water quality improvement

projects; provided that where such water quality improvement funds are

utilized for the operation of the Peconic Bay National Estuary Program,

the use of such funds shall only be utilized to match federal, state,

county, or other public or private funds on a dollar for dollar basis,

not to exceed ten (10) percent of the annual amount appropriated for

water quality improvement projects. Unused funds allocated for water

quality improvement projects pursuant to this subdivision may be carried

forward from year to year for utilization in future budgets. In towns

with one or more disadvantaged communities, not less than ten (10)

percent of the annual proceeds of the fund shall be utilized to benefit

such disadvantaged communities. If the implementation of the community

preservation project plan, adopted by a town board, as provided in

subdivision six of this section, has been completed, and funds are no

longer needed for the purposes outlined in this subdivision, then any

remaining monies in the fund shall be applied to reduce any bonded

indebtedness or obligations incurred to effectuate the purposes of this

section.

3-a. Preliminary and incidental costs in connection with the

acquisition of interests or rights in real property, pursuant to

subdivision three of this section, shall be deemed part of the cost of

the acquisition for which they were incurred. Such expenditures may

include any administrative or other expenditures directly arising

therefrom. No expenditure shall be charged to the fund, unless

authorized by law. A full accounting of such costs for each acquisition

of land shall be provided to the town board.

4. Preservation of community character shall involve one or more of

the following: (a) establishment of parks, nature preserves, or

recreation areas; (b) preservation of open space, including agricultural

lands provided, however, that farm buildings and structures used for the

marketing of farm products produced on such agricultural lands shall be

permitted; (c) preservation of lands of exceptional scenic value; (d)

preservation of fresh and saltwater marshes or other wetlands; (e)

preservation of aquifer recharge areas; (f) preservation of undeveloped

beachlands or shoreline including those at significant risk of coastal

flooding due to projected sea level rise and future storms; (g)

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; (h)

preservation of pine barrens consisting of such biota as pitch pine, and

scrub oak; (i) preservation of unique or threatened ecological areas;

(j) preservation of rivers and river areas in a natural, free-flowing

condition; (k) preservation of forested land; (l) preservation of public

access to lands for public use including stream rights and waterways;

(m) 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; (n) preservation of

lands necessary to protect fisheries and water dependent uses essential

to maintain and enhance maritime heritage; (o) preservation of lands

that contain significant cultural resources including the aboriginal

lands of indigenous peoples, including but not limited to, burial sites,

settlements, and lands utilized for ceremonial purposes; and (p)

undertaking any of the aforementioned in furtherance of the

establishment of a greenbelt. Preservation of community character shall

also include the protection and improvement of the quality of all water

resources.

5. The town board of any town in the Peconic Bay region which has

established a community preservation fund shall create an advisory board

to review and make recommendations on proposed acquisitions of interests

in real property or water quality improvement projects using monies from

the fund. Such board shall consist of five or seven legal residents of

the municipality who shall serve without compensation. No member of the

local legislative body shall serve on the board. A majority of the

members of the board shall have demonstrated experience with

conservation and land preservation activities or water quality

improvement activities, or historic preservation activities. The board

shall act in an advisory capacity to the town board. At least one member

of the board shall be an active farmer.

6. The town board of any town in the Peconic Bay region which has

established a community preservation fund shall, by local law, adopt a

community preservation project plan. This plan shall list every project

which the town plans to undertake pursuant to the community preservation

fund. It shall include every parcel which is necessary to be acquired in

the town in order to protect community character. Such plan shall

provide for a detailed evaluation of all available land use alternatives

to protect community character, including but not limited to: (a) fee

simple acquisition, (b) zoning regulations, including density

reductions, cluster development, and site plan and design requirements,

(c) transfer of development rights, (d) the purchase of development

rights, and (e) scenic and conservation easements. Said evaluation shall

be as specific as practicable as to each parcel selected for inclusion

in the plan. The plan shall establish the priorities for preservation,

and shall include the preservation of farmland as its highest priority.

Said plan shall also list every water quality improvement project which

the town plans to undertake pursuant to the community preservation fund

and shall state how such project would improve existing water quality.

Projects which have as their purpose the accommodation of new growth as

opposed to the remediation of water quality shall not qualify for

funding under this section. Funds from the community preservation fund

may only be expended for projects which have been included in said plan.

Said plan shall be updated not less than once every five years, but in

no event until at least three years after the adoption of the original

plan. A copy of the plan shall be filed with the commissioner of

environmental conservation, the commissioner of agriculture and markets

and the commissioner of the office of parks, recreation and historic

preservation. Said plan shall be completed at least sixty days before

the submission of the mandatory referendum required by section one

thousand four hundred forty-nine-bb of the tax law. As part of, or in

addition, to said community preservation fund project plan, each town

board may also adopt a management and stewardship plan for interests or

rights in real property acquired pursuant to this section. No monies

from the fund shall be expended for management and stewardship, except

as approved in said plan. Said plan may provide management and

stewardship projects for up to a three year period and shall provide a

description and estimated cost for each project. Said plan shall be

approved and adopted by local law and may be updated from time to time

at the discretion of the town board. Only management and stewardship

projects permitted pursuant to subdivision nine-a of this section shall

be eligible to be included in the plan.

7. The town board of any town in the Peconic Bay region which has

established a community preservation fund pursuant to this section shall

study and consider establishing a transfer of development rights program

to protect community character as provided for by section two hundred

sixty-one-a of this chapter. All provisions of such section two hundred

sixty-one-a shall be complied with. If at any time during the life of

the community preservation fund a transfer of development rights program

is established, the town may utilize monies from the community

preservation fund in order to create and fund a central bank of the

transfer of development rights program. If at any time during the life

of the community preservation fund, a transfer of development rights

program is repealed by the town, all monies from the central bank shall

be returned to the community preservation fund.

8. No interests or rights in real property shall be acquired pursuant

to this section until a public hearing is held as required by section

two hundred forty-seven of the general municipal law; provided, however,

that nothing herein shall prevent the town board from entering into a

conditional purchase agreement before a public hearing is held. Any

resolution of a town board approving an acquisition of land pursuant to

this section, shall find that acquisition was the best alternative for

the protection of community character of all the reasonable alternatives

available to the town.

9. (a) Lands acquired pursuant to this section shall be administered

and managed in a manner which maximizes public use and enjoyment in a

manner compatible with the character of such lands.

(b) Lands acquired for open space purposes shall preserve the native

biological diversity of such lands.

(c) With regard to lands acquired for open space purposes improvements

shall be limited to minimal improvements that enhance access for passive

use of such lands. Such improvements shall not degrade the ecological

value of the land or threaten essential wildlife habitat.

(d) Historic and cultural property shall be preserved consistent with

accepted standards for historic preservation. Adaptive reuse of such

properties shall be consistent with the historic character and prior use

of the property and shall be consistent with all local land use plans

and regulations. Such historic and cultural properties shall maximize

public use to the extent practicable.

(e) In furthering the purposes of this section, the town may enter

into agreements with corporations organized under the not-for-profit

corporation law and engaged in preservation activities to manage lands,

including less than fee interests acquired pursuant to the provisions of

this section, provided that any such agreement shall contain a provision

that such corporation shall keep the lands accessible to the public

unless such corporation shall demonstrate to the satisfaction of the

town that public accessibility would be detrimental to the lands or any

historic, cultural, or natural resources associated therewith. Where

revenues are generated by such corporations on such lands pursuant to

such agreements, disposition of such revenues shall be governed by the

town pursuant to resolution or local law.

9-a. (a) Management and stewardship funds may only be expended for

projects related to lands acquired for open space preservation and

historic preservation purposes. Lands acquired for any other purpose

shall not be eligible for management and stewardship funds. In the case

of lands acquired for open space preservation purposes, management and

stewardship projects shall be only expended for: (1) projects which

promote the protection or enhancement of the natural, scenic, and open

space character for which the interests or rights in real property were

acquired; or (2) minimal improvements as permitted by subdivision nine

of this section; or (3) restoration of acquired real property to its

natural state including the demolition of existing buildings and

structures.

(b) In the case of interests or rights in real property acquired for

historic preservation purposes, funds may be expended for the

restoration, rehabilitation, or replacement of buildings and structures

consistent with accepted standards for historic preservation.

(c) Expenses related to the customary operation and maintenance of

acquired interests or rights in real property shall not be permitted

from the management and stewardship portion of the fund, except that in

the case of historic properties, where the town has entered into an

agreement with a not-for profit corporation for the management of such

properties as permitted by subdivision nine of this section, up to

twenty (20) percent of the management and stewardship portion of the

fund or two (2) percent of the total annual revenue of the fund, may be

dedicated to the operation and maintenance of stewardship properties

managed by such corporations. Where a town enters into an agreement for

the management of an historic property with a not-for-profit corporation

and the town allocates management and stewardship funds for the

operation and maintenance of such historic property, said corporation

shall annually provide for a full accounting of such funds to the town

board.

(d) Any project funded pursuant to this subdivision, except operation

and maintenance expenses permitted pursuant to paragraph (c) of this

subdivision, must have a useful life of five years or more under section

11.00 of the local finance law.

(e) Any expenditure from the fund for a purpose other than that

permitted, herein, shall be deemed to be prohibited.

10. Rights or interests in real property acquired with monies from

such fund shall not be sold, leased, exchanged, donated, or otherwise

disposed of or used for other than the purposes permitted by this

section without the express authority of an act of the legislature,

which shall provide for the substitution of other lands of equal

environmental value and fair market value and reasonably equivalent

usefulness and location to those to be discontinued, sold or disposed

of, and such other requirements as shall be approved by the legislature.

Nothing in this section shall preclude a town, by local law, from

establishing additional restrictions to the alienation of lands acquired

pursuant to this section. This subdivision shall not apply to the sale

of development rights by a town acquired pursuant to this section, where

said sale is made by a central bank created by a town, pursuant to a

transfer of development rights program established by a town pursuant to

section two hundred sixty-one-a of this chapter, provided, however (a)

that the lands from which said development rights were acquired shall

remain preserved in perpetuity by a permanent conservation easement or

other instrument that similarly preserves the community character

referenced in subdivision four of this section, and (b) the proceeds

from such sale shall be deposited in the community preservation fund.

Nothing in this section shall preclude a town from utilizing development

rights acquired with monies from the fund from being utilized to provide

community housing, provided that such development rights have not been

expressly extinguished at the time of acquisition. The lands from which

said development rights were acquired shall remain preserved in

perpetuity by a permanent conservation easement or other instrument that

similarly preserves the community character referenced in subdivision

four of this section. Where such development rights are sold, the

proceeds from such sale shall be deposited in the community preservation

fund. For purposes of this subdivision, "community housing" shall mean a

primary residential property where the purchase price limit shall not

exceed one hundred fifty percent of the purchase price limits

established by the state of New York mortgage agency low interest rate

loan program in non-target categories for the county.

11. Notwithstanding any provision of law to the contrary, towns may

enter into intermunicipal agreements pursuant to article five-G of the

general municipal law for the following purposes:

(a) to jointly acquire interests or rights in real property,

consistent with the purposes of this section, where the acquisition of

such interests or rights promotes a regional public benefit for two or

more towns pursuant to a regional plan;

(b) to provide for an independent financial audit of each town's fund;

and

(c) to hire employees necessary to implement the provisions of this

section.

12. Each town shall annually commission an independent audit of the

fund. The audit shall be conducted by an independent certified public

accountant or an independent public accountant. Said audit shall be

performed by a certified public accountant or an independent public

accountant other than the one that performs the general audit of each

town's finances. Such audit shall be an examination of the fund and

shall determine whether the fund has been administered consistent with

the provisions of this section and all other applicable provisions of

state law. Said audit shall be initiated within sixty days of the close

of the fiscal year of each town and shall be completed within one

hundred twenty days of the close of the fiscal year. A copy of the audit

shall be submitted annually to the state comptroller and the town clerk.

A copy of the audit shall be made available to the public within thirty

days of its completion. A notice of the completion of the audit shall be

published in the official newspaper of the town and posted on the

official sign board of the town within ten days of its filing with the

town clerk. Said audit and notice shall also be posted on the internet

site for the town. The cost of the audit may be a charge to the fund.

13. The cost of employees and independent contractors to implement the

provisions of this section, may only be paid for by the fund where the

duties and responsibilities of said employees and independent

contractors are directly dedicated to implementing the provisions of

this section. Where such employees and independent contractors are not

exclusively dedicated to implementing the provisions of this section, no

more than the cost of the actual time expended directly dedicated to

implementing the provisions of this section may be charged. Such costs

shall be expressly identified in the town budget and any plan adopted

pursuant to this section before funds for such costs may be expended. In

addition, such costs must be documented by a time accounting system,

subject to audit. Costs relating to the activities of elected officials

implementing the purposes of this section may not be a charge to the

fund.

14. (a) The towns in the Peconic Bay region shall jointly establish,

by intermunicipal agreement, the office of regional community

preservation fund counsel to render legal opinions and interpretations

to facilitate the efficient and consistent administration of the funds

created pursuant to this section. All such opinions and interpretations

rendered shall be published on each town's official website and shall be

available to the public as a public record under article six of the

public officers law.

(b) The towns in the Peconic Bay region shall jointly establish, by

intermunicipal agreement, the Peconic Bay Region Advisory Committee to

advise town boards regarding policy and administrative issues relating

to funds established pursuant to this section. The committee shall

consist of eleven (11) members. The members shall include each Town

Supervisor or designee, a representative of village government to be

jointly selected by the villages in the Peconic Bay region and five (5)

members to be selected by the state legislative representatives

representing the Peconic Bay region with expertise in land preservation,

environmental protection, water quality protection, agriculture,

historic preservation, or parks and recreation. The committee shall

elect a chair from among its members. Said committee shall meet at least

quarterly each year. The office of regional community preservation fund

counsel shall attend the meetings of the committee and shall be further

available to the committee chair for additional consultations. The

committee shall be empowered to establish the rules for its operation,

consistent with this section.

(c) The office and committee required to be established pursuant to

this subdivision shall be implemented no later than ninety days after

the effective date of this subdivision.