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West Seneca Cons Ord RAV Final
West Seneca Cons Ord RAV Final
Introduction.
This Conservation Subdivision Ordinance was prepared by the University at Buffalo Law School, Environmental Law and Policy Clinic,
for the Town of West Seneca, New York. The Ordinance complies with the cluster subdivision requirements of New York State statutory and
case law, as interpreted by the UB Law School Environmental Law and Policy clinic.
Municipalities in New York have both the right and the responsibility to regulate land use within their borders, pursuant to the New York
State Constitution, common law of nuisance, and the statutory delegation of comprehensive planning, zoning, subdivision of land and site plan
approval. A Comprehensive Plan lays out a community’s vision and projects the pattern of growth and development. A Town’s Zoning Code
controls land use and should reflect the objectives of the municipality’s Comprehensive Plan. Subdivision Regulations control the pattern of
development. Even a community without zoning may adopt rules for ensuring that a land subdivision does not result in negative impacts to
community services. The subdivision of land defines the pattern of a community, which in turn shapes its character. Dividing land also
defines traffic circulation patterns and access and future rights-of way. Even with these authorities, many municipalities in New York do not
comprehensively regulate land use within their boundaries and may be poorly prepared when large federal or state infrastructure projects appear
on the horizon.
Using powers already granted to municipalities, a town may adopt a Conservation Subdivision ordinance that promotes the protection of
greenways, trails and wildlife habitat without impinging on private property rights. Conventional subdivision authority is granted to
municipalities by New York State in Section 276 of the Town Law. Conservation subdivisions, as described below, must additionally comply
with New York State Town Law Section 278, which authorizes local governments to incorporate cluster development standards into their
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subdivision review process. The Cluster Subdivision option permits a local Planning Board to suspend the bulk density standards of its zoning
code and to allow development to be concentrated on a smaller portion of the tract, leaving the remainder of the tract undeveloped. The
resulting layout will largely depend on the physical attributes of the tract itself and its relationship to the surrounding area. Cluster
developments are beneficial to both the community and the developer: they preserve open space that is available to all residents for recreational
purposes, promote more walkable and interactive neighborhoods, and reduce the costs of both construction and infrastructure maintenance.
A local government's use of cluster zoning will generally survive challenge if four requirements are met:
1. The overall density of the cluster development on the tract must not be greater than would be allowed by
otherwise applicable local laws and regulations;
2. The local ordinance allowing cluster development must state that the purpose of the ordinance is to promote
the public health, safety, and welfare;
3. Cluster development must not be statutorily prohibited. The general grant of authority by the state will
generally suffice to allow a municipality to cluster development; and
4. General procedural requirements must be followed such as providing neighboring property owners with
adequate notice and opportunity to be heard.
Additionally, the Town Board must clearly specify the zoning districts to which the Conservation Subdivision Ordinance is
applicable, even if the authorization is a blanket authority extended to "all residential property" which makes up most of the municipality.
The Planning Board may compel a cluster subdivision only in the event that its municipal code sets out clear standards for triggering that
requirement. For example, the Town of West Seneca’s zoning code could be amended to include the following language:
“Permitted Districts. Conservation subdivision development, pursuant to Chapter ____ of the Town Code,
shall be applied within the R-50, R-65, R-75, R-90 and R-100A zoning districts, at the discretion of the planning
board.”
This Ordinance has been prepared in a table format so that the ordinance language is on the left, and the instructions and comments are on
the right. Because West Seneca has already adopted a conventional subdivision ordinance, this conservation subdivision ordinance serves to
augment Chapter 103 of the Town Code. Part I of this document lists various Purposes, all of which are reflected in the Town of West Seneca
Comprehensive Plan. Section V of this document contains a Prioritized List of Resources to be Protected, which reflects the goals and
priorities of the Comprehensive Plan and The Town of West Seneca Municipal Open Space and Greenway Protection Report (Jan. 1999),
adopted by the Town of West Seneca in 2006. By adopting a Conservation Subdivision Ordinance, the Town of West Seneca is taking
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significant steps to preserve its natural resources, promote better land use planning, and realize the goals that have been articulated in its
Comprehensive Plan.
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natural corridors through the community.
Conservation Lands. That portion of a tract that is set aside for the protection of
sensitive natural features, farmland, scenic views, and other unique features as
described in the Priorities of Resources to be Conserved at Section V. (Note: In
descriptive terms -- not in a regulatory way -- it can be said that Conservation
Lands may be accessible to the residents of the development and/or municipality,
or it may contain areas of conservation lots which are not accessible to the
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public.)
Non-Common Open Space. Land designated as permanent open space, but not
subject to common ownership by a homeowner association. (Note: In descriptive
terms -- not in a regulatory way -- it can be said that non-common open space is
typically situated within large “conservation lots” at least ten acres in extent, or
within nonresidential lots used for compatible rural resource uses such as
agriculture, horticulture, silviculture, or equestrian boarding.)
State Environmental Quality Review Act (SEQRA). Article 8 of the New York State
Environmental Conservation Law and applicable regulations (6 N.Y.C.R.R. Part 617).
Watercourse. Any stream, pond, lake, drainage channel, or other area of land that
is normally or seasonally filled with water.
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(b) The Planning Board may impose reasonable restrictions designed to preserve
such features. The language in this section also gives
the Planning Board the authority to
(c) No tree with a diameter of eight inches or more, as measured three feet above require a Conservation Subdivision to
the base of the trunk, shall be removed unless such tree is within the right-of-way preserve existing features upon review
of a street as shown on the final Subdivision Plat. Removal of additional trees of a proposal.
shall be subject to Planning Board approval. In no case, however, shall a tree
with a diameter of eight inches or more, as measured three feet above the base of
the trunk, be removed without prior Planning Board approval.
(d) Topsoil shall not be removed from the site except with the approval of the
Planning Board.
(e) Where a proposed Subdivision contains open space of conservation value, the
Planning Board may require a Conservation Subdivision to ensure the
preservation of such open space.
(d) In the event that the Planning Board makes a finding, pursuant to Subsection
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(a) above, that the proposed Subdivision Plat presents a proper case for requiring
a park or parks suitably located for playgrounds or other recreational purposes,
but that suitable parks or recreation areas of adequate size to meet this
requirement cannot be properly located on such Subdivision Plat, the Planning
Board may require a sum of money in lieu thereof, in an amount to be established
by the Town Board. In making such determination of suitability, the Planning
Board shall assess the size and suitability of lands shown on the Subdivision Plat
that could be possible locations for parks, recreational facilities, or recreation
areas, as well as practical factors including whether there is a need for additional
facilities in the immediate neighborhood and whether the location of the proposed
recreational land is shown in the Comprehensive Plan or Zoning Law (if
applicable). Any monies required by the Planning Board in lieu of land for park,
playground, or other recreational purposes, pursuant to the provisions of this
Section, shall be deposited into a designated fund to be used by the Town
exclusively for park, playground, or other recreational purposes, including the
acquisition of property.
(b) As a condition of subdivision approval, the Planning Board shall require the
planting of native hardwood shade trees at intervals of 40 feet on both sides of all
new streets.
(c) Where lots are created with reverse frontage on new streets or existing roads
or highways, a no-cut buffer area of at least 75 feet shall be provided along such
roads in which no land disturbance may occur (except as necessary for drainage,
utilities, and pedestrian or bicycle paths) and in which either landscaped screening
shall be planted or maintained, or natural vegetation shall be permitted to grow
into woods. This buffer requirement may be waived in the Hamlet District (if
applicable), where solid wooden fencing not less than four feet high may be
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substituted for the 75-foot buffer.
1. Prioritized List of Resources to be Protected. The design of Conservation This “prioritized list” assists both the
Lands in any subdivision shall incorporate the following resources if they are Town and developer in identifying those
present on the tract (listed in order of significance): natural features that must be preserved
when planning and developing the
(a) The Town of West Seneca Comprehensive Plan identifies the area’s creeks and proposed conservation subdivision.
their associated floodplains as one of the most dominant environmental features
of the Town. They are important as open space corridors, greenspace and for A municipality should establish its
environmental protection purposes, and there is significant public support for their priorities in a legally adopted
protection. Therefore, pursuant to the Comprehensive Plan, the following creeks Comprehensive Plan and Zoning Code
and their associated floodplains shall be protected: in order to provide legal justification.
This is a suggested list and a suggested
1. Buffalo Creek order of significance based upon West
2. Smoke’s Creek Seneca’s Comprehensive Plan and Open
3. Cazenovia Creek Space and Greenway Protection Plan.
4. Cayuga Creek The Town may further refine these
priorities and may determine other
(b) The Town of West Seneca Municipal Open Space and Greenway Protection resource priorities through the
Report (January 1999) identifies fifteen Special Focus Areas (SFAs) that, based Comprehensive Planning process or it
on their significant environmental features, shall receive the highest priority for may adopt the list as presented herein.
protection. A map delineating these SFAs is attached to this local law and the
Report is incorporated by reference.
(c) All other stream channels, 100-year floodplains, wetlands, wet soils, swales,
springs, vernal pools, and other lowland areas, including adjacent buffer areas,
which may be required to ensure their protection. All perennial and intermittent
streams and associated floodways with a 75-foot corridor measured from the outer
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edge of the floodway.
(i) Hedgerows, groups of trees, large individual trees of botanic significance, and
other vegetation features representing the site’s rural past.
(j) Class I, II, and III agricultural soils as defined by the USDA Natural Resource
Conservation Service.
(k) Historic structures and cultural sites such as buildings older than 100 years,
stone walls, cellar holes, abandoned public roads, family cemeteries, etc.
(l) Visually prominent topographic features such as knolls, creek gorges, hilltops
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and ridges, and scenic viewsheds as seen from public roads (particularly those
with historic features).
(m) Existing trails connecting the tract to other locations in the municipality.
2. Other Design Considerations. The configuration of proposed Conservation This section lays out the requirements for
Lands set aside for common use in residential subdivisions shall comply with the the design of Conservation Lands. Such
following standards: standards include:
accessibility to residents
(a) Conservation Lands shall be free of all structures except those listed in habitat conservation
Section (1)(k) above and those related to Conservation Land uses. The Planning interconnectivity for wildlife and
Board may grant approval of structures and improvements required for storm trails
drainage, sewage treatment and water supply within the Conservation Lands, lack of development, including
provided such structures would not be detrimental to the Conservation Lands (and structures and roads.
the acreage required for such uses is not credited towards minimum Conservation
Lands acreage requirements for the tract, unless the land such structures occupy is
appropriate for passive recreational use). The Planning Board may also grant
permission to construct small, modest buildings for recreational uses, such as
shelters for the use of ice skaters, etc.
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(e) Except in those cases where part of the Conservation Land is located within
private lots, Conservation Lands shall provide for pedestrian pathways for use by
area residents. Consideration shall be given to providing for public access on
such trails if they are linked to other publicly-accessible pathway systems within
the municipality. Provisions should be made for access to the Conservation Lands
as required for land management and emergency purposes.
(h) Conservation Lands shall be consistent with the Town’s Comprehensive Plan
and its Municipal Open Space and Greenway Protection Report.
II. Conservation Land Ownership and Maintenance Standards. Permanent protection of Conservation
Lands is a critical step in the proper
1. Permanent Protection. All Conservation Land shall be permanently execution of conservation subdivision
restricted from future subdivision and development. Under no circumstances shall approval. This section provides for a
any development be permitted in the Conservation Lands at any time, except for number of ownership and maintenance
those uses listed in Sections 2(a) and 1(k) above. options for Conservation Lands
including:
2. Ownership and Protection Options. The following methods may be used, fee simple dedication to the
either individually or in combination, to create and/or convey ownership of and municipality,
permanent protection for Conservation Lands: ownership by residents via some
form of homeowners’ association,
(a) Fee Simple Dedication to the Town. The Town may, but shall not be required donation of lands to a land trust or
to, accept any portion of the Conservation Lands that Applicant may wish to similar conservation organization,
voluntarily offer, provided that: donation to County or State
government.
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1) There is no cost of acquisition to the Town; and,
Unless otherwise provided for, the
2) The Town agrees to and has access to maintain such Conservation Lands. developer shall own and maintain all
Conservation Lands. A maintenance plan
(b) Condominium or Homeowners’ Association. Conservation Lands may be must be developed and provided to the
classified as common facilities and held by a Condominium or Homeowners’ Town [Village]. A municipality may not
Association, subject to such provisions set forth in state regulations and statutes. have the authority to require a developer
In addition, the following regulations shall be met: to transfer ownership of conservation
lands. Kamhi v. Planning Board of the Town of
1) Applicant shall provide the municipality a description of the Yorktown, 59 N.Y.2d 385, 465 N.Y.S.2d 865, 452
organization of the proposed association, including its by-laws, and all N.E.2d 1193 (1983).
documents governing ownership, maintenance, and use restrictions for
common facilities, including Conservation Lands
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(c) Private Conservation Organization, State Government Agency, or Town of
West Seneca. With permission of the municipality, an owner may transfer either
fee simple title of the open space or conservation easements on the open space to
a private non-profit conservation organization or state, county, or town agency
provided that:
3. Maintenance.
(a) Unless otherwise agreed to by the Town, the cost and responsibility of
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maintaining common facilities and/or Conservation Lands shall be borne by the
property owner.
(b) Applicant shall, at the time of preliminary plan submission, provide a Plan
for Maintenance of Conservation Lands and Operation of Common Facilities in
accordance with the following requirements.
2) The Plan shall establish necessary regular and periodic operation and
maintenance responsibilities for the various kinds of open space (i.e. lawns,
playing fields, meadow, pasture, cropland, woodlands, etc.);
(c) In the event that the organization responsible for maintaining the
Conservation Lands and the common facilities, or any successor organization
thereto, fails to maintain all or any portion thereof in reasonable order and
condition, the municipality may assume responsibility for maintenance, in which
case any escrow funds may be forfeited and any permits may be revoked or
suspended.
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(d) The Town may enter the premises and take corrective action, including
extended maintenance. The costs of such corrective action may be charged to the
property owner, condominium association, homeowners’ association,
conservation organization, or individual property owners who make up a
condominium or homeowners’ association and may include administrative costs
and penalties. Such costs shall constitute a lien on said properties. Notice of such
lien shall be filed by the Town in the office of the Clerk.
4. Design Standards for Conservation Subdivisions. Where a Town has determined that
conservation subdivisions shall be
Four-Step Design Process for Conservation Subdivisions. All concept plans for developed, this four-step design process
Conservation Subdivisions shall include documentation of a four-step design process ensures that lots and streets are sited only
in determining the layout of proposed conservation lands, house sites, streets and lot after natural resources have been
lines as described below and illustrated in Figure 4-2. preserved.
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Step 2: Location of Building Areas. Potential building areas shall be tentatively Step two requires developers to
located using the map delineating Conservation Lands, supplemented by existing locate potential house sites using
conditions data required for concept plan approval. Building areas should generally the remaining land area. It also
be located not closer than 100 feet from Conservation Lands, taking into requires a buffer between the
consideration the potential negative impacts of residential development on such house sites and the Conservation
areas as well as the potential positive benefits of such locations to provide attractive Lands.
views and visual settings for residences. Locating building areas on ridges, hilltops,
along peripheral public roads or in other visually prominent areas should be
minimized.
Step 3: Alignment of Streets and Trails. After designating the building areas, a Step three provides for layout of
street plan shall be designed to provide vehicular access to each building area, streets and trails, and requires that
complying with the standards in these Subdivision Regulations and bearing a developers consider sensitive
logical relationship to the topography of the property. Impacts of the street plan on Conservation Lands so as to avoid
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disturbing such areas. Cul-de-sacs
proposed Conservation Lands shall be minimized, particularly with respect to are also discouraged, while
crossing environmentally sensitive areas such as wetlands, streams, and slopes pedestrian-friendly trails and
exceeding 15 percent. Street connections shall minimize the number of cul-de-sacs access points are encouraged.
and facilitate access to and from building areas in different parts of the property and
adjoining properties.
Step four finalizes lot lines based
Step 4: Drawing in the Lot Lines. Upon completion of the preceding three steps, lot upon final layout of streets and
lines shall be drawn as required to delineate the boundaries of individual residential trails.
lots, using Section ______of the Zoning Code to determine minimum lot sizes.
(a) The maximum number of residential building lots permitted in a Conservation A conservation subdivision may not
Subdivision shall be based upon a “Yield Plan” showing a conventional lot layout include more lots than would be allowed
on the property, with all lots conforming to the requirements for conventional in a conventional subdivision had none of
subdivisions as specified in the local zoning law for the zoning district in which the land been set aside for Conservation
the subdivision is proposed. Lands. Lot sizes are permitted to be
much smaller than would be required in a
(b) A Yield Plan shall be prepared as a conceptual layout showing proposed lots, conventional subdivision.
streets, rights-of-way, and other pertinent features. Although it must be drawn to
scale, its dimensions may be approximate (to the nearest foot). Most importantly,
it must be a realistic layout reflecting a development pattern that could reasonably
be expected to be implemented, taking into account the presence of wetlands,
floodplains, steep slopes, existing easements or encumbrances and, if unsewered,
the suitability of soils for subsurface sewage disposal.
(c) Yield Plan Dimensional Standards. Lots on Yield Plans shall conform to the
minimum dimensional requirements pertaining to new lots within conventional
residential subdivisions in the zoning district where the proposed subdivision is
located.
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(d) In no case shall the maximum number of residential building lots exceed the
number which could be permitted, in the planning board's judgment, if the land
were subdivided into lots conforming to the minimum lot size and density
requirements of the zoning ordinance or local law applicable to the district or
districts in which such land is situated and conforming to all other applicable
requirements.
VI. SUPPLEMENTAL APPLICATION PROCEDURES AND SUBMISSION This supplemental language may be
REQUIREMENTS added to pre-existing sections of the
original subdivision ordinance
A. Planning Board Discretion. pertaining to application procedures and
submission requirements for
If necessary to protect the public health, safety, and welfare (including conservation subdivisions.
maintenance and continuity of Conservation Lands) and pursuant to the objectives
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of the Comprehensive Plan and the Open Space Plan, the Planning Board may
require Applicant to comply with some or all of the requirements specified for
Conservation Subdivisions.
C. Notice.
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(c) If the proposed subdivision is a Conservation Subdivision, the total permitted
lot count for the entire tract shall be equal to the number of lots that could be
created following a conventional design approach with no open space, as
described in Section IV above (“Yield Plans”).
(a) A Preliminary Resource Impact and Conservation Plan shall be prepared for
all conservation subdivisions to categorize the impacts of the proposed activities
and physical alterations on those resources shown on the Existing Resources and
Site Analysis Map. All proposed improvements, including but not necessarily
limited to grading, fill, streets, buildings, utilities and stormwater detention
facilities, as proposed in the other Preliminary Plat documents, shall be taken into
account in preparing the Preliminary Resource Impact and Conservation Plan,
which shall clearly demonstrate that Applicant has minimized site disturbance to
the greatest extent practicable.
(b) Using the Existing Resources and Site Analysis Map as a base map, impact
areas shall be mapped according to the following categories: (1) primary impact
areas, i.e., areas directly impacted by the proposed subdivision, (2) secondary
impact areas, i.e., areas in proximity to primary areas which may be impacted, and
(3) designated protected areas, either to be included in proposed Conservation
Lands or an equivalent designation such as dedication of a neighborhood park
site.
(c) This requirement for a Preliminary Resource Impact and Conservation Map
may be waived by the Planning Board if, in its judgment, the proposed
development areas, as laid out in the Sketch Plan or in the Preliminary Plat,
would be likely to cause no more than an insignificant impact upon the site’s
resources.
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In addition to those items normally included, the Preliminary Improvements Plan
shall include the following additional items:
The Planning Board shall study the suitability of the Preliminary Plat taking into
consideration the requirements of the community, the purposes and requirements
of the Master Plan and the Zoning Law, the best use of the land being subdivided,
and the impacts of the proposed Subdivision on the functioning of farm operations
in an agricultural district as shown in any agricultural data statement. The
Planning Board may suggest alternatives including different lot configurations or
non-residential uses in order to protect farm operations. Particular attention shall
be given to the arrangement, location, and width of streets and their relation to
topography, water supply, sewage disposal, drainage, lot size and arrangement,
the future development of adjoining lands as yet unsubdivided, and the Town’s
goals of protecting its natural, historic, scenic, and agricultural resources while
providing affordable housing, promoting economic development, and diversifying
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its tax base.
The Final Plat shall show dedicated public open spaces, areas protected by
conservation easements, and open spaces or recreation areas where Applicant
reserves title. Applicant shall submit copies of executed deeds, conservation
easements, and such other agreements or documents as are necessary to show the
manner in which such areas are to be owned, maintained, and preserved.
All offers of cession and conservation easements or covenants to the Town shall
be approved by the Town attorney.
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