Community Preservation: Stewardship, Maintenance, and Development Fees

1. PART I:COMMUNITY PRESERVATION Stewardship and Maintenance Christine M. Chale, Esq. RodenhausenChale LLP cchale@rodenhausenchale.com

2. 2% Transfer Tax and CPF • Authorized by special enabling acts and local laws. • Enactment subject to local referendum. • Purposes are closely limited by enabling acts and local laws. • Modification of enabling acts and local laws requires legislative action + local referendum.

3. Local Tax Requires State Legislation • Transfer taxes are only permitted by special state legislation. • Proposed Sen. Breslin bill S. 806 would allow any municipality to enact a 2% Transfer Tax and Community Preservation program. • Modeled on the Long Island programs.

4. CPA Purposes Special laws authorized purposes differ; e.g. Red Hook special law permits: • preservation of open space; • establishment of parks, nature preserves, or recreation areas; • preservation of land which is predominantly viable agricultural land, • preservation of lands of exceptional scenic value; • preservation of fresh and saltwater marshes or other wetlands; • preservation of aquifer recharge areas; • preservation of undeveloped beach-lands or shoreline;

5. CPA Purposes Limited, cont. • 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; • preservation of unique or threatened ecological areas; • preservation of rivers and river areas in a natural, free-flowing condition; • preservation of forested land; • preservation of public access to lands for public use including stream rights and waterways; • 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; and • undertaking any of the purposes of Subd. 5 of the Special Law in furtherance of the establishment of a greenbelt.

6. CPF Plan Statutory Requirements • The plan must list every project. • The plan must include every parcel necessary to be acquired. • The plan must provide a detailed evaluation of all available land. • An advisory committee and public hearing process are required for approval.

7. Use of CPF for Management and Stewardship • Most special laws permit up to 10% of funds to be used for management and stewardship. • Management and stewardship expenditures are for interests or rights acquired pursuant to the community’s CPF program and plan.

8. CPF Management and Stewardship • Peconic Bay region legislation provides for adoption of a management and stewardship plan to guide expenditure of the 10%. • Town of Southhold’s 2015 plan indicates other sources are used for easement monitoring. • CPF 10% funds are allocated to costs such as trails management and invasive species removal on publicly accessible lands.

9. Part 2: DEVELOPMENT FEES FOR PARKS Christine M. Chale RodenhausenChale LLP cchale@rodenhausenchale.com

10. Planning Board Review • Planning Board reviews development plans and may require the developer to set aside land, suitably located, for park, playground or other recreational purposes. • “Rough proportionality” between projected demand created by the new residents and the amount of recreational space to serve their needs and those of municipal residents. • The Planning Board’s determination must be supported by findings based on a study of recreational needs.

11. Dedication Versus Payment • Developer can provide parkland dedication or private parkland for the benefit of the subdivision inhabitants. • A planning board may require rec fees in lieu of it finds that the proposed subdivision “presents a proper case for requiring a park or parks suitably located for playgrounds or other recreational purposes” but it also finds that a park, of adequate size cannot be properly located in the subdivision.

12. Parks Funds • Towns must establish special escrow for deposits of fees in lieu. • Purposes of recreation funds are exclusively for park, playground or other recreational purposes, including the acquisition of property. • Park land trust moneys may be expended only to acquire additional park land or to construct, rehabilitate or expand existing park or recreational facilities to meet the needs generated by new subdivisions.

13. Developers Construction of Recreation Facilities • Recreational needs determined by the Planning Board may be met by recreational facilities and open spaces included within the development. • HOA may own and maintain recreation lands kept in private ownership within a subdivision. • No recreation fee in lieu in such cases.

14. Developer Construction of Recreational Facilities • Question whether Towns can/should request developer to construct and/or maintain off site recreational facilities for the public instead of paying in lieu recreational fee. • Planning board may require improvements onsite for subdivision; improvements off site would be only at developer option • Maintenance is not required after dedication.

15. Compare Other Required Improvements • Developers often required to construct e.g. roads and other internal improvements. • Road standards are provided by local law or regulation and subject to Town acceptance. • Query whether recreation improvements can be ‘generic’ so as to be objectively enforceable • Query whether public interest would be best served.

16. Other Required Improvements cont. • Construction is pursuant to standard specs; plans and construction are reviewed by Town Engineer. • Town specs require guarantees and surety bonds, indemnity, and insurance in order to assure proper completion. • Roads and other improvements are maintained by developer unless and until all standards are met; no building permits and/or no C/O until required improvements are made. • Construction requirements must be objectively enforceable.

17. Questions