Conservation Restrictions in
Conservation Subdivisions
Joel Russell and Robert Levite
March 2012
Conservation Subdivisions
•
Purpose: to preserve important open space while
allowing compatible development; also called Clustering,
OSRD, NRPZ, flexible development, etc.
• Statutory framework: Ch 40A, Sec. 9; Home Rule
Amendment; Ch. 184, Sec. 31-33; Subdivision Control
Law (Ch. 41)
• Why a CR? Why not note on plan or deed restriction?
• Relationship to OSRP, trail networks, town master plan,
CPA, APR program, self-help grants, etc.
• Importance of Conservation Analysis
- Conservation analysis ensures
that a mandated conservation
restriction achieves its purpose.
- It should be done in cooperation
with the land trust that will be the
prospective grantee of the
restriction.
Example - Step 1: Map Existing
Conditions
Step 2: Identify Site Constraints
(primary conservation areas)
Step 3: Identify Natural and Cultural
Features (secondary conservation areas)
MATURE BEECH STAND
- Need to protect trees and
root systems from damage
WOOD LOT
- Provides visual buffer
from adjacent offsite
development
PRIME AGRICULTURAL SOILS
- Preserve for agricultural
use
STONE WALL
- Visual and cultural
resource
ROLLING LANDFORM
-Contrasts with flat agricultural fields and
wetlands
-Grading should reflect rolling character
STREAM CORRIDOR
-Provides visual interest and ecological
benefits
-Protect riparian buffer
HISTORIC MILL RUINS
-Has educational value as a point of
interest along public trail and road.
ROAD VIEWSHED
-Preserve rural road edge (i.e. landform,
vegetation, shoulder)
-Opportunity for natural screening
(existing/new) of new structures from road
Look at Context of Town Open Space Planning and
Linkages
Step 4: Conservation Findings
(before doing a development plan)
• Preserve prime agricultural
land and beech stand
• Preserve stone walls
• Preserve historic mill ruins
• Preserve “Unbuildable Land”
(10.5 acres of floodplain,
wetlands, stream, steep slopes)
• Provide visual buffer from
road
Potential Conservation Restriction Plan
Without conservation analysis: fragmented
open space serves no conservation purpose
Same plan showing wetlands and buffers
“Leftover” open space
Case example: 100-acre Site in
Dutchess County, New York
Conservation Analysis: Slopes
Conservation Analysis: Soils
Conservation Analysis: Water Resources
Natural Features and Conservation Findings
• Do not develop on
steep slopes
• Protect views of
hillside
• Minimize disturbance
of water resources
• Protect the best
farmland
• Maintain intact tract
of wildlife habitat
• Provide visual buffer
from road
Acceptable Plan
Unacceptable Plan
Conservation Analysis – Summing Up
• Conservation Analysis puts the community in the driver’s seat to
ensure that preserved land has conservation value and is not just
“leftover land.”
• Should be done before any subdivision design occurs and before
the formal approval process begins.
• Ties in the community’s comprehensive plan and open space and
recreation plan
• Informs decisions on uses, management, and ownership of open
space land , establishing the basic terms of the conservation
restriction
• Should not be confused with minimum open space or density
calculation.
GETTING BOARDS
TOGETHER
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Townwide discussion on communication between
boards
Required: Plg., ConsComm; Should include
Open Space, BoH, CPA; Ag Comm.
Key: local and/or regional land trust
Consider town bylaw for active cooperation on
how and under what circumstances open space
connected to OSRD/NRPZ to be preserved; Joint
board discussions
Ensure Plg. Bd. has ability to standardize all
conditions and standards
Issues to be Addressed
- Adequate Plg Bd. Record – Historical; useful to other
boards (ConsComm; Assessors; BoH); written record
- Plg. Bd. hiring of experts to ensure quality of
conservation analysis and relationship to other protected lands
within the town
- Complete survey of property and land to be protected;
markers at all angles;
- CR Devp. (Plg. Bd., ConsComm, Open Space, local
land trust; Ag Comm.; use state model CR/APR);
- Who holds the CR / fee: town, land trust; homeowners
assoc.; other non-profit); CR condition of approval; CR
recorded and referenced on definitive plan
- CR provision for back-up CR holder;
ISSUES TO BE ADDRESSED
- Resolve public access issues early on
- Funding from developer to cover initial
monitoring/stewardship
- Deadline for recording CR; sooner, not later
- Respons. of each party: process for funding to
cover annual stewardship, monitoring, repair;
- Required membership for homeowners assn; yearly
fee for maintenance; automatic lien provisions
Consider town ordinance that preserves the
continuity of homeowners assn.
ISSUES TO BE ADDRESSED
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Plg. Bd. to ensure that what is supposed to happen,
happens: bond, road hold back, other conditions
Plg. Bd. order that open space area/buffer not be part
of staging area during constr.
Include periodic review and final walkthru of devp.
before releasing bond, road hold back, etc.
Signage issues for public, abutters
Baseline documentation report (BDR) for open
space; use photos and GPS coordinates
ISSUES TO BE ADDRESSED
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Plg. Bd. determination on detention and
retention ponds, swales re: maintenance,
repair, replacement (POTW)
Memorialize decisions on permanent signage
for access; usage; banned activities
Consider town bylaws/regulations involving
protected property – allows for better commun.
between entity doing enforcement and local
police