S6751 LAVALLE 11700-10-8 Same as A 9692-A DiNapoli (MS) Add Alert Chapter 114
of 1998 Chap Eff Date Approval No. 5 of 1998 Voting
Text Versions: S 6751
LAWS OF NEW YORK, 1998
CHAPTER 114
AN ACT to amend the town law, in relation to authorizing certain towns
in the Peconic Bay region to establish
community preservation funds;
and to amend the tax law, in relation to authorizing certain towns to
impose a real estate transfer tax with revenues therefrom to be deposited
in said community preservation fund and providing for the repeal
of certain provisions upon expiration thereof
Became a law June 21, 1998, with the approval of the Governor. Passed on
Home Rule request pursuant to Article IX, section 2(b) (2) of the
Constitution by a majority vote, three-fifths being present.
The People of the State of New York, represented in Senate and Assembly,
do enact as follows:
Section 1. Legislative findings and intent. The legislature finds that
the protection and preservation of open space, significant natural
areas, and historic places and the provision of park and recreation
opportunities, collectively called community character are public
purposes that greatly concern the people of the state. It is for that
reason that the legislature enacted the environmental protection fund to
provide a dedicated and continuing source of funding to effectuate these
and other public purposes. In addition, the legislature enacted and the
voters approved in 1996, the State Clean Water/Clean Air Bond Act to
provide an additional funding source for these public purposes.
The legislature also recognizes that certain local governments in the
state, such as the Peconic Bay region of Suffolk county, have also made
a substantial commitment of public funds to these public purposes.
Specifically, since 1980, the five towns of the Peconic Bay region have
expended or authorized over 50 million dollars in public funds to
protect community character. Such an expenditure is unmatched by any
other local governments in the state.
The Peconic Bay region has long been recognized for its plethora of
unique natural resources and scenic beauty. The area has received state
recognition as part of the Long Island Pine Barrens Maritime Reserve,
national recognition as part of the National Estuary Program, and global
recognition by the Nature Conservancy as one of its twelve great places.
The legislature further recognizes that the Peconic Bay region is
currently under extreme development pressure with open space and farmland
being converted to other land uses at an alarming pace.
The local planning departments in the region have established the fact
that despite the availability of state funds and the unprecedented
commitments of local funds, the rate of development is still outpacing
conservation efforts. If not addressed, the unique rural character of
the Peconic Bay region, including farmland, open space, historic places,
and small hamlet centers could be lost forever. Not only would these
valuable resources be jeopardized, but the substantial investment of the
state in protecting community character in the Peconic Bay region would
also be jeopardized.
EXPLANATION--Matter in italics is new; matter in brackets [ ] is old law
to be omitted.
CHAP. 114 2
The legislature further recognizes that existing traditional funding
mechanisms such as state grant programs and local real property taxes
will not provide adequate funding to preserve fundamental community
character in the Peconic Bay region.
Therefore, while it has been the stated purpose of this legislature to
reduce the state and local tax burden, the issue of the preservation of
community character in the Peconic Bay region presents a unique circumstance.
In summary, (1) the Peconic Bay region has made an
unprecedented commitment of local funds, (2) the state has also made its
own substantial investment towards such preservation, (3) the Peconic
Bay region is confronting unprecedented development pressures which
threaten this investment, and (4) traditional funding sources are not
adequate to protect the community character of the Peconic Bay region.
Therefore, this legislature by this act, given these unique local
circumstances, authorizes the towns within the Peconic Bay region to
impose a real estate transfer tax, subject to mandatory referendum, for
the purposes of community preservation.
This legislature also wishes to insure that the expenditure of these
funds are made pursuant to sound planning practices and that said funds
are utilized solely for the purposes outlined in this act. Therefore,
by this act, towns in the Peconic Bay region shall be authorized to
establish a dedicated community preservation fund for the deposit of
real estate transfer tax proceeds, and that a targeted list shall be
established for the voluntary acquisition of open lands. In addition, a
portion of the community preservation funds may be utilized in
connection with the establishment of a transfer of development rights
program pursuant to section 261-a of the town law in order to preserve
lands identified pursuant to this act as necessary to protect community
character.
§ 2. The town law is amended by adding a new section 64-e to read as
follows:
§ 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.
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 authorized
pursuant to this section. Monies from the fund may be utilized to
repay any indebtedness or obligations incurred pursuant to the local
3 CHAP. 114
finance law consistent with effectuating the purposes of this section.
A town in the Peconic Bay region may only adopt the local law authorized
by this subdivision if it has incurred or authorized bonded indebtedness
since nineteen hundred eighty for open space purposes equal to or greater
than two hundred dollars per town resident. The number of residents
shall be determined by the 1990 U.S. Census. Said local law shall make a
finding that the town has complied with the per resident financial
commitment requirement of this subdivision.
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, and (d) to provide a management and stewardship program for
such interests and rights consistent with subdivision nine of this
section and in accordance with such plan designed to preserve community
character. Not more than ten percent of the fund shall be utilized for
the management and stewardship program. 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.
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; (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; (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; and (n) undertaking any of the aforementioned in furtherance of the
establishment of a greenbelt.
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 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 or land 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.
CHAP. 114 4
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.
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.
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. Lands acquired pursuant to this section shall be administered and
managed in a manner which (a) allows public use and enjoyment in a
manner compatible with the natural, scenic, historic and open space
character of such lands; (b) preserves the native biological diversity
of such lands; (c) with regard to open spaces, limits improvements to
enhancing access for passive use of such lands such as nature trails,
boardwalks, bicycle paths, and peripheral parking areas provided that
such improvements do not degrade the ecological value of the land or
threaten essential wildlife habitat; and (d) preserves cultural property
5 CHAP. 114
consistent with accepted standards for historic preservation. In
furthering the purposes of this section, the town may enter into agreements
with corporations organized under the not-for-profit corporation
law and engage in land trust 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 natural
resources associated therewith.
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.
§ 3. The tax law is amended by adding a new article 31-D to read as
follows:
ARTICLE 31-D
TAX ON REAL ESTATE TRANSFERS
IN TOWNS IN THE PECONIC BAY REGION
Section 1449-aa. Definitions.
1449-bb. Imposition of tax.
1449-cc. Payment of tax.
1449-dd. Liability for tax.
1449-ee. Exemptions.
1449-ff. Credit.
1449-gg. Cooperative housing corporation transfers.
1449-hh. Designation of agents.
1449-ii. Liability of recording officer.
1449-jj. Refunds.
1449-kk. Deposit and disposition of revenue.
1449-ll. Judicial review.
1449-mm. Apportionment.
1449-nn. Miscellaneous.
1449-oo. Returns to be secret.
§ 1449-aa. Definitions. When used in this article, unless otherwise
expressly stated, the following words and terms shall have the following
meanings:
1. "Person" means an individual, partnership, limited liability company,
society, association, joint stock company, corporation, estate,
receiver, trustee, assignee, referee or any other person acting in a
CHAP. 114 6
fiduciary or representative capacity, whether appointed by a court or
otherwise, any combination of individuals, and any other form of unincorporated
enterprise owned or conducted by two or more persons.
2. "Controlling interest" means (a) in the case of a corporation,
either fifty percent or more of the total combined voting power of all
classes of stock of such corporation, or fifty percent or more of the
capital, profits or beneficial interest in such voting stock of such
corporation, and (b) in the case of a partnership, association, trust or
other entity, fifty percent or more of the capital, profits or beneficial
interest in such partnership, association, trust or other entity.
3. "Real property" means every estate or right, legal or equitable,
present or future, vested or contingent, in lands, tenements or hereditaments,
including buildings, structures and other improvements thereon,
which are located in whole or in part within any town in the Peconic Bay
region. It shall not include rights to sepulture.
4. "Consideration" means the price actually paid or required to be
paid for the real property or interest therein, including payment for an
option or contract to purchase real property, whether or not expressed
in the deed and whether paid or required to be paid by money, property,
or any other thing of value. It shall include the cancellation or
discharge of an indebtedness or obligation. It shall also include the
amount of any mortgage, purchase money mortgage, lien or other encumbrance,
whether or not the underlying indebtedness is assumed or taken
subject to.
(a) In the case of a creation of a leasehold interest or the granting
of an option with use and occupancy of real property, consideration
shall include, but not be limited to, the value of the rental and other
payments attributable to the use and occupancy of the real property or
interest therein, the value of any amount paid for an option to purchase
or renew and the value of rental or other payments attributable to the
exercise of any option to renew.
(b) In the case of a creation of a subleasehold interest, consideration
shall include, but not be limited to, the value of the sublease
rental payments attributable to the use and occupancy of the real property,
the value of any amount paid for an option to renew and the value
of rental or other payments attributable to the exercise of any option
to renew less the value of the remaining prime lease rental payments
required to be made.
(c) In the case of a controlling interest in any entity that owns real
property, consideration shall mean the fair market value of the real
property or interest therein, apportioned based on the percentage of the
ownership interest transferred or acquired in the entity.
(d) In the case of an assignment or surrender of a leasehold interest
or the assignment or surrender of an option or contract to purchase real
property, consideration shall not include the value
We use cookies to analyze website traffic and optimize your website experience. By accepting our use of cookies, your data will be aggregated with all other user data.