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Community Preservation Fund Law 1998

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

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